Judge Linda S. Marks, Case 2021-01238294 2023-07-17 Tentative Ruling

Judge: Linda S. Marks, Case: 2021-01238294, Date: 2023-07-17 Tentative Ruling

1. Demurrer to Amended Complaint

2. Motion to Strike Complaint filed by Advanced Skincare Medcenter, Inc., Jennifer Armstrong, Jennifer Armstrong, M.D., A Professional Corporation on 3/7/23
3.

3. Case Management Conference

DEMURRER:

Defendants Jennifer Armstrong, M.D., Advanced Skincare MedCenter, Inc. and Jennifer Armstrong, M.D., APC’s (“Defendants”) demur to the Second Amended Complaint (“SAC”)

First Cause of Action for General Negligence

Defendants contend that Plaintiff fails to state a cause of action for general negligence against Defendants because the appropriate cause of action against Defendants is for professional negligence. Defendants contend that, by labeling the cause of action “general negligence,” Plaintiff is attempting to circumvent the limit on non-economic damages in professional negligence actions.

“It has long been established that in ruling on a demurrer, the trial court is obligated to look past the form of a pleading to its substance. Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.)

Defendants do not dispute that Plaintiff has set forth a claim, but merely assert that the wrong label has been attached. Further, as the California Supreme Court has explained:

Any distinction between “ordinary” and “professional” negligence has relevance primarily when the Legislature has statutorily modified, restricted, or otherwise conditioned some aspect of an action for malpractice not directly related to the elements of negligence itself. For example . . . [t]he Medical Injury Compensation Reform Act (MICRA) contains numerous provisions effecting substantial changes in negligence actions against health care providers, including a limitation on noneconomic damages . . . While in each instance the statutory scheme has altered a significant aspect of claims for medical malpractice, such as the measure of the defendant's liability for damages or the admissibility of evidence, the fundamental substance of such actions on the issues of duty, standard of care, breach, and causation remains unaffected.”

(Flowers v. Torrance Mem'l Hosp. Med. Ctr. (1994) 8 Cal.4th 992, 999.) Thus, the elements of a claim for general negligence are the same as the elements for a claim for professional negligence. To the extent that the statutory limitations on the amount of damages apply to this claim, a demand for improper relief does not vitiate an otherwise valid cause of action. (See,e.g., Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)

Tentative Ruling: The demurrer to the first cause of action for negligence is OVERRULED.

Second and Third Causes of Action for Fraud (Misrepresentation) and Fraud (Concealment)

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 230-231). “The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (citing Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748).

“Each element of a fraud count must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff.” (Chapman at 231.) “The particularity requirement demands that a plaintiff plead facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

Here, Plaintiff has alleged a number of misrepresentations that she attributes to “Defendants, and each of them.” (SAC ¶60.) The pleading does not indicate exactly who made each statement, when, where, to whom or by what means each statement was made.

The fraudulent concealment cause of action is based on the failure to disclose that products being used on patients were not FDA approved, and that defendant Lee was not a licensed physician. (SAC ¶69.) This cause of action also lacks the heightened specificity required for a fraud to plead fraud. Plaintiff again lumps all of the Defendants together and does not specify exactly who concealed the information, when, by what means, etc.

Tentative Ruling: The demurrer is SUSTAINED as to the second and third causes of action for fraud (concealment) and fraud (misrepresentation) with 15 days leave to amend.

Fourth Cause of Action for Battery

Defendants contend that the fourth cause of action for battery fails to state facts sufficient to constitute a cause of action and is uncertain because the facts pled only amount to a lack of informed consent cause of action.

Defendants cite the seminal case of Cobbs v. Grant (1972) 8 Cal.3d 229 in which the California Supreme Court discussed the differences between battery (an intentional tort) and lack of informed consent, which sounds in negligence. Our high court noted “[t[he battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Cobbs at 240.)

Subsequent courts have found that, whether a medical procedure is a substantially different procedure from the one to which the patient has consented may in some cases be a question for a fact finder to decide, and not one capable of being decided on demurrer. (See Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647.)

In Nelson v. Gaunt (1981) 125 Cal.App.3d 623, the court grappled with how to characterize an incident where the plaintiff consented to breast augmentation, which the defendant physician assured her would involve the use of an “inert substance” that would have “absolutely no side effects.” However, the physician did not inform the plaintiff that the procedure involved silicone injections, which were not FDA approved. (Id.) The plaintiff sued for battery, fraud, and related claims. In reviewing Cobbs, the Nelson court found that “Cobbs implies that the failure to discuss the nature of the treatment sounds in battery.” (Id. at 634.)

Thus, the trier of fact may ultimately find, based on the facts pled here, that the acts of Defendants constitute battery.

Tentative Ruling: The demurrer to the fourth cause of action for battery is OVERRULED.

Fifth Cause of Action for Lack of Informed Consent

Defendants contend that the court should sustain their demurrer to the fifth cause of action for lack of informed consent because it is duplicative of the first cause of action for negligence. While some courts have sustained a demurrer based on the argument that a claim is duplicative, other courts have found this is not a proper basis for a demurrer. (Compare Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494 (finding demurrer was properly sustained as to a cause of action that merely combined all above causes of action and added nothing to the complaint by way of fact or theory of recovery) to Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 (finding demurrer on the grounds that a cause of action is duplicative “is not a ground on which a demurrer may be sustained”).)

Here, the court agrees with the reasoning of Blickman v. Turkus and finds that the demurrer should be overruled. The grounds for Defendants’ demurrer are failure to state facts sufficient to constitute a cause of action and uncertainty, but a “duplicate” cause of action falls within neither category.

Tentative Ruling: The demurrer is OVERRULED as to the fifth cause of action for lack of informed consent.

Motion to Strike

Plaintiff moves to strike Paragraphs 57-58 and 89-90 on the grounds that the allegations contained within—and particularly the use of terms and phrases such as “reckless,” “oppression,” “fraud,” “malice” and “conscious disregard”—are conclusions of law and therefore irrelevant, improper and not in conformity with the laws of this state. However, the factual allegations set forth elsewhere in the SAC provide sufficient support for the challenged allegations, at least at the pleading stage.

Tentative Ruling: Defendants’ Motion to Strike Portions of Plaintiff’s Second Amended Complaint is DENIED

Moving parties to give notice.