Judge: Michael E. Whitaker, Case: 23SMCV04287, Date: 2024-06-20 Tentative Ruling

Case Number: 23SMCV04287    Hearing Date: June 20, 2024    Dept: 207

TENTATIVE RULING

MOTION

On September 12, 2023, Plaintiff Galia Kesheshian (“Plaintiff”) filed the Complaint against Defendants Ashkan Ghavami (“Ghavami”); Ashkan Ghavami, M.D., Inc.; Plastic and Aesthetic Reconstructive Surgery; and Ghavami Plastic Surgery (collectively, “Defendants”) alleging five causes of action for (1) Professional Negligence – Medical Malpractice; (2) Breach of Fiduciary Duty; (3) Fraud; (4) Intentional Infliction of Emotional Distress; and (5) Negligent Infliction of Emotional Distress.

Defendants now demur to the second, third, fourth, and fifth causes of action, for failure to state facts sufficient to constitute a cause of action and uncertainty under Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively.  Plaintiff opposes the Demurrer and Defendants reply.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Defendants argue that Plaintiff’s causes of action are uncertain because they are unsupported by specific facts.  (Demurrer at p. 10.)  But whether Plaintiff has stated facts sufficient to constitute a cause of action is decided under subdivision (e) of Code of Civil Procedure section 430.10, not subdivision (f).  Here, Defendants do not demonstrate that any portions of the Complaint are so bad that they cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. 

The Court thus declines to sustain Defendants’ demurrer on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

                                                       i.          Second Cause of Action – Breach of Fiduciary Duty

To prevail on a claim of breach of fiduciary duty, Plaintiff must prove (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.  (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164.)  “A physician has a fiduciary duty to disclose all information material to the patient’s decision when soliciting a patient’s consent to a medical procedure. (Ibid.)  As part of obtaining that consent, a physician also has a duty to disclose “personal interests unrelated to the patient's health, whether research or economic, that may affect his medical judgment.”  (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 131–132.)

Plaintiff alleges:

23. On or about the afternoon and evening of September 15, 2022 Defendants performed a vertical mastopexy, also known as a breast lift upon Plaintiff Galia. Defendant Ghavami and all other Defendants were Plaintiff Galia’s doctor and medical providers and therefore owed duties to Plaintiff.

24. Upon completion of the surgery, on September 15, 2022 Defendants stated to Plaintiff that the surgery had gone smoothly, with no complications and no surprises and was completed entirely successfully.

25. The following day, September 16, 2022 pursuant to the instructions of the Defendants, Plaintiff Galia appeared for an examination at Defendants’ office for follow up care and examination.

26. At this point Plaintiff Galia had noticed that portions of both of her breasts had become discolored. Plaintiff Galia pointed this out to Defendant Ghavami. Ghavami did not react and told her this reaction was a totally normal part of the healing process and instructed Galia to obtain hyperbaric treatment. Plaintiff Galia followed all of Defendants’ instructions at all times.

27. Plaintiff Galia returned for appointments with Ghavami and Defendants over the next week. At no point during any of those appointments did Ghavami or anyone else on behalf of Defendants warn Plaintiff that Galia’s condition was serious or that she was in danger of having her breast tissue and nipple become necrotic and die. Instead, Ghavami and Defendants continued to affirmatively and deliberately misrepresent to Plaintiff that Galia’s recovery was proceeding normally.

28. Plaintiff then noticed that Plaintiff’ Galia’s breast tissue was becoming dark black and again raised the issue with Defendants and Ghavami. Defendants, including Ghavami told Plaintiff that the underneath the blackened breast tissue was perfectly healthy breast tissue and nipple and that once the blackened tissue came off Plaintiff would see that everything was perfectly healthy. In support of this statement, Defendant Ghavami utilized a pin prick to show that there was blood flow underneath the necrotic and dead tissue and told Plaintiff that the pin prick test demonstrated that everything was healthy and healing properly. These statements made by Defendants’ to Plaintiff were false. Additionally, Plaintiff is informed and believes and based thereon alleges that Defendants, including Ghavami knew these statements were false at the time Ghavami made them.

29. In addition Defendants’ failure and refusal to tell Plaintiff the truth about Plaintiff Galia’s condition and recovery after Galia’s surgery, Defendants, including Ghavami, failed to utilize such skill, prudence, and diligence as other members of Ghavami’s profession commonly possess and exercise when treating Plaintiff Galia during her surgery and recovery.

30. Defendant Ghavami and all other Defendants continued to mistreat Plaintiff Galia during her post-surgery recovery.

31. At all times, Plaintiff Galia followed all of Defendants’ medical advice.

32. What was actually occurring and what Defendant Ghavami and all other Defendants failed to identify or properly treat was that Plaintiff Galia’s entire right nipple and areola were necrotic, meaning the tissue was dying and then dead. As a result, Plaintiff Galia’s entire right nipple and areola died, to the point where they no longer existed.

33. Additionally, during the September and October 2022 time period when Defendant Ghavami and all Defendants continued to treat Plaintiff Galia and deliberately hide the truth from Plaintiff, Plaintiff Galia’s wounds in both breasts continued to ooze. The standard of care for Doctors who practice in Ghavami’s area of medicine is to treat the patients daily for these types of oozing wounds. But instead of complying with the standard of care, Ghavami and the Defendants told Plaintiff she should treat the wounds by herself and that they would not treat her oozing wounds daily and that there was no need for Galia to be treated daily by Defendants.

34. In response to the entire loss of Plaintiff Galia’s right nipple and areola Defendant Ghavami stated to Plaintiff that the loss of Galia’s nipple was “not a big deal” and that Ghavami could easily re-create a new nipple without any trouble and that Plaintiff Galia should not consult with any other doctors and should instead receive medical treatment exclusively from Ghavami. Plaintiff are informed and believe and based thereon allege that these statements were made by Ghavami and Defendants in an effort to cover up and hide Defendants’ negligent and wrongful conduct. Additionally, these statements by Ghavami were false. Even now, Plaintiff Galia’s nipple could not and cannot be easily re-created.

35. As a direct and proximate result of Defendants’ negligence and conduct Plaintiff Galia’s wounds did not heal and instead became worse as her window of opportunity for remedial treatment closed. During this time Defendants made false statements and reassurances to Plaintiff with the goal of preventing Plaintiff from consulting other doctors. Defendants’ efforts were successful and Plaintiff relied exclusively upon Ghavami and Defendants’ medical care and advice and was not aware of the negligent, and grossly negligent conduct of Defendants until the end of October 2022.

(Complaint ¶¶ 23-35.)

            Defendants contend that because Plaintiff has not alleged that Defendants failed to disclose the risks prior to surgery or that Defendants failed to disclose financial or research interests unrelated to Plaintiff’s health, Plaintiff has failed to state a breach of fiduciary duty cause of action.

            Plaintiff counters by citing to Wohlgemuth v. Meyer, which, in the context of determining whether the plaintiff had been reasonably diligent in investigating the physician’s allegedly wrongful acts, the appellate court explained:

The doctor-patient relationship is a fiduciary one and it is incumbent on the doctor to reveal all pertinent information to his patient. The same is true of the hospital-patient relationship.  In the event of the death of the patient while under the care of the doctor and the hospital, the spouse has a right to know the cause of death. Withholding information would in a sense amount to misrepresentation. See Stafford v. Shultz, 42 Cal.2d 767 [270 P.2d 1], for a full discussion of the requirement that a physician make full and fair disclosure of all facts which materially affect the patient's rights and interests, and of the fact that because of the relationship between the doctor and the patient the patient is entitled to rely on the doctor's assurances and that “ 'facts which would ordinarily require investigation may not excite suspicion, and that the same degree of diligence is not required' ” as where such relationship does not exist.

(Wohlgemuth v. Meyer (1956) 139 Cal.App.2d 326, 331.)  Thus, a physician owes a fiduciary duty not to intentionally misrepresent or fraudulently conceal facts about the state of the patient’s health or healing that materially affect the patient’s rights and interests.

            In Reply, Defendants argue that Plaintiff’s beliefs that her doctor concealed or misrepresented negative facts about how she was healing from surgery are not facts.  Whether Defendants actually intentionally misrepresented and/or fraudulently concealed complications that arose from Plaintiff’s surgery are factual questions to be determined at later stages of the litigation. 

For pleading purposes, the Court finds that Plaintiff alleges that Defendants breached their fiduciary duty to Plaintiff by intentionally misrepresenting and fraudulently concealing the state of Plaintiff’s healing to discourage Plaintiff from seeking additional care.

            Thus, demurrer is not appropriate on the grounds that Defendants have stated –there is no such fiduciary duty or Defendants did not in fact engage in intentional misrepresentation or fraudulent concealment.

                                                     ii.          Second Cause of Action - Fraud

The elements for fraudulent misrepresentation are “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.”  (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605–606.) 

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.”  (Ibid.)  Causes of action for negligent misrepresentation sound in fraud, and must also, therefore, be pleaded with particularity.  (Chapman, supra, 220 Cal.App.4th at pp. 230-231.) 

Here, Plaintiff alleges the specific where (in Ghavami’s office for post-surgery follow-up visits), when (the specific dates alleged), and how (verbally) the alleged misrepresentations about Plaintiff’s healing were made.  (See Complaint ¶¶ 23-35.)  Further, Plaintiff alleges:

59. Defendants, including Ghavami, each made statements to Plaintiff Galia which they knew were false and which they intended for Plaintiff to rely upon and which Plaintiff did reasonably rely upon to her detriment. Defendants’ deliberately false statements included:

a. Orally stating to Plaintiff Galia in September 2022 that her recovery was proceeding normally and that there was no need for her to worry or to seek a second medical opinion.

b. Orally stating to Plaintiff Galia after September 15, 2022 at Defendants’ office that Plaintiff Galia’s necrotic nipple and areola were healthy and were not any cause for medical concern.

c. Orally stating to Plaintiff Galia in mid-October 2022 that it was no big deal and very easy for Defendants to create a new nipple and attach it to Galia’s body without any issue.

d. Stating to Plaintiff Galia that Defendants were experts in the breast lift procedure she was hiring them to perform.

e. Stating to Plaintiff Galia that her oozing wounds in both breasts did not need medical attention or daily medical care by a medical professional and instead that the wounds were best treated at home without any medical professionals.

f. Stating to Plaintiff Galia that she could not seek a second opinion.

g. Secreting or misrepresenting the facts and information regarding Galia’s condition in the medical records which Defendants kept.

60. Each and every one of these statements were false. Defendants, based upon their medical training, knew these statements to be false and knew they had no factual basis in reality to make these statements to Plaintiff Galia.

(Complaint ¶¶ 59-60.)  Moreover, Plaintiff alleges that Ghavami is the agent and/or principal of the corporate entities (see Complaint ¶ 11), and indeed served the corporate defendants via service on Ghavami (see Proofs of Service filed March 5, 2024). 

Yet, Defendants argue that the alleged misrepresentations were Ghavami’s medical opinions, and are therefore not actionable.  Relatedly, Defendants argue that Plaintiff fails to adequately allege Defendants’ intent at the time the alleged misrepresentations were made.  Plaintiff alleges that her right nipple was black and had become necrotic, yet upon examining it, Defendants allegedly misled Plaintiff telling her it was still perfectly healthy.  Thus, the allegations create a reasonable inference that Defendants knew that Plaintiff’s nipple was dying, yet intentionally chose to conceal that fact to dissuade Plaintiff from seeking additional treatment.  Whether Defendants in fact knew at the time of the examination that the nipple was dying is a factual question to be determined at later stages of the litigation.

Therefore, the Court overrules Defendants’ demurrer to the third cause of action for fraud.

                                                   iii.          Fourth Cause of Action – Intentional Infliction of Emotional Distress

To prevail on the Intentional Infliction of Emotional Distress (“IIED”) cause of action, a plaintiff must prove: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is outrageous when “it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid. [cleaned up].)  Further, the defendant’s conduct must be “intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 1051 [cleaned up].)

Plaintiff alleges:

67. As alleged above Defendants’ conduct, including deliberately misrepresenting to Plaintiff Galia the status of Galia’s medical condition and recovery, knowing full well that such false statements would harm Galia’s physical and mental health and still making such a decision to benefit Defendants financial interests is conduct which is extreme and outrageous.

68. Defendants’ conduct was made either with the intent to cause Plaintiff Galia’s harm or with the reckless disregard for the near certainty that Defendants’ conduct and misrepresentations would cause Plaintiff harm, including severe emotional distress and suffering.

69. Defendants’ conduct was directed at Plaintiff Galia because she was the patient towards whom Defendants directed their wrongful and outrageous conduct.

70. Defendants’ conduct, including lying to their patient for their own financial gain and hiding the actual diagnosis and prognosis from their own patient is conduct which is so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Particularly in light of the fact that people, including Plaintiff Galia, rely upon their doctors to tell them the absolute truth so that life and death decisions can be made by the patient.

71. As a direct and proximate result of the Defendants’ wrongful conduct, and each of them, Plaintiff has suffered severe and extreme emotional suffering and distress from the loss of her nipple, necrosis of breast tissue including her nipple and areola, the need to undergo additional medical treatment and future surgeries, the loss of hundreds of thousands of dollars spent on medical care, being lied to by her doctor, being mistreated by her doctor, embarrassment, pain and suffering, inability to engage socially as well as other economic and non-economic damages in an amount to be proven at trial, but, AS REQUIRED BY THE CALIFORNIA SUPREME COURT PURSUANT TO Greenup v. Rodman (1986) 42 Cal.3d 822, 829, the MAXIMUM amount of compensatory damages suffered by Plaintiff does not exceed $10 million.

72. These action of Defendants, including Defendant Ghavami were intentional and done with the express intent of depriving Plaintiff Galia of her rights, money, and health and with the knowledge by each of the Defendants that they were breaching their fiduciary duties to Plaintiff Galia and with the knowledge that their statements were false and outrageous and that their conduct would, without a doubt, harm Galia physically, emotionally and financially.

73. The actions of Defendants, including Defendant Ghavami, also constituted a misrepresentation, deceit, or concealment of material facts known to Defendants thereby depriving Plaintiff Galia (their fiduciary) of property or legal rights or otherwise causing injury, and was despicable conduct in conscious disregard of Plaintiff’s rights, and was done with malice, fraud and oppression, so as to justify an award of exemplary and punitive damages in an amount to be proven at trial. However, pursuant to Code Civ. Proc., § 425.13 Plaintiff is not including a prayer or claim for punitive damages herein, however it is Plaintiff’s intention to move the Court for leave to file an amended pleading which includes a claim for punitive and exemplary damages.

(Complaint ¶¶ 67-73.)

            Defendants argue that Plaintiff’s allegations are conclusory, Plaintiff does not provide specific facts supporting each element, and Ghavami providing Plaintiff his medical opinion cannot be considered extreme and outrageous behavior.

            However, intentionally lying to Plaintiff that she was healing normally when her right nipple had become black, necrotic, and was dying off, in order to prevent Plaintiff from seeking additional medical help, as alleged, could be sufficiently extreme and outrageous, and done with a conscious disregard for the probability that Plaintiff would suffer harm, to constitute intentional infliction of emotional distress.  Moreover, there is no heightened pleading requirement for Intentional Infliction of Emotional Distress claims, but as discussed above, Plaintiff has met the heightened pleading standard for fraud in any event.

            Whether the allegations turn out to be true, or whether Ghavami was simply giving his good faith medical opinion of Plaintiff’s condition, is a factual determination to be made at later stages of the litigation.

            Therefore, the Court overrules the demurrer to the fourth cause of action.

                                                   iv.          Fifth Cause of Action – Negligent Infliction of Emotional Distress

“The law of negligent infliction of emotional distress in California is typically analyzed  by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.”  (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 213 (hereafter Spates).)  “[T]he negligent causing of emotional distress is not an independent tort but the tort of negligence.  The traditional elements of duty, breach of duty, causation, and damages apply.”  (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729 [cleaned up].) 

“The bystander theory recognizes a duty in the limited class of cases where a plaintiff “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”  (Spates, supra, 114 Cal.App.4th at p. 213.)

By contrast, “[d]irect victim theory involves a duty owed directly to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”)  (Spates, supra, 114 Cal.App.4th at p. 213.)

Defendants argue that because Plaintiff was not a bystander to the alleged infliction of emotional distress, she cannot recover.  But Defendants’ argument ignores the direct victim theory altogether.

As such, the Court determines that Defendants have not raised a valid basis to sustain the demurrer to the fifth cause of action.

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendants’ Demurrer in its entirety, and orders Defendants to file and serve an Answer to the Complaint on or before July 5, 2024.

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  June 20, 2024                                                         ___________________________

                                                                                    Michael E. Whitaker

                                                                                    Judge of the Superior Court