Case Number: BC529044 Hearing Date: May 23, 2014 Dept: 34

Moving Party: Defendants Center for Reproductive Health & Gynecology; Sam Najmabadi, M.D.; and Sam Najmabadi, M.D., a Professional Corporation (“defendants”)

Resp. Party: Plaintiff Lelani Bright (“plaintiff”)

Defendants’ demurrer to the first and second causes of action in plaintiff’s complaint is SUSTAINED. Defendants’ demurrer is otherwise OVERRULED.

Defendants’ motion to strike is GRANTED.

BACKGROUND:

Plaintiff commenced this action on 11/27/13 against defendants for: (1) violation of Bus. & Prof. Code § 17200; (2) violation of Bus. & Prof. Code § 17500; (3) negligence; (4) IIED; (5) fraud; (6) negligent misrepresentation; (7) conversion; (8) battery; and (9) breach of fiduciary duty.

In 2011 plaintiff applied with defendant Egg Donor & Surrogacy Institute (“EDSI”) to become an egg donor after she was led to believe that the egg donation process was safe and benign. (Compl., ¶ 17.) In 2012 EDSI informed plaintiff that she had been matched with an undisclosed egg recipient and was led to believe that the recipient was to be the only recipient of any eggs donated by plaintiff. (Id., ¶ 17.) Plaintiff was led to believe that the egg donation process was safe and that plaintiff’s eggs would be considered her own until she gave consent for defendants to release them to others. (Id., ¶ 19.) In August and September 2012, after being prepared for the donation and completing paperwork, EDSI and defendant Dorn took plaintiff to the offices of the moving defendants to undergo ovarian stimulation in preparation for the egg extraction. (Id., ¶¶ 23-24.) Plaintiff was informed that the recipient wanted to meet plaintiff in person and a meeting was arranged at the offices of the moving defendants. (Id., ¶ 26.) Plaintiff only consented to the extraction of no more than 25 eggs, but defendants extracted 61 eggs. (Id., ¶¶ 27-29.) As a result of defendants’ conduct, plaintiff suffered ovarian hyperstimulation syndrome, which caused physical injuries and extensive further treatment. (Id., ¶ 33.)

ANALYSIS:

Demurrer

Defendants demur to the first, second, fourth, fifth, sixth, seventh, eighth, and ninth causes of action in the complaint on the grounds that the complaint fails to allege sufficient facts and is uncertain.

First and Second Causes of Action for Violations of Bus. & Prof. Code §§ 17200, 17500

Defendants argue that plaintiff does not have standing to bring the first and second causes of action.

California Business and Professions Code section 17200 permits recovery for “any unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code § 17200.) To state a cause of action under Business and Professions Code section 17200, et seq., plaintiff must show: (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) authorized remedy. (Bus. & Prof. Code § 17200; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676.) “[O]nly plaintiffs who have suffered actual damage may pursue a private UCL action. A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1590.)

Section 17500 provides:

It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised. Any violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that imprisonment and fine.

(Bus. & Prof. Code, § 17500.) “Like section 17200, section 17500 requires an individual suing under the statute to have ‘ “suffered injury in fact” ’ and to have ‘ “lost money or property as a result of such unfair competition.” ’ [Citation.]” (Bower v. AT & T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1555.)

Plaintiff brings the first and second causes of action in her individual capacity, and not on behalf of the general public. (Compl., ¶¶ 36, 44.) Plaintiff fails to allege a loss of any money or property caused by the alleged unfair business practices. Though plaintiff alleges that defendants misappropriated her eggs, she provides no authority which suggests that such eggs constitute “property” for the purposes of a claim under sections 17200 and 17500. (See id., ¶ 32.) Plaintiff alleges that defendants have been unjustly enriched by the receipt of “ill-gotten gains,” but does not allege that she personally paid them any money. (Id., ¶¶ 41, 49.) In fact, although not explicitly stated in the Complaint, it is more likely that Defendants paid plaintiff for her eggs.

Accordingly, defendants’ demurrer to the first and second causes of action is SUSTAINED.

Fourth Cause of Action for IIED

The tort of intentional infliction of emotional distress is comprised of the following elements: (1) defendant’s extreme and outrageous conduct; (2) intention of causing emotional distress, or reckless disregard of the probability of causing emotional distress with knowledge of plaintiff’s presence when the conduct occurred; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the conduct was the actual and proximate causation of the emotional distress. (CACI 1600; see also Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Outrageous conduct is not a bright-line determination but depends upon an intuitive appraisal of “values, sensitivity threshold, and standards of civility.” (Kovr-Tv, Inc. v. Superior Court (1994) 31 Cal.App.4th 1023, 1028.) “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Plaintiff alleges that defendants, without plaintiff’s knowledge or consent, extracted nearly two-and-a-half times the number of eggs that they represented they would extract. (Compl., ¶ 69.) Plaintiff alleges that defendants did so in reckless disregard for plaintiff’s personal safety. (Ibid.) Plaintiff alleges that, to this date, defendants have failed to apprise plaintiff as to the disposition of any of her eggs. (Id., ¶ 70.)

These allegations are sufficient to allege that defendants engaged in outrageous conduct. Defendants argue that the alleged actions were “simply a known risk and complication” of the medical procedure. (See Dem., p. 8.) Nothing on the face of the complaint supports this argument, and it is therefore an extrinsic fact that is not proper for a demurrer. (See Code Civ. Proc., § 430.30(a).)

Accordingly, defendants’ demurrer to the fourth cause of action is OVERRULED.

Fifth and Sixth Causes of Action for Fraud and Negligent Misrepresentation

The elements of a fraud claim are: (1) misrepresentation of a fact (or concealment); (2) knowledge of falsity; (3) intent to defraud (to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Buckland v. Threshold Enters., Ltd. (2007) 155 Cal.App.4th 798, 806-807 [disapproved of on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310].) “The elements of negligent misrepresentation are (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 196.)

A fraud claim must be specifically pleaded, such that: “ ‘(a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citation.]’ ” (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904.) A plaintiff must allege what was said, by whom, in what manner, when, and, in the case of a corporate defendant, the speaker’s authority to bind the corporation. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Defendants argue that the fifth cause of action is not pled with the requisite specificity and that the sixth cause of action is duplicative of the fifth cause of action and fails for the same reason. Plaintiff alleges that all named defendants represented to plaintiff in numerous conversations that a maximum of 25 eggs would be extracted and that the extraction process would be safe and benign. (Compl., ¶¶ 76, 89.) Plaintiff alleges that these representations were knowingly false when made. (Id., ¶¶ 77-78, 90-91.) Plaintiff alleges that defendants concealed that they intended to extract more eggs, that they had an economic interest in extracting more eggs, and the disposition of her eggs. (Id., ¶¶ 79-81, 92-94.) Plaintiff alleges that the misrepresentations and concealed facts influenced her to proceed with the ovarian stimulation and egg extraction. (Id., ¶¶ 84, 97.) Plaintiff alleges she was damaged as a result. (Id., ¶¶ 86, 99.)

The alleged facts are sufficient to support the fraud and misrepresentation claims. Plaintiff alleges what was said, by whom, and how it was said. Though plaintiff does not allege exactly when the conversations took place, this is not a fatal flaw. To the extent that defendants wish to learn information as to the timing of the conversations, they may seek such information during the discovery process. The fact that the sixth cause of action is based on the same facts as the fifth cause of action does not warrant a demurrer; plaintiff can allege the sixth cause of action in the alternative. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 690 [plaintiffs may generally plead in the alternative].)

Accordingly, defendants’ demurrer to the fifth and sixth causes of action is OVERRULED.

Seventh Cause of Action for Conversion

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. [Citations.]” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543-544.) A party need not allege legal title or absolutely ownership, so long as the party is entitled to immediate possession at the time of conversion. (Bastanchury v. Times-Mirror Co. (1945) 68 Cal.App.2d 217, 236.)

Plaintiff alleges that defendants converted her eggs. (See Compl., ¶¶ 102-104.) Neither side cites the court to any cases holding that eggs can be the subject of a conversion claim; however the Court’s own research shows that eggs can be the subject of conversion. (See, e.g., Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343 [allowing a claim for conversion based on allegations that doctors at a clinic stole and sold their patients’ eggs and pre-embryos].) Plaintiff alleges that defendants extracted nearly two-and-a-half times as many eggs as they represented and that they have failed to apprise plaintiff of the disposition of her eggs. (Compl., ¶¶ 104-105.) Plaintiff alleges that defendants took possession of the eggs and prevented her from having access to the eggs without her consent. (Id., ¶ 105.) These facts are sufficient to support the conversion claim.

Accordingly, defendants’ demurrer to the seventh cause of action is OVERRULED.

Eighth Cause of Action for Battery

The elements of civil battery are: (1) defendant touched plaintiff or caused plaintiff to be touched with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by the touching; and (4) a reasonable person in plaintiff’s situation would have been offended by the touching. (CACI No. 1300.) The elements of a medical battery are: (1) defendant performed a medical procedure without plaintiff’s consent or plaintiff consented to one medical procedure but defendant performed a substantially different procedure; (2) defendant’s conduct caused plaintiff harm. (CACI No. 530A.)

The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.

(Cobbs v. Grant (1972) 8 Cal.3d 229, 240.) “Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent — which sounds in negligence — arises when the doctor performs a procedure without rst adequately disclosing the risks and alternatives. In contrast, 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.)

Plaintiff here is not merely alleging that an undisclosed complication arose or that defendants failed to disclose the risks and alternatives. Instead, plaintiff alleges that defendants, without plaintiff’s consent, caused her to be overstimulated and extracted 61 eggs instead of the represented 25 eggs. (See Compl., ¶ 109.) This allegation is sufficient to support the battery claim. Defendants’ argument that the overstimulation and extraction of more eggs than was consented to was merely a risk in the procedure is improper because it is not supported on the face of the complaint. (See Dem., pp. 12-13.)

Accordingly, defendants’ demurrer to the eighth cause of action is OVERRULED.

Ninth Cause of Action for Breach of Fiduciary Duties

Defendants acknowledge that a physician may be held liable for breach of fiduciary duty when he fails to “obtain the patient’s informed consent, [and] disclose personal interests unrelated to the patient’s health, that may affect his medical judgment.” (See Dem., p. 13 [quoting Moore v. Regents of University of California (1990) 51 Cal.3d 120, 131-132.) As discussed above, plaintiff sufficiently alleges that defendants failed to obtain her consent to extract more than 25 eggs. (See, e.g., Compl., ¶ 109.) Plaintiff alleges that defendants concealed that they had an economic interest in extracting more than 25 eggs from her. (Id., ¶ 116.)

Accordingly, defendants’ demurrer to the ninth cause of action is OVERRULED.

Motion to Strike

Defendant argues that plaintiff’s request for punitive damages does not comply with Code of Civil Procedure section 425.13. Plaintiff concedes this in her opposition. (See Opp., p. 6.)

Accordingly, defendants’ motion to strike is GRANTED. If plaintiff wishes to allege a claim for punitive damages, plaintiff must file a proper noticed motion pursuant to section 425.13(a).)