[No. 34497-1-II. Division Two. August 14, 2007.]
[1] Judgment — Summary Judgment — Review — Role of Appellate Court. An appellate court reviews a summary judgment de novo, performing the same inquiry as the trial court under CR 56(c) and viewing the facts in the light most favorable to the nonmoving party. [2] Judgment — Summary Judgment — Burden on Moving Party — In General. A party seeking a summary judgment has the burden of demonstrating that the case does not present any genuine issues of material fact and that the party is entitled to judgment as a matter of law. [3] Consumer Protection — Action for Damages — Elements. The elements of a private action for damages under the Consumer Protection Act are (1) an unfair or deceptive act or practice that; (2) occurs in trade or commerce; (3) impacts the public interest; (4) causes injury to the plaintiff in her business or property; and (5) the injury is causally linked to the unfair or deceptive act. [4] Pleading — Sufficiency — Determination. A court determines the sufficiency of a pleading based on applicable court rules and case law. [5] Pleading — Sufficiency — Summary Judgment. While inexpert pleadings may survive a summary judgment motion, insufficient pleadings cannot. [6] Pleading — Complaint — Notice of Claim — Sufficiency — In General. A claim is adequately pleaded if the pleading gives the opposing party fair notice of the claim. [7] Consumer Protection — Action for Damages — Pleading — Sufficiency. A private action under the Consumer Protection Act (chapter 19.86 RCW) is sufficiently pleaded if the complaint alleges a violation of the act and damages resulting from the alleged violation. The plaintiff is not required to completely detail in the complaint the damages allegedly suffered. [8] Consumer Protection — Action for Damages — Scope — Personal Injury Claims. Personal injury claims are not subject to the Consumer Protection Act (chapter 19.86 RCW). [9] Consumer Protection — Action for Damages — Injury to Business or Property — Scope — Inability To Quantify. For purposes of a private action under the Consumer Protection Act (chapter 19.86 RCW), the injury to business or property need not be great or even quantifiable. The scope of injury to "property" under the act is especially broad and is not restricted to commercial or business injury. [10] Consumer Protection — Action for Damages — Injury to Business or Property — Loss of Use of Property. A loss of use of one's property may be sufficient to satisfy the injury to business or property element of a private action under the Consumer Protection Act (chapter 19.86 RCW), such as when a misrepresentation causes inconvenience that deprives the plaintiff of the use and enjoyment of his or her property. [11] Medical Treatment — Consumer Protection — Action for Damages — Injury to Business or Property — Wrong Product Affixed to Patient's Body. The fact that a product is affixed to a medical or dental patient's body during a procedure after the patient specifically rejected the product and requested a substitute product is sufficient to satisfy the injury to business or property element of a private action under the Consumer Protection Act (chapter 19.86 RCW), inasmuch as the mistake deprives the patient of the use and enjoyment of the requested product. [12] Consumer Protection — Action for Damages — Unfair or Deceptive Conduct — Intent To Deceive — Necessity. The unfair or deceptive conduct element of a private action under the Consumer Protection Act (chapter 19.86 RCW) does not require proof of intent to deceive or defraud. [13] Consumer Protection — Action for Damages — Unfair or Deceptive Conduct — Advertising — Necessity. The unfair or deceptive conduct element of a private action under the Consumer Protection Act (chapter 19.86 RCW) does not require proof that the defendant engaged in advertising or other promotional activities. [14] Medical Treatment — Consumer Protection — Professional Practice — Medical Practice — Entrepreneurial Aspects — What Constitutes. Only the entrepreneurial aspects of a medical or dental practice can satisfy the "trade or commerce" element of a private action under the Consumer Protection Act (chapter 19.86 RCW). Aspects of a practice that relate to the competence and performance of a physician or dentist do not fall within the sphere of "trade or commerce." Examples of entrepreneurial aspects of a practice are how the price of services is determined, billed, and collected and the manner in which a practice obtains, retains, and dismisses clients. The processes in which a physician or dentist uses his or her learned skills in examining, diagnosing, treating, or caring for a patient are not entrepreneurial in nature. [15] Medical Treatment — Consumer Protection — Professional Practice — Entrepreneurial Aspects — Medical Practice — Question of Law or Fact. For purposes of a claim against a physician or dentist under the Consumer Protection Act (chapter 19.86 RCW), whether the physician's or dentist's misconduct is related to the entrepreneurial aspects of the practice of medicine or dentistry is an issue of fact. [16] Consumer Protection — Statutory Provisions — Purposes. The purpose of the Consumer Protection Act (chapter 19.86 RCW) is to protect the public, not to provide an additional remedy for private wrongs. [17] Consumer Protection — Action for Damages — Effect on Public Interest — Factors. For purposes of a private action under the Consumer Protection Act (chapter 19.86 RCW), determining whether an unfair or deceptive act or practice affects the public interest depends on whether the transaction was essentially a "consumer" transaction or a "private" transaction. If the transaction was essentially a consumer transaction, the trier of fact should consider whether (1) the alleged acts were committed in the course of the defendant's business, (2) the acts were a part of a pattern or generalized course of conduct, (3) repeated acts were committed before the act involving the plaintiff, (4) there is a real and substantial potential for repetition of the defendant's conduct, and (5) the act complained of involved a single transaction or many consumers. If the transaction was essentially a private dispute, it is more difficult to establish that the public has an interest because, ordinarily, a breach of a private contract affecting no one but the parties to the contract is not an act or practice affecting the public interest. However, if it is likely that additional plaintiffs have been or will be injured in exactly the same fashion as the private plaintiff, a private dispute enters the realm of the public interest. If a transaction is essentially a private dispute, the trier of fact should consider whether (1) the alleged acts were committed in the course of the defendant's business, (2) the defendant advertised to the public in general, (3) the defendant actively solicited the plaintiff, and (4) the plaintiff and defendant occupy unequal bargaining positions. The factors in both the "consumer" and "private" contexts merely represent the indicia of an affect on public interest from which a trier of fact could reasonably find an impact on the public interest. None of the factors is dispositive and not all factors need to exist in order for a transaction to demonstrate public interest. [18] Consumer Protection — Action for Damages — Effect on Public Interest — Question of Law or Fact. For purposes of a private action under the Consumer Protection Act (chapter 19.86 RCW), whether the act or practice alleged to violate the act affects the public interest is a question of fact. ARMSTRONG, J., dissents by separate opinion. Nature of Action: A dental patient sought damages from her dental office and her periodontist for negligence, medical battery, and violation of the Consumer Protection Act based on the periodontist's using cow bone for grafting after the patient specifically requested that no animal products be used. Superior Court: The Superior Court for Pierce County, No. 04-2-13768-9, Vicki L. Hogan, J., on February 24, 2006, entered a partial summary judgment in favor of the defendants, dismissing the Consumer Protection Act claim. The plaintiff voluntarily dismissed her other claims. Court of Appeals: Holding that there are issues of material fact as to whether an unfair or deceptive act or practice occurred, whether the complained-of actions were "entrepreneurial aspects" of the profession that occur in trade or commerce, and whether the complained-of actions affect the public interest, the court reverses the judgment and remands the case for further proceedings. Lincoln C. Beauregard- (of Law Offices of John R. Connelly, Jr.), for appellant. Christopher W. Tompkins- (of Betts Patterson & Mines, P.S.) and Robert M. McKenna-, Attorney General, and Jody Lee Campbell-, Assistant, for respondent. ¶1 PENOYAR, J. — Mystie Michael appeals the trial court's grant of summary judgment, dismissing her Consumer Protection Act (CPA) FACTS ¶2 Bright Now provides dental care and periodontal services to the general public. Michael visited Bright Now for dental care and a bone grafting procedure. She filled out a preprocedure form, stating that she was allergic to the anesthetic Lidocaine. Michael's primary care physician informed Bright Now that Michael reacts to Lidocaine with seizures and instructed Bright Now to test her for alternative medications before surgery. ¶3 Dr. Lacy met with Michael and discussed the different products she could use for Michael's bone grafting procedure. Dr. Lacy explained that xenogaft (cow bone), allograft (human bone), or synthetic bone could be used. Dr. Lacy stated that she provided Michael with the information on different bone material because "I wanted her to know the different options that [we] have." 1 Clerk's Papers (CP) at 62. Katie Guthrie, Bright Now's customer service representative, testified that Michael specifically requested that no cow bone be used in her grafting procedure. Guthrie told Dr. Lacy that Michael did not want Dr. Lacy to use cow bone and told Dr. Lacy that she needed to discuss the matter with Michael. Dr. Lacy told Guthrie that she most commonly uses cow bone in a bone grafting procedure but that it was possible to use a different type of bone. Dr. Lacy was responsible for maintaining the materials and supplies she would need for bone grafting procedures at Bright Now. ¶4 A few months later, Dr. Lacy performed Michael's grafting procedure. She gave Michael seven Lidocaine capulets as an anesthetic. As Michael lay in the dentist's chair before the procedure, she asked Dr. Lacy, "Can I see the bone?" 1 CP at 28. Dr. Lacy replied, "Yes," and showed the bone material to Michael. 1 CP at 28. Michael said, "And this is human bone?" 1 CP at 28. Dr. Lacy responded, "No, it's cow bone." 1 CP at 28. Michael said, "Dr. Lacy, I said I didn't want cow bone. . . . I just can't fathom the thought of animal parts being in my body. . . . Do you have human bone?" 1 CP at 28. Dr. Lacy responded that she did; "I have some in the back. I'll go get it." 1 CP at 28. Michael again said, "I just don't want any cow bone in me." 1 CP at 28. Dr. Lacy indicated to Michael that she understood; she left and then returned and performed the procedure. ¶5 After the procedure, Michael began vomiting, lost consciousness, and was rushed out of Bright Now to the emergency room. At the hospital, she was treated for medical conditions resulting from the Lidocaine. Michael returned home from the hospital and Dr. Lacy phoned her multiple times to check on her recovery. During one of these phone calls, Dr. Lacy informed Michael that she had used cow bone during the bone grafting procedure because she did not have enough human bone material to finish Michael's procedure. ¶6 Michael sued Dr. Lacy and Bright Now for negligence, medical battery, and CPA violations. Dr. Lacy and Bright Now moved for partial summary judgment, arguing that Michael's CPA claims should be dismissed. The trial court granted summary judgment and Michael voluntarily dismissed her other claims against Dr. Lacy and Bright Now. Michael now appeals the trial court's order granting summary judgment. ANALYSIS ¶8 There are five elements of a CPA claim: (1) an unfair or deceptive act or practice that, (2) occurs in trade or commerce, (3) impacts the public interest, (4) causes injury to the plaintiff in her business or property, and (5) the injury is causally linked to the unfair or deceptive act. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 312, 858 P.2d 1054 (1993). Bright Now had the burden of proving to the trial court that there was no genuine issue of material fact as to any of these elements and that Bright Now was entitled to judgment as a matter of law. I. SUFFICIENCY OF PLEADINGS ¶9 A threshold question is whether Michael sufficiently pled a CPA claim. The dissent points out that Michael's claim does not specifically allege any injury to "property" as required by the CPA. Dissent at 14; 1 CP at 46. The dissent analyzes Tallmadge to find that Michael must allege damage to property in her complaint. Dissent at 14-15 (citing Tallmadge v. Aurora Chrysler Plymouth, Inc., 25 Wn. App. 90, 93-94, 605 P.2d 1275 (1979)). ¶10 In Tallmadge, the court applied the CPA where the plaintiff had been "inconvenienced, deprived of the use and enjoyment of his property, and received an automobile with defects needing repair." Tallmadge, 25 Wn. App. at 94. The dissent distinguishes Michael's claim from the plaintiff in Tallmadge based on the elements of compensable damages pled. However, it is not clear from Tallmadge what, if any, compensable damages were claimed in the plaintiff's pleadings. See Tallmadge, 25 Wn. App. at 93-95. The court found that "the record indicate[d] that [the plaintiff] suffered injuries for purposes of the Consumer Protection Act. . . ." Tallmadge, 25 Wn. App. at 93-94 (emphasis added). The court addressed the evidence in the record that supported the court's finding of damages. Tallmadge, 25 Wn. App. at 92-94. It did not address the damages pled. Id. Thus Tallmadge is not helpful for the purpose of determining the sufficiency of pleadings in this case. ¶13 Because Washington is a notice pleading state, Michael must give fair notice of the claim asserted. CR 8(a). At trial Michael will have to prove damage to her property that resulted from Bright Now's deceptive acts or practices. See Nelson v. Nat'l Fund Raising Consultants, Inc., 120 Wn.2d 382, 393, 842 P.2d 473 (1992) (element of CPA violation is injury to plaintiff's business or property). However, there is no requirement that she completely detail the damages that she suffered within the complaint. Michael alleged both a CPA violation and damages based on that violation. She gave Bright Now fair notice of her claim's basis. We find her complaint sufficient. II. INJURY TO BUSINESS OR PROPERTY ¶14 Michael argues that sufficient evidence exists to support a claim that she suffered an injury to business or property under the CPA. Relying on Tallmadge, she asserts that the cow bone inserted into her jaw was defective and therefore subject to the CPA because it involved a "substitution of products." Br. of Appellant at 20. She asserts that she requested human bone and instead she was given cow bone and she therefore suffered an injury to property. ¶15 Bright Now counters that Michael suffered no injury to property or business and the CPA does not apply to claims arising out of alleged malpractice by a health care provider. Bright Now asserts that Michael's injuries are classic personal injury claims and not subject to the CPA. ¶17 In Tallmadge, the case Michael relied on, we held that there was a valid CPA claim when a plaintiff bought a car at a dealership in response to their advertisement. The advertisement stated that the car was a new car and the plaintiff later discovered that the car had been damaged and repainted. Tallmadge, 25 Wn. App. at 93. The plaintiff sued the car dealership under the CPA and we held that the act of advertising to the public the sale of a new car but selling a used car was an unfair and deceptive act. Tallmadge, 25 Wn. App. at 93. We explained that the plaintiff suffered injuries subject to the CPA because he was inconvenienced, deprived the use and enjoyment of his property, and received an automobile that needed to be repaired. Tallmadge, 25 Wn. App. at 93. ¶18 However, in Stevens, Division Three held that there was no injury under the CPA when a plaintiff bought a pair of softball shoes from a salesperson after the salesperson claimed that the shoes were the best shoe on the market. During a softball game, the plaintiff was wearing the shoes and the outer cleat caught in the dirt, severely fracturing her leg. Stevens, 54 Wn. App. at 367. The court held that the plaintiff's injuries were merely personal injuries and not subject to the CPA. Stevens, 54 Wn. App. at 369. ¶20 Michael specifically requested that human bone be used during her bone grafting procedure and Dr. Lacy instead used cow bone. Similar to Tallmadge, Michael went home with a different product than was represented as being sold to her. The current location of the property, in Michael's jaw, does not change the result because she was given a product that she had rejected. If her only injury was gum swelling or complications from the bone grafting surgery, then the CPA would not apply. Here, as in Tallmadge, Michael thought she was purchasing one product but was given another. Additionally, Michael's CPA injury does not have to be great, or even quantifiable. Sign-O-Lite Signs, Inc. v. DeLaurenti Florists, Inc., 64 Wn. App. 553, 563-64, 825 P.2d 714 (1992). "When a misrepresentation causes inconvenience that deprives the claimant of the use and enjoyment of his property, the injury element [of the CPA] is satisfied." Stephens v. Omni Ins. Co., 138 Wn. App. 151, 180, 159 P.3d 10 (2007). Because the scope of injury to property under the CPA "is especially broad and is not restricted to commercial or business injury," Michael may recover damages under the CPA by showing that the cow bone graft has deprived her of use and enjoyment of her property. Stephens, 138 Wn. App. at 180, 159 P.3d at 25. We hold that the trial court erred in granting summary judgment. III. UNFAIR OR DECEPTIVE ACT IV. TRADE OR COMMERCE ¶22 The second element of the CPA is satisfied if the deceptive act occurred in "trade or commerce." Wash. State Physicians Ins. Exch. & Ass'n, 122 Wn.2d at 312. Michael contends that Dr. Lacy and Bright Now solicited and retained her business by representing that human bone material was available for the bone grafting procedure. She argues that her injury relates to the "entrepreneurial aspects" of their practice and the procedure and is therefore subject to the CPA. Bright Now disagrees. ¶24 In Jaramillo, a plaintiff suffered injuries when her podiatrist performed an ankle surgery that fell below acceptable medical standards. Jaramillo, 50 Wn. App. at 824. The court held that the negligence claims against the doctor were not properly cognizable under the CPA because they only related to his medical negligence and not to any "entrepreneurial aspects." Jaramillo, 50 Wn. App. at 826. Similarly in Quimby, a plaintiff asserted that her doctor violated the CPA when he substituted one sterilization procedure for another without her consent. Quimby, 45 Wn. App. at 176-77. The court held that the ineffective sterilization procedure medical negligence claim was not subject to the CPA because it only related to the doctor's negligence and not to any "entrepreneurial aspects" of the profession. V. IMPACTS PUBLIC INTEREST ¶26 Michael asserts that the trial court erred in granting summary judgment because a trier of fact determines whether the public has an interest in any given action. Bright Now disagrees, arguing that there was no issue of material fact regarding public interest. ¶29 If the transaction was essentially a "private" dispute, our Supreme Court noted that it might be more difficult to establish that the public has an interest because, ordinarily, a breach of a private contract affecting no one but the parties to the contract is not an act or practice affecting the public interest. Hangman, 105 Wn.2d at 790. However, if it is likely that additional plaintiffs have been or will be injured in exactly the same fashion as the private plaintiff, a private dispute enters the realm of the public interest. Hangman, 105 Wn.2d at 790. ¶30 If a transaction is essentially a private dispute, the trier of fact should consider whether (1) the alleged acts were committed in the course of defendant's business, (2) the defendant advertised to the public in general, (3) the defendant actively solicited the particular plaintiff, and (4) the plaintiff and defendant occupy unequal bargaining positions. Hangman, 105 Wn.2d at 791. The likelihood that additional plaintiffs have been or will be injured in exactly the same fashion changes a factual pattern from a private dispute into one that affects the public interest. Hangman, 105 Wn.2d at 790 (citing McRae v. Bolstad, 101 Wn.2d 161, 676 P.2d 496 (1984)); Edmonds v. John L. Scott Real Estate, Inc., 87 Wn. App. 834, 847, 942 P.2d 1072 (1997). ¶31 None of the above factors is dispositive and not all factors need to exist in order for a transaction to demonstrate public interest. Hangman, 105 Wn.2d at 791. The factors in both the "consumer" and "private dispute" contexts merely represent the indicia of an effect on public interest from which a trier of fact could reasonably find an impact on the public interest. Hangman, 105 Wn.2d at 791. They need not all exist to demonstrate public interest. Id. ¶32 Here, Bright Now, as the moving party, needed to establish that no genuine issue of material fact existed in regard to public interest. Atherton, 115 Wn.2d at 516. It needed to demonstrate that the only reasonable conclusion from the evidence was that the transaction involved did not affect the public interest. Vallandigham, 154 Wn.2d at 26. It failed to do so. Considering all facts in the light most favorable to the nonmoving party, we hold that summary judgment was not proper because there is an issue of material fact regarding public interest. Vallandigham, 154 Wn.2d at 26. VI. CAUSAL LINK BETWEEN INJURY AND DECEPTIVE ACT ¶33 Finally, neither party argues that the fifth element of a CPA claim is not met here. Neither asserts that there is no casual link between the injury and deceptive act. ¶34 Because Bright Now has not met its burden to establish that there are no genuine issues of material fact as to any of the five elements of a CPA claim, we reverse the trial court's entry of summary judgment. Wash. State Physicians Ins. Exch. & Ass'n, 122 Wn.2d at 312. We reverse and remand for a trial to resolve these factual issues. BRIDGEWATER, J., concurs. ¶35 ARMSTRONG, J. (dissenting) — Because the Consumer Protection Act, chapter 19.86 RCW, applies only to business or property loss claims and the plaintiff claims only personal injury damages, the trial court did not err in granting the defendants summary judgment. Accordingly, I dissent. ¶36 In her complaint, Michael alleged that she suffered "conscious pain, suffering and mental anguish, as well as physical disability and permanent injuries." Clerk's Papers (CP) at 154. She also claimed "damages for loss of enjoyment of life, emotional distress, anguish, mental and emotional shock and other special and general damages presently unknown." CP at 155. Michael did not claim property damage. Specifically, Michael's complaint did not allege that the cow bone was worth less than human bone, that it would deteriorate faster than human bone, that it would require repairs that human bone would not, or that it would cause her to lose the use of her jaw or the bone. Moreover, in her response to the defendants' motions for summary judgment, Michael again did not claim any property or business losses. ¶37 Yet the majority reasons that Michael's claim is similar to the plaintiff's claim in Tallmadge v. Aurora Chrysler Plymouth, Inc., 25 Wn. App. 90, 605 P.2d 1275 (1979). The majority finds such similarity because here, as in Tallmadge, Michael did not receive what she bargained for. See Tallmadge, 25 Wn. App. at 94. The majority does not discuss the differences between the two cases, which center on the damages claimed. In Tallmadge, the plaintiff purchased a car from the defendant that the defendant had advertised as new. Tallmadge, 25 Wn. App. at 93. In fact, the car had been damaged and repaired, which the defendant did not disclose to the plaintiff. Tallmadge, 25 Wn. App. at 93. In upholding a Consumer Protection Act violation, the court described the purchaser's damages as being inconvenienced, deprived of the use and enjoyment of the vehicle, and receiving an automobile with defects. Tallmadge, 25 Wn. App. at 93-94. Michael makes no such claims. Because the Consumer Protection Act does not cover medical malpractice claims or personal injury claims of any sort, the defendants were entitled to summary judgment. See Stevens v. Hyde Athletic Indus., Inc., 54 Wn. App. 366, 370, 773 P.2d 871 (1989) (personal injury claims are not subject to the Consumer Protection Act); Quimby v. Fine, 45 Wn. App. 175, 180, 724 P.2d 403 (1986) (professional negligence claims, such as medical malpractice, are not subject to the Consumer Protection Act).