DAVID DINH, ET AL. VS GWEN MARIA ALLEN, M.D., ET AL.

Tentative Rulings

Case Number: *******0475 Hearing Date: June 29, 2023 Dept: M

Hearing Date: June 29, 2023

Moving Parties: Defendants Gwen Maria Allen, M.D., et al.

Responding Party: Plaintiffs David Dinh, et al.

Demurrer

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the 4^th cause of action for fraudulent concealment.

BACKGROUND

On February 17, 2023, plaintiffs David Dinh, Thi Do, and Ryan Dinh, a minor by and through his GAL David Dinh, filed a complaint against Gwen Maria Allen, M.D. ind. and dba Gardena Women’s Center, Gwen M. Allen MD, Inc. and Gardena Women’s Center for (1) wrongful life, (2) wrongful birth, (3) negligence, and (4) fraudulent concealment.

On February 8, 2023, the parties stipulated and the court entered an order striking the prayer for punitive damages.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “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.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Defendants Gwen Maria Allen, M.D., et al. demur to the 4^th cause of action for fraudulent concealment on the grounds that the allegations are insufficient to constitute a cause of action and are uncertain.

In the complaint, plaintiffs allege that from September 20, 2021 until March 31, 2022, David and Thi and their unborn child Ryan were in the care of defendants. Defendants failed to conduct the standard of care prenatal screening tests, standard imaging and diagnostics tests that screen for and determine whether David and Thi’s unborn child Ryan had certain birth defects. Complaint, 12. Thi visited a different obgyn when she was 30 weeks pregnant. After non-invasive prenatal testing, David and Thi learned that their unborn child Ryan was in fact at a high risk of genetic abnormalities including Down Syndrome. Thi gave birth on March 31, 2022 at which time medical providers confirmed Ryan had Down Syndrome. Id., 13. Defendants did not perform the basic screening that is recommended by the American College of Obstetricians and Gynecologists and which is in line with the appropriate standard of care. Consequently, defendants failed to give David and Thi the ability to determine whether they would continue with the pregnancy or ultimately terminate it. In this case, Thi gave birth to a wrongful life child with significant genetic and physical anomalies because they were denied the right to know if their unborn child was genetically normal or abnormal. Id., 14.

4^th cause of action for fraudulent concealment

The elements of a fraud claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to deceive; and (4) reliance and resulting damage. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282, 290. “To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. The particularity requirement necessitates pleadings facts that “show how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.

“[T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’” OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835, 845. Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal. App. 4th 803, 831.

Under this cause of action, plaintiffs allege that they were under the care of defendants’ relating to Thi’s pregnancy. Complaint, 30. Defendants represented to David and Thi that defendants would provide said services, including testing and providing results to David and Thi. Id., 31. In justifiable reliance on defendants’ representations, David and Thi engaged and paid defendants for such services. Id., 32. David and Thi are informed and believe that due to defendants’ religious and moral beliefs, defendants did not intend to perform adequate prenatal testing so as to conceal potential reasons, such as diagnosis of Down Syndrome, for David and Thi to abort the pregnancy. Id., 33. Defendants knew the representations made to David and Thi were false when they were made. Defendants further knew that had plaintiffs known the true facts, i.e., that defendants never intended to perform all recommended prenatal testing and intended to conceal any results which might lead to an abortion, David and Thi never would have engaged defendants’ services. Id., 34. Defendants intended to induce David and Thi to rely on the representations made and the facts concealed, and David and Thi reasonably relied on same. Id., 35. David and Thi have sustained and will in the future sustain loss of earnings, loss of earning capacity, and other economic damages. Id., 36.

Defendants argue that the complaint fails to plead fraudulent concealment with the requisite specificity. Defendants contend that plaintiffs have not alleged intent to defraud and there are no allegations that defendants were aware that Ryan had Down Syndrome and that defendants intentionally concealed such fact and did not advise plaintiffs with the intent to preclude plaintiffs from terminating the pregnancy. Defendants also assert that plaintiffs have not pled that defendants had a duty to disclose their alleged “religious and moral beliefs.” Defendants further argue that plaintiffs have not pled that they sustained any injury as a result of defendants’ failure to disclose their alleged “religious and moral beliefs,” including that had ”adequate” and “recommended” prenatal testing been performed and had they revealed that Ryan was at risk of being born with Down Syndrome, they would have terminated the pregnancy. Further, defendants argue, plaintiffs are improperly attempting to manufacture a medical negligence case into something more. See Stone v. Foster (1980) 106 Cal. App. 3d 334, 347 (“The same policy factors which favor treatment as negligence rather than battery also favor treatment as negligence rather than fraud.”).

In opposition, plaintiffs argue that they have properly pled a cause of action for fraudulent concealment and that it complies with the heightened pleading standard for fraud.

In reply, defendants reiterate their arguments.

The court finds that the allegations are insufficient to constitute a cause of action for fraudulent concealment. The allegations do not show an intent to defraud or a duty to disclose defendant’s “religious and moral beliefs.” The complaint is conclusory as to “religious and moral beliefs,” and that such fact is material. The complaint does not show that failure to disclose defendant’s “religious and moral beliefs” was the cause of the failure of defendants to provide adequate prenatal testing or recommend diagnostic testing. The first three causes of action and the 4^th cause of action are also based on the same facts, defendants’ alleged failure to properly care for plaintiff by conducting prenatal and diagnostic tests.

The demurrer is thus SUSTAINED WITH LEAVE TO AMEND.

Defendants are ordered to give notice of the ruling.