Judge: Mark A. Young, Case: 23SMCV03187, Date: 2024-06-12 Tentative Ruling

Case Number: 23SMCV03187    Hearing Date: June 12, 2024    Dept: M

CASE NAME:             De La Peza v. Hill, et al. 

CASE NO.:                   23SMCV03187

MOTION:                     Demurrer to the First Amended Complaint  

HEARING DATE:   6/12/2024

LEGAL STANDARD 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.) 

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)  

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.)  

ANALYSIS 

Defendants Kerri M. Hill and Kerri M. Hill, DDS, Inc. demur to Plaintiff Kim de la Peza’s causes of action for Battery (3rd Cause of Action), Fraud (4th Cause of Action), and Restitution and Injunctive Relief for Unfair Business Practices (5th Cause of Action).

Third Cause of Action for Medical Battery

Defendants argue that the third cause of action fails to state a claim because the allegations that an unlicensed employee performed work amounted to an unconsented touching.

Generally, a lack of consent to the particular contact is required to state a claim for battery. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 900-901.) Courts recognize that a person may place conditions on consent. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 610.) If the defendant exceeds the terms or conditions of the consent, then the consent will not prevent liability. (See Id. [surgeon ignored clear patient instruction and transfused blood from nonfamily donors, unwittingly infecting the patient with HIV].)  In the medical malpractice context, a patient's consent is a valid defense to a claim of battery, so long as the physician does not exceed the scope of the consent given. (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645.) Physicians may be liable for battery when they fail to obtain the patient's consent to a procedure at all or perform a “substantially different procedure” than the one the patient consented to. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240–241.) “The 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.” (Id.) Examples of substantially different treatments include where (1) patient consented to a prostate resection when uninformed that this procedure involved tying off his sperm ducts; (2) patient consented to exploratory surgery and doctor removed her breast; and (3) patient consented to a hernia operation during which the doctor also removed ovaries. (Id. at 239.) Whether Plaintiff gave consent to a particular procedure is typically a question of fact. (Kaplan, supra, 162 Cal.App.4th at 647.)

The complaint alleges from January 2019 through January 2023, Plaintiff and Hill were in a dentist-patient relationship. (FAC, ¶¶5-6.) In January 2019, Plaintiff employed Hill to have her teeth whitened. (Id. ¶ 6.) During this initial visit, Plaintiff also mentioned to Hill that she was considering a night guard because she clenched her jaws as she slept. (Id.) Hill recommended that he correct a minor misalignment of her lower incisors before fitting Plaintiff with a night guard. (¶ 7.) Plaintiff followed the recommendation and agreed to have the misalignment corrected using the Invisalign procedure. (Id.) In June 2019, Hill and her staff performed the Invisalign procedure. (Id., ¶ 8.) Though the initial results were encouraging, by February 2021, Plaintiff became concerned that the appearance of her teeth, bite, and smile had been made worse by the Invisalign procedure. (Id.) For instance, Plaintiff noticed that gaps between her teeth begun to appear at her gum-lines, that there was a loss of occlusion of her top and bottom molars that made it difficult for her to chew, and that the shifting of her teeth caused Plaintiff to bite the inside of her cheeks. (Id.) In February 2021, Hill assured Plaintiff that the recent developments were temporary and would be corrected. (Id., ¶ 9.) From April 2021 through January 2023, Hill continued performing Invisalign procedures on Plaintiff in an effort to correct the malocclusion, black triangles, and problems with Plaintiff’s bite. (Id.) Defendants were unable to correct the problems as of January 2023. (Id., ¶ 10.)

The complaint further alleges that Hill allowed her employees to perform Invisalign related procedures on Plaintiff without those employees being properly trained, licensed, and certified to perform such treatments. (FAC, ¶ 28.) The employees performed the Invisalign related procedures on Plaintiff not authorized by the Business and Professions Code due to the lack of proximity and involvement of Hill. (Id., ¶ 29.) Plaintiff would not have consented to the “Invisalign treatment by defendant Hill and her employees if defendant Hill had advised Plaintiff that Plaintiff would be treated by one or more persons who were not duly trained, licensed, certified, and/or supervised to administer Invisalign related treatments and procedures as were performed on Plaintiff while in defendant Hill’s office.” (Id.)

With these allegations, the complaint establishes, as a matter of fact, that Plaintiff consented to the Invisalign treatment to be performed by Hill and her employees. (FAC, ¶¶ 28-29.) The complaint does not allege that Defendants performed a substantially different procedure from the consented-to Invisalign treatment. Simply put, Plaintiff expressly agreed to those procedures. Plaintiff also does not allege that she placed any specific conditions regarding the Invisalign treatment, such as who would perform the treatment. While Plaintiff would not have consented if she knew that the employees were not duly trained, etc., she still alleges her consent for the exact procedure performed.

Plaintiff also asserts that her consent was negated by fraud and the illegal nature of the treatment. Hill allegedly allowed her employees to perform the Invisalign procedures on Plaintiff, even though such employees were unlicensed and untrained to perform this procedure. However, these facts pled do not establish that Defendants obtained her consent via fraud. Generally, deceit as to the therapeutic purpose of an otherwise offensive contact vitiates consent. (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 936-940 [patients stated claim for battery where physician intentionally misrepresented that physical abuse was necessary to effect a cure; the violence was not in fact administered for a therapeutic purpose but in order to subjugate them and control their behavior to defendants' personal advantage]; cf. Freedman v. Superior Court (1989) 214 Cal.App.3d 734 [plaintiff failed to allege consent to c-section was fraudulently obtained where doctors told her that a certain drug was necessary to prevent infection but its true purpose was to induce labor, but where defendants' representation was for therapeutic treatment and she did not allege that defendants' deception was for any independent or improper motive].) Here, the “essential character” of the Invisalign treatment was not misrepresented. Hill and her employees performed the Invisalign procedures for allegedly therapeutic purposes—to correct a minor misalignment of her lower incisors. Whether these procedures were necessary or performed negligently remains to be seen and are subject to the other causes of action. However, the cited constructive fraud would not negate the consent to the Invisalign procedures as alleged. Therefore, Plaintiff fails to plead an unconsented touching.

Accordingly, the demurrer is SUSTAINED with leave to amend.

Fourth Cause of Action for Constructive Fraud

Defendants demur to the constructive fraud cause of action on the grounds that they were not required to disclose that other employees besides the Defendants would be helping with Plaintiff’s treatments and that there is no showing that facts were withheld to Plaintiff’s detriment.  Defendants also argue that the Dental Practices Act allows a dentist to use assistants in performing certain tasks relying upon Business & Professions Code §§ 1651, 1652.) The reliance on section 1651 is inaccurate, as it does not relate to assistants, and section 1652 was repealed. The relevant sections are 1750 et seq. In any event, this argument depends on the precise facts of the case and will not be addressed at the pleading stage.

Constructive fraud “is a unique species of fraud applicable only to a fiduciary or confidential relationship.” (Prakashpalan v. Engstrom, Lipscomb & Lack¿(2014) 223 Cal.App.4th 1105.) “The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516.) Constructive fraud “comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent.” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.) “Most acts by an agent in breach of his fiduciary duties constitute constructive fraud.” (Id.) “The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary's motives or the principal's decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud.” (Id.) “Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.” (Id.) “It is clear, therefore, that whether a fiduciary duty has been breached, and whether a statement constitutes constructive or actual fraud, depends on the facts and circumstances of each case.” (Id.) “Consequently, there is no clear line establishing when a fiduciary's breach of the duty of care will be merely negligent and when it may be characterized as constructive fraud.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 564.)

Plaintiff alleges that at the inception of the doctor-patient relationship in January 2019, Plaintiff told defendant Hill that she wanted to whiten her teeth and to provide her with a night guard. (FAC, ¶ 34.) Hill responded to Plaintiff’s request to be fitted for a night guard by recommending Plaintiff first allow defendant Hill to use the Invisalign procedure to correct a minor misalignment in Plaintiff’s lower teeth before fitting Plaintiff for a night guard. (¶ 35.) Relying upon Hill’s special skill, knowledge, education, and expertise as a licensed dentist, Plaintiff agreed to the Invisalign treatment and paid defendant Hill in excess of $5,000 for the Invisalign treatment. (Id.) However, after January 2023, Plaintiff learned from other licensed dental professionals that having the Invisalign procedure prior to being fitted for a night guard was neither medically necessary nor medically appropriate given the condition and alignment of Plaintiff’s teeth at the time. (Id.) Plaintiff alleges that Hill often recommends procedures that are not medically necessary to induce patients to pay for such services in order to make as much money as possible from each patient. (¶37.)

Hill allegedly failed to disclose two material facts. First, Hill failed to disclose that it was neither medically necessary nor appropriate to have the Invisalign procedure in order to be fitted for a night guard. (FAC ¶ 38, 43-45.) Hill also failed to disclose and suppressed the fact that he would allow untrained employees to perform Invisalign related procedures. (Id. ¶¶ 39-42, 46.) Plaintiff reasonably relied upon defendant Hill as a duly licensed dentist. (Id. ¶ 47.) Plaintiff would not have agreed to or paid for the Invisalign treatment if she knew the truth. (Id. ¶ 48.)

With these allegations, Plaintiff establishes the elements of constructive fraud. Hill is allegedly a fiduciary of Plaintiff, per their doctor-patient relationship. Hill omitted certain allegedly material facts regarding their transaction, including that the Invisalign treatment was not medically necessary in order to fit Plaintiff’s desired night guard and that Hill would not be using properly trained or licensed staff. Plaintiff alleges that this was in breach of Defendant’s fiduciary duty to disclose all material facts. Plaintiff allegedly relied on these omissions in deciding to undergo the Invisalign treatment, since she would not have underwent the treatment if she knew the true facts. Plaintiff also pleads that Defendant intended for Plaintiff to rely on the omissions in order to have Plaintiff pay for unnecessary procedures, thus establishing the required intent and resulting damages. (FAC ¶37.)

Accordingly, the demurrer is OVERRULED as to the fourth cause of action.

Fifth Cause of Action for Violations of Business and Professions Code Section 17200

            Defendants demur to the fifth cause of action on the grounds that it is duplicative of Plaintiff’s professional negligence claims, and that there are no allegations establishing violations of Business and Professions Code Section 1600 et seq. or any other regulation. To successfully plead a UCL claim, a plaintiff must plead and prove that the defendant engaged in a business practice that was either unlawful (i.e., is forbidden by law) or unfair (i.e., harm to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the public). (Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal.App.4th 190, 206.) 

First, the fact that one cause of action is duplicative or mirrors another cause of action is not a ground on which a demurrer must be sustained under section 430.10, in part because “it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness.”  (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890; see Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [a court may sustain a demurrer for “duplicative pleading which adds nothing to the complaint by way of fact or theory”].)  The argument that two causes of action are duplicative “is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman, supra, 162 Cal.App.4th at 889-890.)   

Second, Plaintiff pleads the facts of a violation of law. Hill allegedly failed to comply with all licensing, certification, and training requirements of the Dental Practice Act set forth at Business and Professions Code § 1600 et seq. (FAC ¶52.) Specifically, Hill directed persons employed by her to render dental services to patients such as Plaintiff, even though those employees had not been properly trained, certified, and licensed as required under the Act. (Id. ¶¶13, 22, 28-31, 35-36, 39, 42-43, 52.) It is not disputed that employees performing such services would need to be licensed or certified as dentists or assistants. (Bus & Prof. Code §§ 1625, 1750.) Whether or not the cited employees were properly trained, certified and licensed would be a question of fact that cannot be determined at the pleading stage. Thus, Plaintiff pleads as a matter of fact that Hill employed and directed unlicensed dentists/dental assistants.

Third, Defendants fail to address the fraud prong of the UCL claim. Plaintiff alleges a constructive fraud claim, based on an omission of material fact, regarding her Invisalign treatment. Defendants cite no authority suggesting that such a claim could not fall under the fraud framework of the UCL. Read liberally, the type of deception described would likely deceive members of the public. Thus, the case would also be valid on the fraud prong.

Accordingly, the demurrer is OVERRULED as to this cause of action.