Judge: Mark H. Epstein, Case: 23SMCV03964, Date: 2023-12-22 Tentative Ruling

Case Number: 23SMCV03964    Hearing Date: December 22, 2023    Dept: I

The demurrers are SUSTAINED WITHOUT LEAVE TO AMEND except as to the IIED cause of action, and leave to amend is granted as to that cause of action only.  The motion to strike is GRANTED IN PART.

Plaintiff filed a medical malpractice action against defendant.  He claims that he paid defendant money in late 2022 and early 2023 to perform two procedures, both of which turned out to be unsuccessful.  Plaintiff contends that before the second procedure, he was told to take antibiotics, but forgot.  He told the defendant that he forgot to take the antibiotics (or at least that he did not take the full course) but they went ahead anyway.  After the second procedure, plaintiff became infected and was hospitalized for 8 days.  During that time, plaintiff contends that the hospital tried to get his medical records from defendant but defendant did not provide them.  Defendant now demurs to the second through sixth causes of action and also moves to strike.

The court notes that plaintiff’s oppositions are untimely without explanation.  The oppositions to the demurrer and motion to strike were due on November 29, 2023, but were not filed until December 4 and 5, 2023.  The court has considered the various filings, including plaintiff’s inexplicably late oppositions, but warns plaintiff that in the future the court will not do the same.  The court also notes that defendant is in error that the failure to oppose a motion is a concession that the motion should be granted.  That is not the law in California, at least to the court’s understanding.  That said, the result would essentially be the same either way.

Defendant’s demurrers on uncertainty are overruled.  Such demurrers are disfavored and can be sustained only where defendant cannot understand the nature of the pleading.  This complaint is stronger than that.

The major theory defendant advances is that this is all really just a series of different ways to say medical malpractice (and defendant does not demur to the medical malpractice cause of action).  The court generally agrees.  Even plaintiff does not really contest this except for the NIED cause of action.  But before going to the NIED cause of action, the court discusses briefly the IIED cause of action.  To the extent that plaintiff contends that defendant withheld medical records requested by a hospital (20 times, allegedly) treating plaintiff, that could be sufficient.  Mere negligence will not suffice for an IIED cause of action.  The alleged misconduct must be outrageous and exceed all bounds of conduct that would be tolerated by society.  A doctor deliberately refusing to forward needed medical records to a hospital treating a patient could fit that bill.  Plaintiff contends that the reason was not just that defendant was busy, but that defendant was trying to cover up the malpractice.  The court, of course, makes no finding on that subject; that is a fact question.  The problem is that this argument is articulated only in the untimely opposition; it is not in the complaint.  If plaintiff wants to allege it, he may do so, but he has to do it in the pleadings.  The pleadings allege that the surgeries were done so poorly as to constitute intentional infliction of emotional distress.  Absent some further allegation—like that defendant was under the influence of some substance when the surgery was performed or defendant had some hidden malice toward plaintiff so that defendant deliberately botched the surgery—none of which has been alleged or will be alleged—doing a bad job in surgery will not support the IIED tort.  If plaintiff can plead in good faith that defendant refused to forward the files upon request by the hospital in order to cover up the malpractice, though, that would be different.  On the other hand, if there is no basis to so allege, plaintiff ought not do it.

As to NIED, that is really a flavor of negligence, which is already pled.  There are a couple of exceptions.  One is where there is a breach of duty that results in such distress that would not otherwise be recoverable.  But the cases involving that branch of the tort are those in which there is no general negligence tort.  Here, the court does not see that emotional distress cannot be recovered from the malpractice action.  The general requirement is that the duty is one where the emotional condition of the plaintiff is an object.  This was a surgery, and the court does not think it falls within this narrow tort, at least where it appears that relief can be obtained through the malpractice action.  (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454.)  The second flavor is bystander liability, which is not at issue here.  All of that said, though, if plaintiff succeeds in the malpractice action, it seems to the court that plaintiff might well be able to recover the damages sought in the NIED action.

As to the UCL cause of action, plaintiff must plead that defendant’s conduct violates some other law, was fraudulent, or unfair (as defined by the case law).  Plaintiff has not done any of that.

Plaintiff also sues for restitution.  But that is a remedy, not a cause of action.

As to misrepresentation, the alleged misrepresentation related to the anticipated results of the surgery.  But that is not fraud; it is a prediction of the future.  Other than promising a good outcome and having the outcome not be good, plaintiff alleges nothing that would pass as a fraudulent statement.

Because plaintiff essentially concedes that there is no point in amending generally, leave to amend will be denied other than for the IIED cause of action.

Defendant also moves to strike certain allegations from the complaint.  Plaintiff agrees to striking some allegations—the damages amount and the rather odd requested interest rate of 100% per annum.  So the motion is GRANTED to that extent.  The court also GRANTS the motion as it relates to punitive damages.  Unless and until the IIED cause of action is pled and survives demurrer, there is no basis for punitive damages here at this stage.  Punitive damages for malpractice actions cannot simply by pled, they must be added by motion, and no such motion has been made.  The motion is DENIED as to attorneys’ fees.  The court, as it stands, can see no basis for the fee award, but it could be that there is a contractual basis for it.  The court assures both parties that fees will not be awarded absent some legal basis to do so.  For now, the court will keep the request in as it does no mischief.  (The court agrees with defendant that it could strike the request under state law; it is just that the court thinks doing so would be premature.)  Finally, the motion is DENIED as to the request to strike the prayer for restitution.  It is a remedy and it could be appropriate in certain circumstances.  The court will not rule it out at this stage.

Plaintiff has 30 days’ leave to amend as set forth above.