Case Number: 18STCV07902 Hearing Date: March 18, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ DEMURRER TO THE COMPLAINT AND MOTION TO STRIKE

I. INTRODUCTION

On December 11, 2018, Plaintiff Chisam Jhang (“Plaintiff”) filed this action against Defendants Tower Urology, Inc. and Matthew W. Bui, M.D. (“Dr. Bui”) (collectively, “Defendants”) for (1) medical malpractice, (2) breach of standard of care, (3) intentional infliction of emotional distress, and (4) fraudulent concealment relating to care and treatment rendered to Plaintiff between March 2016 and April 11, 2016.

Plaintiff treated with Dr. Bui for consultation on erectile dysfunction disorder. On April 11, 2016, Plaintiff was admitted to Tower Urology to undergo a penile prosthesis implantation procedure. After the surgery, Plaintiff developed an infection, noticed abnormalities, and experienced pain. Dr. Bui told Plaintiff the surgery went fine and needed more time to heal. Plaintiff consulted a second physician who advised he needed to replace his implant to correct the surgery performed by Defendants. On September 5, 2018, Plaintiff underwent a second procedure to replace the implant that Defendants had inserted prior.

II. LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

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. (Ibid.)

A demurrer must be made within 30 days of service of the complaint (Code Civ. Proc., § 430.40, subd. (a)) and all moving and supporting papers must be served and filed at least 16 court days before the hearing (Code Civ. Proc., § 1005, subd. (b)). The summons and complaint was personally served on Defendants on January 14, 2019. This demurrer was filed one day outside the 30-day deadline. However, the Court has discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.)

III. DISCUSSION

Defendants argue: (1) the Second Cause of Action for Breach of Standard of Care is duplicative of the First Cause of Action for Medical Malpractice and there is no separate tort for breach of standard of care; (2) the Plaintiff fails to state specific facts showing outrageous conduct to support the Third Cause of Action for Intentional Infliction of Emotional Distress; and (3) the Plaintiff fails to state facts sufficient to constitute the Fourth Cause of Action for Fraudulent Concealment.

Meet and Confer Requirement

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) The party filing the demurrer must include a supporting memorandum of points and authorities. (Cal. Rules of Court, rule 3.1113(a).) Prior to filing this demurrer, defense counsel called Plaintiff’s counsel to meet and confer. The parties were unable to reach any agreement. (Declaration of John C. Kelly, ¶ 3.)

Second Cause of Action for Breach of Standard of Care

The elements of a cause of action for medical malpractice are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.)

Plaintiff alleges Defendants owed him standard duties of care by a licensed medical professional (Complaint, ¶ 35); Defendants breached their duties of care owed to Plaintiff (Complaint, ¶ 36); as a result of Defendants’ breach of their respective duties of care, Plaintiff suffered physical, emotional, and financial harm (Complaint, ¶ 37); and Defendants’ breach of their respective duties was a substantial fact in causing the Plaintiff’s harm (Complaint, ¶ 38).

Defendants argue that a cause of action for “breach of standard of care” is merely the second element of a medical malpractice claim and is duplicative of Plaintiff’s First Cause of Action for Medical Malpractice. Defendants argue a separate tort for breach of standard of care does not exist, it should therefore be stricken. (See Careau & Co. v. Security Pacific Business Credit (1990) 222 Cal.App.3d 1371, 1401 [finding allegations for breach of implied covenant of good faith were insufficient to support separate tort cause of action and were therefore duplicative of the other contact causes of action and stricken from the complaint].)

Plaintiff argues CACI jury instruction No. 502 proves the existence of a separate tort action for breach of standard of care. CACI No. 502 states a medical specialist is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful medical specialists would use in similar circumstances. Plaintiff contends that “a person could be found to be medically negligent but not necessary breached the standard of care, but was negligent in another way where a standard of care is not applicable.” (Opp., 5:28-27-6:1-2.)

Plaintiff cites no statute or case law establishing a separate cause of action for breach of standard of care or holding that a defendant can be medically negligent without having breached the applicable standard of care.. Plaintiff’s Second Cause of Action relies on the same factual allegations as the First Cause of Action. The Second Cause of Action alleges all of the elements of a standard negligence cause of action. Accordingly, Plaintiff’s allegations as to the Second Cause of Action are duplicative of the First Cause of Action for Medical Malpractice, and Plaintiff fails to show there is a separate basis for relief for breach of standard of care. Rather, establishing a breach of the standard of care is necessary to finding of medical malpractice.

Accordingly, the demurrer to the Second Cause of Action for Breach of Standard of Care is SUSTAINED without leave to amend.

Third Cause of Action for Intentional Infliction of Emotional Distress (IIED)

The elements of IIED 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) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-229.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.)

Plaintiff alleges Dr. Bui’s conduct towards Plaintiff was outrageous and Dr. Bui intended to cause Plaintiff emotional distress by not being truthful about the botched surgery during any post-surgery follow-up visits. (Complaint, ¶ 40.) Plaintiff suffered severe emotional distress as a result of Defendants’ conduct. (Complaint, ¶¶ 41, 42.) Defendants’ conduct was done with malice and oppression. (Complaint, ¶ 43.)

Defendants argue even if Dr. Bui was not truthful about the outcome of the surgery, Plaintiff has not alleged specific facts showing this constitutes “outrageous” conduct. (See e.g., Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498-499 [outrageous conduct where plaintiff was berated with racial slurs and fired and his supervisor’s actions were done with the sole purpose of causing plaintiff to suffer humiliation and emotional distress].) Further, Defendants argue that where there is a physical injury, the claim lies in negligence and not separate tort for infliction of emotional distress.

Plaintiff argues Dr. Bui intended to cause emotional distress by not being truthful about the botched surgery and that this intentional and fraudulent concealment was extreme and outrageous in that it prevented Plaintiff from timely seeking the appropriate medical treatment that could have cured defects from the surgery or at the very least minimized his pain.

Plaintiff’s allegations are insufficient to support a separate cause of action for intentional infliction of emotional distress for extreme and outrageous conduct. “In evaluating whether the defendant’s conduct was outrageous, it is ‘not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages or another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Plaintiff does not allege facts showing outrageous conduct so beyond all possible bounds of decency. Nor are Plaintiff’s factual allegations specific enough to show intent to cause emotional harm to Plaintiff or that Plaintiff suffered severe emotional distress.

The demurrer as to the Third Cause of Action for IIED is SUSTAINED with twenty (20) days’ leave to amend.

Fourth Cause of Action – Fraudulent Concealment

The elements of fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) To survive demurrer, fraud allegations must be pled with specificity and general and conclusory allegations will not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) A plaintiff must plead the “how, when, where, to whom, and by what means the representations were tendered.” (Ibid.)

Plaintiff alleges Defendants had a duty to immediately disclose the errors that resulted from the surgery. However, during multiple follow-up visits, Dr. Bui told Plaintiff the surgery went fine and that Plaintiff’s defects and pain would subside, which Dr. Bui knew at the time to be false. (Complaint, ¶ 45.) It was not until Plaintiff received a second opinion from a urologist that he discovered he needed a second surgery to correct the first. (Complaint, ¶ 46.) Plaintiff alleges Defendants acted with intent to defraud Plaintiff as to the outcome of the surgery. (Complaint, ¶ 47.)

Defendants argue Plaintiff has not sufficiently pleaded, with particularity, facts constituting a cause of action for fraudulent concealment. Plaintiff did not offer any argument in opposition. The Court agrees Plaintiff did not allege the cause of action with specificity. Plaintiff did not state the specific material facts Defendant allegedly concealed, how Plaintiff would have acted differently if he had known those facts, and the damage that resulted from the concealment (as opposed to the damage that resulted from the allegedly botched operation).

Accordingly, the demurrer to the Fourth Cause of Action for Fraudulent Concealment is SUSTAINED with twenty (20) days’ leave to amend.

Motion to Strike

As the Court sustained the demurrer with leave to amend, the Motion to strike is MOOT.

V. CONCLUSION

The demurrer as to the Second Cause of Action is SUSTAINED without leave to amend. The demurrer as to the Third and Fourth Causes of Action are SUSTAINED with twenty (20) days’ leave to amend. The Motion to strike is denied as MOOT.

Moving party to give notice.