Superior Court of California
County of Los Angeles – West District
Beverly Hills Courthouse / Department 205
| KEVIN MCGINN,
Plaintiff, v.
PETER B. MENDELSOHN, M.D., et al.,
Defendants. |
Case No.: 23SMCV02329
Hearing Date: December 8, 2023 [TENTATIVE] ORDER RE: DEFENDANT DAVID KAMEN’S DEMURRER AND MOTION TO STRIKE COMPLAINT
|
BACKGROUND
This is a medical malpractice case. Defendants David Kamen, Peter Mendelsohn and Specialty Surgical Center performed cataract surgery on Plaintiff Kevin McGinn’s right eye. Plaintiff alleges Defendants performed the cataract surgery “knowing that insufficient sedation and anesthesia was provided”. (First Amended Complaint (“FAC”) ¶22.) Plaintiff claims that during the procedure, he indicated to both Defendants that he was awake and had not been properly anesthetized and sedated and was aware of the surgery and could feel the incisions made. (Id. ¶11.) Despite this, Plaintiff claims Defendants proceeded with the surgery, knowing he was insufficiently sedated. (Id.)
The operative complaint alleges four claims for (1) medical negligence, (2) corporate negligence, (3) assault and battery and (4) intentional infliction of emotional distress.
This hearing is on Defendant David Kamen’s demurrer and motion to strike the third and fourth causes of action. Kamen argues that (1) Plaintiff’s third cause of action for assault and battery fails because Plaintiff has not alleged Kamen performed a “substantially different procedure” as required to plead medical battery, and (2) Plaintiff’s fourth cause of action for intentional infliction of emotional distress fails because Plaintiff fails to plead facts showing extreme and outrageous conduct or intent to cause or reckless disregard of the possibility of causing emotional distress. Kamen also moves to strike both causes of action and the associated prayers for relief on the same grounds as asserted in his demurrer.
LEGAL STANDARD
“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)
Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike 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, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“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.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
MEET AND CONFER
Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) Kamen submits the Declaration of Erin Gonzalez, which avers counsel met and conferred by phone prior to bringing this demurrer and motion to strike. This satisfies the requirements of §§430.41 and 435.5.
DISCUSSION
Assault and Battery
Kamen argues that Plaintiff cannot state a claim for assault and battery because Plaintiff consented to the procedure performed and medical battery requires that a doctor perform a substantially different medical procedure than one to which the patient consented. The Court disagrees.
The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3)¿ plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 1301;¿Plotnik v. Meihaus¿(2012) 208 Cal.App.4th 1590, 1603–1604.)
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.¿(CACI No. 1300; see¿Kaplan v. Mamelak¿(2008) 162 Cal.App.4th 637, 645.)
As a general rule, one who consents to a touching cannot recover in an action for battery or assault. (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.) Thus, one who gives consent to a surgery cannot recover for assault and battery where the consented to surgery was actually performed. However, it is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for battery. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 610.)
The rule of conditional consent has been applied in California in battery actions against doctors. (Ashcraft, 228 Cal.App.3d at 610 (consent to blood transfusion but only using blood from the patient’s family); Grieves¿v.¿Superior Court¿(1984) 157 Cal.App.3d 159, 165¿(consent to tubal ligation only if baby born without deformities);¿Keister v.¿O’Neil (1943) 59 Cal.App.2d 428, 434-435¿(operation consented to but “absolutely did not want . . . a spinal anesthetic”).)
In the present case, Plaintiff’s claim of battery rests on the theory that although the cataract surgery was consented to, the consent was subject to a specific condition: the surgery had to be performed with adequate anesthesia. If Plaintiff can prove these facts, he will prove medical battery. (Ashcraft, 228 Cal.App.3d at 610.)
Accordingly, the Court overrules the demurrer to Plaintiff’s third cause of action for assault and battery.
Intentional Infliction of Emotional Distress
Kamen argues that Plaintiff’s claim for intentional infliction of emotional distress fails as a matter of law because Plaintiff has not alleged extreme and outrageous conduct or that Kamen intended to cause or acted in reckless disregard of the probability of causing emotional distress. The Court disagrees.
The elements of a claim for 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. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To be outrageous, conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.) The defendant must have engaged in conduct “intended to inflict injury or engaged in with the realization that injury will result. It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christenson v. Superior Court (1991) 54 Cal.3d 868, 903.)
To avoid a demurrer, the plaintiff must allege with “great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “Whether behavior is extreme or outrageous is a legal determination to be made by the court, in the first instance.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172; Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.)
Plaintiff has sufficiently alleged facts that would demonstrate extreme and outrageous conduct beyond what is expected in a civilized society. Plaintiff claims that during the procedure, he indicated to Defendants that he was awake and had not been properly anesthetized and sedated and was aware of the surgery and could feel the incisions made. (Id. ¶11.) Despite this, Plaintiff claims Defendants proceeded with the surgery, knowing he was insufficiently sedated. (Id.) These facts are sufficient to support a finding that Defendants’ conduct was extreme and outrageous and that they engaged in such conduct with the intent to inflict injury or with the realization that injury will result.
Accordingly, the Court overrules the demurrer to Plaintiff’s fourth cause of action for intentional infliction of emotional distress.
Motion to Strike
Kamen moves to strike the claims for assault and battery and intentional infliction of emotional distress and their associated prayers for relief. The Court denies the motion to strike on the same grounds as its ruling on the demurrer.
CONCLUSION
Based on the foregoing, the Court OVERRULES Defendant’s demurrer and DENIES Defendants’ motion to strike.
IT IS SO ORDERED.
DATED: December 8, 2023 ___________________________
Edward B. Moreton, Jr.
Judge of the Superior Court