Bazikian v. Moghadam
Filed 12/5/13 Bazikian v. Moghadam CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
JACQUELINE BAZIKIAN,
Plaintiff and Appellant,
v.
NASSER GHOLIAN MOGHADAM,
Defendant and Respondent.
B243301
(Los Angeles
County
Super. Ct.
No. LC095354)
APPEAL from a judgment of the Superior Court of
County.
Frank
Johnson, Judge. Affirmed.
Jacqueline Bazikian, in pro. per.;
and Motaz M. Gerges for Plaintiff and Appellant.
Law Offices of Farrah Mirabel, and
Farrah Mirabel for Defendant and Respondent.
______________________________
Plaintiff
and appellant Jacqueline Bazikian sued defendant and respondent, Nasser Gholian
Moghadam, M.D., an anesthesiologist, following a “failed†liposuction procedure. The trial court sustained without leave to
amend separate demurrers to causes of action for
misrepresentation and concealment of fact.
We affirm.
FACTS
As always
the context of reviewing a demurrer we consider the
facts alleged in the operative pleading to be true. (Moore
v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We may also consider matters that are
judicially noticed. (
591.) Examined in the light of these
rules, these are the facts in this case.
In July
2005, Bazikian underwent a liposuction procedure at the Sunrise
Surgical Center
by Parvin Mirabadi, M.D., who is not a party the current action or appeal. On the day of the procedure, Bazikian
spoke to a person who “used†Dr. Moghadam’s name and who represented that he was
a board certified anesthesiologist and would be administering anesthesia. The liposuction procedure by Dr. Mirabadi
“failed.â€
investigation against Dr. Mirabadi with the California Medical Board. In June 2008, Bazikian was represented by
counsel and sued Dr. Mirabadi and Sunrise
Surgical Center
for medical malpractice.
In
September 2011, Bazikian “was trying to conclude her investigation against Dr. Mirabadi
with the Medical Board, and came across Nasser Golian Moghadam’s photo in
Facebook.†Bazikian “had a very sick
feeling when she first saw Nasser Moghadam’s photo because he was not the same anesthesiologist
she saw on the day of her surgery.â€
Bazikian contacted Dr. Moghadam and requested a copy of her medical
records. Dr. Moghadam did not
respond.
In November
2011, Bazikian filed a complaint against Dr. Moghadam and Does 1 through 100. As relevant to the current appeal, Bazikian’s
original complaint alleged a cause of action for fraud and a cause of action
for medical battery.
Dr.
Moghadam filed a demurrer in which he argued, among other legal defenses, that
Bazikian’s cause of action for medical battery was barred by the two-year
statute of limitations under Code of Civil Procedure section 335.1. Specifically, Dr. Moghadam argued that
Bazikian’s cause of action showed on its face that the alleged battery had occurred
in July 2005, and that Bazikian did not file her complaint until more than six
years later. On February 27, 2012, the trial court entered an
order sustaining Dr. Moghadam’s demurrer to Bazikian’s cause of action for medical
battery, without leave to amend.
In March 2012,
Bazikian filed a first amended complaint
alleging a single cause of action for fraud by intentional misrepresentation
and concealment of fact. This pleading alleged
that Bazikian had met and talked with “Doe #1†–– an “unknown†person –– on the
day of her liposuction procedure at the Sunrise Surgical Center and that Doe #1
had misrepresented that he was Dr. Moghadam and that he was an expert in
anesthesia. Bazikian alleged that Doe #1
had “used both local and general anesthesia in quantities too high and not
according to [her] weight . . .†during her liposuction surgery.
As to Dr.
Moghadam, the pleading alleged that he “knew or should have known that Doe #1,
Dr. Mirabadi, and others at Sunrise Surgical Center [were] . . . using
his name and forging medical records and deceiving patients that they [were]
being treated by [Dr. Moghadam] when in fact, Doe #1 and/or others were
using [Dr. Moghadam’s] name, license, and likeness to deceive and administer
anesthesia . . . .†Bazikian also alleged that Dr. Moghadam
“allowed Doe #1, Dr. Mirabadi, Sunrise
Surgical Center
and others working at Sunrise Surgical
Center to use his name [and]
identity, sign medical records, and perform anesthesia services under his
name . . . .â€
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Bazikian alleged she justifiably relied
on the defendants’ conduct, and “was induced to undergo [] liposuction
surgeries at the Sunrise Surgical Center believing that she was [being] treated
by competent board certified anesthesiologist where in fact, she was not.†She further alleged: “Because of Plaintiff’s reliance upon
defendants’ conduct, Plaintiff has been damaged as follows: Plaintiff has suffered severe emotional
distress, physical and emotional pain, underwent years of treatment and is
still suffering.â€
Dr.
Moghadam filed a demurrer in which he argued, among other defenses, that
Bazikian’s first amended complaint failed to allege specific facts showing any
“nexus†or “privity†between Dr. Moghadam and Doe #1 which would hold the former
liable for the latter’s misrepresentations.
Dr. Moghadam also argued that Bazikian’s action was barred by the
statute of limitations as she failed to allege facts showing why she took more
than six years to learn that the imposter “Dr. Moghadam†who she saw on the day
of her liposuction surgery was not the real Dr. Moghadam. Dr. Moghadam requested judicial notice that
Bazikian, represented by counsel at the time, had filed a medical malpractice
action against Dr. Marabadi and Sunrise
Surgical Center
in June 2008.
On June 6, 2012, the parties argued the
merits of Dr. Maghadam’s demurrer to the trial court. An attorney, Motaz Gerges, appeared at the
hearing on behalf of Bazikian. He
indicated he had just been retained and requested that the court grant leave to
file a second amended complaint. The
court sustained Dr. Maghadam’s demurrer without leave to amend, and dismissed
the action with prejudice.
Bazikian
filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
The allegations of a complaint must be liberally construed in favor of
the pleader. (Code Civ. Proc., § 452.) A demurrer tests only the legal sufficiency of
a complaint, not the truth of the alleged facts. (Hernandez
v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) A plaintiff need only plead those facts
showing that he or she is entitled to some form of relief from the defendant. (Alcorn
v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) Whether
the plaintiff has alleged facts showing he or she is entitled to relief against
the defendant is “a pure question of law.â€
(CAMSI IV v. Hunter Technology
Corp. (1991) 230 Cal.App.3d 1525, 1530.)
When a trial court sustains a demurrer, the decision
whether to grant leave to file an amended pleading is a matter within the trial
court’s discretion. (
349.) However, a demurrer should not be
sustained without leave to amend where it appears reasonably possible that the plaintiff
can cure a defective complaint to state a cause of action. (Jager
v. County of Alameda (1992) 8 Cal.App.4th 294, 296-297;
Cal.3d 113, 118.) A trial court abuses
its discretion by sustaining a demurrer without leave to amend where it appears
from the complaint that under applicable substantive law there is a reasonable
possibility that an amendment could cure the complaint’s defect. (Heckendorn
v. City of San Marino (1986) 42 Cal.3d 481, 486.) The burden is on the plaintiff to demonstrate
in what manner he or she can amend the complaint and how that amendment will
change the legal effect of the pleading.
(Goodman v. Kennedy, supra, 18
Cal.3d at p. 349.)
II. Leave to Amend
Bazikian’s
first contention is that trial court should have granted her leave to file a
second amended complaint after she hired an attorney. We disagree.
As noted
above, the burden is on Bazikian to demonstrate in what
manner she can amend the complaint and how that amendment will change the legal
effect of the pleading. (
p. 349.) At the hearing on Dr.
Modhadam’s demurrers, Bazikian did not proffer any amendments or an amended
pleading to show how she could cure any defects in her pleading. She has not done so on appeal either. Accordingly, we will not find the trial court
abused its discretion in declining to grant leave to file a second amended
complaint.
III. Statute of Limitations –– Medical Battery
The trial
court sustained Dr. Moghadam’s demurrer to Bazikian’s cause of action for
medical battery on the ground that her original pleading showed on its face
that the cause of action was barred by the statute
of limitations. On appeal, Bazikian
contends that she stated a cause of action for medical battery because she
alleged that she never consented to be treated by Doe #1 –– the Dr. Moghadam
imposter. She contends that whatever
consent she gave, it was obtained by fraud and is therefore invalid. Further, she argues that, under the discovery
rule, a cause of action does not accrue until the plaintiff has reason to
discover the cause of action or has reason to suspect a factual basis for one
or more of its elements. (Generally
citing Grisham v. Phillip Morris U.S.A., Inc.
(2007) 40 Cal.4th 623.) In attempting to
invoke the delayed discovery rule, Bazikian argues: “The discovery of the fraud and medical
battery were not until September 2011 . . . .â€
We find no
error in the trial court’s ruling on the demurrer as to the cause of action for
medical battery. Bazikian’s general
discussion of the delayed discovery rule does not persuade us to find
error. In order to invoke the discovery
rule, a plaintiff must “plead
for late discovery of the facts underlying his [or her] cause
of action.†(Prudential Home Mortgage Co. v. Superior Court (1998) 66
Cal.App.4th 1236, 1247.) The plaintiff
must allege facts showing that he or she “‘was not at fault for failing to
discover it or had no actual or presumptive knowledge of facts sufficient to
put him [or her] on inquiry. [Citations.]’â€
(Ibid.)
Here, Bazikian’s pleadings alleged no
more than that she saw Dr. Moghadam’s photo on Facebook in September 2011. She did not allege any facts concerning what
she did to inquire about possible anesthesia problems between 2005, when she
underwent her failed liposuction procedure, and 2011, when she first filed an
action against Dr. Moghadam.
IV. Fraud
Bazikian
next contends she alleged sufficient facts to plead a civil conspiracy to
commit fraud involving Dr. Moghadam. We
disagree.
Bazikian
argues that, assuming the truth of the allegations in her complaint and first
amended complaint, “[i]t is clear . . . that [she] was
defrauded by an imposter who called himself [Dr.] Moghadam.†We agree.
The problem for Bazikian, however, is that she has not alleged any
fraudulent act on the part of Dr. Moghadam.
The issue is not whether Bazikian alleged a fraud –– plainly she did as
to the “imposter;†the issue is whether Bazikian alleged facts stating a cause
of action for fraud on the part of Dr. Moghadam.
Bazikian did
not allege fraud with the required specificity.
Fraud must be pleaded
with more detail than other causes of action.
(Apollo Capital Fund, LLC v. Roth
Capital Partners, LLC (2007) 158 Cal.App.4th 226, 240.) A cause of action for fraud, both in the nature of an
affirmative misrepresentation or a concealment of fact, must be pleaded with
specificity. (See. e.g.,
Cal.App.3d 59, 72-73;
198 Cal.App.4th 230, 248; Kaldenbach v.
Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.) A plaintiff is required to plead facts “‘which show how,
when, where, to whom, and by what means’†the fraud was committed. (Robinson
Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) The
heightened pleading requirement for fraud allegations serves not only to give
notice to a defendant of the specific fraudulent conduct against which he or
she must defend, but also to deter the filing of complaints as a pretext for
discovery of unknown wrongs, to protect defendants from the harm that comes
from being subject to fraud charges, and to prohibit plaintiffs from
unilaterally imposing upon the court, the parties and society enormous social
and economic costs absent some factual basis.
(State of California ex rel.
McCann v. Bank of America, N.A. (2011) 191 Cal.App.4th 897, 909.)
A
complaint alleging liability based on a civil conspiracy may generally allege
the formation and operation of the conspiracy, but must specifically allege the
wrongful act or acts done pursuant to it, as well as the damage resulting from
the act or acts. Also, in alleging liability
based on a conspiracy, bare legal conclusions, inferences, generalities,
presumptions, and conclusions are insufficient.
(State of California ex rel. Metz
v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419;
Cal.App.3d 645, 649.) Because a civil
conspiracy renders each participating conspirator liable as a contributory
tortfeasor whether or not he or she ultimately participate in the final injury
causing wrongful act (Black v. Sullivan
(1975) 48 Cal.App.3d 557, 566), the purpose of requiring the pleading of facts
showing a conspirator’s acts pursuant to the conspiracy is to prevent a person from
being drawn into litigation based on the bare allegation of being in a
conspiracy.
Here, Bazikian alleged only
generally that Dr. Moghadam knew or should have known that his name was being
used by others, and allowed others to use his name. We agree with Dr. Moghadam that the
general allegations in Bazikian’s pleadings were not sufficient to state a
claim for fraud, particularly where liability is largely based on being a civil
conspirator in a fraud.
Having concluded that Bazikian
failed to allege her cause of action for fraud with the required specificity,
we do not address the further issues whether her cause of action was barred by
the statute of limitations or by the doctrine of res judicata based upon her
prior lawsuit against Dr. Mirabadi and Sunrise Surgical Center.
DISPOSITION
The
judgment is affirmed. Each party to bear
its own costs on appeal.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES, J.
In her original pleading, Bazikian alleged she suffers from
“Reflex Sympathetic Dystrophy,†a nerve disorder characterized by chronic pain
which usually develops at the site of an injury. In her first amended complaint, Bazikian does
not allege the nature of the liposuction failure.
Bazikian’s first amended complaint alleged: “Plaintiff believes and therefore, alleges,
that Dr. Moghadam may be related by marriage to Dr. Mirabadi’s husband, Mehdi
Amin Moghadam, M.D., [a] pediatrician.â€
