Case Number: 18STCV07902 Hearing Date: June 12, 2019 Dept: 4B

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

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.

On March 18, 2019, the Court sustained Defendants’ demurrer to the Second, Third, and Fourth causes of action with twenty (20) days’ leave to amend. On April 4, 2019, Plaintiff filed a First Amended Complaint (FAC) for (1) medical malpractice, (2) fraudulent concealment, and (3) negligent hiring and retention. Defendants demur to the Second and Third causes of action and move to strike portions of the FAC.

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.)

A demurrer may be brought pursuant to CCP § 430.10 (grounds), § 430.30 (as to any matter on its face or from which judicial notice may be taken), and § 430.50(a) (can be taken to the entire complaint or any cause of action within). A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) However, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. (Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 957 [must determine whether facts alleged are sufficient to state a cause of action under any legal theory].)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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.)

III. DISCUSSION

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).) On April 25, 2019, defense counsel called Plaintiff’s counsel to meet and confer regarding the second and third causes of action. (Declaration of Mercedes C. Sequoia, ¶ 3.) On May 2, 2019, defense counsel called Plaintiff’s counsel to discuss damages in light of the medical records. They were unable to reach an agreement. (Sequoia Decl., ¶ 4.)

Fraudulent Concealment

Defendants argue Plaintiff’s allegations show, at most, negligence and are not sufficient to state a cause of action for fraudulent concealment. “ ‘The required 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. [Citation.]’ [Citation.]” (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.) “To withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Plaintiff alleges that during numerous post-surgery follow-up telephone and in-person conversations with Dr. Bui at his medical office, Plaintiff asked Dr. Bui why his penis was crooked and why he was experiencing pain form the area where the tube was inserted. Each time, Dr. Bui responded that the surgery went well and that his penis would straighten out over time, the pain would subside. At the time he made these statements, Dr. Bui knew them to be false. (FAC, ¶ 38.) Defendants had a duty to promptly disclose the mistakes Dr. Bui made during surgery, which resulted in Plaintiff’s injuries. Dr. Bui intentionally concealed these facts for his own financial and economic gain and to protect his professional reputation from damage. (FAC, ¶ 39.) Plaintiff reasonably relied on Dr. Bui’s misrepresentations for many months following surgery. Had Plaintiff known the truth that the surgery was botched, Plaintiff would have immediately sought treatment from another qualified urologist sooner, which would have resulted in a drastic or complete reduction in the pain that he was experiencing and other symptoms. (FAC, ¶¶ 40, 41.)

Defendants argue Plaintiff has not sufficiently pled facts with particularity. Defendants argue that the alleged misrepresentations or alleged fraudulent statements must be statements of fact, rather than opinion. (Casino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 [predictions regarding the future of the real estate market were not actionable misrepresentations].) The alleged misrepresentations here were Dr. Bui’s statements that (1) the surgery went well, (2) Plaintiff’s penis would straighten out over time, and (3) Plaintiff’s pain from the implant would subside. Defendants argue these predictions were Dr. Bui’s opinion and not actionable “even if it was unreasonable for Dr. Bui to believe his patient would continue to heal and improve after the surgery.” Defendants also contend Plaintiff was required to name a person from corporate defendant Tower Urology who made fraudulent misrepresentations.

Plaintiff contends the alleged misrepresentations are of facts, not opinion, because Dr. Bui made a statement that the past surgery that he performed on Plaintiff was not botched and went well, knowing the statement was false. Plaintiff argues Tower Urology is vicariously liable for the fraud of its employee Dr. Bui.

The allegation that Dr. Bui said the surgery went well is a statement about the current state of affairs, not an opinion about a future event. The statements that Plaintiff’s penis would straighten out and his pain subside, while statements of opinion, can be the basis for a fraud claim. “[O]rdinarily [statements of opinion] cannot constitute actionable fraud or deceit. [Citations.] But if a person advances an opinion in which he does not honestly or cannot reasonably believe, then an action for affirmative fraud will lie if the remaining elements of the tort are present.” (Cooper v. Jevne (1976) 56 Cal.App.3d 860, 865-866.) If Dr. Bui knew the surgery had been botched, he may have had no basis for reasonably believing the pain would subside or the penis straighten out.

Plaintiff sufficiently alleged Dr. Bui, as an employee of Tower Urology, was acting as its agent. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Doe v. Capital Cities (1996) 50 Cal.App.4th 122, 127-128.)

Plaintiff has alleged sufficient facts to state a cause of action for fraudulent concealment. He sufficiently alleged the how, when, where, to whom, and by what means the material misrepresentation was made. The demurrer to the second cause of action is OVERRULED.

Negligent Hiring and Retention

As a preliminary matter, Plaintiff added a completely new cause of action for negligent hiring and retention against Tower Urology, which exceeds the scope of the leave granted to amend after the demurrer was sustained. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the cause of action is within the scope of the order granting leave to amend.” (Ibid.) A plaintiff may add new causes of action that respond directly to the trial court’s reasons for sustaining the earlier demurrer (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015) or to plead new legal theories based on the same operative facts alleged in the prior complaint (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415). Here, leave to amend was granted as to Plaintiff’s prior intentional infliction of emotional distress claim and fraudulent concealment causes of action based on the alleged negligent acts of Dr. Bui. A cause of action for negligent hiring and retention is a cause of action for direct liability for negligence as to Tower Urology and therefore exceeds the scope of the order granting leave to amend.

As Defendants did not demur or move to strike on this ground, the Court will exercise its discretion to consider whether Plaintiff stated facts sufficient to state a cause of action for negligent hiring and retention.

Plaintiff alleges that Tower Urology owed him a duty to employ only competent and skilled professionals at its medical facility to ensure his safety and to prevent the type of mistreatment that he experienced at the facility. Plaintiff alleges Dr. Bui lacked basic diagnostic and surgical skills and competency, Tower Urology either knew or should have known as part of its peer review procedures that he presented a risk to those patients on whom he examined, and Tower Urology is liable for hiring him and/or for retaining him. (FAC, ¶¶ 44, 45.)

“[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him. [Citations.]” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843.) An employer breaches its duty only when the employer knows or should know of the employee’s particular incompetency or unfitness. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395-396; Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214.) “‘Liability for negligent hiring . . . is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit.’ [Citation.]” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Negligence liability will be imposed on an employer if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) Liability for negligent retention is one of direct liability for negligence, not vicarious liability. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)

Defendants argue Plaintiff has failed to allege facts that Tower Urology knew or should have known Dr. Bui presented a risk due to lacking skill, care, and competence. Plaintiff has not alleged any facts showing how or why Tower Urology knew as to Dr. Bui’s unfitness, what skills Dr. Bui failed to possess, how Tower Urology became aware of such facts, and when Tower Urology became aware of such facts. Tower Urology asserts that Dr. Bui is not its employee Further, Defendants argue a negligent hiring cause of action is duplicative of a negligence cause of action and therefore, this cause of action is already pled by Plaintiff’s first cause of action for medical malpractice.

Plaintiff argues he has alleged sufficient facts that Dr. Bui lacked basic diagnostic and surgical skills and competency and that the issue of whether Tower Urology had knowledge of Dr. Bui’s incompetency is a decision to be made by the trier of fact. Plaintiff also argues this cause of action is not duplicative of medical malpractice because it is based on a separate and distinct set of circumstances.

Construing the allegations of the complaint liberally and true, Plaintiff has alleged facts sufficient to state a cause of action for negligent hiring and retention. Plaintiff has sufficiently alleged that Dr. Bui was incompetent in that he lacked basic diagnostic and surgical skills, which Tower Urology knew or should have known as part of its peer review procedures, and that it hired and retained Dr. Bui, causing injury to Plaintiff. Contrary to Defendants’ argument, the Court cannot fact-find at the demurrer stage. It must accept that allegations as true, for example, that Dr. Bui is Tower Urology’s employee, even though Defendants argue he is not.

Defendants’ cases are not helpful. Frederico v. Superior Court (1997) 59 Cal.App.4th 1207 and Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556 were decided on summary judgment, after the facts had been developed through discovery. In Chaney v. Superior Court (1995) 39 Cal.App.4th 152, the court held that assuming the allegations were true, they did not state facts sufficient to establish the wife had a duty to the plaintiff for her husband’s conduct. Here if the facts alleged are true – that Dr. Bui was Tower Urology’s employee, that he lacked basic diagnostic and surgical skills, and that Tower Urology knew of those deficiencies as part of its peer review procedures when it hired him or continued to retain him – then Plaintiff has stated sufficient facts. Whether the facts Plaintiff alleges actually exist – Defendants say they do not – will be determined through discovery, and Defendants can assert on summary judgment that the actual facts do not support the allegations. The demurrer to the third cause of action is OVERRULED.

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Defendants move to strike paragraphs 37-47, which state that second and third causes of action. As the demurrer to these causes of action was overruled and these allegations are essential to Plaintiff’s stating a cause of action for fraudulent concealment and negligent hiring and retention, the Motion to strike these paragraphs is DENIED.

Defendants move to strike the prayer for attorney’s fees. Attorney’s fees are recoverable only when authorized by contract or statute. (Civ. Code, §§ 1717, 1021.) Plaintiff has not alleged a statutory or contractual basis to recover attorney’s fees and makes no argument as to attorney’s fees in his opposition. The Motion to strike attorney’s fees is GRANTED without leave to amend.

V. CONCLUSION

The demurrer is OVERRULED; the motion to strike is DENIED as to paragraphs 37-47 and GRANTED without leave to amend as to attorney’s fees.

Moving party to give notice.