Judge: Lisa K. Sepe-Wiesenfeld, Case: 19STCV42419, Date: 2023-08-03 Tentative Ruling
Case Number: 19STCV42419 Hearing Date: August 3, 2023 Dept: N
TENTATIVE RULING
Defendant
Leslie Memsic, M.D.’s Motion for
Summary Adjudication is GRANTED as to Plaintiff Deborah Davis’ second cause of
action for battery and fourth cause of action for defamation, GRANTED as to Plaintiff
Richard Davis’ third cause of action for fraud and fifth cause of action for
reckless and intentional infliction of emotional distress, and DENIED as to
Plaintiff Deborah Davis’ third cause of action for fraud and fifth cause of
action for reckless and intentional infliction of emotional distress.
Defendant
Leslie Memsic, M.D. to give notice.
REASONING
Defendant
Leslie Memsic, M.D. (“Defendant”) moves for summary adjudication of Plaintiff
Deborah Davis’ second cause of action for battery and fourth cause of action
for defamation and Plaintiffs Deborah Davis and Richard Davis (“Plaintiff”)’s
third cause of action for fraud and fifth cause of action for reckless and
intentional infliction of emotional distress.
At the
outset, the Court notes that Defendant failed to electronically file her
exhibits supporting the motion in compliance with the Superior Court of Los
Angeles County, Local Rules, rule 3.4(a), which requires represented parties in
civil actions to file documents electronically unless exempted by the Court
from doing so. Defendant provided only a CD-ROM and electronic copies of the
exhibits by email to the Court. The public has “a First Amendment right of
access to civil litigation documents filed in court as a basis for adjudication.”
(NBC Subsidiary (KNBC-TV), Inc. v.
Superior Court (1999) 20 Cal.4th 1178, 1208, fn. 25.) Defendant shall
electronically file the exhibits supporting her motion within ten (10) days of
entry of this order.
Legal
Standard
The
purpose of a motion for summary judgment or summary adjudication “is to provide
courts with a mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atl.
Richfield Co. (2001) 25 Cal.4th 826, 843.)
“On a
motion for summary judgment, the initial burden is always on the moving party
to make a prima facie showing that there are no triable issues of material
fact.” (Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary
adjudication “has met his or her burden of showing that a cause of action has
no merit if the party has shown that one or more elements of the cause of
action . . . cannot be established, or that there is a complete defense to the
cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant
. . . has met that burden, the burden shifts to the plaintiff . . . to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto.” (Ibid.)
“If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr.
(2008) 159 Cal.App.4th 463, 467.)
“Code of
Civil Procedure section 437c, subdivision (c), requires the trial judge to
grant summary judgment if all the evidence submitted, and ‘all inferences
reasonably deducible from the evidence’ and uncontradicted by other inferences
or evidence, show that there is no triable issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set
forth in the papers (except evidence to which the court has sustained an
objection) . . . in the light most favorable to the party opposing summary
judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see
also Code Civ. Proc., § 437c, subd. (c).)
Second
Cause of Action: Battery
“The
essential elements of a cause of action for battery are: (1) defendant touched
plaintiff, or caused plaintiff to be touched, with the intent to harm or offend
plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was
harmed or offended by defendant’s conduct; and (4) a reasonable person in
plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652,
668-669.)
In the
second cause of action, Plaintiff Deborah Davis alleges that she presented to
Defendant to undergo hernia repair, diastasis rectus repair, and abdominoplasty
on November 28, 2018, and Defendant failed to adequately complete the repairs,
performed a procedure other than the abdominoplasty, and provided negligent
treatment. (Third Am. Compl. (“TAC”) ¶¶ 34-35.) Plaintiff alleges that she did
not consent to Defendant performing a different procedure, and Defendant did
not disclose that she intended to perform a different procedure. (TAC ¶¶ 36-38.)
Defendant
moves for summary adjudication on the ground there is no evidence that
Defendant performed a procedure that exceeded the scope of consent. Defendant
presents evidence that Plaintiff signed consent forms on November 21, 2018, and
November 28, 2018, authorizing Defendant to perform surgery, wherein she
consented on November 21, 2018, to undergo “Recurrent Ventral Hernia Repair
with Mesh and Exparal, Rectus Diathesis,” and she consented on November 28,
2018, to undergo “Ventral Hernia Repair, Rectus Diastasis.” (Def.’s UMF Nos.
1-3.) Defendant also presents evidence that Plaintiff underwent those surgeries
to which she consented, and Defendant did not exceed the scope of consent given
by Plaintiff. (Def.’s UMF Nos. 4-5.) Such evidence allows Defendant to meet her
burden of showing no triable issue exists as to Plaintiff’s battery claim.
In
opposition, Plaintiff contends that Defendant did not utilize mesh during the
hernia repair as stated in the consent form, which changed the type of
procedure Defendant performed. (Pls.’ UMF No. 8.) However, Plaintiff’s expert
makes no statement to this effect. Instead, Dr. Stephen M. Cohn, Plaintiff’s
expert, simply opines that failure to use mesh was below the standard of care.
(Cohn Decl. ¶ 18.) Plaintiff’s contention that failure to use mesh changed the
type of procedure performed is Plaintiff’s own conclusion unsupported by
evidence. Thus, Plaintiff has failed to create a triable issue as to her
battery claim because the failure to use mesh, thereby purportedly acting below
the standard of care, would constitute negligence, not battery. Plaintiff has
failed to establish that Defendant performed a surgery to which she did not
consent, and it is insufficient to show that Defendant simply performed below
the applicable standard of care. Accordingly, Defendant’s motion for summary
adjudication is GRANTED as to the second cause of action for battery.
Third
Cause of Action: Fraud
In the
third cause of action, Plaintiffs allege that Defendant represented that she
had the same skills and experience of a board certified plastic surgeon, and
the quality and results of the surgery would be the same as any board certified
plastic surgeon, and Defendant made these representations to induce Plaintiff
to engage Defendant for the surgery, but Defendant did not have the equivalent
skills and experience of a board certified plastic surgeon, and the surgery
caused distortion and internal damage to Plaintiff Deborah Davis’ abdomen,
requiring surgery to repair. (TAC ¶¶ 46-48.) Plaintiffs also allege that
Defendant concealed the result of a CT scan to mislead Plaintiff about her
medical condition. (TAC ¶ 52.)
Defendant
presents evidence that Plaintiff presented to Defendant for concerns of
recurrent abdominal hernia, Defendant did not represent herself as having the
skills of a plastic surgeon, Plaintiff underwent general surgery, not plastic
surgery, and the consent form did not contemplate that a “tummy tuck” would be
performed. (Def.’s UMF Nos. 2-3.) Defendant also presents evidence that she
discussed the findings of the CT scan with Plaintiff, and she believed her
statement and medical opinion of the CT scan imaging to be true. (Def.’s UMF
Nos. 4, 5.) This evidence allows Defendant to meet her burden of showing no
triable issue exists as to Plaintiff’s fraud claim.
Plaintiffs
present evidence that Defendant led Plaintiff Deborah Davis to believe that she
was a board certified plastic surgeon, and Defendant told Plaintiff she could
do all three procedures in one surgery. (Pls.’ UMF No. 21.) Plaintiffs also provide
evidence that Defendant confirmed that the CT scan showed no hernia, and this
representation was false. (Def. UMF Nos. 33, 34.) Defendant argues that
Plaintiffs have not provided evidence that Defendant knew any statements to be
false, but “[a]ctual knowledge can, and often is, shown by inference from
circumstantial evidence.” (RSB Vineyards,
LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1997-1098.) The trier of fact could
reasonably conclude that Defendant knew her statements were false given her
experience in performing the subject procedures or reviewing CT scans. Thus,
the Court finds there is a triable issue as to Plaintiff Deborah Davis’ fraud
claim, and Defendant’s motion for summary adjudication is DENIED as to the third
cause of action for fraud as to Plaintiff Deborah Davis. However, given the
lack of allegations as to harm suffered by Plaintiff Richard Davis, Defendant’s
motion for summary adjudication is GRANTED as to the third cause of action for
fraud as to Plaintiff Richard Davis.
Fourth
Cause of Action: Defamation
“The
elements of a defamation claim are (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or
causes special damage. The defamatory statement must specifically refer to, or
be of and concerning, the plaintiff.” (John
Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312, quotation marks
and citation omitted.)
In Plaintiff
Deborah Davis’ fourth cause of action for defamation, Plaintiff alleges that
Defendant stated in medical records that Plaintiff “was ‘stoned’ when visiting
her office prior to her hospitalization,” implying Plaintiff was a “substance
or drug abuser,” and the records could be viewed by Plaintiff and anyone with
access to her medical records. (TAC ¶¶ 56-59.)
Defendant
argues that her statement that Plaintiff was “somewhat stoned but appropriate
and able to walk and converse” was believed to be true, and Defendant had used
the term “stoned” to describe the patient as spacy and overmedicated, not
intending to use it as a slang derogatory word. (Def.’s UMF Nos. 1, 2.)
Defendant argues that Plaintiff cannot provide evidence that Defendant made a
provably false statement of fact, and Defendant was rendering a medical opinion
of the patient when writing her note. This evidence allows Defendant to meet
her burden of showing no triable issue exists as to Plaintiff’s defamation
claim.
Plaintiff
provides evidence that Defendant admitted the word “stoned” could be
misinterpreted (Pls.’ UMF No. 45), but the Court is not prepared to find that admitted
use of a slang word that could be misinterpreted is sufficient to create a
triable issue of material fact. Defamation is an intentional tort, i.e.,
Plaintiff must establish “the intentional
publication of a statement of fact which is false” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 946,
emphasis added), and the trier of fact could not conclude that Plaintiff
knowingly published a false statement of fact where she merely conceded that
the term used in rendering a medical opinion could be misinterpreted by some. Thus,
Defendant’s motion for summary adjudication is GRANTED as to the fourth cause of
action for defamation.
Fifth
Cause of Action: Reckless and Intentional Infliction of Emotional Distress
“The law
of negligent infliction of emotional distress in California is typically
analyzed by reference to two theories of recovery: the ‘bystander’ theory and
the ‘direct victim’ theory. The negligent causing of emotional distress is not
an independent tort, but the tort of negligence. The traditional elements of
duty, breach of duty, causation, and damages apply. Whether a defendant owes a
duty of care is a question of law.” (Spates
v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation
marks, brackets, and paragraph breaks omitted.)
“The
elements of a prima facie case for the tort of intentional infliction of
emotional distress are: (1) extreme and outrageous conduct by the defendant
with the intention of causing, or reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct. Conduct to be outrageous must
be so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Wilson v. Hynek (2012)
207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
In the
fifth cause of action, Plaintiffs allege that Defendants’ conduct generally was
outrageous, intentional, or reckless and caused Plaintiffs emotional distress.
(TAC ¶¶ 64-65.) Notably, Plaintiffs have failed to sufficiently state the basis
of their emotional distress claims as to each Plaintiff, i.e., it is not clear
whether Plaintiffs are alleging negligent or intentional infliction of
emotional distress as both Plaintiffs, one type of emotional distress as to one
Plaintiff, etc. Thus, the Court finds there is no basis for Plaintiff Richard
Davis to assert an emotional distress claim. However, insofar as Plaintiff
Deborah Davis seeks emotional distress damages based on Defendant’s purported
fraud in misrepresenting her qualifications or the nature of the CT scan, the
trier of fact could conclude that misrepresenting her medical qualifications or
the results of a medical scan constitutes extreme and outrageous conduct which
is not generally tolerated. Thus, Defendant’s motion for summary adjudication
is GRANTED as to Plaintiff Richard Davis’ claim for reckless and intentional
infliction of emotional distress and DENIED as to Plaintiff Deborah Davis’
claim for reckless and intentional infliction of emotional distress.
Evidentiary Objections
Defendant objects to certain statements within the declaration of Stephen
M. Cohn, M.D. Objection Nos. 6, 12, and 13 are SUSTAINED. All other objections
are OVERRULED.