Judge: Carolyn M. Caietti, Case: 37-2023-00048831-CU-MM-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

05/31/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2023-00048831-CU-MM-CTL BURTON VS REGENASS MD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/13/2024

Defendants Elite Body Sculpture, Inc. and Kristin Ready, R.N.'s Demurrer to Plaintiffs' Second Amended Complaint is OVERRULED.

Statement of the Law A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Discussion This demurrer by Defendants Elite Body Sculpture, Inc. (EBS) and Ready is to the third cause of action (intentional misrepresentation – fraud); fourth cause of action (promissory fraud); fifth cause of action (negligent representation); and sixth cause of action (Unfair Business Practices), on grounds the SAC does not state sufficient facts and the causes of action are uncertain. (C.C.P., § 430.10(e), (f).) To the extent the demurrer is brought by Defendant Ready, the demurrer is overruled. These causes of action are not alleged against her and no legal authority is provided as to how these grounds for demurrer apply to her.

As against EBS, sufficient facts are alleged and the causes of action are not uncertain.

The third cause of action sufficiently states facts to constitute intentional misrepresentation. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-31 [elements].) The misrepresentations alleged include: the AirSculpt procedure was safe, minimally invasive and required no needles, stiches or general anesthesia (SAC, at ¶ 66); there would be no pain and is gentle (id., at ¶ 67); recovery time is 24-48 hours post-operation (id., at ¶ 69); would be performed by skilled surgeons who are expertly trained (id., at ¶ Calendar No.: Event ID:  TENTATIVE RULINGS

3088787  35 CASE NUMBER: CASE TITLE:  BURTON VS REGENASS MD [IMAGED]  37-2023-00048831-CU-MM-CTL 70); and does not damage organs (id., at ¶ 71 ['AirSculpt only targets subcutaneous fat, the pinchable layer just beneath our skin...designed to turn off before coming into contact with deeper layers like visceral fat' in responding to the question of whether AirSculpt can damage organs]. The SAC alleges EBS knew these misrepresentations were false and intended to induce reliance. (SAC, at ¶ 72-73.) The decedent actually and justifiably relied, resulting in damage. (SAC, at ¶¶ 73-74.) EBS does not provide any legal authority or analysis that experiencing an 'uncommon surgical complication' invalidates these statements as misrepresentations.

These same facts constitute the promissory fraud and negligent misrepresentation causes of action.

(SAC, at ¶¶ 65-73, 77-78 [promissory fraud]; id., at ¶¶ 85-88 [negligent misrepresentation]; Beckwith v. Dahl (2012) 205 Cal.App.4th 10039, 1060 [elements of promissory fraud]; Chapman, supra, at p. 231 ['The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true.'].) The sixth cause of action sufficiently states facts to constitute a violation of Business and Professions Code section 17200. In order to state a cause of action based on a fraudulent business act or practice, the plaintiff must allege that consumers are likely to be deceived by the defendant's conduct.

(Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1134 .) Here, the SAC sufficiently alleges EBS engaged in unfair business practices because EBS represented that its AirSculpt procedure was safe, gentle and painless, would require a brief recovery period and not damage organs. As alleged, EBS engaged in fraudulent business act or practice where members of the public are likely to be deceived. (SAC, at ¶¶ 93-94.) Defendants have not met their burden the SAC is uncertain. Uncertainty is not specifically discussed in the demurrer. Notwithstanding, the allegations are not ambiguous or unintelligible. (See, Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [''A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.'].) Thus, for these reasons, the demurrer is OVERRULED in its entirety.

Concluding Orders Defendants EPS and Ready are ordered to file and serve an answer by June 14, 2024.

If the tentative ruling is confirmed without modification, this minute order will be the Court's final ruling on the demurrer. Defendants EMS and Ready are ordered to serve notice of the Court's final ruling on all appearing parties.

Plaintiffs are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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