Judge: Virginia Keeny, Case: 22STCV31209, Date: 2023-04-05 Tentative Ruling

Case Number: 22STCV31209    Hearing Date: April 5, 2023    Dept: W

SUZETTE JAMES v. IMBUE MEDICAL CORPORATION, et al.

Demurrer with motion to strike the complaint

Date of Hearing:        April 5, 2023                                      Trial Date:       None Set.

Department:              W                                                        Case No.:        22STCV31209

Moving Party:            Defendant Imbue Medical Corporation dba EllEve Med Spa

Responding Party:     Plaintiff Suzette James

Meet and Confer:      Yes.  (Costa Decl. ¶¶3-4.)

BACKGROUND

On September 26, 2022, Plaintiff Suzette James filed a complaint against Defendants Imbue Medical Corporation dba EllEve Med Spa and Cutera Inc., alleging causes of action for negligence, battery, strict liability, negligent hiring, and intentional infliction of emotional distress. On February 16,2021, Plaintiff presented to EllEve Med Spa, to undergo a body sculpting treatment using a truSculpt iD body sculpting machine. Plaintiff alleges during the treatment, Plaintiff began to feel a burning sensation and the nurse for EllEve dismissed Plaintiff’s concerns. Plaintiff alleges shortly after the procedure, her skin began to bubble. After presenting for a surgical consultation with a doctor, Plaintiff discovered she would be left with scars from the treatment.

[Tentative] Ruling

Defendant Imbue Medical Corporation dba EllEve Med Spa’s Demurrer to the Second and Fifth Causes of Action is SUSTAINED WITH LEAVE TO AMEND. Defendant’s Motion to Strike is MOOT.

DISCUSSION

Defendant Imbue Medical Corporation dba EllEve Med Spa (“EllEve”) demurs to the second cause of action for battery and fifth cause of action for intentional infliction of emotional distress on the grounds the Complaint fails to state facts sufficient to constitute these causes of action and is uncertain.

Battery

Defendant EllEve demurs to the second cause of action for battery on the grounds there are no facts alleged that Plaintiff did not consent to the body sculpting procedure and there are no facts showing a substantially different procedure was performed.

“The essential elements of a cause of action for battery are: (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.” (Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 669.) In the context of medical battery, “a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.”  (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.)  A battery also occurs “[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 . . .”  (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.)

Defendant argues Plaintiff’s claims do not constitute battery as her claims establish no more than professional negligence. Defendant contends “[w]here a patient consents to certain treatment and the physician performs the treatment without meeting the due care duty to disclose pertinent information, the cause of action is negligence, not battery.” (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1197 fn. 2 [emphasis added].) In other words, “[t]he battery theory is reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” (Ibid.; see also Cobbs, supra, 8 Cal.3d at p. 241 [When a physician “failed to meet his due care duty to disclose pertinent information, . . . the action should be pleaded in negligence.”].) Because her claim only amounts to professional negligence, Defendant contends the complaint is void of allegations she did not consent to the procedure or that the procedure performed differed from what she consented to.

In opposition, Plaintiff argues they are not alleging medical battery; rather, Plaintiff contends they are alleging battery based on common law battery. Under common law battery, Plaintiff contends common law battery is “something more than a 'technical battery'.” (Perry v. Shaw (2001) 88 Cal.App.4th 658, 661.) Accordingly, Plaintiff argues the harmful and offensive touching without Plaintiff’s consent occurred when defendant failed to remove the machine the moment Plaintiff reacted to the burning sensation,  failed to inquire as to her pre-existing burns, and engaged in other harmful actions during the procedure, all of which were an an extreme departure from normal practice.

This distinction is without difference. The definition provided for by the court in Perry is the same definition of battery provided in the medical context of Cobbs. As a result, Plaintiff must either way allege the defendant failed to obtain the Plaintiff’s consent to the procedure or performed a substantially different procedure than the one the Plaintiff consented to. Plaintiff does not contend they are alleging Defendant performed a substantially different procedure than the one the Plaintiff consented to. However, as alleged, the court finds Plaintiff has not alleged consent to unwanted touching. Failure to remove a machine that was burning Plaintiff’s skin amounts to no more than negligence. Similarly, failing to inquire about Plaintiff’s skin condition prior to the treatment does not amount to performing a procedure or touching without consent. Lastly, a failure to disclose risks associated with the procedure sounds in negligence. (See Burchell v. Faculty Physicians & Surgeons of Loma Linda University School of Medicine (2020) 54 Cal.App.5th 515, 524.)

Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND.

Intentional Infliction of Emotional Distress

Defendant EllEve demurs to the fifth cause of action for intentional infliction of emotional distress on the grounds Plaintiff’s Complaint fails to allege facts establishing Defendant and/or its employees intentionally engaged in outrageous conduct directed towards Plaintiff.

The elements for a cause of action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) an actual and proximate causal link between the tortious conduct and the emotional distress.  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  

Defendant contends Plaintiff has not alleged facts beyond professional negligence as allegations of performing the procedure below the standard of care is not outrageous. Moreover, the element of intent is missing.

Plaintiff argues their cause of action incorporates all of the required elements including outrageous conduct and intent. Plaintiff alleges the nurse dismissing Plaintiff’s complaint and continuing the procedure was outrageous and the nurse knew or should have known the emotional distress would have resulted. The court finds Plaintiff has alleged outrageous conduct; however, Plaintiff has not sufficiently alleged intentional conduct. The defendant must have engaged in conduct “intended to inflict injury or engaged in with the realization that injury will result.  It is not enough that the conduct be intentional and outrageous.” (Christenson v. Superior Court (1991) 54 Cal.3d 868, 903.)  

Accordingly, Defendant’s demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike

Defendant EllEve moves to strike Plaintiff’s second cause of action for battery and fifth cause of action for intentional infliction of emotional distress as well as paragraphs 33 and 56 for punitive damages.

Because the court has sustained the demurrer, Defendant’s Motion to Strike is MOOT. The court notes “whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one ‘arising out of the professional negligence of a health care provider,’ and the party must comply with section 425.13(a).”