Case Number: 19STCV02936 Hearing Date: November 06, 2019 Dept: P

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, DEPT. P

TENTATIVE RULING

Ashley Kirk v. Cosmetic Laser Medspa, Inc. et al., Case No. 19STCV02936

Demurrer to/Motion to Strike Portions of First Amended Complaint/CMC

Hearing date: 11/6/2019

Plaintiff alleges injury as a result of negligently performed cosmetic procedures (lip injections). Defendants demur to the second through eighth causes of action and move to strike portions of the first amended complaint’s requests for relief.

DEMURRER

Second Cause of Action for Gross Negligence

Gross negligence consists of “a want of even scant care,” or “an extreme departure from the ordinary standard of care.” City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754. California does not recognize a distinct cause of action for gross negligence independent of a statutory basis. Eriksson v. Nunnink (2011) 191 Cal.App.4th 826 fn. 18.

Plaintiff alleges no statutory basis for an independent gross negligence claim. The allegations are essentially identical to those in the first cause of action for professional negligence. Beyond a conclusory claim that defendants’ lack of care constituted “an extreme departure from what a reasonably careful person would do in the same circumstances[,]” plaintiff has not identified specific facts establishing a heightened level of negligence. FAC at ¶6. SUSTAINED without leave to amend. Gross negligence is duplicative of and subsumed within of the negligence cause of action.

Third Cause of Action for Medical Battery

Medical battery occurs when a doctor performs a procedure without obtaining consent or obtains consent to perform one type of treatment and performs a substantially different treatment. Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495-96. A procedure performed without informed consent lies in negligence, not battery. Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.

Plaintiff alleges she would not have consented to the procedure if she knew defendants were operating an unlicensed facility. FAC at ¶63. This is a claim based on lack of informed consent, alleging defendants did not disclose certain risks before obtaining consent. Such claim lies in negligence, not battery. Plaintiff’s argument that defendants exceeded the scope of her consent fails, because plaintiff does not allege she placed any conditions on the consent. SUSTAINED without leave to amend.

Fourth Cause of Action for Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress exists when there is: (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. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.

Defendants argue plaintiff failed to adequately allege “reckless disregard of the probability of causing emotional distress[.]” Demurrer at pg. 5. Plaintiff alleged defendants allowed unlicensed professionals to engage in the practice of medicine, which a reasonable finder of fact could determine constitutes reckless, outrageous conduct. OVERRULED.

Fifth and Sixth Causes of Action for Intentional Misrepresentation and Concealment

“Fraud must be pleaded with specificity rather than with ‘“‘general and conclusory allegations.’”’ Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184. Defendants argue plaintiff failed to allege the “how, when, where, to whom and by what means” elements with sufficient specificity. Demurrer at pgs. 6-7. Plaintiff states the alleged misrepresentations were made via internet advertisements and in-person representations by staff on November 15, 2017 and in January 2018. FAC at ¶¶9-30. This is sufficiently specific for pleading purposes. Defendants argue the websites do not exist and defendant Abdallah was not disciplined by the state Osteopathy board until after the alleged injury took place. These arguments are based on disputed facts and are not a basis for sustaining a demurrer. OVERRULED.

Seventh Cause of Action for Unlawful Practice of Medicine

Defendants correctly note there is no recognized private cause of action in California for unauthorized practice of medicine. Plaintiff does not present argument in opposition. SUSTAINED without leave to amend.

Eighth Cause of Action for Unfair Business Practices

Defendants argue this cause of action suffers from the same defects as the fraud causes of action. Demurrer at pgs. 10:6-10:23, reply at pgs. 7:11-7:22. As explained, the fraud causes of action are sufficiently pleaded. OVERRULED.

Defendant to answer within 20 days.

MOTION TO STRIKE

Defendants move to strike plaintiffs’ requests for punitive damages, attorney’s fees and injunctive relief.

Punitive damages may be requested if a plaintiff alleges facts showing oppression, fraud, or malice. Cal. Civ. Code §3294. A plaintiff must obtain a court order before seeking punitive damages against a health care provider for professional negligence. Cal. Code of Civ. Proc. §425.13. Defendants move to strike on the grounds that all of plaintiff’s causes of action are grounded in medical negligence, and plaintiff has not obtained a court order under CCP §425.13. As explained, plaintiff sufficiently pleaded intentional fraud, which goes beyond medical negligence and is sufficient to support a claim for punitive damages at the pleading stage.

Plaintiff seeks attorney’s fees under Bus and Profs. Code §17200 and §17028. Defendant notes attorney’s fees are not recoverable under §17200, and the attorney’s fee provision in §17082 does not apply to actions brought under §17200. Motion to Strike pgs. 6-7. Defendant is correct. STRICKEN.

Defendants move to strike plaintiffs’ request for injunctive relief on the grounds that plaintiff has not adequately alleged facts justifying such relief. Plaintiff has adequately alleged a cause of action for unfair business practices under §17200, and injunctive relief is one of the remedies allowed under that section.

GRANTED with ten days leave to amend as to attorney’s fees and DENIED as to the other requested relief.

CASE MANAGEMENT CONFERENCE

The parties should be prepared to discuss outstanding discovery issues, including plaintiff’s alleged failure to respond to Form Interrogatory 17.1 The court notes that 190 Special Interrogatories propounded by defendant seems excessive and harassing. An IDC is required to be held with the court prior to hearing any motions to compel discovery.

The parties are also to be prepared to discuss trial date and mediation options.