The opinion
Filed 1/15/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALICE JEANNE BORMAN, D076239, D076748
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2017-
00050352-CU-MM-NC)
TARA BROWN et al.,
Defendants and Respondents.
APPEALS from a judgment and order of the Superior Court of
San Diego County, Timothy M. Casserly, Judge. Reversed.
Markowitz Law Group and Aaron B. Markowitz for Plaintiff and
Appellant.
Lotz, Doggett & Rawers, Jeffrey S. Doggett, Patrick F. Higle and
Brian T. Bloodworth for Defendants and Respondents.
I.
INTRODUCTION
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
1 A brow lift, or brow ptosis repair, is a surgical procedure designed to
elevate the position of an eyebrow.
2 A blepharoplasty, or eye lift, is a surgical procedure during which
excess eyelid skin is removed.
2
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
3 On the verdict form, the jury found that Dr. Brown had not been
“negligent.” Lack of informed consent is a “form of professional negligence.”
(Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 322.) Although the jury
instructions are not contained in the record, from the trial testimony and the
jury instruction conference, it appears that the trial court instructed the jury
on lack of informed consent.
3
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
4 In reaching this conclusion, we also reject several additional alternative
grounds for affirmance that defendants offer on appeal. (See part III.A.3.d,
post.)
5 In reversing and remanding, we emphasize that we express no opinion
as to whether Borman will ultimately be able to establish at trial defendants’
4
II.
PROCEDURAL BACKGROUND
A. The complaint
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.
B. Defendants’ motion for summary judgment / adjudication
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.
C. Pretrial proceedings
1. Jury instructions
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
liability on her fraud and deceit cause of action premised on a negligent
misrepresentation theory.
6 Borman’s brief referred to CACI No. 1905, but it is clear that Borman
intended to refer to CACI No. 1903, the standard jury instruction on
negligent misrepresentation. In opposing Borman’s request, defendants
requested that the court “exclude CACI No. 1903, negligent
misrepresentation.”
5
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.”
7 Borman’s brief argued that “the instructions on informed consent
should parallel the claims being made as far as what information [Borman]
claims was lacking when [Dr. Brown] was obtaining informed consent from
[Borman].” The record does not contain Borman’s requested instructions.
6
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.
2. Defendants’ motions in limine to preclude Borman’s designated
expert, Jacqueline Bloink, from testifying at trial
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.
8 As noted in footnote 7, ante, Borman’s requested instructions are not in
the record.
7
D. The jury 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.
E. The appeal
Borman timely filed an appeal from the judgment and timely filed a
second appeal from the postjudgment order awarding costs. We consolidated
the appeals.
III.
DISCUSSION
A. The trial court erred in granting summary adjudication of Borman’s
fraud and deceit cause of action insofar as that cause of action pled a
claim for negligent misrepresentation
Borman claims that the trial court erred in granting summary
adjudication of her fraud and deceit cause of action insofar as that cause of
action pled a claim for negligent misrepresentation.9 “We review a decision
9 In her opening brief, Borman styled this claim as, “It was error for the
trial court to refuse to allow [Borman] to proceed at trial on a claim for
‘negligent misrepresentation.’ ” (Boldface & some capitalization omitted.) In
presenting this claim, Borman specifically argued that the trial court erred in
granting defendants’ motion for summary adjudication of Borman’s fraud and
deceit cause of action, stating, “[T]he [t]rial [c]ourt should not have
adjudicated [Borman’s] [t]hird [c]ause of [a]ction [for fraud and deceit],
and . . . should have allowed [Borman] to go forward with a cause of action for
[d]eceit based on [n]egligent [m]isrepresentation.”
While defendants stated that they were “unsure as to whether
[Borman] is challenging the trial court’s order granting summary
adjudication of the third cause of action for fraud and deceit,” defendants’
brief responded on the merits to such a claim. Indeed, defendants’ brief
contains a section titled, “The trial court properly summarily adjudicated
[Borman’s] third cause of action for fraud and deceit.” (Boldface & some
capitalization omitted.)
8
granting summary adjudication de novo.” (Sharufa v. Festival Fun Parks,
LLC (2020) 49 Cal.App.5th 493, 497.)
1. The law governing summary adjudication
A party is entitled to summary adjudication of a cause of action if there
is no triable issue of material fact and the party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subds. (c) & (f)(1).) “A motion for
summary adjudication shall be granted only if it completely disposes of a
cause of action . . . .” (Id., subd. (f)(1).) A defendant is entitled to summary
adjudication of a cause of action if she demonstrates that the plaintiff cannot
establish one or more elements of the cause of action. (Id., subd. (p)(2).)
A court considering a motion for summary adjudication must view the
evidence and reasonable inferences from the evidence in the light most
favorable to the opposing party, as on a motion for summary judgment.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
On appeal, “[i]n reviewing a summary adjudication, ‘we apply the same
three-step analysis required of the trial court: We first identify the issues
framed by the pleadings, since it is these allegations to which the motion
must respond. Secondly, we determine whether the moving party has
established facts which negate the opponents’ claim and justify a judgment in
the movant’s favor. Finally, if the summary judgment motion prima facie
justifies a judgment, we determine whether the opposition demonstrates the
existence of a triable, material factual issue.’ ” (Butte Fire Cases (2018)
24 Cal.App.5th 1150, 1161–1162.)
Accordingly, we conclude that Borman raised this claim, as we have
formulated it in the text, on appeal.
9
2. Factual and procedural background
a. Borman’s complaint
In the general allegations portion of her complaint, Borman alleged:
“[Borman] sought treatment with [d]efendants for a droopy
eyelid and brow, which was causing [Borman] problems
with her vision. At the consultation with [Dr. Brown],
[Dr. Brown] advised [Borman] that she could perform a
brow[ ]lift to correct the problem, but told [Borman] that a
brow lift would not be covered by [Borman’s] insurance.
[Dr. Brown] further advised [Borman] that she could
instead perform a ‘right upper lid [b]lepharoplasty,’ which
would be covered by insurance.
“[Borman] contends that at the time that [Dr. Brown] told
[Borman] that a brow[ ]lift would not be covered by
[Borman’s] insurance, that [Dr. Brown] had no reasonable
basis to believe this was true, and this statement was in
fact not true. [Borman] further contends that [Dr. Brown]
made this false statement for the purpose of getting
[Borman] to instead consent to the more complicated and
more expensive procedure.
“As [Borman] could not afford a procedure that was not
covered by insurance and she trusted [Dr. Brown],
[Borman] relied on [Dr. Brown’s] representations about
what would and what would not be covered by insurance
and consented to the [b]lepharoplasty. Had [Borman] been
aware of the true fact that the brow[ ]lift would be covered
by insurance, [Borman] would not have consented to the
[b]lepharoplasty.”
In the fraud and deceit cause of action, Borman alleged:
“As discussed above, [Dr. Brown] made misrepresentations
to [Borman] that she knew to be false and/ or had no
reasonable basis to believe to be true, and she failed to
disclose information to [Borman] that [Dr. Brown] knew
was critical to [Borman’s] decision making, all with the
intention of misleading [Borman], and [Borman] relied on
the information as disclosed to her by [Dr. Brown].
10
“ . . . As a direct and proximate result of Defendants’ fraud
and deceit as discussed herein, [Borman] has been injured,
has suffered damages, and continues to suffer damages,
and as a result [Borman] is entitled to recover those
damages.”
b. Defendants’ motion for summary adjudication
i. Defendants’ motion
In their motion for summary adjudication, defendants argued:
“ ‘A complaint for fraud must allege the following elements:
(1) a knowingly false representation by the defendant;
(2) an intent to deceive or induce reliance; (3) justifiable
reliance by the plaintiff; and (4) resulting damages.
[Citations.] Every element must be specifically pleaded.
[Citations.]’ ”
Defendants argued that they were entitled to summary adjudication for
two reasons. First, defendants claimed that “Dr. Brown did not make a
knowingly false representation to [Borman].” (Boldface & some capitalization
omitted.) Specifically, defendants argued that “Dr. Brown told [Borman] that
she could . . . do a brow lift, but the brow lift would likely not be covered by
insurance.” (Italics added, some capitalization omitted.) Defendants argued
further that Borman had no evidence to show that Dr. Brown was incorrect in
stating that “insurance would likely not have covered a brow lift . . . .” (Italics
added.)
Alternatively, defendants claimed, “Even if Dr. Brown made a false
representation, [Borman] cannot prove it was intentionally made to deceive.”
(Italics added, some capitalization omitted.) In support of this contention,
defendants argued that Dr. Brown had no incentive for inducing Borman to
undergo a blepharoplasty instead of a brow lift, since Dr. Brown “would have
earned more money doing a brow lift instead of a blepharoplasty.” Thus,
11
defendants claimed that Borman would be unable to demonstrate that
Dr. Brown “tried to induce reliance on an alleged misrepresentation.”
Defendants supported their motion with Borman’s medical records and
excerpts of Dr. Brown’s and Borman’s depositions, among other documents.
ii. Borman’s opposition
In her opposition, Borman pointed out that, in order to establish her
fraud and deceit cause of action by way of deceit, “Defendant does not have to
know that the fact is not true to constitute a deceit, but rather has to believe
that it is untrue, or lack a reasonable ground for believing it to be true.”
(Second italics added.) Borman argued that there was a triable issue of fact
with respect to whether Dr. Brown falsely stated that a brow lift would not be
covered by Borman’s insurance without having a reasonable basis for making
such a statement as follows:
“Dr. Brown told Ms. Borman that a brow lift would not be
covered by her insurance when she knew that insurance
coverage was a critical consideration for Ms. Borman.
[Citation.] As explained by [Borman] and [Borman’s]
expert, Dr. [Eric] Ahn, and as supported by the testimony
of a representative from Sharp Community Medical Group,
which manages [Borman’s] insurance [citation], and the
applicable coverage determination guidelines for the
subject procedure [citation], [Borman’s] insurance would
have covered a brow lift had Dr. Brown done the
appropriate documentation of the need for the procedure
and submitted it to the insurance company for approval.
Dr. Brown did not do this, but instead told [Borman] that
the insurance would not cover the procedure. This was not
a true statement and Dr. Brown did not have a reasonable
ground for believing it to be true. [Citations.]”
Borman also argued that defendants’ contention that Borman could not
show that Dr. Brown “intended to deceive” Borman failed. (Italics added.)
Borman maintained that Dr. Brown had an incentive to have patients “pay
12
cash” for their needed procedures and that “[t]he fact that this backfired
causing Plaintiff to instead get the other less expensive procedure does not
change the fact that Dr. Brown intended for Ms. Borman to rely on the
misrepresentation that her insurance would not cover the brow lift
procedure.”
Along with other documents, Borman supported her opposition with a
declaration in which she stated, “Dr. Brown told me that a brow lift would
not be covered by my insurance.”
Borman also lodged the deposition testimony of a representative of her
insurance company together with the relevant insurance coverage guidelines.
In addition, Borman lodged a declaration from a medical expert, Dr. Ahn. In
his declaration, Dr. Ahn stated in relevant part:
“Dr. Brown’s statement to Ms. Borman that a brow lift
would not be covered by Ms. Borman’s insurance was not
accurate. Based on my review of [the insurance coverage
guidelines] and Ms. Borman’s records from NCEC, I believe
to a reasonable degree of medical probability that if the
proper testing and evaluation had been done by Dr. Brown
and NCEC and submitted to Ms. Borman’s insurance, it
would be determined that a brow lift, or brow ptosis repair,
would be functional and therefore reasonable and
necessary. Therefore, . . . a brow lift should have been
covered by her insurance if the proper documentation were
submitted to the insurance company by Dr. Brown and
NCEC.”
c. The trial court’s ruling granting summary adjudication of
Borman’s fraud and deceit cause of action
After further briefing and a hearing, the trial court granted defendants’
motion for summary adjudication of Borman’s fraud and deceit cause of
action. In its order granting summary adjudication of Borman’s fraud and
deceit cause of action, the trial court rejected defendants’ contention that
13
Borman would be unable to establish that Dr. Brown knew that it was false
to represent that a brow lift would not be covered by insurance. The court
reasoned in part:
“There is . . . a factual dispute between the parties about
the absolute nature of Doctor Brown’s representation to
[Borman]. Doctor Brown claims she only represented that
a ‘brow lift would likely not be covered by insurance,’ while
[Borman] takes the position that Doctor Brown represented
that a ‘brow lift would not be covered by insurance.’ This
nuance is a factual dispute. As such, summary
adjudication cannot be granted on the element of
‘knowledge’ or ‘reasonable ground for belief’ because there
is some mismatch between the Doctor Brown’s reasonable
belief (that getting a ‘brow lift’ approved by an insurance
company was difficult) and what she allegedly represented
(that getting a ‘brow lift’ approved by an insurance
company was impossible).”
However, the trial court ruled that defendants had demonstrated that
Borman would be unable to establish the intent to induce reliance element of
her fraud and deceit cause of action and that defendants were therefore
entitled to summary adjudication of this cause of action. In support of this
conclusion, the trial court reasoned:
“The Intent to Induce Reliance Element. (Underscore
omitted.) [Borman] alleges that ‘[Doctor] Brown made this
false statement [about brow lift insurance coverage] for the
purpose of getting [Borman] to instead consent to the more
complicated and more expensive procedure.’ [Citation.]
Doctor Brown has produced evidence to show that the
procedure she performed (a ‘blepharoplasty’ or ‘eye lift’)
was actually less expensive than a ‘brow lift’ would have
been. These facts are undisputed. [Citation.] Having
made this showing, Doctor Brown points out a flaw in
[Borman’s] claim – i.e. [Borman] is claiming that Doctor
Brown induced her to undergo a procedure that was less
profitable to Doctor Brown. [Borman] responds that,
instead of just inducing a ‘more expensive procedure,’
14
Doctor Brown also had a motive to induce [Borman] into a
procedure for which she would pay cash rather than use
insurance. This argument falls flat because there is no
evidence to suggest that [Borman] was induced to become a
cash payer. Specifically, it is undisputed that ‘[Borman’s]
condition met the requirements for insurance to approve
coverage for a blepharoplasty’ [citation], and [Borman]
herself has alleged that she ‘could not afford a procedure
that was not covered by insurance’ [citation]. As such, the
only reasonable inference to be drawn from the facts is that
[Borman’s] ‘blepharoplasty’ was covered by her insurance.
“Notably, there is a mismatch in this case between the
alleged ‘intent to induce reliance’ and the resulting ‘harm,’
which is technically a separate element of a claim for fraud
or deceit. If Doctor Brown had made a misstatement about
insurance coverage in order to induce [Borman] to select a
more expensive procedure, the harm would be the increased
cost of the new procedure. If Doctor Brown had made a
misstatement about insurance coverage in order to induce
[Borman] to select a procedure for which she would pay cash
and forego insurance coverage, the harm would be the out-
of-pocket cash that [Borman] lost compared to what her
insurance company would have paid. Here, the harm
[Borman] is alleging is that she had the wrong procedure
and that, by undergoing the ‘blepharoplasty’ (aka the ‘eye
lift’) that Doctor Brown allegedly induced her to have, she
suffered a medical harm because it made future procedures
more difficult. There is no evidence to suggest that Doctor
Brown stood to benefit from inducing [Borman] to undergo
the wrong procedure.
“For the foregoing reasons, there is no triable issue of fact
on the issue of intent to induce reliance, and [Borman’s]
cause of action for fraud and deceit can be summarily
adjudicated on that element.”
15
3. Application
a. Borman’s fraud and deceit cause of action alleged liability
premised on a theory of negligent misrepresentation
We begin our analysis of the trial court’s order granting summary
adjudication by considering Borman’s contention that her complaint
adequately pled a cause of action for deceit based on negligent
misrepresentation. (See Butte Fire Cases, supra, 24 Cal.App.5th at p. 1161
[stating that first step in reviewing order granting summary adjudication is
to examine “the issues framed by the pleadings, since it is these allegations to
which the motion must respond”].)
i. The tort of deceit premised on negligent
misrepresentation
“The tort of negligent misrepresentation, [is] a species of the tort of
deceit.” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244,
1255 (Conroy).) “The elements of a negligent misrepresentation are ‘(1) the
misrepresentation of a past or existing material fact, (2) without reasonable
ground for believing it to be true, (3) with intent to induce another’s reliance
on the fact misrepresented, (4) justifiable reliance on the misrepresentation,
and (5) resulting damage.’ [Citation.] Negligent misrepresentation does not
require knowledge of falsity . . . .” (Tindell v. Murphy (2018) 22 Cal.App.5th
1239, 1252 (Tindell); accord Hasso v. Hapke (2014) 227 Cal.App.4th 107, 127;
Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158
Cal.App.4th 226, 243.)
Some courts, including this court, have stated “there is no requirement
of intent to induce reliance,” with respect to the tort of negligent
misrepresentation. (Tenet Healthsystem Desert, Inc. v. Blue Cross of
California (2016) 245 Cal.App.4th 821, 845; Cadlo v. Owens-Illinois, Inc.
16
(2004) 125 Cal.App.4th 513, 519.) However, it appears that these courts
intended to state that an intent to defraud is not a required element of
negligent misrepresentation. This is demonstrated by the fact that both
Tenet and Cadlo rely on Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167,
173–174 for this proposition (Tenet, supra, at p. 845; Cadlo, supra, at p. 519
[both citing Small]), and the Small court appeared to equate intent to
defraud with intent to induce reliance. (Small, supra, at pp. 173–174 [“ ‘ “The
elements of fraud, which gives rise to the tort action for deceit, are (a)
misrepresentation (false representation, concealment, or nondisclosure);
(b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce
reliance; (d) justifiable reliance; and (e) resulting damage.” ’ [Citation.] The
tort of negligent misrepresentation does not require scienter or intent to
defraud. [Citation]”].) In our view, and to clarify, the proper formulation of
the elements is that negligent misrepresentation does require proof of
“ ‘intent to induce another’s reliance on the fact misrepresented,’ ” (Tindell,
supra, 22 Cal.App.5th at p. 1252.) However, negligent misrepresentation
does not require proof of an intent to defraud. (See Small, at pp. 173–174.)
ii. Borman adequately alleged the tort of deceit based on
negligent misrepresentation
Borman’s complaint alleged all of the elements of the tort of deceit
based on negligent misrepresentation. With respect to the first two
elements—namely, the making of a material misrepresentation without a
reasonable basis—Borman alleged, “[Borman] contends that at the time that
[Dr. Brown] told [Borman] that a brow[ ]lift would not be covered by
[Borman’s] insurance, that [Dr. Brown] had no reasonable basis to believe
this was true, and this statement was in fact not true.” As to the third
element—intent to induce reliance—Borman alleged, “[Dr. Brown] made this
17
false statement for the purpose of getting [Borman] to . . . consent” to a
blepharoplasty.10 As to justifiable reliance, Borman alleged, “As [Borman]
could not afford a procedure that was not covered by insurance and she
trusted [Dr. Brown], [Borman] relied on [Dr. Brown’s] representations about
what would and what would not be covered by insurance and consented to
the [b]lepharoplasty.” As to resulting damage, Borman alleged that, after
undergoing the blepharoplasty, another doctor informed Borman that
“[Dr. Brown] had performed the wrong procedure and that a brow-lift should
have been performed instead,” and that “[Borman] has now had to undergo
one surgery already to correct the problems caused by the surgery performed
by Defendants, and expects to have to undergo additional surgeries, and she
has had to miss work for the doctor’s appointments and surgery and suffer
from additional pain and emotional distress.”
In a cause of action styled as “Fraud and Deceit,” Borman incorporated
all of these allegations and alleged further:
“As discussed above, [Dr. Brown] made misrepresentations
to [Borman] that [Dr. Brown] . . . had no reasonable basis
to believe to be true . . . with the intention of misleading
[Borman], and [Borman] relied on the information as
disclosed to her by [Dr. Brown].
“ . . . As a direct and proximate result of Defendants’ . . .
deceit as discussed herein, [Borman] has been injured, has
10 Borman’s fraud and deceit cause of action also contained allegations
supporting liability premised on Dr. Brown having made an intentional
misrepresentation. Specifically, Borman alleged that Dr. Brown knew that
her statement concerning insurance coverage was false and Borman alleged
Dr. Brown made the misrepresentation in order to further her own financial
gain. Borman does not contend on appeal that a triable issue of fact remains
on her intentional misrepresentation theory of liability.
18
suffered damages, and continues to suffer damages, and as
a result [Borman] is entitled to recover those damages.”
Thus, Borman’s complaint alleged facts supporting each of the five
elements of the tort of deceit based on negligent misrepresentation. 11
b. Defendants did not establish that Borman could not prove the
elements of negligent misrepresentation
Next, we consider whether defendants established facts that negated
Borman’s fraud and deceit cause of action premised on negligent
misrepresentation. (See Butte Fire Cases, supra, 24 Cal.App.5th at p. 1161
[second step in reviewing summary adjudication is to “determine whether the
moving party has established facts which negate the opponents’ claim and
justify a judgment in the movant’s favor”].)
To begin with, in the trial court, defendants’ brief in support of their
motion for summary adjudication as to Borman’s fraud and deceit cause of
action addressed only the elements of intentional misrepresentation.12
Defendants stated that a complaint for “fraud,” must allege, “ ‘a knowingly
false representation by the defendant’ ” and “ ‘an intent to deceive or induce
reliance,’ ” among other elements. (Italics added.) Yet, a claim of deceit
11 On appeal, Borman also claims that, to the extent the trial court
concluded that negligent misrepresentation was not adequately pled in the
complaint, the trial court should have granted her motion for leave to amend
her complaint. We need not consider this contention given our conclusion
that Borman’s complaint adequately alleged negligent misrepresentation in
the cause of action for fraud and deceit.
12 However, on appeal, defendants do not appear to contend that Borman
failed to adequately allege a cause of action premised on negligent
misrepresentation. Rather, defendants contend that the “the undisputed
material facts show that [Borman] could not establish a prima facie case for
negligent misrepresentation.”
19
premised on negligent misrepresentation does not require that the defendant
knowingly made a false representation or that the defendant intended to
deceive. (See pt. III.A.3.a.i, ante [requiring proof of a misrepresentation
“without reasonable ground for believing it to be true,” and requiring proof of
an intent to induce “reliance on the fact misrepresented” (italics omitted)].)
With respect to the “knowledge” element, defendants claimed that they
were entitled to summary adjudication of Borman’s fraud and deceit cause of
action because Borman would not be able to establish that Dr. Brown made a
statement that Dr. Brown “knew . . . not be true,” (italics added). However,
Borman had to demonstrate merely that Dr. Brown made a
misrepresentation without having a reasonable basis to believe it was true,
insofar as her fraud and deceit cause of action was premised on a negligent
misrepresentation theory. Defendants’ motion for summary adjudication did
not address, and therefore, necessarily did not demonstrate as a matter of
law, that Borman would be unable to prove that Dr. Borman made a
misrepresentation without having a reasonable basis to believe that it was
true.
With respect to the element of “intent to induce reliance,” defendants’
motion for summary adjudication focused entirely on attempting to
demonstrate that Dr. Brown had no financial incentive to perform a
blepharoplasty rather than a brow lift. Defendants argued:
“Dr. Brown would have made more money had she
performed a brow lift instead of just [sic] a blepharoplasty
on [Borman][13] and she would have made more money
had she performed a brow lift and a blepharoplasty instead
of just a blepharoplasty on Ms. Borman. [Citation.] Since a
brow lift would have resulted in Dr. Brown getting more
13 Defendants presented evidence in support of this contention, which
Borman does not contest on appeal.
20
money, there is no evidence or reason why Dr. Brown would
attempt to induce Plaintiff in getting a blepharoplasty
instead of a brow lift. There is absolutely no financial
incentive for Dr. Brown or [NCEC] to attempt to induce
[Borman] in getting a blepharoplasty instead of a brow lift.
[Borman] cannot prove that [Dr. Brown] tried to induce
reliance on an alleged misrepresentation since [Dr. Brown]
would have had a financial disincentive to do so.”
The trial court relied on this argument in concluding that there was no
evidence that Dr. Brown intended to induce Borman’s reliance on Dr. Brown’s
statement concerning the lack of insurance coverage for a brow lift. (See pt.
III.A.2.c, ante.)
However, even assuming that defendants are correct that Dr. Brown
lacked any financial incentive to tell Borman that her insurance would not
cover a brow lift,14 this fact does not demonstrate that Dr. Brown did not
intend for Borman to rely on her alleged statement that a brow lift would not
be covered by Borman’s insurance. Stated differently, proof of financial
motive is not necessary in order to prove intent to induce reliance. That is
because, even assuming that Dr. Brown acted negligently, rather than with
an intent to foster her own financial interests, Borman still could prove a
cause of action for deceit premised on negligent misrepresentation. (See
14 We also question whether evidence that Dr. Brown would have made
more money if she had performed a brow lift demonstrated, as a matter of
law, that Dr. Brown did not stand to benefit from encouraging Borman to
consent to a blepharoplasty, rather than to pursue a brow lift. For example,
a reasonable juror could find that Dr. Brown had an incentive to encourage
Borman to consent to a procedure that Dr. Brown was certain would be
covered by insurance (i.e., a bletharoplasty) rather than performing
additional diagnostic testing in the hope of obtaining insurance coverage for a
brow lift. In fact, Borman presented evidence tending to support such theory
in her opposition to the motion for summary adjudication. (See part III.A.3.c,
post.)
21
Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781
[“ ‘Negligent misrepresentation lacks the element of intent to deceive.
Therefore, “ ‘[w]here the defendant makes false statements, honestly
believing that they are true, but without reasonable ground for such belief, he
may be liable for negligent misrepresentation, a form of deceit.’ ” ’ ”].)
It is not difficult to conceive of factual scenarios in which Dr. Brown
would have no financial incentive to tell Borman that insurance would not
cover a brow lift and yet still would have intended for Borman to rely on her
statement as to insurance coverage. For example, perhaps Dr. Brown was
simply ill-informed with respect to Borman’s insurance coverage. Or,
perhaps Dr. Brown misdiagnosed Borman, such that Dr. Brown honestly,
albeit erroneously, believed that a brow lift would not be covered given
Borman’s physical condition.15 In either circumstance, there would be no
evidence that Dr. Brown would have “stood to benefit,” from her statement
that a brow lift would not be covered and yet, a reasonable juror could find
that Dr. Brown intended for Borman to rely on her statement.
Moreover, the context in which Dr. Brown allegedly made the
statement that Borman’s insurance would not cover a brow lift supports the
conclusion that a juror could find that Dr. Brown intended for Borman to rely
on the statement. It is reasonable to infer that a doctor who tells a patient
that a procedure will “correct the problem” for which they are consulting the
doctor, but that the procedure will not be covered by insurance, intends for
the patient to rely on her statement concerning insurance coverage.16 (Cf.
15 In opposing the motion for summary adjudication, Borman presented
evidence supporting both theories. (See pt. III.A.3.c, post.)
16 We quote from Borman’s complaint. While the parties presented
conflicting evidence in the summary adjudication proceedings as to whether
22
Bock v. Hansen (2014) 225 Cal.App.4th 215, 231 [homeowners properly stated
a cause of action for negligent misrepresentation against insurance adjuster
who allegedly falsely told homeowners that insurance policy did not provide
coverage for “clean up” aspect of claim]; compare with Coldwell Banker
Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158, 166
(Coldwell Banker) [stating that plaintiff could not state a cause of action for
“fraud and misrepresentation” against real estate broker related to sale of
property in part because “no broker-customer relationship existed” between
plaintiff and defendant, and defendant, “as a professional supplier of
information in a commercial context, intended to induce [buyer], not
[plaintiff], to act in reliance on its representations”].)
Unlike in Coldwell Banker, in this case, the professional relationship
between Dr. Brown and Borman supports the conclusion that Dr. Brown
intended for her patient, Borman, to rely on her statement concerning
insurance coverage for a medical procedure that Dr. Brown was discussing
performing on Borman. Further, defendants did not present any evidence
that put into dispute the context in which the statement was allegedly made.
For example, defendants presented no evidence that Dr. Brown made the
statement outside of the patient-doctor context, or in jest, or to a third-party.
Nor did defendants present any other evidence that demonstrated that
Dr. Brown made the statements in some other context from which it might be
said that no reasonable juror could find that Dr. Brown intended for Borman
to rely on her alleged statement as to the lack of insurance coverage for the
brow lift.
Dr. Brown told Borman that her insurance would not cover the brow lift or
instead, that it was likely that Borman’s insurance would not cover the
procedure, defendants did not dispute that Dr. Brown’s statement was made
directly to Borman during a consultation for a medical problem.
23
In sum, defendants’ evidence showing that Dr. Brown lacked a
financial incentive to tell Borman that insurance would not cover a brow lift
did not establish as a matter of law that Dr. Brown did not intend for Borman
to rely on her statement as to insurance coverage. Since the trial court’s
determination that Borman would be unable to establish the intent to induce
reliance element of her negligent misrepresentation claim was based entirely
on its conclusion that “[t]here is no evidence to suggest that Doctor Brown
stood to benefit from inducing [Borman] to undergo the wrong procedure,” the
trial court erred in concluding that defendants established that Borman
would be unable to prove the “intent to induce reliance” element of negligent
misrepresentation.
On appeal, defendants seek to affirm the trial court’s summary
adjudication order on the basis of an argument rooted in the pleadings.
Specifically, defendants argue that Borman alleged in her complaint that
Dr. Brown falsely told Borman that a brow lift would not be covered by
insurance in order to further Dr. Brown’s financial gain. Defendants
maintain that “if [Borman] had other allegations to prove intent, she failed to
put them in the operative pleading prior to summary adjudication to be
addressed or rebutted.”17
While it is true that Borman’s complaint alleged that Dr. Brown “made
the misrepresentations that she did to [Borman] for financial gain,” such an
allegation supported Borman’s fraud and deceit cause of action based on
intentional misrepresentation.18 (Cf., Boschma v. Home Loan Center, Inc.
17 Defendants also raise a series of alternative arguments for affirming
the judgment that we address in part III.A.3.d, post.
18 As noted in footnote 10, ante, Borman’s fraud and deceit cause of action
alleged both negligent and intentional misrepresentation theories of liability.
24
(2011) 198 Cal.App.4th 230, 250 [concluding that allegation of intent to
defraud element of fraud claim was adequately supported by allegations
tending to show a “nefarious scheme to deceive consumers”].) However, as
discussed above, the “tort of negligent misrepresentation, a species of the tort
of deceit [citation], does not require intent to defraud.” (Conroy, supra,
45 Cal.4th at p. 1255.) Thus, the mere fact that Borman’s complaint
contained additional allegations supporting her fraud and deceit claim based
on intentional misrepresentation does not demonstrate that this allegation
was necessary for her to establish her negligent misrepresentation claim.19
Accordingly, we conclude that defendants failed to demonstrate as a
matter of law that Borman would be unable to prove the elements of a fraud
and deceit cause of action premised on negligent misrepresentation and that
the trial court thus erred in granting defendants’ motion for summary
adjudication of this cause of action.
c. Even assuming defendants carried their prima facie burden of
demonstrating that Borman could not prove the intent to
induce reliance element, Borman submitted evidence
demonstrating a triable issue of fact with respect to this
element
If a summary adjudication motion “ ‘prima facie justifies a judgment,
we determine whether the opposition demonstrates the existence of a triable,
material factual issue.’ ” (Butte Fire Cases, supra, 24 Cal.App.5th at pp.
1161–1162.) We concluded in part III.A.3.b, ante, that defendants failed to
19 For the reasons discussed in part III A.3.a, ante, Borman’s complaint
adequately alleged a fraud and deceit cause of action based on negligent
misrepresentation. Defendants do not provide any support for their
suggestion that Borman was required to make “other allegations to prove
intent” beyond merely alleging the circumstances under which Dr. Borman
allegedly told Borman that a brow lift would not be covered by insurance that
we detail in part III.A.3.a, ante.
25
carry their prima facie burden. However, even assuming that defendants had
carried their prima facie burden of demonstrating that Borman could not
prove that Dr. Brown intended to induce Borman’s reliance on her statement
concerning insurance coverage, for reasons discussed below, we conclude that
Borman submitted evidence opposing the motion for summary adjudication
that demonstrates a triable issue of fact with respect to this element.
To begin with, Borman lodged an exhibit containing her medical record
from the visit during which Dr. Brown allegedly told her that insurance
would not cover a brow lift in which Dr. Brown wrote, “[Borman] [s]tates she
cannot do any procedure not covered by insurance.” Borman also lodged an
exhibit containing her medical record documenting a second visit with
Dr. Brown after Dr. Brown performed the blepharoplasty in which Dr. Brown
wrote, “I had explained [during her initial visit with Borman] that a perfect
anatomic solution would be to lift the brow . . . , but this would not be covered
by insurance. She was very clear in that she only wanted to do surgery that
would be covered by insurance.”
Borman also lodged an excerpt from her deposition in which Borman
stated that she told Dr. Brown that she “needed [any surgery] to be covered
by insurance.”
Borman also lodged her declaration that stated:
“On or about April 20, 2016, I was seen by [Dr. Brown].
Dr. Brown and I discussed a brow lift on my right eye,
which Dr. Brown told me would alleviate the problem I was
having with my peripheral vision. I thought this was a
good idea, but Dr. Brown told me that a brow lift would not
be covered by my insurance. I imagined that this was an
expensive procedure, and so I did not believe that I could
26
afford to have the procedure done. I therefore told
Dr. Brown that I did not want the brow lift if it was not
going to be covered by my insurance. Dr. Brown told me
that she could instead perform a blepharoplasty, which
would be covered by my insurance. I therefore consented to
the blepharoplasty.”
This evidence strongly supports a finding that Dr. Brown was aware
that insurance coverage was a critical factor in Borman’s decision making,
and thus supports the inference Dr. Brown intended to induce Borman’s
reliance on Dr. Brown’s statements concerning that topic.
In addition, Borman provided evidence that supports a finding that
Dr. Brown intended for Borman to rely on Brown’s statement concerning the
lack of insurance coverage for a brow lift, even assuming that defendants are
correct that Dr. Brown would have made more money if she had performed a
brow lift rather than a blepharoplasty. Specifically, Borman presented
expert testimony from which a jury could find that Dr. Brown erroneously
believed that a brow lift would not be covered, given Borman’s physical
condition. Specifically, Dr. Ahn, a board-certified ophthalmologist, stated in
his declaration, “[N]either Dr. Brown nor NCEC had performed a proper and
complete evaluation of Ms. Borman’s brow ptosis, including a visual field test
with Ms. Borman’s brows (rather than lids) taped up, photos with the brows
elevated, and therefore could not make a determination that a brow lift
procedure would not have been functional.” Dr. Ahn further stated that
Dr. Brown’s diagnosis of Borman was not “complete,” and that the standard
of care required that further testing be performed to achieve a “proper
diagnosis.” This evidence supports a finding that Dr. Brown negligently told
Borman that a brow lift would not be covered by insurance.
27
Borman also presented evidence that Dr. Brown was ill-informed with
respect to Borman’s insurance coverage. Dr. Ahn offered a declaration that
stated, “Dr. Brown admitted in her deposition that she did not even know
what insurance Ms. Borman had, and there is no question that some
insurance, including Medicare, does cover brow[ ]lift procedures when they
are functional and therefore reasonable and necessary.” Dr. Ahn’s testimony
provides additional evidence supporting the conclusion that a reasonable
juror could find that Dr. Brown intended for Borman to rely on her statement
that Borman’s insurance would not cover a brow lift, even assuming that
Dr. Brown lacked a financial incentive to make such a statement.
Accordingly, we conclude that, even assuming defendants carried their
prima facie burden of demonstrating that Borman could not prove that
Dr. Brown intended to induce Borman’s reliance on her statement concerning
insurance coverage, Borman submitted evidence opposing the motion for
summary adjudication that demonstrates a triable issue of fact with respect
to this element.20
d. None of the defendants’ alternative grounds for affirmance is
persuasive
Defendants present a series of alternative grounds for affirmance.
None is persuasive.
To begin with, defendants argue that they demonstrated that Borman
would be unable to establish that Dr. Brown made a misstatement without a
20 While Borman’s brief also cites to a report drafted by Bloink, the
insurance claim specialist, as well as Bloink’s deposition testimony, we do not
rely on this evidence on appeal, since it was not offered in connection with the
summary adjudication proceedings. For the reasons stated in part III.C, post,
we leave it to the trial court to determine in the first instance the
admissibility of Bloink’s testimony during proceedings on remand.
28
reasonable basis, for two reasons. First, defendants argue that, regardless of
whether Dr. Brown told Borman that a brow lift would not be covered or that
it would not likely be covered, Dr. Brown had a reasonable basis for making
either statement. We reject this argument because Borman presented
evidence that Dr. Brown did not have a reasonable basis for telling Borman
that her insurance would not cover a brow lift. Specifically, Borman
presented evidence concerning Dr. Brown’s unfamiliarity with Borman’s
insurance, the availability of coverage for medically necessary brow lifts
under Borman’s insurance, and Dr. Brown’s alleged failure to perform
sufficient diagnostic testing to determine whether a brow lift was medically
necessary. (See pt. III.A.3.c, ante.)
Second, defendants contend that any factual dispute about whether
Dr. Brown told her that a brow lift would not be covered by insurance was
immaterial since “[Borman] still would have undergone the blepharoplasty
regardless of whether [Dr. Brown] told her it was ‘not’ covered or ‘likely’ not
covered because both statements are not guarantees that insurance would
cover a brow lift.” This statement amounts to speculation. Moreover,
Borman’s declaration directly contradicted defendants’ assertion:
“At no time did Dr. Brown ever tell me that a brow lift
might be covered by insurance and that she could submit a
request for authorization to my insurance company for the
brow lift procedure so that a determination could be made
on whether the insurance company would or would not pay
for the procedure. Had I known this, I would not have
consented to any procedure until the request for
authorization for the brow lift had been sent to my
insurance and a determination received from my insurance
company. From what Dr. Brown had told me, I understood
that the brow lift procedure would not be covered by my
insurance at all under any circumstance. I did not question
what Dr. Brown told me because I trusted her judgment
and thought she knew what she was talking about.”
29
Thus, defendants were not entitled to summary adjudication on the
ground that they demonstrated as a matter of law that Dr. Brown’s
statement concerning insurance coverage was immaterial.
Defendants also contend that we may affirm the judgment because
Borman “waived arguing that [Dr. Brown] made a statement to [Borman]
with the intent to induce reliance” (boldface & capitalization omitted) by
failing to adequately present such claim on appeal. We are not persuaded.
Borman’s opening brief adequately raised this issue in separately captioned
subsections addressing: the adequacy of her complaint; the “substantial
evidence” in the record at the “summary adjudication” proceedings
supporting a negligent misrepresentation theory; and the asserted error in
the trial court’s reasoning. In presenting such argument, Borman expressly
states, “It is in the [t]rial [c]ourt’s application of the ‘[i]ntent to [i]nduce
[r]eliance [e]lement,” where the error lies.” In short, Borman did not forfeit
her appellate argument due to lack of adequate briefing.
Finally, defendants argue that Borman “waived arguing prejudicial
error” (boldface & capitalization omitted) because “[Borman] never argued in
her opening brief that it was reasonably probable she would obtain a more
favorable jury verdict” had she been able to present her fraud and deceit
cause of action premised on a negligent misrepresentation theory to the jury.
We are aware of no authority, and defendants cite none, that supports the
proposition that a party must demonstrate that it is reasonably probable that
the party would obtain a positive result at trial, in order to obtain reversal of
a summary adjudication order where the party has presented evidence
demonstrating the existence of a triable issue of fact. The trial court’s
erroneous granting of defendants’ summary adjudication order deprived
Borman of the opportunity to proceed to trial based on a fraud and deceit
30
cause of action premised on negligent misrepresentation. The fact that the
jury reached a defense verdict on other causes of action does not demonstrate
a lack of prejudice from this erroneous order, even assuming that the
evidence that the jury considered with respect to these other claims
overlapped to some degree with the evidence presented in the summary
adjudication proceedings related to Borman’s fraud and deceit cause of action
based upon negligent misrepresentation. 21
Accordingly, we conclude that none of the alternative grounds that the
defendants offer in their brief support affirmance.
B. We need not address Borman’s claim pertaining to the trial court’s
informed consent jury instruction
In her opening brief, Borman contended that the trial court’s error in
refusing to permit her to proceed to trial with a claim for negligent
misrepresentation was “compounded by the Trial Court’s rejection of [her]
modification” of the standard CACI instructions on lack of informed consent
during the trial.22 Borman clarified in her reply brief that she brought this
jury instruction claim “to show the full extent of the prejudice,” (boldface &
capitalization omitted) that she suffered as a result of the trial court’s refusal
21 Defendants also claim that Borman cannot establish any “resulting
harm” (boldface & capitalization omitted) from Dr. Brown’s alleged
misstatement. Defendants did not move for summary adjudication on this
ground and have not presented any argument on appeal as to why we may
nevertheless consider this contention for the first time on appeal. (Noe v.
Superior Court (2015) 237 Cal.App.4th 316, 335 [stating that, in reviewing
summary adjudication orders, Court of Appeal ordinarily does not consider
arguments not raised below].) Accordingly, without suggesting that
defendants’ argument has merit, we decline to consider it.
22 As noted in footnote 7, ante, the record does not contain the proposed
modified jury instructions that the trial court refused.
31
to permit her to bring her negligent misrepresentation claim to trial, by
making clear that she was “unable to present her claim to the jury through
the informed consent instruction.” (Capitalization omitted.) Borman further
expressly states in her reply brief that she is “not asking this court to vacate
the judgment so that she can have a new trial on informed consent but is
asking that judgment be vacated so she can have a trial on negligent
misrepresentation.” (Italics added, capitalization omitted.)
In light of our conclusion that the trial court erred in granting
summary adjudication of Borman’s cause of action for fraud and deceit23 and
our remand with directions to conduct further proceedings on that cause of
action insofar as that cause of action pled a claim for negligent
misrepresentation, we need not consider Borman’s claim regarding the lack of
informed consent jury instruction.
C. We do not address Borman’s claim pertaining to the trial court’s exclusion
of Bloink’s testimony because it is appropriate for the trial court to
reconsider the admissibility of such testimony in the first instance on
remand
Borman contends that the trial court erred in precluding Bloink from
testifying. Borman maintains that the trial court may have precluded Bloink
from testifying because Bloink’s “testimony went mainly to the [n]egligent
[m]isrepresentation claim, which the [t]rial [c]ourt excluded.” In her reply
brief, Borman clarifies that her appellate claim as to the exclusion of Bloink’s
testimony “relate[s] to the negligent misrepresentation claim, not the medical
23 As we explained in part III.A.3.a, ante, Borman’s fraud and deceit
cause of action contains allegations supporting a negligent misrepresentation
theory of liability.
32
negligence claim.” (Boldface & capitalization omitted.) Borman requests
that “if this Court vacates the [j]udgment to allow [Borman] to proceed to
trial on the [n]egligent [m]isrepresentation claim, then it should also allow
Jacqueline Bloink to testify at this new trial.”
While the issue of the admissibility of Bloink’s testimony may recur on
remand, it is appropriate for the trial court to determine in the first instance
whether to permit Bloink’s testimony at a future trial of Borman’s negligent
misrepresentation theory of liability given the changed procedural posture of
the case, namely, our reversal of the trial court’s summary adjudication of
Borman’s fraud and deceit cause of action insofar as that cause of action pled
a claim for negligent misrepresentation. (See, e.g., Borrayo v. Avery (2016)
2 Cal.App.5th 304, 308, 314 [stating that because trial court improperly
sustained objection to declaration on ground that physician lacked knowledge
of standard of care in United States, the trial court “had no occasion to reach
the further issue of whether the declaration lacked sufficient evidentiary
value,” and “declin[ing] to address that issue in the first instance on appeal”];
cf. Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 213 [stating it is
“ ‘advisable to remand the matter to the trial court so that it may rule on the
outstanding evidentiary . . . matters in the first instance’ ”]; Pratt v. Ferguson
(2016) 3 Cal.App.5th 102, 115 [“trial court should be given the opportunity to
hear the evidence and make its discretionary calls in the first instance”];
compare with Gerawan Farming, Inc. v. Agricultural Labor Relations Bd.
(2018) 23 Cal.App.5th 1129, 1240 [“For purposes of remand, it is also
appropriate to provide direction to the Board on questions of law likely to
recur” (italics added)].)
33
Accordingly, we decline Borman’s request that we direct the trial court
to permit Bloink to testify on remand at the trial of Borman’s fraud and
deceit cause of action. The trial court may consider that issue on remand.
D. The postjudgment order awarding costs must be reversed
Borman contends that, to the extent we reverse the judgment, the
postjudgment order awarding costs to defendants as prevailing parties must
be reversed.24 We agree. (E.g., Gillan v. City of San Marino (2007)
147 Cal.App.4th 1033, 1053 [“Our reversal of the judgment necessarily
compels the reversal of the award of . . . costs to the prevailing party based on
the judgment”].)
IV.
DISPOSITION
The judgment and the postjudgment order awarding costs are reversed.
The order granting summary adjudication of the cause of action pled as
“fraud and deceit” is reversed. The matter is remanded to the trial court for
the limited purpose of conducting further proceedings on Borman’s negligent
misrepresentation claim that was alleged as part of her “fraud and deceit”
cause of action, and any necessary ancillary proceedings.
At the conclusion of the proceedings on remand, the trial court shall
enter a new judgment that reflects the adjudication of Borman’s professional
negligence, lack of informed consent, and battery causes of action in favor of
defendants in the prior proceedings, and the resolution of Borman’s fraud and
deceit cause of action on remand. After entering a new judgment, the trial
24 Defendants state in their brief, “[Defendants do] not disagree that, if
judgment is reversed, costs awarded to [defendants] will effectively be
vacated pending further proceedings.”
34
court may enter a new postjudgment order on costs that is consistent with
the new judgment.
Borman is entitled to costs on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
35