Judge: Michael E. Whitaker, Case: 24SMCV04829, Date: 2025-05-01 Tentative Ruling

Case Number: 24SMCV04829    Hearing Date: May 1, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from allegations that Plaintiff Niloo Cannon suffered burns during a liposuction procedure. 

On November 12, 2024, Plaintiffs Niloo Cannon and William Cannon (“Plaintiffs”) filed the operative First Amended Complaint (“FAC”) against Defendants Jason Emer, M.D. (“Emer”); Soma Surgery Center (“SOMA”); Yoel A. Rojas Ortiz, M.D. (“Ortiz”); Beverly Hills Sunset Surgery Center, Inc. (“Beverly”); and Sean S. Ravaei (“Ravaei”) alleging six causes of action for (1) professional negligence; (2) loss of consortium; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) negligent infliction of emotional distress; and (6) intentional infliction of emotional distress.

Defendant Ortiz now demurs to the third, fourth, fifth, and sixth causes of action for failure to state facts sufficient to constitute a cause of action and uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively.

Plaintiffs oppose the demurrer and Ortiz replies.

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.) 

Although Ortiz characterizes the four challenged causes of action as “uncertain,” Ortiz does not demonstrate that any portions of the FAC are so bad that Ortiz cannot reasonably determine what issues must be admitted or denied, or what claims are directed against Ortiz.  The Court thus declines to sustain Ortiz’s demurrer on the basis of uncertainty.

B.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          Third and Fourth Causes of Action – Intentional and Negligent Misrepresentation

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.) 

“The essential elements of a count for negligent misrepresentation are the same [as intentional misrepresentation] except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true.”  (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.)  Like intentional misrepresentation, causes of action for negligent misrepresentation sound in fraud, and must also, therefore, be pleaded with particularity.  (Ibid.) 

“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.) 

“One of the purposes of the specificity requirement is notice to the defendant, to furnish the defendant with certain definite charges which can be intelligently met.”  (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)  As such, less specificity is required “when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy[.]”  (Ibid.)  “Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party.”  (Ibid.) 

Here, Plaintiffs allege in the FAC:

12. On or about May 18, 2024, NILOO CANNON underwent common liposculpture and thigh lift procedures of her thighs, among other surgical procedures. Doctors JASON EMER, M.D. and/or YOEL A ROJAS ORTIZ M.D. performed the surgeries at SOMA SURGERY CENTER and/or BEVERLY HILLS SUNSET SURGERY CENTER, INC.

13. Said Defendants, and each of them, individually and by and through their employees and agents, undertook the employment and agreed to diagnose NILOO CANNON and to care for and treat NILOO CANNON and do all things necessary and proper in connection therewith.

14. After the subject surgeries were completed, NILOO CANNON presented with extreme and severe burns to her right thigh.

15. Defendants immediately knew of the severe burns, as they wrapped the burns separately but failed to take any action to treat the burns to prevent any further harm to NILOO CANNON. Defendants knew of the burns, failed to notify NILOO CANNON of the burns, concealed the burns from NILOO CANNON and failed to take immediate and necessary action to treat said burns. A few days after the procedure, NILOO CANNON was surprised to discover the severe burns after Defendants unwrapped the burn site.

16. As a proximate result of the aforementioned negligence, NILOO CANNON has suffered severe physical and mental injuries, including but not limited to the following: severe pain and suffering, permanent scarring, and mental and emotional distress.

17. NILOO CANNON’S injuries will result in some permanent disability to NILOO CANNON, all to her damage in an amount to be set forth in accordance with Code of Civil Procedure section 425.11.

[…]

32. On or about May 18, 2024, NILOO CANNON underwent common liposculpture and thigh lift procedures of her thighs, among other surgical procedures. Doctors JASON EMER, M.D. and/or YOEL A ROJAS ORTIZ M.D. performed the surgeries at SOMA SURGERY CENTER and/or BEVERLY HILLS SUNSET SURGERY CENTER, INC.

33. After the subject surgeries were completed, NILOO CANNON presented with extreme and severe burns to her right thigh.

34. Defendants immediately knew of the severe burns, as they wrapped the burns separately but failed to take any action to treat the burns to prevent any further harm to NILOO CANNON. Defendants knew of the burns, failed to notify NILOO CANNON of the burns, concealed the burns from NILOO CANNON and failed to take immediate and necessary action to treat said burns. A few days after the procedure, NILOO CANNON was surprised to discover the severe burns after Defendants unwrapped the burn site.

35. By engaging in the aforementioned conduct, Defendants represented to NILOO CANNON that she did not sustain anything out of the ordinary, such as the extreme and severe burns she sustained.

36. Defendants’ representation was clearly false, as NILOO CANNON did in fact sustain severe injury and burns.

37. Defendants knew that said representation was false when they made it and/or made said representation recklessly and without regard for its truth.

(FAC ¶¶ 12-17 [factual background], 32-37 [intentional misrepresentation]; see also 43-50 [negligent misrepresentation].)

Plaintiffs do not allege a misrepresentation with specificity.  As a threshold matter, the FAC appears to improperly construe an omission/nonfeasance as an affirmative misrepresentation/malfeasance:

34. Defendants immediately knew of the severe burns, as they wrapped the burns separately but failed to take any action to treat the burns to prevent any further harm to NILOO CANNON. Defendants knew of the burns, failed to notify NILOO CANNON of the burns, concealed the burns from NILOO CANNON and failed to take immediate and necessary action to treat said burns. A few days after the procedure, NILOO CANNON was surprised to discover the severe burns after Defendants unwrapped the burn site.

35. By engaging in the aforementioned conduct, Defendants represented to NILOO CANNON that she did not sustain anything out of the ordinary, such as the extreme and severe burns she sustained.

(FAC ¶¶ 34-35, emphases added.)  Indeed, in opposition, Plaintiffs characterize it as “[m]isrepresenting or concealing a known burn.”  (Opposition at p. 5.)  But an omission or concealment is not the same as an affirmative misrepresentation.

            Moreover, the FAC does not specify the who, what, to whom, how, or when any such misrepresentation was allegedly made.

            Therefore, the Court sustains Ortiz’s demurrer to the third and fourth causes of action for intentional and negligent misrepresentation.

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

“[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 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).) 

“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.)

In general, “[a] plaintiff in a case of medical malpractice may recover damages for emotional distress.”  (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.)  However, “[i]n any action for injury against a health care provider or health care institution based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage, subject to the limitations in this section.”  (Cal. Civil., § 3333.2 [“MICRA”].)

Ortiz argues that there is no independent cause of action for Negligent Infliction of Emotional Distress – it is simply negligence.  As such, Ortiz argues that the claim is duplicative of Plaintiffs’ first cause of action for professional negligence. 

Plaintiffs argues that the fifth cause of action is not premised on a negligent medical act, “but on factual assertions made without reasonable basis—namely, that no unusual injury had occurred.”  (Opposition at p. 1.)  As such, Plaintiff argues the emotional distress damages of the fifth cause of action are not capped by MICRA. 

But as to the fifth cause of action , Plaintiffs merely allege: “Defendants were negligent as discussed herein. As a result of Defendants’ conduct and negligence, Plaintiff suffered serious emotional distress. Moreover, Defendants’ negligence was a substantial factor in causing NILOO CANNON’S serious emotional distress.”  (FAC ¶ 54.)

The only negligence discussed in the FAC is professional medical negligence.  Further, the first cause of action for professional negligence also alleges, “As a proximate result of Defendants’ failure and each of them, Plaintiff, NILOO CANNON, has suffered severe physical and mental injuries, including but not limited to the following: severe pain and suffering, permanent scarring, and mental and emotional distress.”  (FAC ¶ 26.)

Accordingly, the fifth cause of action is entirely duplicative of the first cause of action.  Therefore, the Court sustains Ortiz’s demurrer to the fifth cause of action.

                                                     iii.          Sixth 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].)

Here, Plaintiffs allege in the FAC:

58. Defendants’ conduct in knowing of the burns immediately after surgery, concealing the burns and failing to take any action in a reasonable time and manner was outrageous.

59. Defendants intended to cause NILOO CANNON emotional distress and acted with reckless disregard of the probability that NILOO CANNON would suffer emotional distress, with knowledge of the aforementioned. NILOO CANNON suffered severe emotional distress and Defendants’ conduct was a substantial factor in causing NILOO CANNON’S severe emotional distress.

60. Defendants, and each of them, engaged in the aforementioned conduct with malice, oppression and/or fraud. Specifically, Defendants acted with malice in that Defendants immediately knew of the severe burns, as they wrapped the burns separately but failed to take any action to treat the burns to prevent any further harm to NILOO CANNON. Defendants knew of the burns, failed to notify NILOO CANNON of the burns, concealed the burns from NILOO CANNON and failed to take immediate and necessary action to treat said burns. A few days after the procedure, NILOO CANNON was surprised to discover the severe burns after Defendants unwrapped the burn site. This conduct was despicable and was done with a willful and knowing disregard of the rights or safety of NILOO CANNON. Defendants were aware of the probable dangerous consequences of failing to treat NILOO CANNON’S burns in a timely manner and consciously concealed the burns instead. Furthermore, Defendants’ conduct was despicable and subjected NILOO CANNON to cruel and unjust hardship in knowing disregard of her rights

(FAC ¶¶ 58-60.)

            Ortiz argues that Plaintiffs simply allege garden variety negligence; there is no extreme and outrageous conduct beyond that which can be tolerated in a civilized society to support a claim for intentional infliction of emotional distress.

            The Court disagrees.  Plaintiffs allege that Defendants intentionally concealed severe burns to Plaintiff Niloo’s leg, preventing Plaintiff Niloo from immediately obtaining the necessary treatment in either a willful or reckless disregard of Plaintiff Niloo’s rights and safety.  Ortiz characterizes the burn as being “immediately noticeable” and “treated.”  These competing characterizations constitute a factual dispute to be resolved at later stages of the litigation.  As alleged, Plaintiffs’ allegations could rise to the level of oppression or malice to support a claim for intentional infliction of emotional distress.

            Therefore, the Court overrules Ortiz’s demurrer to the sixth cause of action.

2.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, although Plaintiffs generally request leave to amend, they do not specify any facts they could add to the complaint to address the deficiencies identified by the Court above. 

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Ortiz’s Demurrer to the sixth cause of action and sustains without leave to amend Ortiz’s Demurrer to the third, fourth, and fifth causes of action. 

Further, the Court orders Ortiz to file an Answer to the FAC on or before May 15, 2025.

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

DATED:  May 1, 2025                                                           ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court