Judge Michael Shultz, Case Number: 21STCV39470, Date: 2024-10-29 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.

TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/ui/main.aspx?casetype=civil

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE

The complaint alleges that Defendants extracted all of Plaintiff’s upper teeth and several lower teeth without Plaintiff’s consent. Plaintiff consented only to perform root canal procedures on two upper teeth. Plaintiff alleges claims for dental malpractice, medical battery, and civil battery.

Defendant, Ryan Edalatpajouh, DDS (“Defendant”) seeks dismissal of the complaint for Plaintiff’s failure to serve Defendant until nearly two and a half years after filing the complaint. Plaintiff has no justifiable or reasonable excuse for failing to attempt service on Defendant once between April 2023 and January 2024.

In opposition, Plaintiff argues that Defendant has been evading service. Dismissal is discretionary. The motion should be denied as Plaintiff attempted personal service on July 21, 2023 at the place of treatment but was informed that Defendant had left the practice two to three years earlier. After obtaining Defendant’s new office location, Plaintiff attempted service on four occasions from July 28, 2023 to August 10, 2023. Defendant was not present, and the staff refused service, on each occasion although the correct address was obtained from the Dental Board of California. Service was not completed until April 14, 2024, one week after Defendant called Plaintiff’s counsel to confirm the case had concluded, at which time, Defendant gave Plaintiff his home address.

Defendant argues in reply that the opposition was late and should not be considered. Plaintiff did not use reasonable and diligent efforts to accomplish service within two years.

Plaintiff’s opposition was required to be served and filed 15 days after service of the notice. (CA Rules of Court, Rule 3.1342, subd. (b).) Failure to serve and file a written opposition my be construed as an admission that the motion is meritorious. (Id.) Plaintiff did not fail to file an opposition, rather Plaintiff’s opposition was untimely made. The court exercises its discretion to consider late papers in favor of the strong policy favoring disposition of the case on the merits. (Kapitanski v. Von’s (1983) 146 Cal.App.3d 29, 32). [“Judges are well aware of the unnecessary burdens placed on courts and counsel when strict compliance with local procedural rules results in the expenditure of unnecessary time and money for the preparation of later section 473 motions.”].) Defendant has not shown any prejudice resulting from the delay. Defendant was able to respond to the opposition with a written brief, which the court has considered.

In pertinent part, the court may not dismiss an action for delay in prosecution unless service is not made within two years after commencing the action. (Code Civ. Proc., § 583.420, subd. (a)(1).) Dismissal may be granted where appropriate under the circumstances, however, dismissal “shall” be made according to the procedure and criteria described by the Judicial Council. (Code Civ. Proc., § 583.410.)

In ruling on the motion, the court must consider all matters relevant to a proper determination, including the Plaintiff’s diligence in effecting service, the nature of any delay attributable to either party, whether the interests of justice are best served by dismissal, and any other relevant fact or circumstances. (CA Rules of Court, Rule 3.1342.) The court must be guided by the policy requiring parties to cooperate in bringing the action to trial or other disposition. The court must also consider the policy favoring trial on the merits, which is preferred over the policy requiring dismissal for failure to proceed with reasonable diligence in prosecuting the case.^{^[1]}

Plaintiff filed this action on October 26, 2021. The two-year deadline to accomplish service fell on October 26, 2023. Defendant was aware of this action since May 10, 2021, when Plaintiff served Defendants with the required Notice of Intent to sue. (Veronica Barton, decl., ¶ 3.) Plaintiff attempted service on July 21, 2023, but Defendant had already left the practice where Plaintiff had been treated. (Id. at ¶ 6.)

Plaintiff subsequently obtained Defendant’s correct place of business in Maywood, California, where service was attempted on July 28, 2023. (Id. ¶ 5-6.) Plaintiff’s licensed process server was informed that Defendant was “not in the office,” and the person in the office refused service. (Id. ¶ 6, Ex. C.) Plaintiff attempted personal service again on three different occasions, but was informed that Defendant was not in, and the receptionist continued to refuse service. (Id. ¶¶ 7-8.)

The return of a registered process server establishes a presumption, affecting the burden of proof, of the facts stated in the declaration. (Evid. Code, § 647).) Service by substitution at a person’s place of business is proper by leaving the documents with a person apparently in charge of the office, and thereafter mailing the documents to the same address. (Code Civ. Proc., § 415.20, subd. (b).) Defendant does not submit a declaration refuting the facts stated in the process server’s declaration, nor has Defendant explained why refusal of service at his place of business was reasonable.

When computing the time within which service is required to be made "the court shall exclude the time during which ‘[s]ervice for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control.’” (Danielson v. ITT Industrial Credit Co. (1988) 199 Cal.App.3d 645, 655.) Where a defendant, by his conduct lulls the plaintiff into not effecting service "the defendant may be estopped to assert the dismissal requirement of section 581a."(Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 482.)

The evidence demonstrates that Plaintiff diligently attempted service at a proper address before the discretionary two-year dismissal period expired. The process server was informed that the receptionist was “unsure when [Defendant] would be back,” refused acceptance, and ultimately, the process server “[w]asn’t given a straight time or date as to when [Defendant] would be at the office.” (Barton Decl., Ex. C.) As stated previously, the policy requiring parties to cooperate in bringing the action to trial or other disposition and the policy favoring trial on the merit are to be considered.

Defendant has not shown undue prejudice resulting from the delay in service. The trial court in its discretion may dismiss the action “if it finds undue prejudice to defendant from the delay in serving the summons." (Adelson v. Hertz Rent-A-Car (1982) 133 Cal.App.3d 221, 227.) Defendant contends that he is not required to make an affirmative showing of prejudice citing Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 83. Terzian affirmed this principle "where there has been an unjustified delay in service of the summons and complaint of almost three years." (Id. at 83.) Terzian involved mandatory dismissal. Plaintiff has demonstrated a justified delay in service within two years, which is discretionary.

Under these circumstances, discretionary dismissal of the action does not serve the interests of justice, the policy requiring parties to cooperate in bringing the action to trial or other disposition, and the policy favoring trial on the merits, the latter of which is preferred over the policy requiring dismissal for failure to proceed with reasonable diligence in prosecuting the case. Accordingly, Defendant’s Motion is DENIED.

Defendant, Ryan Edalatpajouh, DDS (“Defendant”) demurrers to the claims for medical battery and battery. Plaintiff alleges that he did not give any consent to the procedure. Failure to disclose pertinent information is negligence, the basis for which is lack of informed consent. Plaintiff consented to root canal procedures in two upper teeth. Medical battery occurs where the procedure performed is substantially different from that to which Plaintiff consented. The third cause of action for battery is based on the same alleged facts and is duplicative of the claim for medical battery.

In opposition, Plaintiff argues that he has alleged violations of two primary rights. The claim for medical battery is adequately stated because a substantially different procedure occurred, and Plaintiff did not consent. This is not a case of inadequate disclosure of risks, which is negligence. The third cause of action for battery is fundamentally different from the cause of action for medical battery, as the latter requires an intentional act to deliberately deviate from the procedure to which Plaintiff did consent.

In reply, Defendant re-argues that the medical battery is not adequately alleged, and that Defendant contends that Plaintiff admits that the third cause of action is duplicative of the second claim for medical battery.

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity that is sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

A demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).)

A pleading is required to assert general allegations of ultimate fact. Evidentiary facts are not required. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690.) However, unlike federal courts, California state courts are not a notice pleading jurisdiction, and notice alone is not a sufficient basis for any pleading. California is a fact pleading jurisdiction. Merely putting an opposing party on notice is not sufficient. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.)

In the medical context, battery occurs when a patient gives permission to a doctor to perform one type of procedure, but the doctor performs a substantially different procedure to which the patient did not consent. (Perry v. Shaw (2001) 88 Cal.App.4th 658, 660.) It is distinct from negligence, which arises from a physician’s failure to comply with good professional practice. (Id.) A battery is an intentional and offensive touching of a person who has not consented to the touching. (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266.) Lack of consent is a necessary element. (Id., Cobbs v. Grant (1972) 8 Cal.3d 229, 239 [“Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery."].)

Plaintiff alleges that he consented to root canal surgery on Plaintiff’s upper teeth only. (Complaint ¶ 18.) Defendant allegedly performed a substantially different procedure, wherein he removed all of Plaintiff’s top teeth and several bottom teeth. (Complaint ¶ 19.) Plaintiff alleges that at no point did he consent to having any teeth extracted or to having healthy bone and tissue removed. (Complaint, ¶ 20.)

Defendant appears to argue that Plaintiff is alleging lack of informed consent, a form of negligence. Such a claim arises when a physician performs a procedure without first adequately disclosing the risks and alternatives. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.) The physician’s duty is to disclose all material information to enable the patient to make an informed decision regarding the procedure. Information is material if the physician knows or should know that a reasonable person would regard that information as significant when deciding to accept or reject the recommended procedure. (Davis v. Physician Assistant Bd. (2021) 66 Cal.App.5th 227, 277.) The claim is a form of professional negligence and is distinguished from a medical battery. (Saxena at 324.)

The complaint does not allege a lack of disclosure that the two root canals may necessitate removal of any teeth. On the contrary, Plaintiff alleges he was never informed of the need to extract any of his teeth. (Complaint, ¶ 6.)

Civil battery is distinguished from medical battery not only in matters of context but also in the nature of intent. Medical battery requires an intentional deviation from the consent given. (So v. Shin (2013) 212 Cal.App.4th 652, 669.) Civil battery arises from a touching without consent., or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching.” SoId 2, 669 ["(1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching.” (Id.)

Accordingly. the third cause of action is more generally stated and involves general touching without consent.

Based on the foregoing, the demurrer is OVERRULED. Defendant is ordered to file its response to the Complaint within 10 days.

[1] “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter." (Code Civ. Proc., § 583.130.)