Judge Randolph M. Hammock, Case 22STCV23446 2023-01-27 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV23446, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV23446 Hearing Date: January 27, 2023 Dept: 49

Cormelean Butler Kizzee v. Yaniv Raphael, M.D., et al.

(1) DEFENDANTS CEDARS-SINAI MEDICAL CENTER AND CEDARS-SINAI HEALTH SYSTEM’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE

(2) DEFENDANT YANIV RAPHAEL, M.D.’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE

MOVING PARTY: (1) Defendants Cedars-Sinai Medical Center and Cedars-Sinai Health System; (2) Defendant Yaniv Raphael, M.D.

RESPONDING PARTY(S): (1)&(2) Plaintiff Cormelean Butler Kizzee

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Cormelean Butler Kizzee brings this action for medical negligence against Defendants Cedars-Sinai Medical Center, Cedars-Sinai Health System, and Yaniv Raphael, M.D. Plaintiff alleges she visited Cedars for a biopsy of her left kidney to address the potential spread of her cancer. Plaintiff alleges that Defendant Raphael, the treating physician, conducted the biopsy on her right kidney instead of her left. Plaintiff asserts causes of action for (1) medical negligence, (2) breach of fiduciary duty, (3) constructive fraud, (4) dependent adult abuse, and (5) lack of informed consent.

Defendants Cedars-Sinai Medical Center and Cedars-Sinai Health System (hereinafter “the Cedar-Sinai Defendants”) demurrer to the Complaint, and also move to strike portions of the Complaint. Defendant Yaniv Raphael, M.D., also filed a demurrer and motion to strike. Plaintiff opposed only Defendant Raphael’s demurrer and motion to strike.

TENTATIVE RULING:

The Cedars-Sinai Defendants' Demurrer to the Second and Third Causes of Action is OVERRULED AS MOOT.

The Cedars-Sinai Defendants' Demurrer to the Fourth and Fifth Causes of Action is SUSTAINED.

The Cedars-Sinai Defendants’ Motion to Strike is GRANTED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

Defendant Yaniv Raphael, M.D.’s Demurrer to the Second and Third Causes of Action is OVERRULED.

Defendant Yaniv Raphael, M.D.’s Demurrer to the Fourth and Fifth Causes of Action is SUSTAINED.

Defendant Yaniv Raphael, M.D.’s Motion to Strike is GRANTED. Plaintiff must demonstrate the possibility of successful amendment on that motion to strike at the hearing to be granted leave to amend, if requested.

Moving parties to give notice, unless waived.

DISCUSSION:

Demurrer by Cedars-Sinai Defendants

I. Meet and Confer

The Declaration of Attorney Lee M. Moulin, Counsel for Defendants, reflects that the meet and confer requirement was satisfied. (CCP § 430.41.)

II. Analysis

The Cedars-Sinai Defendants demur to the Second, Third, Fourth, and Fifth Cause of Action. Plaintiff has not opposed. Each is addressed in turn.

A. Second Cause of Action for Breach of Fiduciary Duty; Third Cause of Action for Constructive Fraud

Defendants first demurrer to the second cause of action for breach of fiduciary duty, and third cause of action for constructive fraud. Notably, however, these causes of action are asserted against only Defendant Yaniv Raphael, M.D.

Because the Cedar-Sinai Defendants are not named in these causes of action, their demurrer to same is unnecessary and/or MOOT.

B. Fourth Cause of Action for Dependent Adult Abuse

Defendants next demur to the Fourth Cause of Action for Dependent Adult Abuse. Under Welfare and Institutions Code section 15657, “a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorney fees and costs.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404.)

The Elder Abuse Act defines abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst.Code, § 15610.07, subd. (a)); or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., § 15610.07, subd. (b)). The Act defines neglect as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Id., § 15610.57, subd. (a)(1).) “Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. [¶] (2) Failure to provide medical care for physical and mental health needs.... [¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration.” (Id., § 15610.57, subd. (b).) “[W]hen the medical care of an elder is at issue, ‘the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.’” (Carter, supra, 198 Cal. App. 4th at 404–05.) “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.” (Id. at 405.) “The plaintiff must prove ‘by clear and convincing evidence’ that ‘the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of’ the neglect.” (Id.) “Thus, the enhanced remedies are available only for ‘acts of egregious abuse’ against elder and dependent adults.” (Id.)

Thus, to state a claim under section 15657, “[t]he plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.” (Carter, supra, 198 Cal. App. 4th at 406–07 [cleaned up].)

As to the Cedars-Sinai Defendants, Plaintiff alleges that “after the erred biopsy, she requested an explanation regarding the change from the left kidney to the right kidney.” (Compl. ¶ 98.) In response, she “received a small, meaningless and insensitive statement ‘it doesn’t matter.’” (Id. ¶ 99.) Plaintiff alleges this “callous statement caused distress from a woman that is already struck with illness rendering her disabled,” and Defendants “failed to provide any redress for change of the biopsy.” (Id. ¶ 101.)

Here, “no facts are alleged as to any care or treatment” that Defendants “denied or withheld from” Plaintiff. (See Carter, supra, 198 Cal. App. 4th at 408.) Moreover, Plaintiff has not alleged any reckless conduct by the moving Defendants with any specific facts. Finally, the court notes that Plaintiff has failed to oppose this demurrer. Thus, the claim fails as a matter of law. (See Carter, supra, 198 Cal. App. 4th at 407 [sustaining demurrer where court did “not find in plaintiffs' pleadings allegations that the Hospital did anything sufficiently egregious to constitute neglect (or any other form of abuse) within the meaning of the Elder Abuse Act.”].)

Accordingly, Defendants’ Demurrer to the Fourth Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

C. Fifth Cause of Action for Lack of Informed Consent

Defendants also demur to the Fifth Cause of Action for lack of informed consent. Defendants argue lack of informed consent is not an independent cause of action—it is duplicative of the medical negligence cause of action.

Lack of informed consent can sound in negligence or battery. (Cobbs v. Grant (1972) 8 Cal. 3d 229, 239.) Here, Plaintiff alleges that “Defendants were negligent because Defendants performed an improper medical biopsy surgery on Kizzee without first obtaining her informed consent,” and proceeds to allege facts supporting elements resembling a negligence cause of action. (Compl. ¶ 121.) Thus, as currently pled, the cause of action is duplicative of the first cause of action for medical negligence.

Accordingly, Defendants’ Demurrer to the Fifth Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

Motion to Strike by Cedars-Sinai Defendants

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

II. Analysis

Defendants move to strike all references to, and allegations supporting, punitive and/or exemplary damages. In particular, Defendants move to strike:

1. Complaint, Page 8, Paragraph 66, Lines 9-10: “oppressively, and intentionally.”

2. Complaint, Page 10, Paragraph 83, Line 2: “oppressively.”

3. Complaint, Page 12, Paragraph 107, Line 9: “intentional.”

4. Complaint, Page 12, Paragraph 112, Lines 19-20: “maliciously, oppressively and

abusively, in willful and conscious disregard.”

5. Complaint, Page 12, Paragraph 113, Lines 22-23: “Pursuant to Cal. Civ. Code

section 15657, in California, punitive damages may be awarded upon proof of clear and convincing evidence of oppression and malice.”

6. Complaint, page 13, Paragraph 117, Line 4: “punitive damages.”

7. Complaint, Page 13, Paragraph 118, Line 6: “punitive damages.”

8. Complaint, Page 14, Paragraph 128, Lines 3-4: “recklessly, oppressively, and

intentionally”

9. Complaint, Page 14, Prayer for Damages, Line 3: “For punitive damages for the

disability abuse.”

Civil Code section 3294, subdivision (a) permits an award of punitive damages “for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” “Malice” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ.Code, § 3294 subd. (c)(2).) “Fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ.Code, § 3294, subd. (c)(3).)

Defendant argues that Plaintiff seeks punitive damages for professional negligence without having sought leave of court to include the request. CCP § 425.13(a) provides that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” CCP § 425.13 is not limited to malpractice claims. It applies to any claim for injury “directly related to the professional services provided” by a health care provider. (Central Pathology Service Med. Clinic, Inc. v. Sup.Ct. (1992) 3 C4th 181, 191.)

Plaintiff has not opposed the motion. There can be no dispute that Defendants are health care providers, and little doubt that Plaintiff’s alleged injuries resulted directly from the professional services provided by Defendants. Because Plaintiff has not sought leave to include a request for punitive damages, the paragraphs are stricken.

Accordingly, Defendants’ motion to strike punitive damages is GRANTED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

Demurrer by Defendant Yaniv Raphael, M.D.

I. Meet and Confer

The Declaration of Attorney Rebecca G. Goldstein, Counsel for Defendant, reflects that the meet and confer requirement was satisfied. (CCP § 430.41.)

II. Analysis

Defendant Yaniv Raphael, M.D., also demurrers to the Second, Third, Fourth, and Fifth Cause of Action. Plaintiff opposed. Each is addressed in turn.

A. Second Cause of Action for Breach of Fiduciary Duty

Defendant first argues the second cause of action fails because California courts do not recognize a breach of fiduciary relationship between healthcare providers and patients in this context. Rather, “California courts have recognized breach of fiduciary duty only where a health care provider fails to ‘obtain the patient's informed consent and disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment.’” (Opp. 5: 18-22 [citing Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129.)

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) “A cause of action premised on a physician's breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent.” (Jameson v. Desta (2013) 215 Cal. App. 4th 1144, 1164.)

Although the particular facts of Moore involved a physician’s breach of fiduciary duty by failing to inform the patient of his “personal interests unrelated to the patient’s health,” there is nothing to suggest breach of that duty is limited only to those particular circumstances. Rather, subsequent courts have articulated the duty as a “’duty to disclose all information material to the patient's decision,’ when soliciting a patient's consent to a medical procedure.” (Jameson, supra, 215 Cal. App. 4th at 1164.) Here, Plaintiff has alleged as much.

Plaintiff alleges “Defendant Raphael had a fiduciary duty owed to Kizzee to use reasonable care when caring for Kizzee because she had a fiduciary relationship with said Defendant Raphael.” (Compl. ¶ 54.) She further alleges “Defendant Raphael breached his fiduciary duty…to Kizzee by failing to properly conduct the left kidney biopsy.” (Id. ¶ 65.)

Second, Defendant has cited no authority stating a breach of fiduciary duty cause of action is duplicative of a negligence cause of action.

Accordingly, Defendant’s Demurrer to the Second Cause of Action is OVERRULED.

B. Third Cause of Action for Constructive Fraud

Defendant next demurs to the Third Cause of Action for Constructive Fraud. Defendant argues that “Plaintiff fails to plead how DR. RAPHAEL owed her a fiduciary duty other than

the duty owed in a traditional patient-health care provider relationship,” and otherwise alleges the cause of action in “conclusory terms.” (Dem. 7: 5-9.)

“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship. [Citation.] [¶] [A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent.” (Assilzadeh v. California Fed. Bank (2000) 82 Cal. App. 4th 399, 415.) “[W]hether a fiduciary duty has been breached, and whether a statement constitutes constructive or actual fraud, depends on the facts and circumstances of each case.” (Id.)

Plaintiff alleges that “Defendant Raphael failed to act reasonable and carefully to operate and conduct a proper left kidney biopsy”; that Plaintiff “relied on Defendant Raphael to follow the instruction on the medical Order for the left kidney biopsy”; that “Defendant Raphael concealed an important material fact that the kidney biopsy would be done on the right kidney rather than the left kidney”; that this “concealed fact caused error while failing to promptly provided proper diagnosis as well as treatment”; and “that constructive fraud continued with the thoughtless statement that the right or left kidney doesn’t matter.” (Compl. ¶¶ 73, 75, 76, 77, 79.)

Thus, for pleadings purposes, Plaintiff has stated a cause of action for constructive fraud. Whether this conduct in fact constitutes a breach of fiduciary duty or constructive fraud is an issue to be determined at a later time. (Id.) Finally, Defendant cites no authority suggesting the cause of action is duplicative of the medical negligence cause of action.

Accordingly, Defendant’s Demurrer to the Third Cause of Action is OVERRULED.

C. Fourth Cause of Action for Dependent Adult Abuse

Defendant next demurs to the Fourth Cause of Action for Dependent Adult Abuse. Under section 15657, “a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorney fees and costs.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404.)

The Elder Abuse Act’s use of the phrase “care or custody” denotes a relationship “where a party has accepted responsibility for attending to the basic needs of an elder or dependent adult.” (Winn v. Pioneer Med. Grp., Inc. (2016) 63 Cal. 4th 148, 160.) The Act “is not intended to apply to any conceivable negligent conduct that might adversely impact an elder or dependent adult. Instead, neglect requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.” (Winn v. Pioneer Med. Grp., Inc. (2016) 63 Cal. 4th 148, 160.)

Here, Plaintiff has not alleged a custodial relationship between herself and Defendants to the degree contemplated by the Act. At most, Plaintiff alleges professional negligence in a one-off operation. Thus, she may seek that remedy (and does), but “not the heightened remedies available under the Elder Abuse Act.” (Winn v. Pioneer Med. Grp., Inc. (2016) 63 Cal. 4th 148, 160.)

As a comparison, a custodial relationship existed in Delaney where “the elder resided at a skilled nursing facility where she had been left lying in her own urine and feces for extended periods of time because the defendants, upon whom she had relied to provide basic care, had failed to carry out their caretaking and custodial obligations.” (Winn, supra, 63 Cal. 4th at 160-161 [citing Delaney, 20 Cal.4th at p. 27].) Similarly, in Covenant Care, “the elder suffered ‘from Parkinson's disease and was unable to care for his personal needs[,]” and “relied on the defendants to provide nutrition, hydration, and medication—needs that an able-bodied and fully competent adult would ordinarily be capable of handling on his or her own.” (Winn, supra, 63 Cal. 4th at 160-161 [citing Covenant Care, 32 Cal.4th at p. 778].)

This case does not remotely resemble those scenarios. It should also be noted that Plaintiff has failed to meaningfully address or distinguish the cases relied on by Defendant.

D. Fifth Cause of Action for Lack of Informed Consent

Defendant demurs to the Fifth Cause of Action for lack of informed consent. Defendant argues lack of informed consent is duplicative of the medical negligence cause of action.

Motion to Strike by Defendant Yaniv Raphael, M.D.

I. Legal Standard

II. Analysis

Defendant moves to strike all references to, and allegations supporting, punitive and/or exemplary damages. In particular, Defendant moves to strike:

l. Page 12, ¶ 111, lines 17-18, "Defendants' actions were intentional and done in willful disregard for the well-established and well-known rights of Kizzee."

2. Page 12, ¶ 112, lines 19-21, "Defendants acted maliciously, oppressively and abusively, in willful and conscious disregard of Plaintiff Kizzee rights and safety causing extreme harm and distress to Kizzee."

3. Page 12, ¶ 113, lines 22-23, "Pursuant to Cal. Civ. Code §15657, in California, punitive damages may be awarded upon proof of clear and convincing evidence of oppression and malice."

4. Page 12, ¶ 115, lines 26-27, "Here, Kizzee was oppressed and treated with pervasive recklessness when receiving an erred biopsy."

5. Page 13, ¶ 117, lines 4-5, "Thus, both Defendants arc subject to punitive damages for the acts and omissions that occurred herein."

6. Page 13, ¶ 118, lines 6-7, "Therefore, Plaintiff is entitled to punitive damages in an amount to be determined by proof at trial."

7. Page 14, ¶ 128, lines 3-4, "By virtue of the foresaid, Defendants, and each of them, acted recklessly, oppressively, and intentionally in breach of their duties as healthcare providers."

8. Prayer for Relief, Page 14, ¶ 3, lines 10-11, "For punitive damages for the disability

abuse."

Defendant moves to strike these portions of the Complaint on the grounds that Plaintiff seeks punitive damages for professional negligence without having sought leave of court to include the request. CCP § 425.13(a) provides that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” CCP § 425.13 is not limited to malpractice claims. It applies to any claim for injury “directly related to the professional services provided” by a health care provider. (Central Pathology Service Med. Clinic, Inc. v. Sup.Ct. (1992) 3 C4th 181, 191.)

In opposition, Plaintiff has flatly failed to address section 425.13 and its implications here. Again, there can be no dispute that Defendants are health care providers, and little doubt that Plaintiff’s alleged injuries resulted directly from the professional services provided by Defendant. Because Plaintiff has not sought leave to include a request for punitive damages, the paragraphs are stricken.

Accordingly, Defendant’s motion to strike punitive damages is GRANTED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

Concluding Observations on Over Pleading

Last, but not least, this Court is continuingly frustrated by the constant over-pleading of lawsuits by plaintiffs’ lawyers. Why assert five separate causes of action in this particular case, when literally on or two (at most) will suffice? [FN 1] Why then add three separate causes of action for basically the same allegations, such as breach of fiduciary duty, constructive fraud and lack of informed consent?

A lawsuit’s complaint should not become a law school or bar examination in which one attempts to identify every possible claim in a blue book. Suffice it to state, many of the causes of actions pled in this case are either duplicative and/or already covered by the medical negligence case. This is a medical malpractice case. Nothing more; nothing less. In this case, Plaintiff’s counsel may perhaps score an “A” in a law school examination, but they get an “F” in practical civil litigation practice.

This unfortunate type of over-pleading perfectly explains where we are now. A needless pleading battle with likely another round of demurrers and/or motions to strike to come. Instead of composing a 14-page Complaint, containing 129 enumerated paragraphs, perhaps in the future counsel should consider the use of a form complaint approved by the judicial counsel and narrow it down a bit.
[FN 2] At the very least, it is respectfully suggested that Plaintiff’s counsel modify its apparent standard cut-and-paste medical malpractice/elder abuse complaints accordingly.

Just food for thought.

IT IS SO ORDERED.

Dated: January 27, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

FN 1 - A separate cause of action for “elder abuse” may be appropriate in some situations, but not in this one.

FN 2 - Leonardo da Vinci is quoted as saying: “Simplicity is the ultimate sophistication.”