59 Cal.App.5th 1048
Cal. Ct. App.2021Background
- Plaintiff Alice Borman consulted Dr. Tara Brown for a droopy eyelid/brow; Brown said a brow lift would correct the problem but (allegedly) would not be covered by Borman’s insurance, and offered a blepharoplasty that would be covered.
- Relying on Brown’s statements, Borman consented to and underwent a blepharoplasty; she later continued to have problems and another physician advised a brow lift should have been done.
- Borman sued for professional negligence (medical malpractice), lack of informed consent, fraud and deceit (pleading both intentional and negligent misrepresentation theories), and battery.
- Defendants moved for summary judgment/adjudication; the trial court granted summary adjudication as to the fraud-and-deceit and battery causes of action but denied summary judgment overall; a jury later returned a defense verdict on the remaining malpractice/informed-consent claims.
- On appeal, the Court of Appeal reversed the summary adjudication of the fraud-and-deceit cause of action insofar as it alleged negligent misrepresentation, remanded for further proceedings on that theory, and reversed the postjudgment costs award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly granted summary adjudication of the fraud/deceit cause of action insofar as it alleged negligent misrepresentation (specifically the "intent to induce reliance" element) | Borman argued her complaint and evidence (patient notes, her declaration, and expert opinions) created a triable issue that Brown intended for Borman to rely on statements about insurance coverage | Defendants argued Brown lacked motive to induce reliance (a brow lift would have been more profitable), so no intent to induce reliance as a matter of law | Reversed: financial motive not required; evidence allowed a reasonable juror to find Brown intended Borman to rely on coverage statements, so triable issue existed |
| Whether the complaint adequately pleaded negligent misrepresentation as part of the fraud-and-deceit cause of action | Borman contended the complaint alleged (1) material misrepresentation, (2) lack of reasonable basis, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages | Defendants implied Borman failed to plead intent apart from alleging intentional fraud for financial gain | Held: Complaint adequately alleged negligent misrepresentation elements; negligent misrep does not require intent to defraud |
| Whether the trial court’s refusal to give CACI negligent-misrepresentation instruction or modified informed-consent instructions deprived Borman of presenting negligent-misrep claim at trial | Borman sought CACI No. 1903 and modified informed-consent instructions to present negligent-misrep theory | Defendants opposed the instruction as inconsistent with the court’s summary-adjudication ruling | Court did not decide these instruction issues on appeal (declined to reach) because it reversed summary adjudication and remanded for further proceedings on negligent misrepresentation |
| Whether exclusion of plaintiff’s insurance-coverage expert (Bloink) was erroneous | Borman argued Bloink’s testimony was relevant to negligent misrepresentation (insurance-coverage knowledge and billing/authorization practices) | Defendants argued Bloink was unqualified for the medical-malpractice issues and her testimony would be irrelevant/prejudicial | Court declined to rule on admissibility on appeal and left the issue to the trial court to reconsider in light of the remand |
| Whether the postjudgment costs award must be reversed if the judgment is reversed | Borman argued reversal of judgment requires reversal of costs award | Defendants conceded costs would effectively be vacated if judgment reversed | Held: Costs order reversed as necessarily tied to the reversed judgment |
Key Cases Cited
- Conroy v. Regents of University of California, 45 Cal.4th 1244 (clarifies negligent misrepresentation as a species of deceit and its elements)
- Small v. Fritz Companies, Inc., 30 Cal.4th 167 (explains negligent misrepresentation does not require scienter/intent to defraud)
- Tindell v. Murphy, 22 Cal.App.5th 1239 (sets out elements of negligent misrepresentation)
- Tenet Healthsystem Desert, Inc. v. Blue Cross of California, 245 Cal.App.4th 821 (discusses intent requirements in negligent-misrep context)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (standard for reviewing summary judgment/adjudication; view evidence in plaintiff’s favor)
- Butte Fire Cases, 24 Cal.App.5th 1150 (articulates three-step appellate review for summary adjudication)
- Moncada v. West Coast Quartz Corp., 221 Cal.App.4th 768 (explains negligent misrepresentation can lie where defendant honestly but unreasonably believed statements)