Filed 6/4/20

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JANE DOE,

Plaintiff and Appellant,

v.

TIMOTHY MARTEN et al.,

Defendants and Respondents.

 A153427

 (City & County of San 

 Francisco Super. Ct. 

 No. CPF-11-511337)

Plaintiff Jane Doe sued defendant Timothy Marten for damages 

sustained after he performed plastic surgery on her face and neck. At trial, 

the court granted defendant’s motion for nonsuit on plaintiff’s claim for 

medical battery, but submitted her medical malpractice claim to the jury. 

The jury rendered a verdict finding defendant liable and awarded plaintiff 

over $6.3 million in damages. Following the verdict, the trial court found the 

malpractice claim time-barred and dismissed the action. Plaintiff appeals the 

judgment of dismissal and the granting of nonsuit.

In the published portion of the opinion we conclude plaintiff’s medical 

malpractice claim was not time-barred because defendant’s conduct actually 

and reasonably induced plaintiff to refrain from filing a timely action. In the 

 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts B and C of the 

Discussion.
2

unpublished portion we reject plaintiff’s remaining contentions and otherwise 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 13, 2007, plaintiff first met with defendant for a 

consultation regarding a bump on her nose. Defendant told plaintiff he did 

not “do noses,” but he explained he worked on “faces and rejuvenations” and 

showed her “before and after” photographs of other people.

On October 25, 2007, after consulting with a different plastic surgeon 

named Dr. Daniel, plaintiff returned to defendant and said she was 

considering a possible “forehead lift and possibly some youthfulness around 

[her] eyes” and wanted to “get more information.” Defendant discussed 

“maintenance” and “rejuvenation,” and at that point plaintiff said she 

“wouldn’t want” fat injections penetrating her face if defendant were to work 

on her eyes. Defendant told plaintiff that if she was going to have work 

performed on her eyes and forehead, she should also get a facelift and neck 

lift, because otherwise she would look “lopsided.”

On November 3, 2007, plaintiff emailed defendant saying she wanted to 

schedule “upper eye work” but was “back on the fence” concerning a face and 

neck lift. During an office visit on November 12, which occurred after 

additional phone and email communications between the two, defendant 

discussed the risks and side effects of a face and neck lift with plaintiff. On 

November 13, plaintiff informed defendant’s office by phone that she wanted

to do “all of the work,” i.e., the eye work and a face and neck lift. That same 

day, she signed a consent form authorizing defendant to perform a “face and 

neck lift, minor forehead lift, upper eye lift, lower eye lift.”

Just before the scheduled surgery on November 16, 2007, plaintiff

initialed a handwritten notation for “minor facial fat injections” on the 
3

consent form she previously signed. Defendant then performed the surgery 

on plaintiff’s face and neck. It turns out plaintiff was unhappy with the 

results of the surgery. On March 20, 2008, plaintiff had her last follow-up 

visit with defendant and at that point was contemplating litigation against 

him.

On June 20, 2008, plaintiff sent defendant a letter stating she was 

considering suing him and demanded that he preserve all documents, paper 

or electronic files, and photos relating to her care.

On November 13, 2008, plaintiff’s attorney served defendant with a 

written demand for arbitration “[p]ursuant to the Physician-Patient 

Arbitration Agreement . . . entered into between [defendant and plaintiff] . . . 

for any and all claims for injuries and damages arising out of the treatment, 

care, procedures, examination and/or other conduct related to this patient.”

The demand attached a copy of an arbitration agreement that plaintiff had 

found in her files. The agreement expressly stated that by signing the 

agreement, signatories agreed to having “any issue of medical malpractice 

decided by neutral arbitration” and to “giving up [the] right to a jury or court 

trial.” The agreement contained plaintiff’s signature and an illegible 

physician’s signature that plaintiff assumed was defendant’s.

On January 20, 2009, defendant’s counsel responded by letter to 

plaintiff’s arbitration demand without questioning the origin of the 

arbitration agreement or disputing that defendant had signed the agreement. 

Instead, counsel’s response letter stated: “Please be advised that we have 

selected David Sheuerman as our arbitrator in this matter. We also make a 

demand for a neutral third party arbitrator in this matter.”

March 20, 2009 was later determined by the trial court to be a 

significant date in the timeline of this case, as it marked the passage of one 
4

year from the date plaintiff indicated she first contemplated suing defendant 

(March 20, 2008). As will be discussed, the trial court found the applicable 

one-year statute of limitations ran no later than March 20, 2009. (Code Civ. 

Proc., § 340.5)

In May 2009, as part of the pending arbitration proceeding, defendant 

subpoenaed and obtained the records of Dr. Daniel, whom plaintiff earlier

consulted for nose surgery. Located within Dr. Daniel’s records was a signed 

arbitration agreement between plaintiff and Dr. Daniel. It turns out plaintiff 

had served a copy of this agreement on defendant, but unlike the copy that 

was in plaintiff’s possession, the agreement found within Dr. Daniel’s records

reflected his office stamp.

Nearly three years later, during plaintiff’s deposition on February 7, 

2012, defendant’s counsel for the first time confronted plaintiff with the 

arbitration agreement obtained from Dr. Daniel and asserted defendant’s 

refusal to continue with the arbitration. Upon examining the arbitration 

agreement signed by Dr. Daniel, plaintiff did not dispute that the arbitration 

agreement she served on defendant on November 13, 2008 had not been 

signed by defendant. The next day (February 8), defendant prevailed in 

obtaining a stay of the arbitration.

On February 10, 2012, plaintiff filed the complaint in the instant 

action, alleging causes of action for medical malpractice and medical battery. 

The complaint also alleged facts supporting plaintiff’s claims that her action 

was timely filed under the doctrines of equitable tolling and equitable 

estoppel.

During the course of the lawsuit, defendant filed a demurrer and two 

motions for summary judgment, all of which contended plaintiff’s medical

malpractice claim was barred by the one-year limitations period in Code of 
5

Civil Procedure section 340.5. The trial court overruled the demurrer and 

denied both summary judgment motions. In essence, the court found there 

were triable issues as to whether equitable tolling or equitable estoppel 

disallowed the statute of limitations defense. The matter then proceeded to a 

jury trial.

Prior to trial and on plaintiff’s motion, the trial court imposed monetary 

sanctions against defendant and indicated it might give willful suppression of 

evidence instructions after hearing evidence that defendant destroyed 

electronically stored information and obstructed plaintiff’s electronic 

discovery rights.

At trial, the parties presented evidence relevant to defendant’s alleged 

malpractice and medical battery, plaintiff’s claimed damages and allegations 

of falsified evidence, and the loss of potentially relevant evidence. The 

parties also presented evidence pertaining to the statute of limitations and 

plaintiff’s equitable tolling and equitable estoppel claims. After the close of 

evidence, the trial court granted defendant’s motion for nonsuit on the 

medical battery claim, but allowed the malpractice claim to go to the jury. 

After several days of deliberation, the jury returned a verdict awarding 

plaintiff $3,676,780 for past and future economic losses and $3,000,000 for 

past and future non-economic losses, and found plaintiff was five percent 

contributorily negligent. The jury also specifically determined that plaintiff’s 

harm occurred before February 10, 2011, i.e., more than one year before she 

filed her complaint on February 10, 2012.

Thereafter the trial court turned to the statute of limitations issue. 

After considering the parties’ briefing, the court issued a statement of 

decision finding that the doctrines of equitable tolling and equitable estoppel 

did not apply on the facts of the case and that the action was therefore time-
6

barred under Code of Civil Procedure section 340.5. The court ordered the 

action dismissed, resulting in the negation of the jury’s multi-million dollar 

award.

DISCUSSION

On appeal, plaintiff does not challenge the trial court’s finding that 

equitable tolling does not apply in this case. She does, however, maintain

that defendant should have been found equitably estopped from asserting the 

one-year statute of limitations and that the trial court erred in concluding 

otherwise. Plaintiff additionally contends that nonsuit was erroneously 

granted on her medical battery cause of action. We address these issues in 

order.

A. Equitable Estoppel

As relevant here, Code of Civil Procedure section 340.5 provides the 

time for commencement of a medical malpractice action “shall be three years 

after the date of injury or one year after the plaintiff discovers, or through the 

use of reasonable diligence should have discovered, the injury, whichever 

occurs first.”1

In appropriate cases, a defendant may be equitably estopped from 

asserting a statutory limitations period. (See Lantzy v. Centex Homes (2003) 

31 Cal.4th 363, 383–384 (Lantzy).) “ ‘ “Generally speaking, four elements

must be present in order to apply the doctrine of equitable estoppel: (1) the 

party to be estopped must be apprised of the facts; (2) he [or she] must intend 

that his [or her] conduct shall be acted upon, or must so act that the party 

asserting the estoppel had a right to believe it was so intended; (3) the other 

party must be ignorant of the true state of facts; and (4) he [or she] must rely 

1 Neither the three-year statutory period, nor the restrictive statutory

provisions for equitable tolling of that period, are at issue here.
7

upon the conduct to his [or her] injury.” ’ ” (Honeywell v. Workers’ Comp. 

Appeals Bd. (2005) 35 Cal.4th 24, 37, quoting City of Long Beach v. Mansell

(1970) 3 Cal.3d 462, 489.)

In the statute of limitations context, equitable estoppel may be 

appropriate where the defendant’s act or omission actually and reasonably 

induced the plaintiff to refrain from filing a timely suit. (See Lantzy, supra,

31 Cal.4th at p. 385.) The requisite act or omission must involve a 

misrepresentation or nondisclosure of a material fact bearing on the necessity 

of bringing a timely suit. (Vu v. Prudential Property & Casualty Ins. Co.

(2001) 26 Cal.4th 1142, 1149–1152 (Vu).)

Notably, however, even a defendant who is ignorant or mistaken as to 

the real facts may be equitably estopped if the defendant was “ ‘ “in such a 

position that he [or she] ought to have known” ’ ” the true facts. (Krolikowski 

v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 

566 (Krolikowski).) This means that an estoppel may be created where the 

defendant harbored no intent to mislead and did not engage in actual fraud 

or bad faith. (Lantzy, supra, 31 Cal.4th at p. 384; Holdgrafer v.Unocal Corp.

(2008) 160 Cal.App.4th 907, 925 (Holdgrafer).) Rather, it is enough that the 

defendant’s conduct “induced” the plaintiff to delay commencement of an 

action. (Benner v. Industrial Acc. Commission (1945) 26 Cal.2d 346, 349–350; 

Vu, supra, 26 Cal.4th at pp. 1152–1153; Holdgrafer, at p. 925.) A plaintiff

has “a reasonable time in which to bring [the] action after the estoppel has 

expired.” (Regus v. Schartkoff (1957) 156 Cal.App.2d 382, 387.)

“The existence of an estoppel is generally a question of fact for the trial 

court whose determination is conclusive on appeal unless the opposite 

conclusion is the only one that can be reasonably drawn from the evidence. 

[Citation.] When the evidence is not in conflict and is susceptible of only one 
8

reasonable inference, the existence of an estoppel is a question of law.” 

(Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305 (Driscoll).) Thus, 

whether a plaintiff reasonably relied on a nondisclosure of a material fact is a 

question of fact for the trial court “unless reasonable minds could reach only 

one conclusion based on the evidence.” (Superior Dispatch, Inc. v. Insurance 

Corp. of New York (2010) 181 Cal.App.4th 175, 187 (Superior Dispatch).)

Applying the foregoing principles, we assess whether, viewing the 

evidence and the inferences therefrom in the light most favorable to 

defendant, there was substantial evidence upon which the trial court could

reasonably have concluded that no estoppel should lie.

Here, the undisputed facts are as follows. As found by the trial court, 

plaintiff’s claim for medical malpractice accrued no later than March 20, 

2008. On November 13, 2008, plaintiff served defendant with an arbitration 

demand attaching the arbitration agreement that plaintiff believed had been 

signed by defendant. On January 20, 2009, which was within the one-year 

limitations period, defendant responded to plaintiff’s arbitration demand by 

selecting his own arbitrator and making a demand for a neutral third party 

arbitrator, without questioning the validity of the arbitration agreement or 

its binding effect on defendant. Defendant assumed, erroneously it turns out, 

that he signed the arbitration agreement plaintiff had provided him, even 

though he acknowledged that he did not use arbitration agreements in his 

practice and that it was “very rare” for a patient to ask him to sign an 

arbitration agreement. Had defendant denied signing or being a party to the 

arbitration agreement in responding to plaintiff’s arbitration demand, 

plaintiff would have commenced an action in court to protect her rights. 

Indeed, plaintiff filed her complaint three days after defendant first claimed 

he was not a party to the arbitration agreement.
9

The undisputed facts give rise to only one reasonable inference: 

plaintiff did not realize that defendant had not signed the subject arbitration 

agreement when she served her arbitration demand, and defendant’s failure 

to question or object to her arbitration demand, coupled with his written 

response indicating his express willingness to participate in arbitration 

proceedings, led plaintiff to actually and reasonably believe that she and 

defendant would resolve their dispute through arbitration and that 

commencing a legal action was unnecessary. Put another way, plaintiff did 

not timely file a lawsuit because she reasonably relied on defendant’s 

response to her arbitration demand, and the only reasonable conclusion to be 

drawn from the record is that defendant must be deemed estopped from 

relying on a statute of limitations bar. (Driscoll, supra, 67 Cal.2d at p. 305.)

In rejecting plaintiff’s claim of equitable estoppel, the trial court 

identified the following three circumstances: (1) defendant did not conceal 

information about the arbitration agreement; he merely responded to 

plaintiff’s arbitration demand by selecting an arbitrator; (2) plaintiff was an 

attorney and was at all times represented by counsel who had a duty to 

confirm the validity of the arbitration agreement; and (3) plaintiff and her 

counsel were in the best position to know that another doctor may have 

signed the arbitration agreement at issue. In the trial court’s view, 

application of equitable estoppel was inappropriate because the foregoing

circumstances were such that plaintiff could not rely on her ignorance of the 

facts surrounding the arbitration agreement. We are not persuaded.

First of all, that defendant did not actively conceal information or 

intend to mislead plaintiff is of no consequence on this record. (Accord, 

Lantzy, supra, 31 Cal.4th at p. 384; Holdgrafer, supra, 160 Cal.App.4th at 

p. 925.) The salient fact is that defendant responded to plaintiff’s arbitration 
10

demand in a manner so as to induce plaintiff to reasonably and in good faith 

proceed with arbitration instead of filing a legal action. (See Kleinecke v. 

Montecito Water Dist. (1983) 147 Cal.App.3d 240, 246 (Kleinecke).)

Second, we have no quarrel with case law observing that “the law 

‘particularly’ disfavors estoppels ‘where the party attempting to raise the 

estoppel is represented by an attorney at law.’ ” (Steinhart v. County of Los 

Angeles (2010) 47 Cal.4th 1298, 1316; May v. City of Milpitas (2013) 

217 Cal.App.4th 1307, 1339.) Those decisions, however, were emphasizing 

the settled principle that attorneys are charged with knowledge of the law 

(Steinhart, at pp. 1316–1317; May, at p. 1339), and they do not support 

rejection of estoppel where, as here, the only mistake was one of fact. (See, 

e.g., Superior Dispatch, supra, 181 Cal.App.4th at p. 191 & fn. 7; cf. Jordan v. 

City of Sacramento (2007) 148 Cal.App.4th 1487, 1497–1499 [distinguishing 

between mistakes of law and mistakes of fact, and rejecting estoppel where 

plaintiff’s attorney operated under opponent’s misrepresentation of law].) In 

this case, neither plaintiff’s representation by counsel nor her own attorney 

status had any bearing on the estoppel question once defendant expressly 

acquiesced to the mistaken arbitration demand without questioning the 

arbitration agreement sent to him.

Moreover, when considering the doctrine of equitable estoppel in the 

statute of limitations context, “we are more concerned with balancing the 

equities than with highlighting the negligence of [plaintiff’s] counsel.” 

(Cuadros v. Superior Court (1992) 6 Cal.App.4th 671, 678.) In Cuadros, for 

instance, the appellate court issued a peremptory writ of mandate after the 

trial court had denied the plaintiff’s motion to amend her complaint to add 

additional defendants after the statute of limitations had run. (Id. at p. 678.) 

While acknowledging that the plaintiff’s counsel could have done more to 
11

ascertain ownership of the vehicle involved in the plaintiff’s accident, the 

court concluded it was “entirely reasonable” under the circumstances of the 

case for counsel to rely on the defendants’ acts and statements in mistakenly 

concluding the proper parties had been named in suit. (Id. at pp. 677–678; 

see also Kleinecke, supra, 147 Cal.App.3d at p. 248 [even if the plaintiff’s 

counsel by the exercise of due diligence could have learned he named the 

incorrect party as defendant, the equities tipped in favor of the plaintiff and 

against application of the statute of limitations because defense counsel took 

action that caused the plaintiff’s counsel to reasonably assume he had served 

the correct party].)

The circumstances here compel a similar result. Whether or not 

plaintiff and her counsel could or should have ascertained at the outset that a 

doctor other than defendant signed the subject arbitration agreement, it 

remains the case that defendant acted as if he actually signed it. There 

appears no question that defendant’s response to plaintiff’s arbitration 

demand led her and her counsel to reasonably believe that filing a lawsuit 

was unnecessary because the malpractice dispute would be resolved through 

arbitration. “When all the circumstances are considered, the equities 

overwhelmingly favor [plaintiff].” (Cuadros, supra, 6 Cal.App.4th at p. 678.)

In urging affirmance of the trial court’s decision, defendant claims 

substantial evidence supports its holding that defendant did not know and 

was in no position to know that plaintiff’s arbitration demand concerned an 

agreement she had signed with another physician. Although we question 

whether the court’s decision made or even implied such a holding, case law 

recognizes that a party who was “ ‘ “ignorant or mistaken as to the real 

facts” ’ ” may nevertheless be estopped where that party “ ‘ “was in such a 

position that he ought to have known [the real facts], so that knowledge will 
12

be imputed to him.” ’ ” (Krolikowski, supra, 24 Cal.App.5th at p. 566 

[rejecting estoppel where court found imputation of knowledge 

inappropriate].) Here, it strains credulity to suggest that defendant was in 

no position to know or suspect he was not a party to the agreement. After all, 

he testified that he did not use arbitration agreements in his practice and 

that it was “very rare” for a patient to ask him to sign an arbitration 

agreement. So when plaintiff presented him with an arbitration agreement 

containing an illegible physician signature, he had sufficient reason to 

question whether he was a party to the agreement. Under these 

circumstances, we have no difficulty concluding that defendant was in a 

position to know he did not sign the agreement and that substantial evidence 

did not support rejection of estoppel.

Finally, it bears emphasis that the purpose of a statute of limitations is 

to protect a defendant against prosecution of stale claims and to stimulate a 

plaintiff to assert fresh claims in a diligent fashion. (Norgart v. Upjohn Co.

(1999) 21 Cal.4th 383, 395.) Here, plaintiff did not present defendant with a 

stale claim. Less than a year after her surgery, plaintiff notified defendant in 

writing that she was considering suing him and expressly demanded that he 

preserve all documents and paper and electronic files relating to her care. 

Plaintiff likewise made her arbitration demand within a year of her surgery, 

and she filed an action in court a mere three days after defendant first 

challenged the arbitration agreement. On this record, the equities do not 

support application of a time bar on staleness grounds.

In sum, we conclude the trial court erred in determining that plaintiff’s 

medical malpractice action was time-barred. Based on the undisputed facts, 
13

defendant must be deemed equitably estopped from asserting a statute of 

limitation defense.

1

B. Nonsuit on Medical Battery Cause of Action

Plaintiff additionally contends nonsuit on her medical battery cause of 

action was erroneously granted and must be reversed. As plaintiff observes,

damages for medical battery are not subject to the limitations on noneconomic damages for medical malpractice. (Civ. Code, § 3333.2; Perry v. 

Shaw (2001) 88 Cal.App.4th 658, 668–669.)

As relevant here, the distinction between medical malpractice and 

medical battery turns on the patient’s consent or lack thereof. When a doctor 

performs an operation to which the patient consents, but the patient has not 

given an informed consent because the doctor failed to disclose sufficient 

information about the risks inherent in the operation, then the action “should 

be pleaded in negligence,” i.e., medical malpractice. (Cobbs v. Grant (1972) 

8 Cal.3d 229, 240–241 (Cobbs).) Conversely, a typical medical battery occurs 

when a doctor performs a procedure without securing the patient’s consent 

for that procedure. (Conte v. Girard Orthopaedic Surgeons Medical Group, 

Inc. (2003) 107 Cal.App.4th 1260, 1266 (Conte).) Thus, “[w]here a doctor 

obtains consent of the patient to perform one type of treatment and 

subsequently performs a substantially different treatment for which consent 

was not obtained, there is a clear case of battery.” (Cobbs, at p. 239; Conte, at 

p. 1267.)

1 In light of our conclusion, we need not and do not reach plaintiff’s 

belated contention—raised for the first time on appeal—that her action is not 

time-barred because, as a matter of law, the timely service of an arbitration 

demand is the functional equivalent of the commencement of an action that 

satisfies Code of Civil Procedure section 340.5. 
14

Here, the jury awarded plaintiff over $6.3 million on her medical 

malpractice cause of action after finding she did not give informed consent for 

the surgical procedures defendant performed. Although the parties do not 

dispute that finding, the question here is whether there was sufficient 

evidence that defendant committed medical battery by rendering treatment

without plaintiff’s consent.

The law applicable to nonsuits is settled. “ ‘ “[C]ourts traditionally 

have taken a very restrictive view of the circumstances under which nonsuit

is proper. The rule is that a trial court may not grant a defendant’s motion 

for nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s 

favor. [Citations.] [¶] In determining whether plaintiff’s evidence is 

sufficient, the court may not weigh the evidence or consider the credibility of 

witnesses. Instead, the evidence most favorable to plaintiff must be accepted 

as true and conflicting evidence must be disregarded. The court must give ‘to 

the plaintiff[’s] evidence all the value to which it is legally entitled, . . . 

indulging every legitimate inference which may be drawn from the evidence 

in plaintiff[’s] favor . . . .’ ” [Citation.] The same rule applies on appeal from 

the grant of a nonsuit. [Citation.]’ ” (O’Neil v. Crane Co. (2012) 53 Cal.4th

335, 347.)

Plaintiff urges reversal of the nonsuit because there was a factual 

question concerning her consent to fat injections in different parts of her face. 

Specifically, she contends she consented to fat injections only beneath her 

eyes, but defendant had also injected fat around the sides of her nose, mouth, 

and in her forehead. 

The evidence at trial was insufficient to establish that defendant 

performed a procedure that was substantially different from the procedure 

she ultimately consented to. Plaintiff testified that she told defendant she 
15

did not want fat injections penetrating her face when they were initially 

discussing work on her eyes and forehead, and that defendant assured her he 

could inject the fat beneath her eyes by pulling the skin back and making 

injections inside of her skin. But plaintiff further testified that their 

discussions moved beyond such work to the possibility of additional 

procedures. As plaintiff acknowledged, defendant cautioned that if she were 

to have work performed on her eyes and forehead, she should also get a 

facelift and neck lift to avoid looking “lopsided.” Although plaintiff told 

defendant she was “on the fence” concerning a face and neck lift, she 

admitted she changed her mind after defendant explained the risks and side 

effects of a face and neck lift. Plaintiff thereafter signed a consent form 

authorizing defendant to perform a “face and neck lift, minor forehead lift, 

upper eye lift, lower eye lift.” She also admitted that, during one of her presurgical appointments, defendant explained that he would need to “put fat 

back in” during forehead and eyelid surgery “so it didn’t look so hollow.” 

Significantly, although plaintiff claimed she “had no understanding” prior to 

the surgery that she was “ever going to get facial fat injections to anyplace 

other than [her] eyes,” just before her surgery she initialed a handwritten

notation on the November 13 consent form for “minor facial fat injections” 

without restricting the location or purpose of the injections. Plaintiff testified

that, once she initialed that notation, she only told defendant not to “take any 

fat out of [her] face.” Following the surgery, an email sent by plaintiff

disclosed her knowledge that defendant had injected fat nearby her mouth, 

but she did not complain that those injections exceeded the scope of her 

consent until later when she became dissatisfied about the results of the 

surgery.
16

Moreover, defense witness Dr. Toth offered uncontradicted medical 

expert testimony at trial that defendant’s injection of fat for plaintiff’s face 

and neck lift was “a very small amount” and “reasonable.” Contrary to 

plaintiff’s suggestion otherwise, Dr. Toth’s testimony on this point is properly 

considered because issues concerning the quantity of facial fat injections used 

during such lifts are within the knowledge of experts only and not within the 

common knowledge of laypeople. (See Carson v. Facilities Development Co.

(1984) 36 Cal.3d 830, 844.)

In sum, plaintiff’s own testimony established she ultimately consented 

in writing to “minor facial fat injections” as part of her face and neck lift, and

the only condition she expressed upon giving that consent was that defendant 

must not take fat out of her face. Plaintiff, moreover, offered no expert 

testimony countering Dr. Toth’s medical opinion that the facial fat injected 

during plaintiff’s surgery was indeed minor in amount for the type of 

procedure performed. Accordingly, viewing the evidence and all legitimate

inferences in a manner most favorable to plaintiff, and disregarding 

defendant’s conflicting evidence, we conclude the evidence was insufficient to 

establish that defendant performed a procedure substantially different than 

the one plaintiff authorized. (See Cobbs, supra, 8 Cal.3d at p. 239; Conte,

supra, 107 Cal.App.4th at p. 1267.) On this record, the grant of nonsuit on 

the medical battery claim was proper.

C. Plaintiff’s Request Pursuant to Code of Civil Procedure 

Section 170.1, Subdivision (c)

At oral argument, plaintiff requested that in the interests of justice this 

court direct reassignment to a different trial judge in the event we reverse 

the judgment and remand this matter for further proceedings.

Code of Civil Procedure, section 170.1, subdivision (c), provides: “At the 

request of a party . . . an appellate court shall consider whether in the 
17

interests of justice it should direct that further proceedings be heard before a 

trial judge other than the judge whose judgment or order was reviewed by the 

appellate court.” Our authority to disqualify a judge, however, must be 

exercised “sparingly, and only when the interests of justice require it.” 

(People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079.) “Mere judicial error 

does not establish bias and normally is not a proper ground for 

disqualification.” (Ibid.)

Here, plaintiff offers no basis for concluding that the interests of justice 

require disqualification of the judge whose orders we are reversing in part on 

appeal. Accordingly, plaintiff’s request is denied.

DISPOSITION

The judgment is reversed to the extent it set aside the jury’s verdict 

and award of damages on plaintiff’s medical malpractice cause of action and 

dismissed the action. The matter is remanded to the trial court with 

directions to enter a new judgment reflecting the jury’s verdict and award. 

The trial court may conduct additional proceedings consistent with this 

decision, which may include addressing any request for interest on the jury’s 

award. In all other respects, the judgment is affirmed. The parties shall 

bear their own costs on appeal.
18

_________________________

Fujisaki, Acting P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Jackson, J.

A153427
19

Jane Doe v. Timothy Marten et al.

(A153427)

Trial Court: City & County of San Francisco

Trial Judge: Hon. Suzanne R. Bolanos

Attorneys:

Law Office of Herb Fox and Herb Fox for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport, Zena 

Jacobsen; Craddick, Candland & Conti, John H. Dodd, and Mary 

Gannon-McMurray for Defendant and Respondent.