Case Number: 23STCV14942 Hearing Date: April 15, 2025 Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

CHARA HAMMONDS,

Plaintiff,

JAMSHID NAZARIAN, M.D., et al.,

Defendants.

Case No: 23STCV14942

Hearing Date: April 15, 2025

Calendar Number: 4

Defendant Jamshid Nazarian, M.D. (“Defendant”) moves for judgment on the pleadings as to the second and third claims in the First Amended Complaint (“FAC”) filed by Plaintiff Chara Hammonds (“Plaintiff”).

The Court DENIES the motion.

Background

This is a medical malpractice case.

Plaintiff sought treatment from Defendant in 2009 for chronic obesity. Defendant performed a gastric band procedure in 2009 and a gastric sleeve procedure in 2014. Plaintiff contends that Defendant failed to adhere to the appropriate standard of care for each of those procedures.

On October 2, 2019, a judgment was entered against Defendant in an unrelated medical malpractice case. (Garcia Decl., Ex. C.) Plaintiff contends that this indicates a pattern of medical malpractice.

In 2021, Plaintiff returned to Defendant for further treatment. Defendant recommended a gastric re-sleeve procedure, which Plaintiff contends was highly risky and inappropriate. Plaintiff underwent the procedure on July 10, 2021. Plaintiff alleges that Defendant negligently performed the surgery, causing severe complications which required emergency hospitalization.

Plaintiff contends that, on August 18, 2021, Defendant performed an unconsented and medically unjustified procedure on Plaintiff which caused further complications.

Plaintiff contends that, between July and November 2021, Defendant fraudulently concealed his alleged negligence by dismissing Plaintiff’s ongoing symptoms as normal and falsifying operative reports, which obstructed subsequent treaters from adequately addressing the harm that Plaintiff suffered.

Plaintiff filed this action on June 27, 2023. Plaintiff’s original Complaint raised claims for (1) negligence – medical malpractice; (2) medical battery; and (3) fraud/deceit/intentional misrepresentations. The Complaint did not include a prayer for punitive damages, but stated that Plaintiff would seek leave to amend to add a demand for punitive damages.

On October 18, 2023, the Court approved a stipulation between the parties whereby the parties agreed that Plaintiff would dismiss her fraud claim against Defendant, but, in the event of discovery or facts giving rise to a fraud claim, Plaintiff would be permitted to amend the complaint to reinitiate the fraud claim without being required to first seek leave of court.

On November 25, 2024, Plaintiff filed the First Amended Complaint (“FAC”), which is now the operative complaint in this action. The FAC raises claims for (1) negligence – medical malpractice; (2) medical battery; and (3) fraud/deceit/intentional misrepresentations. The FAC does not include a prayer for punitive damages, but states that Plaintiff will seek leave to amend to add a demand for punitive damages.

Defendant filed this motion on March 13, 2025. Plaintiff filed an opposition and Defendant filed a reply.

Legal Standard

Either prior to trial, but after the time to answer or demur has passed, or at the trial, the plaintiff or the defendant may move for judgment on the pleadings and that the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense. (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791; See also Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [The non-statutory motion for judgment on the pleadings can be made at any time, even during trial, since the grounds for a general demurrer are never waived.], see also Code Civ. Proc., §438(f).)

A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (See, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 1998) §§ 7:275, 7:322; Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Id.; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677; Edwards v. Centex Real Estate Corp, (1997) 53 Cal.App.4th 15, 27.)

The motion may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired; (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. (Code Civ. Proc., § 438(f).) The motion provided for in Code of Civil Procedure section 438 may be made even though either of the following conditions exist: (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer; (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. (Code Civ. Proc., § 438(g).) No motion may be made pursuant to Code of Civil Procedure section 438 if a pretrial conference order has been entered pursuant to Code of Civil Procedure section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438(e).)

Discussion

Second Claim – Medical Battery

“Where 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, there is a clear case of battery.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.)

Defendant argues that the surgical procedure performed was not substantially different from the one to which Plaintiff consented. But this is a factual dispute. Plaintiff alleges that she consented to a gastrojejunostomy, bypass, or esophageal jejunostomy and that Defendant instead performed a fistula-jejunostomy. Whether this procedure is substantially different is a factual question not appropriate for resolution at the pleading stage.

Defendant argues that a procedure performed without informed consent is merely negligence, and not battery. (See Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 698 [“[A] medical act performed without a patient’s informed consent (such as the alleged morphine injection here) is medical negligence, not battery.”], citing Cobbs v. Grant, supra, 8 Cal.3d at pp. 240-241.) While true, the further explanation in Cobbs clearly sets Plaintiff’s allegations in the territory of battery:

“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, supra, 8 Cal.3d at pp. 240-241.)

This is not a case of an undisclosed complication. This is a case where Plaintiff alleges that Defendant performed a different procedure from the one to which she consented.

Defendant argues that this claim merely mirrors Plaintiff’s negligence claim. But a plaintiff may raise intentional tort theories alongside negligence, and Defendant cites no law to the contrary.

The Court denies the motion as to this claim.

Third Claim – Fraud/Deceit/Intentional Misrepresentations

“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Lovejoy v. AT&T Corp. (2004) 119 Cal.App.4th 151, 157–158.)

A duty to disclose arises when “[1] a defendant owes a fiduciary duty to a plaintiff … [2] when the defendant has exclusive knowledge of material facts not known to the plaintiff; [3] when the defendant actively conceals a material fact from the plaintiff; or [4] when the defendant makes partial representations but also suppresses some material facts.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199 [internal citations and quotation marks omitted; cleaned up].)

The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “[Fraud’s] particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

Defendant argues that Plaintiff has not adequately alleged facts supporting knowledge of falsity or intent to induce reliance. But the pleading standard for fraud requires only specificity, not evidentiary detail. “Less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.” (Wald v. TruSpeed Motorcars, LLC (2010) 184 Cal.App.4th 378, 394 [quotation marks omitted].) Plaintiff has adequately pled that Defendant concealed the procedure he performed by falsifying reports. That is sufficient at this stage.

Defendant argues that Plaintiff has not pled causation. But Plaintiff has adequately pled that she relied on the medical advice of her doctor when Defendant told her not to worry about her symptoms.