Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV02805, Date: 2023-08-22 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV02805, Date: 2023-08-22 Tentative Ruling

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“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 her First Amended Complaint (“FAC”), Plaintiff Thomasina White (“Plaintiff”) alleges that Defendants Body Contour Centers, LLC d/b/a Sono Bello and Debra Stafford, M.D. (“Defendants”)’s actions constitute medical battery, and she claims that she had originally given consent to the procedure, but she withdrew the consent after screaming out in anguish and pain from the surgery. (FAC, p. 4, ll. 8-11.) In its previous order on demurrer, the Court stated that while withdrawal of consent may support a claim for medical battery, the exact nature of the medical battery was unclear so as to put Defendants on notice of the claims against them. Plaintiff makes few amendments in the FAC, and she again fails to allege when she withdrew consent, i.e., it is not clear how much of the surgery had been performed before Plaintiff withdrew consent, so as to allow the trier of fact to determine the specific conduct which served as the battery, because Plaintiff alleges only that she withdrew consent and started screaming “stop” “[d]uring the surgery.” (FAC, p. 2, l. 25.) Plaintiff alleges that Defendants responded by administering more lidocaine and oral medication, Plaintiff took the medication, Plaintiff screamed in anguish again, Plaintiff was asked to “pee on the table,” and the surgery took longer than expected. (FAC, p. 3, ll. 10-20.) It remains unclear how this conduct constitutes medical battery and which specific conduct Plaintiff alleges as the basis of her claim. Thus, Defendants’ demurrers to the first cause of action are SUSTAINED with thirty (30) days leave to amend.

“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.)

Plaintiff alleges that “being berated and yelled at during the surgery when she cried out in anguish” constituted “extreme and outrageous” conduct. (FAC, p. 5, ll. 6-7.) Again, while continuing a medical procedure after withdrawing consent could constitute extreme and outrageous conduct, the specific nature of Defendants’ conduct remains unclear, as stated above. Accordingly, Defendants’ demurrers to the second cause of action are SUSTAINED with thirty (30) days leave to amend.