Judge: Virginia Keeny, Case: 22VECV01025, Date: 2022-12-27 Tentative Ruling
Case Number: 22VECV01025 Hearing Date: December 27, 2022 Dept: W
CHLOE MANAVI v.
FARIBORZ MATIAN, D.D.S., et al.
Defendants
fariborz matian, d.d.s. and fariborz matian dds, inc.’s demurrer
Date of Hearing: December
27, 2022 Trial Date: None
set.
Department: W Case
No.: 22VECV01025
Moving Party: Defendants
Fariborz Matian, D.D.S. and Fariborz Matian DDS, Inc.
Responding Party: No
opposition.
Meet and Confer: Yes.
(Finn Decl. ¶¶2-6.)
BACKGROUND
Plaintiff Chloe Manavi alleges on
December 19, 2019, Plaintiff underwent extraction of four wisdom teeth
performed by Defendant Fariborz Matian, D.D.S. Plaintiff alleges during the
procedure, Defendant negligently and severely injured Plaintiff causing Plaintiff
the need to obtain subsequent treatment and surgery.
On July 21, 2022, Plaintiff filed a
complaint against Defendants Fariborz Matian, D.D.S. and Fariborz Matian DDS,
Inc. asserting causes of action for medical malpractice and medical battery.
[Tentative] Ruling
Defendants Fariborz Matian, D.D.S. and
Fariborz Matian DDS, Inc.’s Demurrer to the Second Cause of Action is SUSTAINED
WITH LEAVE TO AMEND.
REQUEST FOR JUDICIAL NOTICE
Defendants Fariborz Matian, D.D.S. and
Fariborz Matian DDS, Inc. requests this court take judicial notice of
Plaintiff’s complaint filed July 21, 2022 (Exh. A).
The court grants Plaintiff’s request
for judicial notice. (Evid. Code §452(d).)
DISCUSSION
Defendants Fariborz Matian, D.D.S. and
Fariborz Matian DDS, Inc. demur to the second cause of action for medical
battery on the grounds that it fails to state facts sufficient to constitute a
cause of action. Specifically, the allegations within Plaintiffs second cause
of action for medical battery establish it is one for purported lack of informed
consent, which sounds in negligence, not a medical battery, an intentional tort.
“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.) “[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 second
cause of action is for lack of informed consent, which sounds in negligence,
not medical battery. The court agrees. “[B]attery and lack of informed consent
are separate causes of action.” (Saxena v. Goffney (2008) 159
Cal.App.4th 316, 325.) “A claim based on lack of informed consent-which sounds
in negligence-arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Id.) Plaintiff’s second cause of action allege
Defendant failed to obtain informed consent in writing from Plaintiff and
failed to adequately explain the proposed procedure. (Compl. ¶¶25-26.)
According to Plaintiff, Defendant never consulted Plaintiff prior to or during
the procedure about the need for tooth extraction and the risks involved and as
a result of the intentional conduct of Defendant, Plaintiff sustained physical
injury, emotional distress, and loss of quality of life. (Compl ¶27.)
Because Plaintiff’s second cause of
action sounds in negligence, the court sustains Defendants’ demurrer with leave
to amend.