Filed 4/1/20 Lerner v. Cowen CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO
LYUDMILA LERNER,

Plaintiff and Appellant,

v.

STANLEY COWEN,

Defendant and Respondent.

B298222

(Los Angeles County

Super. Ct. No. 19SMCV00264)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark A. Young, Judge. Affirmed.

Ozeran Law Offices and Leon Ozeran for Plaintiff and Appellant.

Law + Brandmeyer, Kent T. Brandmeyer and Bryan C. Misshore for Defendant and Respondent.

Lyudmila Lerner (appellant) filed this second lawsuit against Dr. Stanley Cowen (respondent) after she lost a jury trial on her first claim against respondent for medical malpractice. In this second lawsuit, filed less than a month after the jury entered a verdict against her in the first lawsuit, appellant alleged causes of action for elder abuse, fraud and concealment arising from the same set of facts as her first lawsuit: respondent’s treatment of appellant for a medical condition. The trial court sustained respondent’s demurrer to the complaint in this second lawsuit on the ground of res judicata, and entered a final judgment dismissing the matter. We find no error in the trial court’s decision, therefore we affirm.

BACKGROUND

Appellant was treated by respondent for a wound on her leg from approximately 2014 through 2016. During the time of respondent’s treatment, the wound grew in size and appellant experienced escalating discomfort. In March 2016, during an episode in which appellant was suffering heavy bleeding from the wound, she was admitted to Cedars-Sinai Hospital for an emergency procedure. The treatment at the hospital, under the supervision of a different doctor, resulted in fast and positive results. Appellant was discharged from the hospital within two weeks and has not suffered a relapse since.

On October 31, 2016, appellant filed the first amended complaint in her first lawsuit against respondent (2016 complaint). Appellant alleged that the exacerbation of her wound and increased pain and suffering during the time of treatment with respondent was caused by respondent’s breach of the applicable standard of medical care. The matter went to trial, and on January 24, 2019, the jury returned a defense verdict.

On February 11, 2019, appellant, acting in pro. per., filed a second complaint against respondent alleging intentional misrepresentation, concealment, and elder abuse (the 2019 complaint). Appellant acquired representation shortly thereafter.

The 2019 complaint alleged that appellant visited respondent 82 times for treatment during the 2014 through 2016 time period. The 2019 complaint acknowledged that an earlier lawsuit was filed against respondent for medical malpractice based on his treatment of appellant during the same time period. The 2019 complaint stated that during trial respondent described his personal policy of not prescribing opioids under any circumstances, a policy he maintained due to the epidemic of opioid abuse and addiction.

The 2019 complaint alleged that appellant first learned of respondent’s policy during discovery in the first lawsuit. At no time during her treatment was she advised of such a policy. Instead, respondent allegedly informed appellant that the pain was inevitable and was a good thing because it would produce natural healing resources. Appellant allegedly relied on respondent’s representation that Lidocaine was the only available painkiller and that no other painkillers were available. The 2019 complaint alleges that but for respondent’s misrepresentations, she would not have experienced such extreme pain and suffering during treatment.

On April 16, 2019, respondent filed a demurrer to the 2019 complaint. Respondent argued that the demurrer should be sustained as to all causes of action because (1) appellant’s complaint was barred by the doctrines of res judicata and collateral estoppel; (2) appellant’s complaint was barred by the applicable statutes of limitation; and (3) appellant failed to state a claim as to any of the causes of action alleged.

On April 29, 2019, appellant filed an opposition to respondent’s demurrer. Appellant characterized the present claims as intentional torts, as opposed to medical malpractice, as was alleged in the previous complaint. Thus, appellant argued, the doctrines of res judicata and collateral estoppel were not applicable. Appellant further argued that the claims were not barred because appellant did not become aware of respondent’s policy of not prescribing opioids until July 2017. Finally, appellant argued that she stated prima facie claims under all her causes of action.

Oral argument was heard on May 21, 2019. Thereafter the demurrer was sustained in its entirety on the ground that it was barred under the doctrine of res judicata. The trial court noted that under that doctrine a matter is barred if it is “‘within the scope of a prior action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it.’” (Citing Federal Home Loan Bank of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1529 (Federal Home Loan).) Appellant admitted that she became aware of respondent’s policy during a July 2017 deposition, and provided “no explanation for her failure to amend the [first amended complaint] in that action to include opioid-related allegations prior to the 2019 trial.”

Final judgment was filed on June 12, 2019.

Appellant filed her notice of appeal from the order sustaining the demurrer on June 5, 2019.

DISCUSSION

I. Standards of review

A demurrer tests the sufficiency of the complaint as a matter of law. Therefore, the standard of review on appeal after a judgment sustaining a demurrer is de novo. (Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 120.) “‘“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .’ [Citation.] Further we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” [Citations.]’ [Citation.]” (Ibid.) “We will affirm if there is any ground on which the demurrer can properly be sustained, whether or not the trial court relied on proper grounds or the defendant asserted a proper ground in the trial court proceedings. [Citation.]” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031 (Martin).)

“A trial court has discretion to sustain a demurrer with or without leave to amend. [Citation.]” (Martin, supra, 173 Cal.App.4th at p. 1031.) The appellant has the burden of showing a reasonable possibility exists that the defect can be cured by amendment. If the appellant fails to meet this burden, we affirm the judgment. (Ibid.)

II. The doctrine of res judicata

The doctrine of res judicata “‘“gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” [Citation.]’” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken).) “Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 (Mycogen).) A predictable doctrine of res judicata “‘“precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.”’ [Citation.]” (Ibid.) The doctrine “‘seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.’ [Citation.]” (Ibid.)

“Res judicata bars a cause of action that was or could have been litigated in a prior proceeding if ‘(1) the present action is on the same cause of action as the prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. [Citations.]’” (Federal Home Loan, supra, 214 Cal.App.4th at p. 1527.) As to the first element of res judicata, “[t]he cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. [Citation.]” (Boeken, supra, 48 Cal.4th at p. 798.)

Two causes of action constitute a single cause of action under this doctrine if they are based on the same primary right. (Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 675.) “A primary right is the right to be free of a particular injury. [Citation.]” (Ibid.) “When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken, supra, 48 Cal.4th at p. 798.)

III. Demurrer was properly sustained without leave to amend under the doctrine of res judicata

Appellant’s complaint in this action involves the same primary right as the 2016 complaint: the right to obtain redress for the pain and suffering allegedly caused by respondent’s treatment. Appellant admits that she is seeking redress for the harm she suffered during respondent’s treatment of her medical condition. Because she is seeking redress for the same harm as the first action, under the doctrine of res judicata, this action is “‘on the same cause of action as the prior proceeding.’” (Federal Home Loan, supra, 214 Cal.App.4th at p. 1527; Boeken, supra, 48 Cal.4th at p. 798.) This is true regardless of appellant’s present attempt to frame her claim under different legal theories. (Boeken, at p. 798.)

Appellant’s argument uses the term “cause of action” to mean a different legal theory. Appellant repeatedly asserts that while the 2016 action was based on negligent medical malpractice, the present matter is based on fraud, deceit, and elder abuse. Appellant argues that the trial court erred in focusing on the allegations of harm suffered in both complaints. Appellant points out that the pain at issue in the 2016 action was caused by alleged substandard medical treatment, while the pain in the present action was caused by the alleged deceit and betrayal of the respondent.

Appellant fails to grasp the “more precise” meaning of the term “cause of action” used when applying the doctrine of res judicata. (Boeken, supra, 48 Cal.4th at p. 798.) Under the authorities set forth above, appellant’s attempt to frame the 2019 complaint under different legal theories does not save it from demurrer on the grounds of res judicata. Instead, as the trial court correctly noted, the two complaints seek redress for the same harm: appellant’s pain and suffering during her treatment by respondent.

Appellant contends that she had no obligation to amend the 2016 complaint to include allegations related to respondent’s refusal to prescribe opioids. She argues that because she was not aware of respondent’s personal policy of refusing to prescribe opioids until July 2017, she was permitted to file additional causes of action related to that policy in a separate lawsuit. This argument is misguided. The doctrine of res judicata encompasses any cause of action that “was or could have been litigated in a prior proceeding.” (Federal Home Loan, supra, 214 Cal.App.4th at p. 1527.) Thus, appellant was required to assert these opioid policy-related claims in the 2016 action. By failing to do so, appellant is engaging in the type of “piecemeal litigation” the doctrine of res judicata seeks to prevent. (Mycogen, supra, 28 Cal.4th at p. 897.)

Appellant’s 2019 complaint contains allegations that could have been litigated in the prior action. The allegations are based on the same primary right as asserted in the prior action; the prior action resulted in a final judgment on the merits; and the parties in the present matter are identical to those in the prior action. Thus, appellant’s 2019 complaint is barred under the doctrine of res judicata. (Federal Home Loan, supra, 214 Cal.App.4th at p. 1527.) The trial court did not err in so holding.

Because appellant’s claims are barred as a matter of law under the doctrine of res judicata, there is no reasonable possibility that an amendment could remedy the defects present in the 2019 complaint. Nor does appellant provide any suggestions as to how she might amend her complaint to state valid claims. Thus, the trial court did not abuse its discretion in sustaining the demurrer without leave to amend. (Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-1571.)

DISPOSITION

The judgment is affirmed. Appellant shall pay respondent’s costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

LUI

__________________________, J.

ASHMANN-GERST