Judge: Loren G. Freestone, Case: 37-2023-00026063-CU-MM-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 18, 2024

01/19/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2023-00026063-CU-MM-CTL LEWIS VS KHAJAVI DMD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Azadeh Khajavi DMD and Azadeh Khajavi DMD Inc.'s (collectively, Khajavi) demurrer to Plaintiffs Franklin Lewis and Dena Bancroft's (collectively, Plaintiffs) complaint is OVERRULED.

Medical Battery Khajavi argues that Plaintiffs' second cause of action for medical battery fails as a matter of law because Lewis consented to the treatment.

A medical battery occurs 'when a doctor performs an operation to which the patient has not consented.' (Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 106.) Consent can be an issue of fact. (See, e.g., Wheeler v. Barker (1949) 92 Cal.App.2d 776.) In Wheeler, for example, the plaintiff signed a consent to 'whatever anesthetic and operation which may be decided to be necessary or advisable.' The plaintiff argued that she had 'no recollection of ever having signed a release and that she did not sign it before she had taken a sedative.' However, the nurse who had also signed the consent as a witness testified that the plaintiff 'signed the release during the afternoon while she was awake and before any sedative had been given.' The trial court instructed the jury to disregard the signed consent if it determined the plaintiff 'was under the effects of sedatives or narcotics' such that 'she did not know what she was doing when she signed the document.' The court of appeal held this was a proper instruction, and in light of the conflicting evidence, refused to interfere with the jury's finding on this issue.

Here, Plaintiffs allege that Lewis 'agreed' to let Khajavi treat his 'black hairy tongue.' However, similar to Wheeler, Plaintiffs alleges that at the time Lewis agreed he was 'heavily drugged' from a different procedure. The impact of any medication on Lewis' cognitive functions and decision-making capabilities is a factual issue that cannot be resolved by way of a demurrer. The demurrer to the second cause of action is therefore overruled.

IIED Khajavi argues that Plaintiffs' third cause of action for intentional infliction of emotional distress fails because the alleged dental treatment was not 'outrageous' as a matter of law.

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3019100  37 CASE NUMBER: CASE TITLE:  LEWIS VS KHAJAVI DMD [IMAGED]  37-2023-00026063-CU-MM-CTL ''Outrageous conduct' is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community.' (So v. Shin (2013) 212 Cal.App.4th 652, 671.) 'There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical. Thus, whether conduct is 'outrageous' is usually a question of fact.' (Id. at pp. 671–672.) Here, Plaintiffs allege that Khajavi 'abused her authority as a dentist,' used Lewis 'as a medical experiment,' and took 'a soldering iron to [his] tongue' and 'chunks out of [his] pallet.' Such allegations, if true, could cause a reasonable juror to conclude this is outrageous conduct. The demurrer to the third cause of action is therefore overruled.

Conclusion The demurrer to the second and third causes of action is overruled.

Khajavi shall file an answer within 10 days.

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