Case Number: 19STCV21148 Hearing Date: September 09, 2019 Dept: 4A

Demurrer without a Motion to Strike

Having considered the demurring, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On June 18, 2019, Plaintiff Blake Hanson (“Plaintiff”) filed a complaint against Defendant August De Oliveira, D.D.S. (“Defendant”) alleging negligence, breach of fiduciary duty, battery, and fraud/intentional misrepresentation in relation to deficient dental treatment provided in April of 2017.

On August 7, 2019, Defendant filed a demurrer pursuant to California Code of Civil Procedure section 431.10.

Trial is set for December 15, 2020.

PARTY’S REQUEST

Defendant asks the Court to sustain the demurrer to Plaintiff’s complaint because the breach of a fiduciary duty cause of action is duplicative of the negligence cause of action and insufficient facts have been pled to state causes of action for battery and fraud/intentional misrepresentation.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (See Code of Civ. Proc. § 430.41.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

DISCUSSION

Meet and Confer Requirement

The Court finds that Demurring Defendant has submitted a sufficient meet and confer declaration pursuant to California Code of Civil Procedure section 430.41, subdivision (a). (Conley Decl., ¶ 3.)

Breach of Fiduciary Duty

A demurrer can be sustained where one cause of action is duplicative of another cause of action. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) A breach of fiduciary duty in the medical context is a form of medical malpractice. (See Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 321-322.) Both of these causes of action are limited to the same noneconomic damage cap found in MICRA. (Id. at p. 322.)

Defendant argues Plaintiff’s breach of fiduciary duty cause of action is duplicative of Plaintiff’s medical malpractice cause of action. (Demurrer pp. 7:16-8:6.)

Plaintiff’s breach of fiduciary duty theory is a theory of liability based on Defendant’s misconduct ina medical context. Namely, that Defendant knowingly cut into several of Plaintiff’s teeth for no reason other than to make money. (Compl., ¶ 26.) This is the same factual contention on which Plaintiff’s medical negligence cause of action is grounded. (See Compl., ¶¶ 14-15, 18.) As such, this cause of action is duplicative of Plaintiff’s medical negligence cause of action.

Medical Battery

“[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.)

The complaint alleges Plaintiff consented to dental surgical procedures on teeth that needed such procedures. (Compl. ¶¶ 27-28.) However, Defendant operated on multiple teeth that did not require such dental surgical procedures that were healthy, causing Plaintiff harm. (Compl., ¶¶ 28-30.) Plaintiff alleges Defendant operated on the healthy teeth for a financial benefit and to harm Plaintiff. (Compl., ¶¶ 29, 31.)

Defendant argues Plaintiff has not alleged Defendant intentionally operated on Plaintiff’s healthy teeth. However, Plaintiff conclusorily did so in paragraph 31. Such a general allegation is sufficient. (See Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 (“[T]he requirement of specificity is relaxed when the allegations indicate that the defendant must necessarily possess full information concerning the facts of the controversy . . . or when the facts lie more in the knowledge of the opposite party”) (citation omitted).)

Defendant also argues that Plaintiff has not alleged what procedures were substantially different from those to which Plaintiff consented. The Court disagrees. A procedure on a tooth that needs dental intervention is substantially different from a procedure on a healthy tooth.

Accordingly, the Court finds Plaintiff’s medical battery cause of action has been properly pled.

Fraud/Intentional Misrepresentation

“The elements of [intentional] fraud . . . are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 (quotations and citation omitted).) A tort can fall within the confines a medical malpractice cause of action when it involves intentional culpability. (See Central Pathology Service Medical Clinic, Inc. v. Superior Court (3 Cal.4th 181, 192-193 (finding causes of action for fraud and intentional infliction of emotional distress to be governed by the medical malpractice statute because the causes of action were predicated on how the defendants performed and communicated the results of medical tests).)

Defendant argues Plaintiff’s fraud/intentional misrepresentation cause of action has not specifically pled “. . . the who, what, when, where and how of the purportedly fraudulent misrepresentations or what precisely is false or misleading about them.”

The complaint alleges that Defendant represented that he would perform Plaintiff’s surgical procedures within the standard of care, only on teeth that actually required surgery, and that certain of Plaintiff’s teeth were not healthy and that they needed surgery. (Compl., ¶ 34.) Plaintiff alleges that Defendant knew these representations were false. (Compl., ¶ 35.) According to the complaint, Plaintiff reasonably relied on those representations and damages resulted. (Compl., ¶¶ 40, 42.) The complaint can reasonably be read to mean that Plaintiff relied on Defendant’s representations by virtue of Defendant being a dental surgeon. Accordingly, the Court finds Plaintiff has sufficiently alleged a cause of action for fraud based on an intentional misrepresentation.

CONCLUSION

The demurrer is SUSTAINED in part and OVERRULED in part.

The demurrer is SUSTAINED as to Plaintiff’s breach of fiduciary cause of action only.

Defendant is ordered to give notice of this ruling.