Judge: David A. Hoffer, Case: 30-2020-1140535, Date: 2022-08-15 Tentative Ruling

The demurrer by defendant Dr. Amy Bandy (“defendant/Bandy”) to the second cause of action for Violation of Bus. & Prof. Code §17200 (“Unlawful”) pled in the Second Amended Complaint (“SAC”) by plaintiff Ashley Renteria (“Renteria”) is SUSTAINED with one final leave to amend.

Preliminary Issue – Plaintiff’s Late Filed Opposition

Plaintiff filed and served her opposition 2 days late thereby depriving defendant of that time, which she is granted by statute, to prepare her reply. Defendant points out in her Notice of Non-Opposition that this is not the first occasion plaintiff has filed a late opposition and that in the Court’s 3/7/2022 Ruling on defendant’s demurrer to the First Amended Complaint (ROA #72), the court cautioned plaintiff that it might decline to exercise its discretion to consider a late opposition in the future.

The court further notes that plaintiff had 3½ months to prepare her opposition and that she offers no excuse for failing to timely file and serve her opposition.  For these reasons, the court exercises its discretion to refuse to consider plaintiff’s late filed papers. (See CRC 3.1300(d)).

Demurrer Standards

The demurrer tests the sufficiency of the complaint as a matter of law. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (“Berg”)).  It admits all material facts properly pleaded but not contentions, deductions or conclusion of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318) The pleading is given a reasonable interpretation, reading it as a whole and its parts in context. (Id.)

Where the defendant negates any essential element of a particular cause of action, the demurrer should be sustained. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43). As discussed below, defendant has negated a necessary element for standing to sue under the UCL.

Merits 

Defendant demurs to the second cause of action in the SAC for Violation of Bus. & Prof. Code §17200 (“Unlawful”) arguing that it fails to state sufficient facts to constitute that cause of action because plaintiff has not properly alleged that the unlawful violation was an immediate cause of plaintiff’s alleged injury. (Dem. 9:22-23).                                                                                                                                                                                                                                                                                                    

In order to satisfy the standing requirement to pursue a UCL claim, a party must (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact meaning economic injury, and (2) “show that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v Superior Court (“Kwikset”) (2011) 51 Cal.4th 310, 326 at p. 322) Plaintiff must show a causal connection between the alleged unfair competition or reliance on the alleged misrepresentation and plaintiff’s loss of money. (Id. at p., 326; See also Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1362-1364).

In the second cause of action for violation of the UCL, plaintiff alleges that defendants had a duty to provide skillful medical treatment including accurate medical records (SAC ¶40), that defendant breached that duty because her medical records contain fabricated and forged signatures (SAC ¶41), that defendant has used the forged records in this litigation (SAC ¶42) and that use of forged records is unlawful under Penal Code §§471.5 and 134. (SAC ¶¶43-45, 54) 

Plaintiff then alleges that she has suffered economic losses including medical costs, legal costs and pre and post judgment interest. (SAC ¶56).  The SAC does not plead facts demonstrating that the medical costs, legal costs and pre/post judgment interest (which she claims as her economic injury) were caused by defendant forging her medical records.

Causation is alleged in ¶¶49-50 of the UCL cause of action, that plaintiff will need a revision surgery to cure her defective augmentation which has left her with painful and misshapen breasts and the inability to work in her chosen profession as a professional dancer. As pled, plaintiff’s harm was caused by the alleged negligent surgery not by the allegedly forged records. Plaintiff does not tie the allegedly forged signatures to her alleged injuries/economic injury.

Because the SAC fails to plead sufficient facts to establish the causation prong required for standing to bring a UCL claim, defendant’s demurrer is sustained with 20 days leave to amend.

Defendant Dr. Bandy is ordered to give notice of this ruling.