Judge Ralph C. Hofer, Case 22GDCV00323 2023-01-20 Tentative Ruling

Plaintiff Stepan Tashchyan alleges that in May of 2019 plaintiff entered into an oral contract with defendants Martin Stepanyan, D.D.S. and Stepanyan Surgical Arts Center wherein defendants promised to provide dental care and procedures with guaranteed outcomes in exchange for plaintiff’s payment of certain sums of money. Plaintiff alleges that from May of 2019 plaintiff was under the dental care of defendants, and in August 2019 defendants performed a surgical procedure on plaintiff for extraction of teeth, placement of maxillary implants, placement of implant fixtures, and bone grafting. In March of 2020, defendants performed further procedures, including uncovering.

Plaintiff alleges that shortly thereafter plaintiff began experiencing problems with the implants, such as ill-fitting implants and pieces that started to loosen and fall out, which caused plaintiff to suffer significant pain. Plaintiff immediately informed defendant of the issues and asked for help, but defendants were unable to or refused to correct the issues. Plaintiff alleges that because defendants were not responding to plaintiff’s requests to fix the problems, plaintiff had to seek treatment from another dental surgeon to correct the issues which caused plaintiff to incur additional costs. The First Amended Complaint alleges that defendants breached the standard of care for dentists and dental surgeons practicing in their community, causing plaintiff injuries and damages, and also breached the contract between the parties.

Plaintiff further alleges that he has made repeated requests for his medical records from defendants, but his requests were denied or ignored. Plaintiff alleges that plaintiff contacted the Dental Board of California and filed a complaint, as a result of which some documents were finally sent to plaintiff but that the documents were missing important records, such as radiology from before and after the procedure, complete chart notes, surgical notes, and periodontal records prior to the procedure. Plaintiff alleges that defendants’ failure to make, keep, or provide plaintiff’s complete medical records exacerbated plaintiff’s injury and delayed his ability to get further treatment and mitigate his damages. It is also alleged that defendants’ refusal to provide complete medical records violates Health & Safety Code section 123100, et seq.

Plaintiff in opposition argues that the demurrers are not accompanied by any pleading or moving papers actually demurring to plaintiff’s First Amended Complaint. Plaintiff argues that although the notice indicates that a distinct “demurrer” has been filed, no such document appears to exist.

“The Demurrer is made pursuant to the provisions of the Code of Civil Procedure section 430.10(e) and (f) and California case law, on the grounds Plaintiff’s causes of action for negligent misrepresentation, breach of contract, failure to keep and/or provide medical records, and specific performance providing a copy of plaintiff’s entire file and all medical records, each fail to state a claim upon which relief can be granted and are duplicative.”

While this is not ideal, as each ground, in effect, failure to state a claim, and duplicative, are not stated in a separate paragraph, it appears evident that each of these grounds are asserted as to each of the causes of action specified by title in the same paragraph.

The notice is a bit confusing, as it states broadly it is brought pursuant to CCP section 430.10 (e) and (f). Subdivision provides as a ground for demurrer, “(f) The pleading is uncertain.” Plaintiff argues that it is unclear which of the causes of action defendant is arguing is uncertain. It does not appear that any specific uncertainty ground is being pursued in the memoranda, however, so there is no prejudice to plaintiff from the reference in the notices. The demurrers are not disregarded on this procedural ground but are considered on their merits.

Defendants argue that these causes of action are improper because they are duplicative of the first cause of action for dental malpractice. Defendants argue that the causes of action are based on the same primary right and duty as the underlying professional negligence cause of action, and that all causes of action should be treated as just one cause of action, stemming from the violation of the right of plaintiff to be free of negligence in connection with the rendering of medical services.

Under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 177, 180. Moreover, plaintiff in opposition relies on Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890, under which it was observed that the duplicative standard referred to by defendant is not listed as a ground to sustain a demurrer under CCP § 430.10. Blickman, at 890. The court of appeal in Blickman noted that although the motion to strike statute previously authorized a court to strike “irrelevant and redundant” matter from a pleading, the statute no longer includes that language, and concluded, “This is not a ground on which a demurrer may be sustained.” Blickman, at 890, italics in original.

“The Court of Appeal thus erred in finding plaintiff's pleadings ‘broad enough’ to state a cause of action for ordinary negligence as well as professional negligence. This analysis necessarily implies that the same factual predicate can give rise to two independent obligations to exercise due care according to two different standards. But this is a legal impossibility: a defendant has only one duty, measured by one standard of care, under any given circumstances.”

This circumstance is not a case where plaintiff is attempting to allege an ordinary negligence claim in addition to a professional negligence claim. The second cause of action, for example, is expressly identified as one for “Dental Malpractice—Negligent Misrepresentation,” supporting the conclusion that the claim is not brought under the professional malpractice standard of care.

With respect to the misrepresentation theory, which is also the basis of the breach of oral contract cause of action, defendants seem to argue that there can be no breach of contract or misrepresentation cause of action separate from a professional negligence claim stated against a medical practitioner as a matter of law. However, there is case law under which a breach of contract cause of action can be stated against a medical provider based on allegations that the provider promised a particular result, as is alleged here. The Second District in Depenbrok v. Kaiser Foundation Health Plan, Inc. (1978) 79 Cal.App.3d 167, found that the trial court’s had committed reversible error in its instruction on a breach of warranty cause of action in connection with a surgeon’s representation to a patient, concluding:

“We conclude that, if a plaintiff can prove to a properly instructed jury that a surgeon has clearly promised a particular result (as distinguished from a mere generalized statement that the result will be good), and that the patient consented to an operation or other procedure in reliance on that promise, there can be recovery on the theory of warranty (or, to give the theory its more accurate name, breach of contract).”

To the extent defendants argue that defendants may argue and use certain jury instructions that success is not the standard of care governing a professional negligence claim, those arguments can be asserted in defense of the First Amended Complaint, but do not support sustaining a demurrer to the subject claims. Specifically, while the authorities cited indicate that a medical provider is not required to guarantee results, it would follow that where the allegations are that the provider affirmatively undertook to make such a guarantee, liability may be imposed, as discussed above.

It would also appear to the court that stating these theories separately could prove beneficial to all parties as the litigation proceeds, particularly in connection with potential summary judgment or adjudication proceedings, where there is sometimes concern that a motion on a particular theory will not dispose of an entire cause of action.

Defendants argue that with respect to the third cause of action, to the extent plaintiff contends defendants should have maintained better quality medical records, such claims are another variation of the professional negligence cause of action and a separate cause of action is inappropriate as discussed in connection with the previous causes of action. As discussed above, the duplicative argument is not appropriately applied here, and, again, it appears that the cause of action is tethered to the professional standard of care, and not an improper attempt to impose liability based on some ordinary or distinct duty owed by defendants.

Defendants also argue that to the extent the fifth cause of action for specific performance contends that defendants violated Health and Safety Code section 123110, the FAC contradicts plaintiff’s theory as the FAC admits that plaintiff was provided with copies of his records. [FAC, paras. 22, 68].

“(a) Notwithstanding Section 5328 of the Welfare and Institutions Code, and except as provided in Sections 123115 and 123120, any adult patient of a health care provider, … and any patient's personal representative shall be entitled to inspect patient records upon presenting to the health care provider a request for those records and upon payment of reasonable costs, as specified in subdivision (k)…. A health care provider shall permit this inspection during business hours within five working days after receipt of the request. The inspection shall be conducted by the patient or patient's personal representative requesting the inspection, who may be accompanied by one other person of their choosing.

(b)(1) Additionally, any patient or patient's personal representative shall be entitled to a paper or electronic copy of all or any portion of the patient records that they have a right to inspect, upon presenting a request to the health care provider specifying the records to be copied, together with a fee to defray the costs of producing the copy or summary, as specified in subdivision (k). The health care provider shall ensure that the copies are transmitted within 15 days after receiving the request….

(h) Any health care provider described in paragraphs (4) to (10), inclusive, of subdivision (a) of Section 123105 who willfully violates this chapter is guilty of unprofessional conduct. Any health care provider described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 123105 that willfully violates this chapter is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”

The pleading here alleges that on several occasions, plaintiff requested a copy of his complete medical records and file from defendants, and that according to proof at trial, “Defendants either failed to properly make and maintain Plaintiff’s medical records, as per standards of dentists and dental surgeons, or have refused to timely provide Plaintiff his medical records in willful violation” of the Health and Safety Code. [FAC, para. 57]. These allegations are supported by detailed factual allegations at paragraphs 20-28, 34, and 35, which would support an inference that the documents were not produced within the five day or fifteen days required but withheld until a complaint was filed with the Dental Board. The fifth cause of action similarly alleges that defendants have failed to produce a copy of plaintiff’s entire file and medical records. [FAC, paras. 68, 69].

Plaintiff argues that the claims are sufficiently stated because it is alleged that plaintiff requested a copy of his medical records, and that the records eventually provided were not timely provided, and that the records were not the entirety of plaintiff’s medical file, as plaintiff is entitled to under Health and Safety Code section 123100, or the records were the entirety of the medical records kept by defendants which were kept in such a way as to violate Health and Safety Code section 123100. That section provides, in pertinent part:

“The Legislature finds and declares that every person having ultimate responsibility for decisions respecting his or her own health care also possesses a concomitant right of access to complete information respecting his or her condition and care provided.”

Defendants argue that to the extent the pleading appears to complain about the quality of the records which were provided, liability cannot be imposed on that basis under Health and Safety Code section 123110 (g), which provides, in pertinent part:

“(g)(1) This chapter shall not be construed to render a health care provider liable for the quality of their records or the copies provided in excess of existing law and regulations with respect to the quality of medical records.”

Defendants have not indicated how the completeness of the records, or their quality, is based on alleged requirements in excess of existing law and regulations, especially considering the allegations that the records were not complete records, as required under Health and Safety Code section 123100. The pleading in any case sufficiently alleges that defendants “have refused to timely provide” the appropriate medical records. [FAC, para. 57]. The pleading is sufficient, and the demurrers on this ground are overruled.

Defendants also argue that the claims are not sufficiently stated because plaintiff did not comply with Health and Safety Code section 123110(b). As noted in the opposition, there is nothing from the face of the pleading which would suggest that plaintiff did not comply with that subdivision. Under CCP § 430.30(a), an objection to a pleading may be taken by a demurrer "[w]hen any ground for objection to a complaint...appears on the face thereof, or from any matter of which the court is required to or may take judicial notice…" The objection is based on a fact which does not appear on the face of the FAC, or from any matter which the court is requested to take judicial notice. The demurrer on this ground accordingly is overruled.

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