Case Number: BC629279 Hearing Date: August 29, 2018 Dept: 4

DEFENDANT CHUNAN LI’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

The court considered the moving and opposition papers.

Background

On August 2, 2016, Plaintiff Yazhen Zhu (“Plaintiff” or “Zhu”) filed a complaint against Defendants Michelle Meng aka Michelle Smith dba Bodyperfect Beauty and Bodyperfect Beauty & Wellness, Inc. (“Meng”) for general negligence, NIED, IIED, intentional tort, and medical malpractice. On January 6, 2017, the Court denied Meng and Beverly Hills Medical Anti-Aging Group, LLC’s (“Beverly Hills Medical”) motion to compel arbitration. On April 27, 2017, Plaintiff filed Doe amendments to the Complaint, naming Beverly Hills Medical as Doe 6 and Chunan Li (“Defendant” or “Li”) as Doe 7.

Plaintiff’s complaint alleges that she received severe burns from an “Ultherapy” skin treatment. Plaintiff contends that Defendants incorrectly applied the dangerous skin treatment to Plaintiff’s face, causing severe burns and life changing scarring; that Defendants failed to advise Plaintiff of any risks; and that even if Defendants had properly advised Plaintiff, Defendants lacked the training to safely apply the Ultherapy. According to Plaintiff, Defendants acted with gross negligence by applying a therapy they knew could cause severe skin damage; recklessly ignored these risks and quickly and unsafely applied the therapy to Plaintiff’s face without proper medical supervision; and acted out of pecuniary motivations that blinded them from properly caring for their customers, including Plaintiff. According to the complaint, Defendants botched the Ultherapy in several ways, including applying the Ultherapy for too long and pressing down too hard upon Plaintiff’s face, and ignored Plaintiff’s screams and cries that the procedure was burning her face. Plaintiff alleges that after this incident occurred, Defendants tried to cover up their misconduct by lying to Plaintiff by saying that the burning was “normal” and would “go away,” then lied to Plaintiff by claiming that simply applying ice would make the pain and scarring go away. Plaintiff was left in severe pain and with life changing permanent scars to her face.

On October 18, 2017, Li filed a motion for summary judgment on the grounds that Li was merely the receptionist on the day of the injury and could not have proximately caused any of Plaintiff’s injuries. On January 2, 2018, the Court granted the continuance to allow Plaintiff to depose Li, and set the hearing for April 17, 2018.

On April 2, 2018, Plaintiff filed a supplemental opposition stating that she has been unable to depose Defendant Li since the court’s continuance. Plaintiff claims that Defendant Li’s deposition was noticed for March 30, 2018 and Defendant Li failed to appear. On April 17, the Court found that Li unreasonably failed to allow discovery to be conducted per CCP section 437c(i). The Court therefore continued the hearing on the motion to August 21, 2018. The Court has not received any supplemental briefing from Plaintiff on the instant motion following that continuance.

After that continuance, the Court continued the trial on May 8, 2018, and granted Defendants’ motion for leave to a file a cross-complaint on July 12, 2018. On July 16, 2018, Defendants filed a cross-complaint against Ulthera Inc. and Merz North America for indemnity and declaratory relief. However, no further briefing was submitted by either party.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal. App. 4th at 467; CCP §437c(c).)

DISCUSSION

Issue No. 1: First Cause of Action for Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” (Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080.) The two broad categories of duty are: (1) duty to use care in ordinary activities (under Civil Code §1714); and (2) duty to act affirmatively to prevent harm. The existence and scope of duty are questions of law for the court. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614 [duty under “Good Samaritan” rule].) Generally, absent an applicable statute, the law does not require one to act to prevent harm without a “special relationship”. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 [e.g. businesses have an affirmative duty to take reasonable steps to secure their premises].) Further, the imposition of liability in tort for personal injuries depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant’s control. (Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 364.)

To sum, Defendant’s evidence demonstrates that that Li was a member and receptionist of BodyPerfect, and did not perform the Ultherapy treatment. (UMF 1-6, 8-13; Li Decl., ¶¶ 2-6.) Li only provided Plaintiff with, and ensured she completed, intake paperwork. (UMF 7-11; Li Decl., ¶ 7.) Plaintiff admits this in her discovery responses. (UMF 12, see Napoles Decl., ¶ 4, Ex. B.) Defendant contends that this establishes she is entitled to judgment as a matter of law, as there is no causation. Defendant argues that she was merely the receptionist, only spoke to Plaintiff about what intake paperwork she needed to fill out, and cannot be liable for Plaintiff’s damages because she did not perform to procedure.

First, the Court finds that Defendant’s evidence is sufficient to establish that there is no duty or causation for the negligence claim, as Li had nothing to do with the Ultherapy treatment itself, and only briefly interacted with Plaintiff to provide intake forms. The burden thus shifts to Plaintiff to demonstrate a triable issue of material fact as to her negligence claim regarding the Ultherapy treatment.

In opposition, Plaintiff only offers two pieces of relevant evidence: 1) while Li may not have conducted the physical acts, she is a managing member and CEO of the corporate defendant Beverly Hills Medical (Clark Supp. Decl., ¶ 9, Ex. G); and 2) “example” language Ultherapy Advised Language Patient Consent Form that Defendants failed to have Plaintiff sign (Clark Decl., ¶ 11, Ex. I). Otherwise, Plaintiff only requested a continuance to depose Li, which was twice granted. In her request for a continuance, Plaintiff suggested to the Court that Li may be liable for her failure to warn Plaintiff of the risks of the therapy. Plaintiff specifically concedes that her only viable theory against Li is a failure to warn. The Court finds that Plaintiff’s proffered evidence is insufficient to establish a triable issue of fact as to causation for her negligence claim. As discussed further, this theory is not properly pled, as there is no causation or duty alleged to this theory, and the theory is legally unsupported.

Due to the sparse briefing and allegations on the issue, and the lack of evidence from Plaintiff, the Court is left to speculate on her theory of Li’s “duty to warn” regarding the Ultherapy. While a physician must disclose the available choices of a therapy and the dangers involved in each option, the Court is aware of no authority that a receptionist, hospital administrative staff, CEO, or like individual is required to disclose the particular risks of a procedure and would be personally liable such a failure. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 242, 243 [failure to obtain informed consent may constitute a breach of the standard of care]; Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1133 [doctor’s duty to obtain patient’s informed consent by disclosing material information which would be regarded as significant by a reasonable person in the patient’s position].) Plaintiff has provided no authority that suggests this conclusion, and only cited unexplained, irrelevant points of law. (See Johnson v. Union Furniture Co. (1939) 31 Cal.App.2d 234, 237 [affirming sustained demurrer to wrongful death action where husband died from pneumonia contracted from cold drafts when husband sleept on a floor because defendant wrongfully withheld a bed]; Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995-1005 [failure to warn in a strict products liability case].) Without contrary authority or facts of a voluntary undertaking, the Court cannot hold that a receptionist, CEO, managing agent, or other like individual has a duty to disclose the risks of a medical procedure just by virtue of being an employee of a corporation that provides medical services.

Moreover, a physician is only liable where the failure to disclose risks causes the injury, i.e. there needs to be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. “ ‘Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given.’ ” (Wilson, supra, 142 Cal.App.4th 1125, 1138, citing Spann v. Irwin Memorial Blood Centers (995) 34 Cal.App.4th 644, 657.) Plaintiff does not plead this as a part of her theory, Defendant’s provided evidence supports the inference that there is no causation in this regard, and Plaintiff provides no contrary evidence.

Plaintiff’s off-handed theory of a duty to warn is without legal (or factual) support. Defendant cannot be held liable under a duty to warn regarding the treatment under a medical malpractice theory, as the undisputed evidence demonstrates that Li was not the doctor, did not perform the procedure, and therefore did not cause Plaintiff’s damages. (UMF 6-13.) Plaintiff’s evidence does not contradict these facts, and offers no evidence that she would not have underwent the therapy if she knew about the risks anyways. (Supp. Clark Decl., ¶¶ 9-11, Exs. G, I.) Additionally, any duty to warn stemming from a products liability is unpled, and Plaintiff has not sought leave to amend to allege such a cause.[1] (See Compl. pp. 4-5; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [the pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings].) Accordingly, Defendant is entitled to judgment as a matter of law as to this issue.

Issue No. 2: Second Cause of Action – Negligent Infliction of Emotional Distress

NIED is not an independent cause of action, but the tort of negligence and the traditional elements of negligence must be established – i.e. duty, breach, causation and damages. (Zavala v, Arche (1997) 58 Cal.App.4th 915, 928; Marlene F. v. Psychiatric Medical Clinic (1989) 48 Cal.3d 583, 588 [“Damages for severe emotional distress, rather, are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two”].)

Defendant asserts that Plaintiff cannot maintain an independent claim for NIED. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) Defendant argues that because it is not an independent claim, it fails for the same reasons as the first cause of action. As discussed above, Defendant has met her initial burden establishing that there are no triable issues of material fact as to the issue of negligence. Here, the NIED claim is based on the same theory of liability as the general negligence claim, is not factually independent claim, and fails for the same reasons as that claim. (See Compl., p. 5 [alleging identical allegations as the first cause of action].) Accordingly, Defendant is entitled to judgment as a matter of law as to this issue.

Issue No. 3: Third Cause of Action – Intentional Infliction of Emotional Distress

To establish a cause of action for intentional infliction of emotional distress, a plaintiff must prove: 1) outrageous conduct by defendant; 2) intentional or reckless causing emotional distress; 3) severe emotional distress; and 4) causation. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.) First, the complained-of conduct must be outrageous, that is, beyond all bound of reasonable decency. (Ibid.) Second, defendant must intend to cause emotional distress or recklessly disregard the probability of causing it. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Third, the plaintiff must demonstrate that she suffered severe emotional distress. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.)

Defendant argues that Plaintiff cannot establish an IIED claim against her because there is no evidence that Li intentionally directed any outrageous conduct at her. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) The Court finds Defendant’s undisputed evidence demonstrates that she did not perform the Ultherapy treatment, and therefore did not “botch” the Ultherapy by applying it for too long or hard, and did not try to cover up the misconduct. (UMF 6-13; see Compl., p. 6.) As such, Defendant has demonstrated that she did not perform any “outrageous” conduct alleged that could give rise to IIED liability. Defendant met her initial burden, and Plaintiff concedes that only the negligence cause of action is viable against Li. (Opp. p. 4:8-20; Supp. Opp. p. 5:8-20 [“There are thus material facts showing that Li may be liable under the first cause of action of negligence, which included allegations of a failure to warn.”].) Further, Plaintiff’s proffered evidence only confirms that Li did not perform any of the alleged outrageous conduct. Plaintiff has provided no authority or reasoning that a receptionist’s failure to warn of risks of medical treatment could rise to the level of outrageous conduct, especially when there is not underlying duty established. Thus, Defendant is entitled to judgment as a matter of law as to this issue.

Issue No. 4: Fourth Cause of Action – Battery

“Battery is an offensive and intentional touching without the victim’s consent.” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645.) “The essential elements of a cause of action for 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 defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.) Intent is satisfied if the defendant acted with willful disregard of the plaintiff’s rights. (See Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.) A person may place conditions on the consent given. If the defendant exceeds the scope of the consent, he or she may be liable for battery. (Id. at p. 610.) Lack of consent can be inferred from express allegations, such as allegations the defendant intentionally caused harmful or offensive contact. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 900.)

Defendant argues that Plaintiff cannot establish that Li battered her, as she was not in the room at the time of the alleged treatment and could not have touched her. (UMF 6-13.) The Court agrees, as those undisputed material facts establish that Li did not touch Plaintiff. Plaintiff has offered no other legal theory for Li’s liability on this cause or contrary evidence that Li touched her. As mentioned above, Plaintiff concedes that the only viable potential theory is the negligence claim. Accordingly, Defendant is entitled to judgment as a matter of law to this issue.

As each cause of action levied against Defendant is disposed of, Defendant’s motion for summary judgment is GRANTED.

Issue No. 6: Exemplary Damages Request

This issue is moot per the ruling on the previous issues.

The court orders:

Defendant’s motion for summary judgment is GRANTED. Defendant is ordered to lodge a proposed judgment with the Court.

The moving party is ordered to provide notice of this order and file proof of service of such.

IT IS SO ORDERED.

DATED: August 29, 2018

___________________________

Christopher K. Lui
Judge of the Superior Court

[1] Further, there are stringent rules against asserting a products liability case against medical providers, and the Court would not see a reasonable likelihood of successful amendment on this point without a significant offer of proof. (E.g. Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.2d 57, 62; see also Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249, 260.)