Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CC02824 James P. Gray, Judge. Reversed.
Law Offices of Mark Joseph Valencia and Mark Joseph Valencia for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar, Maxine J. Lebowitz and William C. Haggerty, for Defendants and Respondents.
OPINION
BEDSWORTH, ACTING P. J.
Karen Kinses appeals from a defense judgment in this dental malpractice action against Mitra Bolbolan MacMillan and Dental Health –Anaheim Hills, Inc. (collectively, MacMillan). Kinses argues nonsuit was mistakenly granted on causes of action for fraud and intentional infliction of emotional distress, and there were other errors. We agree her fraud claim should have gone to the jury, and so reverse.
FACTS
Kinses’ evidence showed she consulted MacMillan in 2005, when searching for a new dentist. The front window of MacMillan’s dental office listed her name and specialty, followed by the legend “USC Clinical Associate Professor.” Kinses told MacMillan of her various medical conditions, 13 in all, including psychiatric problems (not further identified), panic attacks, clinical depression, and anxiety regarding doctors. MacMillan accepted Kinses as a patient, examined her, and diagnosed periodontal disease. The proposed treatment was removal of 28 teeth and installation of dentures.
Kinses did not seek a second opinion, believing from the window legend MacMillan was a professor at the University of Southern California School of Dentistry. She thought the affiliation meant MacMillan was teaching at the school, which showed she was reputable and knowledgeable in the most current procedures and techniques. In fact, MacMillan was not teaching at the school. She had been a part-time, unpaid clinical associate professor from 1998 to 2000, but not thereafter. MacMillan testified she put the information on her window, and in a PennySaver advertisement, because “I’m proud of... being a professor, so it’s just letting the patients know.” MacMillan said she contacted the school after the action was filed to inquire whether she could advertise herself as a clinical professor, and was told she could not.
Kinses agreed to the treatment plan. After the dentures were fitted, she found them painful and returned numerous times for adjustments over a period of eight months. In Kinses’ retelling, MacMillan became increasingly hostile and abusive as time passed. On one occasion, when Kinses complained about pain, MacMillan retorted “‘[y]ou should be grateful you don’t have cancer....” Another time, she said “‘you should be grateful you didn’t lose a limb.’” When Kinses complained the dentures left her chin protruding in an unflattering way, MacMillan replied “‘you could always use [B]otox if you don’t like the way your chin look[s]....”
Finally, Kinses was fed up and told MacMillan she wanted a new set of dentures, or a refund. On that visit, Kinses was accompanied by her sister-in-law, Monica Kinses. MacMillan responded that Kinses could sue her, but she would lose (apparently having in mind consent forms Kinses had signed that outlined the treatment, what was covered, and what was promised). Kinses and her sister-in-law left the office, but MacMillan ran after them, waving a paper that she said showed Kinses could not sue. When Kinses got home, there was a message on her answering machine from MacMillan saying “[d]on’t come back if you don’t have [$]440 more... for a [new set of dentures].’”
A month later, Kinses wrote to MacMillan to demand a refund. The only response was a postcard that said “‘[t]his is a reminder that it’s time for your check up.’” Kinses testified she suffered increased depression, embarrassment, and felt alone and isolated as a result of MacMillan’s actions. After receiving the postcard, she suffered anxiety, insomnia, and nightmares. A clinical social worker testified Kinses said her teeth bothered her so much “she just would rather not be here.”
After nonsuit was granted on the fraud and emotional distress claims, the case was submitted to a jury on the remaining cause of action for negligence. The jury returned a verdict for the defense, and judgment was entered for MacMillan.
I
The evidence was sufficient for a jury to find fraud in MacMillan’s advertising herself as a “USC Clinical Associate Professor.”
On review of an order granting nonsuit, an appellate court must view the evidence in a light most favorable to the plaintiff. The question is whether the evidence was insufficient, as a matter of law, to permit the trier of fact to find in favor of plaintiff. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) The elements of fraud are: (1) misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)
The trial judge granted nonsuit on the ground there was no evidence the representation was false or MacMillan knew it was false. But there was. Simply put, MacMillan was not a USC clinical professor at the time Kinses first consulted her in 2005, and she testified she had not taught at the school since 2000. That was enough evidence for a fact finder to conclude the legend on MacMillan’s office door was false, and MacMillan knew it to be so.
MacMillan argues she did not intend to deceive anyone and believed she could return to USC as a volunteer clinical professor at any time – all of which may be true, but none of which is relevant to the issues raised in a motion for nonsuit. In reviewing a grant of nonsuit, we consider only the evidence and inferences most favorable to plaintiff, and we do not weigh the evidence. Whether the representation was false, and whether MacMillan intended to deceive (which goes to intent, not falsity or knowledge) were questions for the jury. It was error to grant nonsuit on the fraud claim.
II
Kinses also argues she offered sufficient evidence MacMillan’s conduct was outrageous, and she otherwise made out a prima facie case of intentional infliction of emotional distress. Here, we disagree.
The elements of intentional infliction of emotional distress are: (1) outrageous conduct; (2) intent to cause emotional distress or reckless disregard of the probability of doing so; (3) severe emotional suffering; and (4) causation. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7.) “There is liability for conduct ‘exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, emotional distress. [Citation.] Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.... There is no occasion for the law to intervene... where some one’s feelings are hurt. [Citation.] Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. [Citations.]” (Ibid.)
It cannot be said the conduct in this case was beyond the bounds of decency tolerated in today’s society. MacMillan’s comments may have been ill-considered, unwise, and perhaps unprofessional. But whether considered individually or as a whole, they were only insults and indignities the law does not redress. Kinses admitted the at least “‘you don’t have cancer’” comment was a bad attempt at humor and not mean-spirited, and the same may be said of the Botox remark. MacMillan’s reaction to Kinses request for a refund – if you sue me, you will lose – may have been harsh and perhaps not the best way to build a professional practice. But again it did not rise beyond the insulting and marginally rude. The same is true of following Kinses into the parking lot to drive home the point, and leaving a message that MacMillan would not redo the dentures unless Kinses paid an additional $440. That is not the way we expect medical professionals to act, but being rude and foolish does not rise to the level of outrageousness, as contemplated by Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d 148. The reminder card after Kinses sent MacMillan a demand letter does not show malicious intent without evidence it was anything other than a routine card periodically sent out to patients. And even if such evidence existed, it would no nothing more than re-establish the doctor’s bad judgment. Since the evidence viewed most favorably to Kinses fails to show outrageous conduct, MacMillan was entitled to nonsuit on the emotional distress claim.
Kinses also argues MacMillan abused a position of authority because she had the power to affect her health, knew Kinses was particularly susceptible to emotional distress, and should have known her actions would result in emotional distress. We cannot agree.
The argument relies on Molko v. Holy Spirit Assn. (1988) 46 Cal.3d. 1092, but the case is distinguishable. There, evidence was offered that recruiters for the Unification Church (Church) knowingly misrepresented the Church’s identity to Molko, intending to induce him to associate with them, participate in Church activities, and later join the Church. By the time the Church finally disclosed its identity, its agents had brainwashed Molko so effectively that he was unable to decide not to join. (Id. at pp. 1108-1109.) The court held the evidence was sufficient to raise a triable issue of fact and deny summary judgment for the Church: “[T]he Church’s continued deceptions might well be seen as conduct breaching plaintiff’s trust in the integrity of those who were promising to make their lives more meaningful. So viewed, the Church’s actions might well constitute an abuse of ‘a relation or position which gives [the Church] power to damage plaintiff’s interest.’ [Citation.]” (Id. at pp. 1122-1123.)
The present case is a far cry from Molko. There is nothing akin to brainwashing to the point of depriving Kinses of the ability to make an independent, rational decision. To the contrary, when Kinses got fed up with MacMillan, she wisely sought an opinion and treatment from another dentist. There is no suggestion MacMillan abused her position to prevent Kinses from doing so, or in any other way prevented Kinses from using her best judgment about her own dental health. Unlike Molko, this is not a case where abuse of a position of authority allowed an individual to damage another.
Whether MacMillan’s knowledge of Kinses’ ailments was sufficient to imply knowledge of unusual susceptibility to emotional distress, and show MacMillan should have known her conduct would result in such damage, are points we need not decide. Even assuming such knowledge – without deciding the point – no authority is offered for the proposition that knowledge of emotional vulnerability alone is sufficient to show outrageous conduct. Certainly, Molko does not support that argument. The motion for nonsuit on the emotional distress claim was properly granted.
III
Kinses’ next contention is that the trial court improperly excluded evidence on the standard of care applicable to her negligence claim. She is mistaken.
Two dentists who treated Kinses after she left MacMillan were called as expert witnesses. Kinses asked one whether proper dental treatment included the way a dentist interacts with a patient. The other was asked whether treatment is adequate if a dentist emotionally mistreats a patient. Objections were sustained to both questions, on the ground neither dentist had personal knowledge of how MacMillan behaved toward Kinses.
Kinses argues our decision in Fatica v. Superior Court (2002) 99 Cal.App.4th 350, requires admission of such evidence, but it does not. As Kinses points out, we said the rule is “‘[a] treating physician is a percipient expert, but that does not mean that his testimony is limited to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony.’” (Id. at pp. 352-353.) But omitted is what we said next about the rule: “‘[S]uch a witness... may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience.’” (Ibid., italics added.)
Far from showing the testimony was admissible, Fatica makes clear it was not. Neither witness was shown to have personal knowledge of MacMillan’s interaction with Kinses, nor to be an expert in dentist/patient interaction. The proffered testimony was properly excluded.
IV
Finally, Kinses contends a comment by MacMillan’s counsel during closing argument denied her a fair trial. This is hyperbole.
The offending remark was counsel’s statement he had been a trial lawyer for 31 years, some time before Kinses’ lawyer was born, and it was always a privilege to appear before a jury. Kinses did not object. She recognizes the failure to raise the point below waives an argument on appeal, but contends there is an applicable exception for inflammatory statements that deny an opposing party a fair trial.
The argument is frivolous. Other than some ruffled feelings on the part of Kinses’ attorney (who represented his client ably as far as we can tell from the record and his appellate brief), no harm was done. Some mild barbs are part and parcel of the jousting at trial, and whether to parry such jabs is always a tactical decision. Having decided to let it pass during trial, Kinses cannot now complain. The argument was waived when not raised below.
Since Kinses presented sufficient evidence to support a finding of fraud, it was error to grant nonsuit on that cause of action. The judgment appealed from is reversed. Kinses is entitled to costs on appeal.
WE CONCUR: O’LEARY, J., MOORE, J.