Case Number: BC630731 Hearing Date: July 23, 2018 Dept: 61

Defendant Kevin Teehee, M.D.’s Demurrer to the Complaint is SUSTAINED, with leave to amend, as to the First, Fifth, and Sixth Causes of Action, and OVERRULED as to the Third Cause of Action.

Defendant Kevin Teehee, M.D.’s Motion to Strike Portions of the Complaint is DENIED.

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) A court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 (“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.”))

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

A. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS — FIRST CAUSE OF ACTION

Teehee argues that Carmona has not adequately pleaded the elements of Intentional Infliction of Emotional Distress (“IIED”) because she has not alleged facts constituting outrageous conduct or intentionality. (Demurrer at pp. 3–4.)

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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.” (Miller v. Fortune Commerical Corporation (2017) 15 Cal.App.5th 214, 228-29.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at p. 229.)

The court notes that no facts as to Teehee are pleaded in the body of the Complaint. The only facts alleged as to Teehee come from the “chronology” attached to the Complaint as Exhibit A, which states as follows regarding Teehee’s conduct:

2/24/16

Plaintiff presents to Valley Presbyterian emergency department seen by Kevin Tee Hee M.D., Rajiv Pai M.D.

Plaintiff reports abdominal pain, no history taken, no prior medical records, no diagnosis, plan, no follow up, no specialist referral. No discussion of the stent or removal. Discharged.

(Complaint Exh. A at p. 7.) The outrageous conduct that Carmona alleges is pleaded as to “Defendants” in general, in reference to “their failure to accurately evaluate, diagnose, or treat Plaintiff’s condition.” (Complaint ¶ 30.) The Complaint further alleges that Defendants “fail[ed] to disclose the true nature of Plaintiff’s condition” and “conceal[ed] that Plaintiff had a foreign body in her abdomen.” (Complaint ¶ 59.)

The court agrees with Teehee that that Carmona has not alleged outrageous conduct as to him. The Complaint only alleges that he failed to adequately diagnose and treat Carmona. Carmona does not allege that Teehee knew of the existence of the stent or another foreign body and concealed that knowledge from Carmona, or failed to treat her notwithstanding. The allegations as presently pleaded do not amount to more than ordinary medical negligence.

The Demurrer to the First Cause of Action is SUSTAINED, with leave to amend.

B. CONCEALMENT — FIFTH CAUSE OF ACTION

Teehee next argues that Carmona has failed to adequately allege a concealment claim against him. (Demurrer at p. 5.)

“The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

Fraud claims, including claims of fraudulent concealment, must be pleaded with specificity. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472.)

The court agrees with Teehee that Carmona has failed to plead a claim for fraudulent concealment against him. First, Carmona does not allege that Teehee knew of the existence of any foreign body within her abdomen. Nor does Carmona allege that Teehee intended to defraud Carmona by concealing this fact. Finally, Carmona does not state that she acted in reliance upon any concealment by Teehee.[1]

The Demurrer to the Fifth Cause of Action for Concealment is therefore SUSTAINED, with leave to amend.

C. BREACH OF FIDUCIARY DUTY — SIXTH CAUSE OF ACTION[2]

Teehee argues that Carmona’s claim for breach of fiduciary duty is merely duplicative of her claim for medical negligence, and therefore may be dismissed. (Demurrer at p. 7.) Carmona responds that she is entitled to plead alternative legal theories for the same cause of action. (Opposition at p. 5.)

The court agrees with Teehee. The thrust of its argument here is that the breach of fiduciary duty asserted against him is not, in fact, a different legal theory from professional negligence, but merely a reiteration of Carmona’s negligence. “As to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998 [holding that plaintiff could not assert one claim for “negligence” and another for “professional negligence” arising from the same facts].)

The Demurrer to the Sixth Cause of Action for Breach of Fiduciary Duty is SUSTAINED, with leave to amend.

D. UNCERTAINTY — FIRST, THIRD, FIFTH, SIXTH CAUSES OF ACTION

Teehee argues that all causes of action are uncertain as to him because the exhibit in which he is named is not properly incorporated. (Demurrer at pp. 8–9.) This is incorrect. The chronology attached to the Complaint as Exhibit A is incorporated into the factual allegations of the Complaint. (Complaint ¶ 4.) The Demurrer will not be sustained for uncertainty.

II. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

A. EXHIBIT A

Teehee moves to strike Exhibit A from the Complaint on the contradictory grounds that it constitutes mere “evidentiary material” and simultaneously attempts to supply substantial allegations essential to the statement of a cause of action. (Motion at pp. 4–5.)

The court first finds that the chronology attached as Exhibit A is not evidentiary in nature, but rather exists to detail the facts upon which the Complaint is based. Also, although an exhibit to a complaint generally “may not supply substantial allegations essential to the statement of a cause of action,” there is an exception for where “the pleading is framed for that purpose and with that end in view.” (Holly Sugar Corp. v. McColgan (1941) 18 Cal.2d 218, 226.) The Complaint here incorporates Exhibit A and repeatedly refers the reader to the attached chronology. (Complaint ¶¶ 4, 6, 11–12.)

The Motion to Strike is DENIED as to Exhibit A.

B. PARAGRAPHS 23, 28, 31, 60

Teehee moves that this court strike allegations of conspiracy contained in paragraph 23 of the Complaint, along with allegations of maliciousness and outrageousness contained in paragraphs 28, 31, and 60, on the grounds that such allegations are conclusory. (Motion at pp. 5–7.)

“In order to plead a cause of action, the complaint must contain a statement of the facts constituting the cause of action, in ordinary and concise language. While it is true that pleading conclusions of law does not fulfill this requirement, it has long been recognized that the distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. For example, the courts have permitted allegations which obviously included conclusions of law and have termed them ‘ultimate facts’ or ‘conclusions of facts.’ What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

The court here declines to strike the subject allegations on the arguments presented by Teehee. Although Carmona alleges conspiracy in conclusory terms (Complaint ¶ 23), the facts indicating conspiracy would in any event be more within the knowledge of defendants than Carmona herself. Moreover, the allegations of outrageousness and willfulness in paragraphs 28, 31, and 60, adequately apprise Teehee of the basis for the claims.

The Motion to Strike is DENIED as to paragraphs 23, 28, 31, and 60.

C. PREJUDGMENT INTEREST

Teehee next argues that Carmona cannot seek prejudgment interest in a personal injury action. (Demurrer at p. 7.)

A plaintiff entitled to “recover damages certain, or capable of being made certain,” is entitled to recover prejudgment interest. (Civ. Code § 3287.) Teehee reasons that personal injury plaintiffs cannot request prejudgment interest on their damages because they are not reasonably certain. (Demurrer at p. 7.)

The request for prejudgment interest is not subject to strike. In personal injury actions, “it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section.” (Civ. Code § 3291.)

The Motion to Strike is DENIED as to the request for prejudgment interest.

D. DISTRESS DAMAGES

Teehee finally moves to strike Carmona’s request for “other compensatory damages for emotional distress and other economic and non-economic losses” as duplicative of her request for general and special damages. (Motion at p. 7.)

The arguments offered by Teehee and Carmona for and against this prayer for relief are unsupported by any legal authority. Accordingly, the court will not strike the prayer for compensatory damages.

The Motion to Strike is DENIED.

[1] Indeed, Carmona alleges that she was put on notice of the presence of a foreign object in her body in December 2015, before her visit to Teehee. (Complaint ¶ 13.)

[2] Although the sixth cause of action listed in the Complaint’s caption is “Breach of Fiduciary Duty,” no claim labeled as such appears in the body of the Complaint.