Judge: Sarah J. Heidel, Case: 23GDCV00538, Date: 2024-03-01 Tentative Ruling

Case Number: 23GDCV00538    Hearing Date: March 1, 2024    Dept: V

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT 

DEPARTMENT V 

MOVING PARTIES: Defendants Estate of Patrick Aaron Levine and Levine Foot & Ankle, Inc.  

RESPONDING PARTY: Plaintiff Arno Sepanossian             

Demurrer to Complaint  

The court considered the moving papers, opposition, and reply papers filed in connection with this demurrer.  

BACKGROUND 

On March 16, 2023, Plaintiff Arno Sepanossian filed the Complaint against Defendants Estate of Patrick Aaron Levine, Deceased; Levine Foot & Ankle, Inc.; Elite Foot & Ankle; Providence Health System – Southern California; Glendale Endoscopy Center, LLC; and DOES 1 through 100, inclusive, alleging causes of action for: (1) Medical Malpractice; (2) Medical Battery; and (3) Negligence. The Complaint alleges Plaintiff suffered ongoing issues with his foot post-surgery performed by Defendant Estate of Patrick Aaron Levine, Deceased.  

On January 29, 2024, Defendants Estate of Patrick Aaron Levine and Levine Foot & Ankle, Inc. (“Levine Defendants”). filed this instant Demurrer to Complaint. On February 16, 2024, Plaintiff filed his opposition. On February 20, 2024, Levine Defendants filed their reply.  

MEET AND CONFER  

Code of Civil Procedure Section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc.,  § 430.41, subd. (a)(3).) 

The Levine Defendants attach the declaration of Mark R. Gibson discussing the following meet and confer efforts.  The court finds that the Levine Defendant have satisfied the meet and confer requirement.   

LEGAL STANDARD 

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿¿ 

“A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿¿ 

A general demurrer may be brought under Code of Civil Procedure Section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)¿¿ 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)¿¿¿ 

DISCUSSION 

Levine Defendants demur to Plaintiff’s Complaint on the grounds that the second and third causes of action fail to state facts sufficient to constitute a cause of action. Plaintiff concedes that the third case of action for negligence fails.  Accordingly, the court only addresses the second cause of action for medical battery. 

Medical Battery 

“There are three elements to a claim for medical battery under a violation of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor's violation of the condition.” (Conte v. Girard Orthopedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269; see also Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1497.) Essentially, “[a] medical battery occurs 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....” (So v. Shin (2013) 212 Cal.App.4th 652, 669.) 

The Levine Defendants argue that Plaintiff has not alleged that Dr. Levine failed to obtain his consent to perform the type of procedure performed or that Dr. Levine performed a substantially different type of procedure than that for which consent was obtained. Levine Defendants argue Plaintiff merely alleges that his consent was not fully informed because he was not made aware of all of the risks associated with that procedure and that those allegations do not support a cause of action for medical battery but are encompassed by his claim for professional negligence.  

In Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241, the court held “when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-41.)  “[W]here 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.”  Conte v. Girard Orthopaedic Surgeons Med. Grp., Inc. (2003) 107 Cal. App. 4th 1260, 1267). 

The Court finds that the Complaint does not allege sufficient facts to support a cause of action for medical battery.  The complaint contains no allegations that Plaintiff consented to one type of treatment and Dr. Levine subsequently performed a substantially different treatment for which consent was not obtained. Nor does he allege that his consent was conditional.  (Piedra v. Dugan (2004) 123 Cal. App. 4th 1483, 1497 [it is well recognized a person may place conditions on the consent.])  Indeed, the Complaint alleges that Plaintiff consented to the exostectomy but would not have had he known the risks associated with doing so simultaneously with another surgery due to his diabetic history. Essentially, Plaintiff alleges he lacked informed consent.  

The demurrer as to the second cause of action for medical battery is SUSTAINED without Leave to Amend.  

Based on the foregoing, the court SUSTAINS Defendants Estate of Patrick Aaron Levine and Levine Foot & Ankle Surgery, Inc.’s Demurrer to Complaint without Leave to Amend as to the second and third causes of action.   

Moving party is ordered to give notice of this ruling. 

IT IS SO ORDERED. 

DATED:  ¿March 1, 2024¿ 

_____________________________ 

Sarah J. Heidel 

Judge of the Superior Court