Judge: Mark A. Young, Case: 23SMCV04563, Date: 2025-02-18 Tentative Ruling
Case Number: 23SMCV04563 Hearing Date: February 18, 2025 Dept: M
CASE NAME: Donzis v. Roostaeian,
et al.
CASE NO.: 23SMCV04563
MOTION: Motion
for Summary Adjudication
HEARING DATE: 2/18/2025
Legal
Standard
A party may move for summary judgment in any action or
proceeding if it is contended the action has no merit or that there is no
defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law
of summary judgment 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. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.)
“A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative defenses, one
or more claims for damages, or one or more issues of duty, if the party
contends that the cause of action has no merit, that there is no affirmative
defense to the cause of action, that there is no merit to an affirmative
defense as to any cause of action, that there is no merit to a claim for
damages, as specified in¿Section 3294 of the Civil Code, or that one or more
defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.”¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an
alternative to a request for summary judgment, the request must be clearly made
in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189
Cal.App.3d 1542, 1544.)¿ “[A] party may move for summary adjudication of a
legal issue or a claim for damages other than punitive damages that does not
completely dispose of a cause of action, affirmative defense, or issue of
duty pursuant to” subdivision (t). (CCP,¿§ 437c(t).)¿
To prevail, the evidence submitted must show there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless
the evidence leaves no room for conflicting inferences as to material facts;
the court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when¿a material fact is the witness’s¿state of mind and
“that fact is sought to be established solely by the [witness’s] affirmation
thereof.” (CCP, § 437c(e).)¿
Once the moving party has met their burden, the burden
shifts to the opposing party “to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.” (CCP §
437c(p)(1).) “[T]here¿is no
obligation on the opposing party... to establish anything by affidavit unless
and until the moving party has by affidavit stated facts establishing every
element... necessary to sustain a judgment in his favor.”¿(Consumer Cause,
Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿
¿
“The pleadings play a key role in a summary judgment
motion. The function of the pleadings in a motion for summary judgment is to
delimit the scope of the issues and to¿frame¿the outer measure of materiality
in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co.¿(2013)
213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the
burden of a defendant moving for summary judgment only requires that he or she
negate plaintiff's theories of liability¿as alleged in the complaint;
that is, a moving party need not refute liability on some theoretical
possibility not included in the pleadings.” (Ibid.)¿
EVIDENTIARY ISSUES
Defendant’s objection to the declaration of Paul Donzis
is SUSTAINED (hearsay as to ¶ 3, Ex. 7).
Analysis
Defendant the Regents of the
University of California move for summary adjudication of Plaintiff Lauren
Donzis’s second cause of action for a violation of the Consumer Legal Remedies
Act (CLRA). The motion notes two issues:
1)
The CLRA does not apply to the facts of this case where
a doctor is sued for failure to provide an adequate discussion with the patient
prior to surgery; and
2)
Assuming that the CLRA applies, (a) Plaintiff does not
have standing since she is not a “consumer” under the Act since she was not the
purchaser of a “product” from Defendant, and (b) Plaintiff failed to give
proper notice pursuant to Civil Code Section 1782(a) prior to filing the complaint
or naming the Regents as a Doe Defendant.
The necessary elements of a CLRA
cause of action are: (1) a consumer; (2) who suffers any damage; and (3)
because of the use or employment by any person of a method, act, or practice
declared to be unlawful by Civil Code section 1770.¿ (Civ. Code, §1780 (a); see
Buckland v. Threshold Ent., Ltd. (2007) 155 Cal.App.4th 798, 809, 811 [“actual
reliance is an element of a CLRA claim sounding in fraud”].) The purpose of the
CLRA is to protect consumers against these acts and “to provide efficient and
economical procedures to secure such protection.” (Civ. Code § 1760; Wang v.
Massey Chevrolet (2002) 97 Cal.App.4th 856, 869.) The CLRA is liberally
construed and applied to promote its purposes. (Civ. Code § 1760.)
Under the statutory scheme, “Goods”
mean “tangible chattels bought or leased for use primarily for personal,
family, or household purposes . . ..” (Civ. Code § 1761(a).) “Services” means “work,
labor, and services for other than a commercial or business use, including
services furnished in connection with the sale or repair of goods.” (Civ. Code
§ 1761(b).) A “consumer” is an individual “who seeks or acquires, by purchase
or lease, any goods or services for personal, family, or household
purposes." (Civ. Code § 1761(d).)
“Any consumer who suffers any
damage as a result of the use or employment by any person of” specified
unlawful conduct may bring an action for damages, restitution of property, and/or
injunctive relief. (Civil Code §1780(a).) Civil Code section 1770(a) enumerates
certain unfair methods of competition and unfair or deceptive acts or practices
made unlawful. The Complaint alleges violations of subsections (a)(5) and (7),
which state:
(5) Representing that goods or
services have sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities which they do not have or that a person has a
sponsorship, approval, status, affiliation, or connection which he or she does
not have. [¶]
(7) Representing that goods or
services are of a particular standard, quality, or grade, or that goods are of
a particular style or model, if they are of another.
(See Compl., ¶¶ 15-16 [expressly alleging violations of
these subsections].)
The Complaint alleges that
Plaintiff, a minor at the time, was a consumer who was seeking cosmetic surgery
services from Jason Roostaeian, MD (Dr. Roostaeian). (Compl., ¶ 5.) Dr.
Roostaeian recommended to Plaintiff that she was a good candidate for a small
chin implant. Plaintiff made it clear to Dr. Roostaeian that she only wanted to
proceed with implant surgery if it would replicate the look of her filler (a
“heart-shaped, tapered look”), and emphasized that there was no need for her to
proceed with this elective surgery otherwise. Dr. Roostaeian expressed
confidence that he could achieve the look Plaintiff wanted with a prefabricated
chin implant. The only option he presented during that meeting was whether to
use a small or a medium prefabricated implant. Plaintiff’s parents expressed
concern that a medium implant would be too wide and that a small implant might
not afford the desired anterior projection. They inquired whether the medium implant
could be trimmed. Dr. Roostaeian replied that trimming was not a viable option
because it would cause jagged edges leaving a jagged, uneven appearance on the surface
of the skin. According to the Complaint, Plaintiff subsequently came to learn that
this was false. Dr. Roostaeian failed to inform Plaintiff of the option to use
a custom chin implant, or that she had a small amount of natural asymmetry
which would be amplified by the implant.
CLRA and Medical Malpractice
The Regents contend that the CLRA
does not govern the facts of this case. They observe that in this matter a
doctor is being sued for failure to provide an adequate discussion with the
patient prior to surgery, which sounds as a “failure of informed consent” medical
malpractice cause of action. (Compl., ¶ 9.) The Regents provide no authority holding
that the CLRA cannot apply to cases sounding in medical malpractice. They also
posit no authority or argument showing that medical care or plastic surgery
could not be considered “work, labor, and services for other than a commercial
or business use” as required by CLRA. The Regents submit that Unruh (Civ. Code
§ 51), expressly excludes services of physicians or dentists in its definition
of service. This does not support the Regent’s conclusion that CLRA would likewise
exclude medical services in CLRA’s definition of services. If anything, the
fact that Unruh expressly excludes medical services from its definition of
services, while CLRA does not, implies that the Legislature intended not to
make such an exception with CLRA. Instead of providing a limited definition or
an exception, the Legislature provided CLRA with a broad definition of
services.
While the Court notes no cases
expressly approving or disapproving CLRA claims sounding in medical malpractice,
courts have accepted such claims in the past without scrutinizing the issue.
For example, the California Supreme Court did not disapprove of a CLRA claim
brought by insureds against an insurer where the plaintiffs alleged that Cigna
deceptively and misleadingly advertised the quality of medical services
which would be provided under its health care plan, that a plaintiff received
substandard prenatal medical services and was denied a medically necessary
cesarean delivery. (See Broughton v. Cigna Healthplans of California,
(1999) 21 Cal. 4th 1066, 1072 [CLRA public injunctive relief action not
arbitrable, while CLRA damages and malpractice claim proceed to arbitration].) In
fact, the California Supreme Court recently resolved a split of authority and
held that emergency rooms do not have a duty to disclose emergency room EMS
fees under CLRA beyond what is required by the extensive statutory and regulatory
scheme applicable to emergency rooms. (Capito v. San Jose Healthcare Sys.,
LP, (2024) 17 Cal. 5th 273.) This implies that hospitals have a duty to
disclose emergency room fees under CLRA as established by regulation. As such,
health care providers may have duties under CLRA.
The Regents cite Code of Civil Procedure
section 425.13’s prohibition against punitive damages. Indeed, section 425.13
would prohibit punitive damages arising out of professional medical negligence
absent a court order. However, this section would not prohibit all of the
damages claimed by the CLRA cause of action. Thus, the entire CLRA claim would
not fail for lack of punitive damages. Furthermore, the Regents did not seek to
adjudicate the punitive damages claim in this motion.
Consumer
The Regents argue that Plaintiff lacks
standing because she does not meet the statutory definition of a consumer. The
Regents note that “only the individual who actually purchased the product may
assert a claim under the CLRA based on the sale of that product” and that
Plaintiff did not actually pay for her procedure. (UMF 2; see Schauer v.
Mandarin Gems of Cal., Inc., (2005) 125 Cal. App. 4th 949, 960 [divorced
wife sued jeweler, alleging that jeweler sold inferior engagement ring to
husband who then gave it to wife, had no remedies under the CLRA, as the
husband, not the wife, was the consumer in the transaction].) Plaintiff stated
at deposition that she “assumed [her] parents paid for” both her cosmetic
procedures. (Lauren Donzis Depo., at 93:13-19; see also Robin Donzis Depo. at
16:10-15 [Lauren did not “reimburse” Robin for “medical bills” paid]; Paul
Donzis Depo. at p. 17:18-21 [he was not “100% sure” whether Lauren paid
anything out of her own pocket].) This showing meets Defendant initial burden
to demonstrate that Plaintiff was not a “purchaser” as defined by CLRA. If
Plaintiff was unaware of the payment, then it follows that she had no role in
the payment.
Plaintiff, however, presents substantial
evidence demonstrating a dispute of material fact as to whether she paid for
the subject services, and thus whether she is a consumer under CLRA. Plaintiff
presents evidence that she helped pay for the subject services. Specifically,
she helped pay for the services with $4,000.00 from her personal account, as
well as using her own Blue Cross health insurance for pre-operative visits.
(UMF 2.) Although her parents paid for some of Plaintiff's surgery, they
did not pay for all of it. (See Paul Donzis Decl. ¶3; Exs. 1-3.)
Notice
The Regents assert that Plaintiff
filed her claim for medical malpractice and violation of the CLRA against Dr.
Roostaeian without alleging in the complaint that there was service of the
Notice of Intent to file CLRA action against the Regents. (UMF 5.) Civil Code section 1782(a) provides that
thirty days or more prior to the commencement of an action for damages, a
consumer must “[n]otify the person alleged to have employed or committed
methods, acts, or practices declared unlawful by Section 1770 of the particular
alleged violations of Section 1770” and “[d]emand that the person correct,
repair, replace, or otherwise rectify the goods or services alleged to be in
violation of Section 1770.” (Civ. Code, § 1782(a).) This notice must be in
writing and be sent by certified or registered mail with return receipt
requested. (Id.) “[N]o action for damages may be maintained under
Section 1780 if an appropriate correction, repair, replacement, or other remedy
is given, or agreed to be given within a reasonable time, to the consumer
within 30 days after receipt of the notice.” (DeNike v. Mathew Enterprise,
Inc., (2022) 76 Cal.App.5th 371.) The notice requirement is applied
literally and strictly. (Outboard Marine Corp. v. Superior Court (1975)
52 Cal.App.3d 30, 40-41.)
The Regents
cite the declaration of counsel, who provides that the “only” notice sent was
to Dr. Roostaeian and not Doe 1. (UMF 5, Goldstein Decl., ¶¶ 6-7.) This evidence
negates the allegation that Plaintiff sent a 30-day CLRA notice to Dr.
Roostaeian and Doe 1 (the Regents). (Compl., ¶ 18.)
However, Plaintiff presents a
dispute of material fact which precludes summary judgment on this issue.
Plaintiff provides evidence of Defendant’s waiver of the CLRA notice
requirements. “Waiver” is the intentional relinquishment of a known right after
knowledge of the facts. (Gould v. Corinthian Colleges, Inc. (2011) 192
Cal.App.4th 1176, 1179; Hoopes v. Dolan (2008) 168 Cal.App.4th 146,
162.) The existence of a waiver is a question of fact, and no single test
delineates the nature of the conduct that will constitute a waiver. (St.
Agnes Medical Center v. PacifiCare of California (2003) 31 Cal. 4th 1187,
1195.) To constitute a waiver, it is essential that there be an existing
right, benefit, or advantage, a knowledge, actual or constructive, of its
existence, and an actual intention to relinquish it or conduct so inconsistent
with the intent to enforce the right in question as to induce a reasonable
belief that it has been relinquished. (Outboard Marine, supra, 52
Cal.App.3d at 40-41.) The party claiming a waiver has the burden of proving the
waiver¿by clear and convincing evidence¿that does not leave the matter
to speculation, as doubtful cases will be decided against a waiver. (Id.)
In Outboard Marine, the
Court of Appeal found the defendant waived its right to a 30-day CLRA notice by
sending a response letter to plaintiff indicating that it was treating plaintiff’s
initial notice it received months after commencement of the action as a
preliminary notice and demand under Civil Code section 1782(a). (Id. at 41.)
Plaintiff
has sufficient evidence which, if credited, could clearly and convincingly
support Defendant’s waiver of the CLRA notice provision. Plaintiff cites the Regents’
stipulation substituting them into the action in place of Dr. Roostaeian, which
may constitute an express or implied waiver of the notice provisions. In
particular, the Regents agreed that Dr. Roostaeian was their employee, acting
in the course and scope of his employment when providing care and treatment to
Plaintiff, and that they would “accept liability for the actions and/or
inactions of Jason Roostaeian M.D. in connection with this lawsuit.” It is
undisputed that Dr. Roostaeian timely received the required CLRA notice.
(Compl., ¶ 18.) Taken in context, a reasonable fact finder could find that the
Regents intentionally relinquished their right to challenge the CLRA notice by “accepting”
Dr. Roostaeian’s “liability” on the CLRA claim and allowing itself to be
substituted into the action on such a basis.
Accordingly, the motion is DENIED.