Judge: Martha K. Gooding, Case: 2022-01244659, Date: 2022-09-19 Tentative Ruling
1) Demurrer to Complaint
2) Motion to Strike Position of Complaint
3) Case Management Conference
[1] Defendant Herbert Lee, M.D.’s Demurrer to Plaintiff Rosanna Narvaez’s Complaint is sustained in part and overruled in part.
The Demurrer is SUSTAINED, with leave to amend, as to the second cause of action for lack of informed consent, fourth cause of action for battery and sixth cause of action for intentional infliction of emotional distress.
The Demurrer is OVERRULED as to the third cause of action for breach of fiduciary duty, fifth cause of action for fraud and seventh cause of action for unfair business practices.
2nd COA for Lack of Informed Consent
Defendant argues this claim fails because it is “duplicative” of the first cause of action for medical negligence, and Plaintiff has not alleged “that the procedures or treatments, i.e., upper GI endoscopies, were not adequately explained to her or that she was not provided with the risks and benefits of the procedure to make an informed decision.” (Dem. at 5-6.)
The Court finds the claim is not “duplicative,” which is not, in any event, a proper basis for demurrer. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890.)
Nevertheless, the Court agrees Plaintiff has failed to allege the essential factual elements of a claim for failure to obtain informed consent. (See Judicial Council of California Civil Jury Instruction 533.) While Plaintiff may be alleging that Defendant obtained her consent to the procedures based on a false representation (of pre-cancerous cells), that is different from a lack of “informed consent” about the risks of the procedures. The cases cited by Plaintiff in her opposition are inapposite and do not compel a different result.
3rd COA for Breach of Fiduciary Duty
Plaintiff alleges Defendant breached his fiduciary duty owed to her “by choosing to recommend and perform endoscopies which were unnecessary due to the lack of severity in [her] symptoms” and by “failing to inform [her] that the invasive endoscopies and biopsies were unnecessary,” (which he allegedly knew). (Compl. at ¶¶ 57, 58.) Plaintiff further alleges that Defendant’s “motivation” for recommending these “unnecessary” procedures was his own “financial gain.” (Compl. at ¶ 60.)
In a fiduciary relationship, the party with the duty is “bound to act with the utmost good faith for the benefit of the other party.” The relationship is “founded upon the trust or confidence reposed by one person in the integrity and fidelity of another, and likewise precludes the idea of profit or advantage resulting from the dealings of the parties and the person in whom the confidence is reposed.” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29-30, citations omitted.) The Court cannot find, as a matter of law, that these allegations would not support a breach of fiduciary duty if proven to be true.
4th COA for Battery
Plaintiff alleges Defendant “performed medical procedures upon [her] without her consent,” when he represented to her “that the endoscopies and biopsies were necessary
to evaluate the pre-cancerous cells in her,” but “there were no pre-cancerous cells” in Plaintiff. (Compl. at ¶¶ 64-67.)
The Court agrees with Defendant’s contention that this claim is subject to demurrer because “Plaintiff clearly consented to the care and treatment provided,” and “[t]here is no allegation that Plaintiff was not advised of the risks and benefits or that she did not provide consent on any occasion.” (Dem. at 9.)
In other words, Plaintiff is not alleging that Defendant obtained her consent to perform one treatment, but then performed another one altogether. Nor is she alleging a failure to obtain consent. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495–1496 [explaining the elements of a claim for battery in the medical treatment context.) Rather, Plaintiff is alleging that Defendant obtained her consent using a false representation.
5th COA for Fraud
Plaintiff alleges Defendant is liable for fraud (intentional misrepresentation), for falsely representing to her that “she had pre-cancerous cells in her,” when he “knew the representations were false when he made them.” (Compl. at ¶¶ 71-73.) The Court finds that Plaintiff has alleged the elements of her claim with sufficient specificity to withstand demurrer. (See Compl. at ¶¶ 9-36.)
6th COA for Intentional Infliction of Emotional Distress (IIED”)
The elements of an IIED claim are: “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” The “outrageous” conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” Thus, “to avoid a demurrer,” the “plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)
Here, Plaintiff alleges Defendant’s alleged conduct was “outrageous,” that he “intended to cause [her] emotional distress,” that he “acted with reckless disregard of the probability that [she] would suffer emotional distress,” and that he caused her “severe emotional distress.” (Compl. at ¶¶ 80-83.) The Court finds merit in Defendant’s contention that Plaintiff has not adequately alleged facts to support the elements of “intent” or the suffering of “severe or extreme emotional distress.”
7th COA for Unlawful, Unfair and/or Fraudulent Business Practices
Plaintiff alleges Defendant’s conduct constitutes an unlawful business practice and that she has “suffered an injury in fact and was deprived of money or property to which she has a valid and cognizable claim.” (Compl. at ¶ 87.) The Court finds Plaintiff has adequately pled this claim.
[2] In light of the ruling on the Demurrer, Defendant’s Motion to Strike Portions of the Complaint is moot.
Defendant is ordered to give notice.