Judge: Salvatore Sirna, Case: 22STCV12956, Date: 2023-01-10 Tentative Ruling

Case Number: 22STCV12956    Hearing Date: January 10, 2023    Dept: G

Defendants Keum Kang Choi, D.D.S. and Keum Kang Choi Dental Corporation’s Demurrer to Plaintiff’s Second Amended Complaint 

Respondent: Plaintiff Huizhen Meng

TENTATIVE RULING

Defendants Keum Kang Choi, D.D.S. and Keum Kang Choi Dental Corporation’s Demurrer to Plaintiff’s Second Amended Complaint is OVERRULED.

BACKGROUND

This is a medical malpractice action. On April 13, 2017, Plaintiff Huizhen Meng began visiting Keum Kang Choi, D.D.S. and Keum Kang Choi Dental Corporation (collectively, Choi Defendants); Udream Dental; George Xenakis, D.D.S.; and George Xenakis, D.D.S., P.C. (collectively, Defendants) for Plaintiff’s dental hygienic needs. On January 5 and January 19, 2021, Defendants extracted six of Plaintiff’s teeth and performed implants and grafts on Plaintiff’s removed teeth. After the procedures, Plaintiff developed a mouth infection and was hospitalized eleven days later for necrotizing fasciitis of the left parapharyngeal and submental space. As a result of the spreading infection, Plaintiff suffered acute kidney failure and had to undergo myectomies. On February 14, 2021, Plaintiff was transferred to another hospital where Plaintiff received postoperative treatment and reconstructive surgeries.  

On April 18, 2022, Plaintiff filed a complaint against Defendants and Does 1-20, alleging (1) medical negligence and (2) medical battery.

On June 8, 2022, Plaintiff filed a First Amended Complaint (FAC) against the same defendants, adding a third cause of action for breach of fiduciary duty. On August 5, 2022, the court sustained Choi Defendants’ demurrer to Plaintiff’s FAC.

On September 6, 2022, Plaintiff filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action.

On October 6, 2022, Choi Defendants filed the present demurrer. Prior to filing on September 30, 2022, Choi Defendants’ counsel met and conferred telephonically with Plaintiff’s counsel and was unable to reach a resolution. (Choi Decl., ¶ 3.)  

A hearing on the demurrer and case management conference are set for January 10, 2023. A final status conference is also set for October 2, 2023, and a non-jury trial is set for October 16.  

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)¿ 

ANALYSIS

Choi Defendants demur to Plaintiff’s third cause of action for breach of fiduciary duty, arguing it is uncertain and fails to state facts sufficient to state a claim. The court disagrees.

In this case, Choi Defendants first contend that Plaintiff’s cause of action for breach of fiduciary duty is duplicative of the cause of action for medical negligence and must be dismissed. The court acknowledges there is a split of authority on whether a demurrer can be sustained on grounds that a cause of action is duplicitous. In Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 (Blickman Turkus), the Sixth District Court of Appeal held a demurrer could not be sustained on grounds that it is duplicative pursuant to Code of Civil Procedure section 430.10. (Id., at p. 890.) In Palm Springs Villas Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268 (Palm Springs Villas), the Fourth District Court of Appeal held the opposite, noting a duplicative cause of action is grounds upon which a demurrer may be sustained according to Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (Rodrigues). (Palm Springs Villas, supra, 248 Cal.App.4th at p. 290.)

Code of Civil Procedure section 430.10 authorizes a party to bring a demurrer on eight different grounds, none of which explicitly include grounds that a cause of action is duplicative or superfluous. In Rodrigues, the Fourth District Court of Appeal noted the cause of action at issue merely combined all the previous causes of action and did not add anything to the complaint by way or fact or theory of recovery. (Rodrigues, supra, 87 Cal.App.3d at p. 498, 501.) However, the court finds the reasoning of Blickman Turkus more persuasive. Noting the jurisprudential maxim that “superfluity does not vitiate” (Civ. Code, § 3537), the court held “[t]his is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman Turkus, supra, 162 Cal.App.4th at p. 890.) Thus, the court rejects Choi Defendants’ argument that the third cause of action is duplicative and considers whether that cause of action is sufficiently pled.  

The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) “[A] physician has a fiduciary duty to disclose all information material to the patient’s decision” when seeking informed consent. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129.) When a physician fails to disclose personal interests unrelated to the patient’s health, a cause of action for breach of fiduciary duty may arise. (Ibid.)

Here, Choi Defendants argue that Plaintiff’s allegation Choi Defendants had an economic interest and financial incentive to save costs by extracting all of Plaintiff’s teeth at one time is lacking in specific facts. Plaintiff argues Choi Defendants should have disclosed the financial incentives behind the tooth removal which affected Choi Defendants’ professional judgment. (SAC, ¶ 128-129.) Because “the existence of a motivation for a medical procedure unrelated to the patient's health is a potential conflict of interest and a fact material to the patient's decision” (Moore, supra, 51 Cal.3d at p. 133), Plaintiff had adequately pled breach of fiduciary duty by alleging Choi Defendants had cost-saving and financial gain motivations for the way they extracted Plaintiff’s teeth.

Accordingly, Choi Defendants’ demurrer is OVERRULED.

CONCLUSION

Choi Defendants’ demurrer is OVERRULED.  Choi Defendants to file their answer to the Second Amended Complaint in twenty (20) days.