Judge: Daniel M. Crowley, Case: 21STCV18236, Date: 2022-08-30 Tentative Ruling

Case Number: 21STCV18236    Hearing Date: August 30, 2022    Dept: 28

Defendant Rojin Ergan, DDS’s Demurrer with Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On May 14, 2021, Plaintiff Homa Deris (“Plaintiff”) filed this action against Defendants Byron Kim, DDS (“Kim”), Rojin Erfan, DDS (“Erfan”), Walter Jefferson, DDS (“Jefferson”), Jefferson and Kim dba PCH Smiles Dentistry and Orthodontics (“PCH”), Kevin Choi, DDS (“Choi”) and Bardi-Nugent Dental Corporation dba Rootvision Endo (“Rootvision”) for dental malpractice, fraudulent concealment, inattentional misrepresentation, breach of fiduciary duty and elder abuse.

On October 26, 2021, Plaintiff filed the FAC.

On February 2, 2022, Kim, Jefferson and PCH filed an answer. On March 16, 2022, Choi filed an answer.

On July 11, 2022, Erfan filed a Demurrer with Motion to Strike to be heard on August 30, 2022. On August 17, 2022, Plaintiff filed an opposition. On August 23, 2022, Erfan filed a reply.

Trial is scheduled for May 18, 2023. 

PARTY’S REQUESTS

Erfan requests the Court sustain the demurrer to the second, third, and fifth causes of action for failure to state facts sufficient to support the causes of action.

Erfan also requests the Court strike all requests and reference to punitive damages and attorney’s fees.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

A cause of action premised on a physician's breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent. (See, e.g., Moore v. Regents of University of California (1990) 51 Cal.3d 120, 12) p. 133, 271 [“the allegations state a cause of action for breach of fiduciary duty or lack of informed consent”].) The elements of informed consent are: (1) A patient gives an “informed consent” only after the doctor has adequately explained the proposed treatment or procedure. (2) A doctor must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. (3) A doctor must give the patient as much information as he needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. (4) The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. (5) Lastly, a doctor is not required explain minor risks that are not likely to occur. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343).

“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.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

Abuse of an elder includes physical abuse, neglect, abduction, deprivation of care, and financial abuse. Welfare and Institutions Code § 15610.07. In order to make a claim for elder abuse, it is necessary to not only establish Plaintiff was an elder, but also to show, by clear and convincing evidence, that defendant has been guilty of recklessness, oppression, fraud, or malice in commission of the abuse. (Welfare and Institutions Code § 15657.)

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b).) The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

DISCUSSION

Plaintiff was allegedly injured by dental treatment that occurred from February 19, 2019, to May of 2020. On February 19, 2019, Plaintiff underwent a root canal performed by Erfan at PCH, a venture co-owned by Erfan, Kim and Jefferson. Plaintiff alleges that despite knowing the dental work was not performed properly, Defendants, including Erfan, assured her for approximately one year that the pain was normal and would subside with time. Plaintiff further maintains that Defendants forced her to sign a settlement agreement under duress and refused to pay for her subsequent treatment to remedy their negligence.

Erfan argues that the majority of the actionable claims in the Plaintiff’s complaint are attributed to co-defendants and not Erfan, and that there is a lack of any facts sufficient to establish alter ego and/or conspiracy. Erfan admits that Plaintiff alleged that Erfan concealed the failed root canal treatment and told Plaintiff that the pain would resolve itself. Erfan believes that these allegations are insufficient to maintain causes of action for fraud regarding when the alleged misrepresentation occurred, who it was told to, Efran’s knowledge that it failed, or the knowledge of any false statements.

The Court disagrees with Erfan’s assessment of the FAC. Plaintiff clearly alleges that Erfan “[was] aware that the root canal performed by Dr. Erfan had failed but intentionally failed to disclose such fact to Plaintiff,” over the course of the year from February 2019 to May 2020. Plaintiff specifically alleges that Erfan “told [Plaintiff]” the pain would resolve on its own and did not disclose the failure of the root canal. Plaintiff has provided sufficient basis to plead causes of action for intentional misrepresentation and fraudulent concealment.

As Plaintiff’s cause of action for elder abuse relies upon the fraud causes of action, this cause of action is also not subject to demurrer. The Court overrules the demurrer to all causes of action.

Motion to Strike

The Court will not strike any references to request for punitive damages, as punitive damages are warranted when there are allegations of fraud. Here, there are multiple causes of action derived from fraudulent behavior, and thus any requests for punitive damages is warranted.

Erfan further argues that the request for attorney’s fees is improper. Attorney’s fees are expressly allowed by the Elder Abuse Act, which the Court has found is pled with sufficient facts to not be disposed of by demurrer. That cause of action entitles Plaintiff to attorney’s fees.

CONCLUSION

Defendant Rojin Ergan, DDS’s Demurrer is OVERRULED.

Defendant Rojin Ergan, DDS’s Motion to Strike is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.