Borman v. Brown
| Decision Date | 15 January 2021 |
| Docket Number | D076239, D076748 |
| Citation | 59 Cal.App.5th 1048,273 Cal.Rptr.3d 868 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Alice Jeanne BORMAN, Plaintiff and Appellant, v. Tara BROWN et al., Defendants and Respondents. |
Markowitz Law Group and Aaron B. Markowitz, San Diego, for Plaintiff and Appellant.
Lotz, Doggett & Rawers, Jeffrey S. Doggett, Patrick F. Higle, San Diego, and Brian T. Bloodworth for Defendants and Respondents.
Alice Jeanne Borman filed this action against defendants Tara Brown, M.D. and North County Eye Center, Inc. (NCEC). In her complaint, Borman alleged that she sought treatment from defendants for a "droopy eyelid
and brow." According to Borman, Dr. Brown told Borman that Brown could perform a "brow lift"1 to correct the problem, but that a brow lift would not be covered by Borman's insurance. Borman further alleged that Dr. Brown told Borman that she could instead perform a blepharoplasty,2 which would be covered by Borman's insurance. Borman further claimed that Dr. Brown's statement that a brow lift would not be covered by Borman's insurance was false and that Dr. Brown had no reasonable basis for making the statement. Borman alleged that she relied on Dr. Brown's representations and agreed to undergo a blepharoplasty. After undergoing the blepharoplasty, Borman claimed that she continued to have physical difficulties with her eyelid and her brow. Borman consulted another doctor who advised Borman that Dr. Brown had "performed the wrong procedure and that a brow[ ]lift should have been performed instead." Borman brought causes of action styled as professional negligence, lack of informed consent, fraud and deceit, and battery against defendants.
Defendants filed a motion for summary judgment or, in the alternative, summary adjudication. The trial court denied the motion for summary judgment, denied the motion for summary adjudication of the professional negligence and lack of informed consent causes action, but granted the motion for summary adjudication as to Borman's fraud and deceit and battery causes of action. After a defense jury verdict on the professional negligence and lack of informed consent causes of action,3 the trial court entered judgment in favor of defendants. The court subsequently entered an order awarding costs to defendants as prevailing parties.
On appeal, Borman contends that the trial court erred in granting defendants' motion for summary adjudication with respect to her fraud and deceit cause of action, because the trial court should have permitted her to "proceed at trial on a claim for ‘[n]egligent [m]isrepresentation.’ " Among other arguments, Borman maintains that she adequately alleged both intentional and negligent misrepresentation theories of liability in her fraud and deceit cause of action, and that the trial court erred in concluding that Dr. Brown demonstrated as a matter of law that Borman would be unable to establish one of the elements of negligent misrepresentation. Specifically, Borman claims that the trial court erred in concluding that there was "no triable issue of fact on the issue of intent to induce reliance." Borman argues that the trial court erroneously treated the "intent to induce reliance" element of her negligent misrepresentation theory of liability as if Borman were required to demonstrate an "intent to defraud ," (italics added) which is not an element of negligent misrepresentation.
We conclude that the record contains evidence from which a reasonable jury could find that Dr. Brown intended for Borman to rely on her statement that a brow lift would not be covered by Borman's insurance. No more was required for Borman to prove the "intent to induce reliance" element of her fraud and deceit cause of action premised on negligent misrepresentation. Since this is the sole element of a negligent misrepresentation theory of liability that the trial court found Borman would be unable to prove, we further conclude that the trial court erred in granting summary adjudication of Borman's fraud and deceit cause of action.4
Borman also claims that the trial court's refusal to modify certain jury instructions demonstrates that she was unable to present her fraud and deceit / negligent misrepresentation cause of action at trial and that the court erred in excluding the testimony of an expert who would have testified with respect to that cause of action. For reasons that we explain in parts III.B and C, post , we do not address these claims given our reversal and remand for further proceedings on Borman's fraud and deceit cause of action insofar as that cause of action pled a claim for negligent misrepresentation. Borman also appeals from a postjudgment order awarding defendants' costs. As we explain in part III.D, post , our reversal of the judgment necessitates a reversal of the costs award.
Accordingly, we reverse the judgment, the postjudgment cost order, and the order granting summary adjudication of Brown's fraud and deceit cause of action. We remand the matter for the limited purpose of conducting further proceedings on Brown's fraud and deceit cause of action insofar as that cause of action pled a claim for negligent misrepresentation and any necessary ancillary proceedings.5
In December 2017, Borman filed a complaint against defendants alleging causes of action styled as professional negligence, lack of informed consent, fraud and deceit, and medical battery. As discussed in greater detail in part III.A, post , the fraud and deceit cause of action contained allegations supporting both intentional and negligent misrepresentation theories of liability.
Defendants filed a motion for summary judgment, or in the alternative, motion for summary adjudication with respect to each cause of action in November 2018, as discussed in detail in part III.A.2.b, post. A few months later, the trial court denied defendants' motion for summary judgment, but granted summary adjudication of Borman's causes of action for fraud and deceit and battery.
Prior to the trial, Borman filed a brief regarding proposed jury instructions. In her brief, Borman requested that the trial court instruct the jury pursuant to CACI No. 1903,6 a standard jury instruction outlining the elements of negligent misrepresentation. Borman argued that "the claim for negligent misrepresentation was not dismissed at summary adjudication—the claim for fraud (i.e. intentional misrepresentation) was dismissed." (Italics added.) Borman also argued that her negligence cause of action sufficiently stated a claim for negligent misrepresentation, but that to the extent the court concluded otherwise, she should be granted leave to amend. Borman also requested that the trial court provide modified versions of the standard CACI instructions on lack of informed consent.7
Defendants filed a brief in opposition to Borman's requests. With respect to Borman's request that the court instruct the jury on negligent misrepresentation pursuant to CACI No. 1903, defendants argued, " C[ACI] No. 1903 pertains to a cause of action that has already been summarily adjudicated in favor of defendants." (Some capitalization omitted.) Defendants further contended that the standard lack of informed consent instructions were appropriate for this case.
Prior to trial, the court rejected Borman's argument that her negligence cause of action contained a claim for negligent misrepresentation and denied Borman's request to amend her complaint to state a cause of action based on negligent misrepresentation:
"Court hears argument regarding briefs filed today's date regarding CACI 190[3] - Negligent Misinformation [sic ]-The Court determines Negligent Misinformation [sic ] to be it's [sic ] own cause of action and will not allow [Borman] to amend the complaint."
During the trial, the court denied Borman's request to instruct the jury pursuant to modified lack of informed consent instructions.8 The trial court also denied Borman's request to instruct the jury pursuant to CACI No. 1903 on negligent misrepresentation.
Defendants filed two motions in limine to preclude Borman's designated medical insurance claims expert, Jacqueline Bloink, from testifying at trial. Defendants argued that Bloink's experience lay in reviewing medical records and in determining "what is billable and what is not billable." Defendants argued that Bloink was unqualified to testify as to the professional negligence cause of action that remained in the case, and that her testimony would be irrelevant and prejudicial. Defendants also filed a third motion in limine in which they argued that, to the extent the trial court permitted Bloink to testify, the court should preclude her from testifying as to Borman's medical records, on hearsay grounds.
Borman filed oppositions to each of the three motions in limine. Among other arguments, Borman claimed that Bloink's testimony was relevant in assisting the jury in determining whether Dr. Brown "negligently misrepresent[ed] a material fact to [Borman]."
After a hearing, the trial court granted defendants' request to preclude Bloink from testifying at the trial.
The trial court held a jury trial on Borman's professional negligence (i.e., medical malpractice) and lack of informed consent causes of action in April 2019. The jury returned a unanimous verdict in favor of defendants.
Borman timely filed an appeal from the judgment and timely filed a second appeal from the postjudgment order awarding costs. We consolidated the appeals.
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