Judge David S. Cunningham, Case Number: 19STCV10434, Date: 2024-03-21 Tentative Ruling

Judge: David S. Cunningham, Case: 19STCV10434, Date: 2024-03-21 Tentative Ruling

Moving Party: Advanced Critical Care, Emergency and Specialty Services – San Fernando Valley, et al. (collectively “Defendants” or “ACCESS”)

Defendants’ no-merits motion is granted as to the Los Angeles hospital, the Torrance hospital, and Dr. Richard Mills and denied as to the San Fernando Valley hospital.

Defendants own and operate veterinary hospitals that provide emergency services and specialty care. Spornik brought her cat Ozzie to one of Defendants’ vet hospitals for treatment. She alleges that non-board-certified vets treated Ozzie despite Defendants’ representation that they only employ board-certified vets. (See, e.g., Second Amended Complaint (“SAC”), ¶¶ 2-4, 29-54.) She seeks to represent a class of similarly situated customers. (See id. at ¶¶ 55-63.)

Here, Defendants request a determination that Spornik’s third cause of action (Consumer Legal Remedies Act (“CLRA”)) lacks merit.[1]

On 9/20/23, the Court continued the hearing pursuant to give Plaintiff a chance to depose the treating vets.[2]

On 1/29/24, the Court heard Defendants’ no-merits motion and their motion for summary judgment/adjudication. The Court denied summary judgment, granted summary adjudication as to the Los Angeles and Torrance hospitals, and continued the hearing as to the other Defendants to give Defendants an opportunity to respond to the late supplemental separate statement.

The CLRA does not contain a “general proscription against ‘unfair’ or ‘deceptive’ acts or practices.” (Stern, Business & Professions Code Section 17200 Practice (The Rutter Group March 2023 Update) ¶ 10:4.) “Instead,” the statute lists 28 activities “defined to be ‘unlawful.’” (Ibid.; see also Civ. Code § 1770, subd. (a).) “Some of these practices are also found in the laundry list of practices that are deemed to constitute false advertising and, hence, are also actionable under” the UCL and the FAL. (Ibid.)

The statute “broadly applies to any transaction involving the sale or lease of goods or services to a ‘consumer.’” (Id. at ¶ 10:16.) A “consumer” is “an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.” (Id. at ¶ 10:26.) “The Act broadly defines ‘transaction’ as ‘an agreement between a consumer and any other person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.’” (Id. at ¶ 10:18.)

“The CLRA is to be ‘liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.’” (Id. at ¶ 10:17.)

Importantly, the statute “has a unique provision” pertaining to dispositive motions. (Id. at ¶ 10:63.) “It prohibits a court from granting a motion for summary judgment under [Code of Civil Procedure section] 473c ‘in any action commenced as a class action pursuant to subdivision (a).’” (Ibid.) “However, what that provision takes away it seemingly gives back; while a trial court may not enter summary judgment, it may determine that the action ‘is without merit or there is no defense to the action.’” (Ibid.; see also Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4^th 1463, 1474 [“Although a CLRA cause of action cannot be summarily disposed of by means of a motion for summary adjudication or summary judgment [citation], it can be dismissed before trial on a motion for a determination that it is without merit (i.e., a no-merit determination).”].)

“In practice, a motion that ‘the action lacks merits’ operates [] much like a motion for summary judgment.” (Id. at ¶ 10:65.) In fact, there is “‘no meaningful distinction in the choice’ between dismissal of a cause of action after a motion for summary judgment and a motion for a no-merit determination.” (Smith, supra, 135 Cal.App.4^th at 1475.) “Thus, courts have applied the standards applicable to motions for summary judgment and summary adjudication in deciding motions for no-merit determinations.” (Stern, supra, at ¶ 10:65.)

“Furthermore, there is not a ‘more exacting standard’ for summary judgment in CLRA (or UCL) cases than in other civil cases.” (Ibid.)

At the last hearing, the Court granted summary adjudication in favor of the Los Angeles and Torrance hospitals. The analysis applies with equal force here, so the no-merits motion is granted as to the Los Angeles and Torrance hospitals.

The facts and analysis for the no-merits motion are the same as the facts and analysis for the pending summary-adjudication motion; consequently, the Court incorporates the summary-adjudication tentative ruling. For the reasons stated there, the no-merits motion is denied as to the San Fernando Valley hospital and granted as to Dr. Mills.

The Court stated last time that it is disinclined to grant Plaintiff leave to amend to allege a cause of action under Business and Professions Code section 4883(s). The statement stands.

[1] To date, the putative class is uncertified. The motion applies to Plaintiff’s individual claims.

[2] Plaintiff deposed Dr. Elizabeth Chan and Dr. Elana Hadar-Schwartz. (See Supp. Opposition, p. 2.)

Moving Party: Advanced Critical Care, Emergency and Specialty Services – San Fernando Valley, et al. (collectively “Defendants” or “ACCESS”)

Defendants’ motion for summary adjudication is denied in full as to the San Fernando Valley hospital and granted in full as to Dr. Richard Mills.

Defendants own and operate veterinary hospitals that provide emergency services and specialty care. Plaintiff brought her cat Ozzie to one of Defendants’ hospitals for treatment. She alleges that non-board-certified vets treated Ozzie despite Defendants’ representation that they only employ board-certified vets. (See, e.g., Second Amended Complaint (“SAC”), ¶¶ 2-4, 29-54.) She seeks to represent a class of similarly situated customers. (See id. at ¶¶ 55-63.)

Defendants move for summary judgment or summary adjudication of Plaintiff’s first (Unfair Competition Law (“UCL”)) and second (False Advertising Law (“FAL”)) causes of action.[1]

On 9/20/23, the Court continued the hearing pursuant to Code of Civil Procedure section 437c(h) to give Plaintiff a chance to depose the treating vets.[2]

On 1/29/24, the Court heard Defendants’ motion. The Court denied summary judgment, granted summary adjudication as to the Los Angeles and Torrance hospitals, and continued the hearing as to the other Defendants to give Defendants an opportunity to respond to the late supplemental separate statement.

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff's claim.” (Edmond & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 10:241, emphasis in original.) “A cause of action ‘cannot be established’ if the undisputed facts presented by defendant prove the contrary of plaintiff's allegations as a matter of law.” (Id. at ¶ 10:241.10, emphasis in original.) “The moving party's declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff's claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff's [opposing party's] favor.’” (Id. at ¶ 10:241.20.)

A second way to meet the initial burden “is to ‘show’ that an essential element of plaintiff's claim cannot be established.” (Id. at ¶ 10:242.) “Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence . . . .” (Ibid., emphasis in original.) The moving party must present evidence of discovery admissions and/or factually devoid “all facts” discovery responses. (See id. at ¶¶ 10:244-10:245.27.)

The third way is to show a complete defense. (See id. at ¶ 10:246.) “To ‘show’ a complete defense, defendant must present admissible evidence of each essential element . . . upon which it bears the burden of proof at trial.” (Id. at ¶ 10:247, emphasis in original.) “Thus, where a defense has several elements, lack of substantial evidence on any element bars relief, ‘even if the plaintiff failed to introduce a scintilla of evidence challenging that element.’” (Ibid., emphasis in original.)

Once met, “the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law.” (Id. at ¶ 10:240, emphasis in original.)

“A motion for summary adjudication asks the court to adjudicate the merits of a particular cause of action, affirmative defense, issue of duty or claim for damages, including a punitive damage request.” (Id. at ¶ 10:1, emphasis in original.)

A defendant (or cross-defendant) moving for summary [adjudication] must “show” that either:

* one or more elements of the “cause of action … cannot be established”; OR

This means that where plaintiff has the burden of proof at trial by a preponderance of evidence, defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” [Citation.]

The import of “more likely than not” in the foregoing quote is that a moving defendant must generally present evidence that, if uncontradicted, “would constitute a preponderance of evidence that an essential element of the plaintiff's case cannot be established … The same is true when a moving defendant seeks to secure dismissal of the complaint based on an affirmative defense.” [Ciation.]

. . . Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law. [Citations.]

. . . If defendants fail to meet their burden, their motion must be denied; plaintiff need not make any showing at all. [Citation.]

“[T]he UCL permits a cause of action to be brought if a practice violates some other law. In effect, the ‘unlawful’ prong of § 17200 makes a violation of the underlying law a per se violation of § 17200.” (Stern, Business and Professions Code Section 17200 Practice (The Rutter Group 2022) ¶ 3:53.) “Virtually any law or regulation — federal or state, statutory or common law — can serve as predicate for a § 17200 ‘unlawful’ violation. Thus, if a ‘business practice’ violates any law — literally — it also violates § 17200 and may be redressed under that section. [Citation.] As the California Supreme Court has said, § 17200 ‘borrows’ violations of other laws and treats them as unlawful practices independently actionable under § 17200.” (Id. at ¶ 3:56.)

“The second ‘wrong’ proscribed by § 17200 is ‘unfair’ business practices. Because § 17200's definition of the five proscribed ‘wrongs’ is set forth in the disjunctive, a business practice can be ‘unfair’ — and violative of § 17200 — even if it is not ‘deceptive’ and even if it is ‘lawful.’” (Id. at ¶ 3:112.) “The ‘unfair’ standard is intentionally broad, allowing courts maximum discretion to prohibit new schemes to defraud.” (Id. at ¶ 3:113.)

“The third type of conduct proscribed by § 17200 is ‘fraudulent’ business practices.” (Id. at ¶ 3:153.) “A business practice is ‘fraudulent’ within the meaning of § 17200 if ‘members of the public are likely to be deceived.’” (Id. at ¶ 3:154.) “An advertisement's potentially deceptive effect is measured by the audience to which it is addressed. Under the UCL and False Advertising statute, this will usually be the ‘reasonable person’ standard.” (Ibid.)

Proposition 64 limits “private standing . . . to any ‘person who has suffered injury in fact and has lost money or property’ as a result of unfair competition [citations].” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4^th 310 320-321.) “The intent of this change was to confine standing to those actually injured by a defendant's business practices and to curtail the prior practice of filing suits on behalf of clients who have not used the defendant's product or service, viewed the defendant's advertising, or had any other business dealing with the defendant. . . .” (Id. at 321, internal quotation marks omitted.)

The FAL bans “deceptive, false and misleading advertising[,]” but it is narrower than the UCL. (Id. at ¶ 4:5.) “Section 17500 applies only to advertising” whereas the UCL “also forbids ‘fraudulent business acts or practices’ unconnected with advertising.” (Id. at ¶ 4:6.) “A defendant's (or its employees’) knowledge of wrongdoing or of the falsity of the advertisement is not an element” of an FAL claim since the FAL “prohibits negligent as well as intentional dissemination of misleading advertising.” (Id. at ¶ 4:4, emphasis in original.)

Summary Judgment and Summary Adjudication Re: Los Angeles and Torrance Hospitals

The prior rulings – denying summary judgment and granting summary adjudication as to the Los Angeles and Torrance hospitals – stand.

There are three ACCESS vet hospitals. They are located in Los Angeles, San Fernando Valley, and Torrance. (See Mills Decl., ¶¶ 3-4; see also Opposition Separate Statement, p. 2, Undisputed Material Fact (“UMF”) 1.) It is undisputed that Plaintiff only took Ozzie to the San Fernando Valley hospital. (See id. at p. 2, UMFs 4-5, p. 7, UMFs 25-26.)

The first time Plaintiff went to the San Fernando Valley hospital was in October 2017. (See Plaintiff Decl., ¶ 2.) She ended up going there multiple times for treatments until Ozzie passed away on 4/2/18. In total, she paid $17,726.00 for vet services. (See id. at ¶¶ 14-15.)

Plaintiff’s primary vet referred her to the San Fernando Valley hospital. (See Opposition Separate Statement, pp. 1-2, UMFs 3-5; see also Plaintiff Decl., ¶¶ 2-3.) Plaintiff “knew nothing about ACCESS” prior to going there, she “did not look up ACCESS on the internet[,]” except to find the address, and she “did not look at any other potential hospital[.]” (Opposition Separate Statement, pp. 2-3, UMFs 6, 7, 8; see also Leifer Decl., Ex. 14, pp. 47-48.)

Notably, she “never received an email or communication from any Defendant saying that . . . Ozzie would only be seen by a board-certified veterinarian specialist[.]” (Opposition Separate Statement, UMF 9.) And the three ACCESS hospitals “never represented that they exclusively employ board-certified” vets. (Moving Separate Statement, UMF 2; see also Opposition Separate Statement, UMF 2; Mills Decl., ¶ 8; Plaintiff Decl., ¶ 10 [generally claiming “the branding for the [San Fernando Valley] hospital represents that it performs ‘specialty’ services for patients on a referral basis” but failing to highlight any specific advertisement, communication, or statement that says ACCESS only uses board-certified vets to treat pets].)

* Plaintiff did not rely on ACCESS’s branding before she took Ozzie to the San Fernando Valley hospital. (See Motion, pp. 15-17; see also Reply, pp. 8-9.)

* She did not lose money or property and, thus, did not suffer an injury-in-fact. (See Motion, pp. 17-19; see also Reply, pp. 4-6; Supp. Reply, pp. 4-6.)

* ACCESS’s branding was truthful and unlikely to deceive a reasonable consumer. (See Motion, pp. 19-24; see also Reply, pp. 6-8.)

* The operative complaint fails to allege a material omission by Defendants. (See Motion, p. 24.)

* ACCESS disclosed that not all vets were board certified. (See id. at pp. 24-25; see also Reply, p. 11; Supp. Reply, pp. 6-9.)

* ACCESS did not have a duty to disclose further information. (See Motion, pp. 25-26.)

* She fails to identify a violation of the UCL’s unlawful or unfair prong. (See id. at pp. 27-28.)

* Her arguments concerning Dr. Elizabeth Chan and Dr. Bena Tan are immaterial. (See Supp. Reply, pp. 6-9.)

* Judge Jones rejected Defendants’ reliance argument at the demurrer stage. Defendants claim Plaintiff did not rely on Defendants’ branding prior to bringing Ozzie to the San Fernando Valley hospital. Plaintiff contends Judge Jones found the claim unavailing since Plaintiff made numerous visits for specialty care over a period of months. She also contends the complaint alleges that she relied on Defendants’ representations of being specialists. (See Opposition, pp. 3-4.)

* Defendants’ injury-in-fact argument is based Plaintiff’s objections to discovery requests. Plaintiff claims Defendants cannot rely on objections to shift the burden, and she declares that she would not have purchased the services absent the alleged misrepresentations. (See id. at pp. 4-5.)

* There is a triable issue as to whether reasonable consumers would have been deceived by Defendants’ branding and marketing. (See id. at pp. 5-8 [asserting that the logo refers to ACCESS as a “Specialty Animal Hospital,” the current website mentions “board-certified veterinarians,” and, in March 2019, the website stated that “your pet will be evaluated and treated by highly trained specialists”].)

* Defendants’ product-labeling authorities are distinguishable. (See id. at pp. 8-9.)

* Defendants’ attacks on Plaintiff’s motives should be disregarded. (See id. at pp. 9-10.)

* Defendants’ moving brief cites to the separate statement sporadically, making it difficult for Plaintiff to respond. (See id. at p. 10.)

* Dr. Chan held herself out as an “Internal Medicine Fellow.” Her use of the term “Fellow” suggested to Plaintiff that she was a specialist. In truth, she was not a “Fellow” or involved in any fellowships when she treated Ozzie. (See Supp. Opposition, pp. 2-3.)

* Plaintiff’s expert, Dr. Beth Parvin, declares that Dr. Chan misled pet owners by calling herself a “fellow.” (Id. at p. 3.)

* Defendants’ marketing deceived primary vets, leading them to refer customers to Defendants for what they believed would be specialty treatments. (See id. at pp. 3-4 [arguing that ACCESS’s brand name – ACCESS Specialty Animal Hospitals – led primary vets to believe that Defendants employed board-certified vets for surgeries].)

* Dr. Parvin opines that a consumer in Plaintiff’s shoes would have reasonably believed that the San Fernando Valley hospital was a specialty clinic that employed specialists for surgeries. (See id. at p. 4.)

* Dr. Tan performed an ultrasound on Ozzie, but Dr. Chan admitted that only specialists should conduct ultrasounds. (See ibid.)

* In October 2022, Defendants’ marketing materials disclosed in fine print that not all vets are board-certified specialists. The decision to utilize fine print further establishes the misleading nature of Defendants’ marketing. (See id. at p. 5.)

The first question is whether Defendants shift the burden. The answer is yes. “The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4^th 486, 493.) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4^th 1244, 1250.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton, supra, 213 Cal.App.4^th at 493, emphasis in original.) Defendants’ UMF 2 covers all of Plaintiff’s visits. In support, Defendants cite the declaration of Dr. Mills, ACCESS’s vice president, and the declaration of Leah Basinais, ACCESS’s former chief operating officer. Both declarations say “ACCESS has never advertised nor represented that it employs exclusively board-certified veterinary specialists.” (Mills Decl., ¶ 8; see also Basinais Decl., ¶ 2.) The statements are, in effect, undisputed. (See Opposition Separate Statement, UMF 2; see also Supp. Opposition Separate Statement, UMF 2; Plaintiff Decl., ¶ 10 [merely claiming “the branding for the hospital represents that it performs ‘specialty’ services for patients on a referral basis”], emphasis added.) Coupled with the fact that the SAC fails to allege a direct misstatement by a doctor or staff member to Plaintiff (see SAC, ¶¶ 34-54, 64-83 [discussing ACCESS’s website and logo]), this is sufficient to shift the burden. In fact, Defendants do not need to refute hypothetical, unalleged misstatements of ACCESS employees; it is enough that they address ACCESS’s branding and marketing materials.[3]

Plaintiff submitted two pieces of evidence with her initial opposition – her counsel’s declaration and her own.

Plaintiff’s counsel’s declaration discusses past discovery proceedings, nothing else. (See Pomerantz Decl., ¶¶ 1-5.)

Plaintiff declares that her primary vet referred her to the San Fernando Valley hospital “for a higher level of care.” (Plaintiff Decl., ¶ 3.) Importantly, the declaration does not state that the primary vet referred her to a specific doctor or told her that ACCESS only employs board-certified vets. (See id. at ¶¶ 3, 10.) And even if she had said that to Plaintiff, a representation by a primary vet is not a representation by ACCESS.

Plaintiff’s declaration additionally points to two logos. She claims one appeared on Ozzie’s veterinary records and the other appeared on the front of the San Fernando Valley hospital building. (See id. at ¶¶ 22-23.) The logos state:

(Ibid.) The SAC alleges that “specialist” means board-certified (see SAC, ¶ 30), but Plaintiff fails to verify the pictures, neither logo mentions board-certifications, and Plaintiff fails to declare that she equated “Specialty” or “specialist” with board-certification during that time.

Plaintiff’s attempt to quote guidelines the American Veterinary Medical Association (“AVMA”) is unavailing. (See SAC, ¶ 30.) Per the SAC, the AVMA website states:

It is unethical for veterinarians to identify themselves as members of an AVMA-recognized specialty organization if such certification has not been awarded and maintained. Only those veterinarians who have been certified by an AVMA-recognized veterinary specialty organization should refer to themselves as specialists.

(Ibid., bolding in original, footnote omitted.) The website is unverified, and, regardless, the SAC alleges that Plaintiff or her counsel viewed it in March 2019, almost a year after Ozzie died. (See id. at ¶ 30 n.4.)

The same rationale applies to the SAC’s March 2019 quotes from ACCESS’s website (see id. at ¶¶ 35-37; see also Pomerantz Decl. Re: Errata to Opposition Separate Statement, ¶ 3, Ex. A), ACCESS’s 2023 marketing materials (see Pomerantz Decl. Re: Errata to Opposition Separate Statement, ¶ 4, Ex. B), and Plaintiff’s citation to the 2023 version of Business and Professions Code section 4883(s). They postdate the relevant time period.

To the extent Plaintiff claims ACCESS is liable for omitting facts, the argument is unpersuasive. The Basinais declaration shows that ACCESS’s website disclosed vets’ credentials and bios, including board-certification status, before and during Ozzie’s treatment. (See Basinais Decl., ¶¶ 4-6, Exs. 5-8; see also Motion Re: CLRA, pp. 19-20.)

Plaintiff’s supplemental declaration: Plaintiff declares that “Dr. Chan’s purported status as an ‘Internal Medicine Fellow’ [] substantially influenced [her] to continue entrusting Dr. Chan with Ozzie’s care” and that Dr. Chan never disclosed that she was not a fellow, board-certified, or a specialist. (Supp. Plaintiff Decl., ¶¶ 2-3.)

Dr. Parvin’s declaration: Dr. Parvin is a former vet. From 2009 through 2021, she worked for the Veterinary Medical Board (“VMB”) and, in part, “provided expert testimony in formal proceedings before the VMB involving the discipline and/or licensure of veterinarians.” (Parvin Decl., ¶ 5.) She opines:

[A] consumer in Ms. Spornik’s position reasonably would believe that ACCESS is a specialty clinic and that the veterinarian managing her pet “Ozzie’s” case, Dr. Chan, would be a specialist. ACCESS prominently branded itself as a specialty clinic and positioned itself in the veterinary industry as a referral hospital for primary veterinarians to refer patients to specialists. In the veterinary field the use of the term “specialty” denotes treatment by veterinary specialists.

14. . . Dr. Chan held herself out to pet owners - including Ms. Spomik - as an “Internal Medicine Fellow.” She testified in her deposition, however, that she did not complete any internal medicine fellowship and that this was a title created by herself and Dr. Mills.

15. In my professional opinion, the use of this invented title was confusing and very misleading to pet owners. Fellowships are for veterinarians who already have completed their specialist training and board-certification but Dr. Chan had not completed any of the requirements for board certification. Accordingly, the use of the title of "Internal Medicine Fellow" would convince pet owners such as Ms. Spomik that her qualifications were more significant.

Taken together, Plaintiff’s supplemental declaration and Dr. Parvin’s declaration suffice to defeat summary adjudication. Dr. Parvin is an expert witness. The Court finds that her declaration should be read broadly at this stage, especially since there has not been an Evidence Code section 402 hearing yet. The decision to put “Internal Medicine Fellow” on Dr. Chan’s signature line came about from a discussion between Dr. Chan and Dr. Mills. (See Supp. Pomerantz Decl., Ex. C, p. 29 [attaching Dr. Chan’s deposition transcript].) Dr. Mills is ACCESS’s vice president, and he is board-certified. (See Mills Decl., ¶¶ 2-4.) Dr. Pavin claims, in the veterinary field, “Fellow” indicates that a vet is board-certified. Applied broadly, her declaration suggests that Dr. Chan and Dr. Mills knew or should have known that utilizing “Fellow” would lead customers to believe that Dr. Chan was board-certified. Such knowledge plus Dr. Chan’s alleged failure to inform Plaintiff otherwise (see Supp. Plaintiff Decl., ¶ 2; cf. Reply Leifer Decl., Ex. 6, pp. 14, 29) is enough to raise triable questions as to whether the San Fernando Valley hospital violated the UCL and FAL.

Indeed, the “Internal Medicine Fellow” theory is an alleged theory. (See SAC, ¶ 51.) Plaintiff’s supplemental declaration states that “Dr. Chan’s purported status as an ‘Internal Medicine Fellow’ [] substantially influenced” her to continue permitting Dr. Chan to treat Ozzie. (Supp. Plaintiff Decl., ¶ 3, emphasis added.) Plaintiff declares that, “[i]f [she] had known that . . . Dr. Chan[] was not a genuine specialist and had not undergone the training to be one, [she] would not have continued bringing Ozzie to ACCESS.” (Plaintiff Decl., ¶ 11.) A reasonable argument can be made that these statements combined with Dr. Pavin’s declaration create triable issues concerning misrepresentation, omission, reliance, and lost money.[4]

The Court anticipates that Defendants will contend Dr. Pavin’s declaration is inadequate because Defendants and Dr. Chan never represented that Dr. Chan was board-certified, and, by contrast, Dr. Chan’s website profile disclosed that she was only a BVSc. While it is true that Plaintiff fails to cite any evidence showing an affirmative representation that Dr. Chan was board-certified or that ACCESS solely employed board-certified vets, the triable issue is whether calling Dr. Chan “Fellow” misled Plaintiff – and/or would have misled an average customer – notwithstanding the BVSc disclosure. Viewing the evidence in Plaintiff’s best light, which the Court is required to do, Plaintiff’s supplemental declaration and Dr. Pavin’s declaration raise this triable question.

Defendants cite Dr. Chan’s transcript to demonstrate that she had a good-faith purpose for including “Internal Medicine Fellow” on her email signature line. (See Reply Leifer Decl., Ex. 6, pp. 14, 29.)

The citation fails to change the outcome. There is no evidence that Dr. Chan communicated her intention to customers. What she intended – silently – is separate from what they understood.

Another declaration that Defendants cite is the declaration of their expert, Dr. Stephen Ettinger. He is a retired board-certified vet. (See Ettinger Decl., ¶¶ 1, 5.) He claims Ozzie’s treatment “met or exceeded the standard [of] care for veterinarians providing medical care in California.” (Ettinger Decl., ¶ 13.) The question, though, is whether Plaintiff paid for services that she did not want due to reliance on a misrepresentation. To that point, Dr. Ettinger opines that it was unreasonable for Plaintiff to assume that Defendants’ vets were board-certified specialists. (See id. at ¶ 32.)

The Court disagrees. Dr. Ettinger’s support for his opinion is the AVMA’s American Board of Veterinary Specialties, which advises that “[a] veterinarian should not be assumed to be board-certified in an AVMA-recognized veterinary specialty unless he/she identifies that distinction.” (Id. at Ex. 2, p. 9, emphasis added.) Dr. Chan used “Fellow” on her email signature line. She discussed the decision with Dr. Mills. Dr. Pavin contends “Fellow” connotes board-certification. If these assertions are correct, Dr. Chan and the San Fernando Valley hospital effectively identified Dr. Chan as board-certified. For these reasons, Dr. Ettinger’s declaration strengthens the conclusion that triable issues exist.

Plaintiff’s counsel’s supplemental declaration: It is unnecessary to address counsel’s supplemental declaration; however, as a matter of guidance, the Court offers the following thoughts.

Exhibits A, B, H, I, and J are pages from Defendants’ website, marketing materials, and survey results. The Court finds the documents irrelevant because they appear to postdate Ozzie’s death, and they do not represent that all ACCESS vets were board-certified.

Exhibit C is Dr. Chan’s deposition transcript. Dr. Chan testified that the decision to put “Internal Medicine Fellow” on her signature line resulted from a discussion she had with Dr. Mills. (See Supp. Pomerantz Decl., Ex. C, p. 29 [attaching Dr. Chan’s deposition transcript].) The “Fellow” theory is discussed above and creates triable issues.

Exhibit D is the deposition transcript of Jillian Kassell. Kassell is a former ACCESS marketing executive. She testified that Defendants did some marketing to primary vets, that she was instructed to not use the word “specialist” in marketing materials if the doctor was not a specialist, and that she understood the term “specialty offerings” to refer to specialists, yet she “never once said that all of [Defendants’] doctors were specialists[.]” (Supp. Pomerantz Decl., Ex. D, pp. 14-18, 23-24, 31-32, 42.) Plaintiff fails to show that the testimony pertains to any of the marketing materials that Plaintiff’s primary vet and/or Plaintiff read.

Exhibits E and F are examples of “Internal Medicine Fellow” appearing on Dr. Chan’s email signature line on Ozzie’s records. To repeat, the “Fellow” theory creates triable issues.

Exhibit G is Dr. Hadar-Schwartz’s deposition transcript. Dr. Hadar-Schwartz is a board-certified vet. She treated Ozzie and oversaw Dr. Chan’s treatment of him. Her testimony states:

* A consultation with “someone with specialty training” “would be billed differently” “versus a doctor with no residency training.” (Id. at Ex. G, p. 19.)

* The emergency department’s practice is for “[t]he emergency doctor” to tell the owner if the pet is “transferred to a specialist.” (Id. at Ex. G, p. 56.)

* A “specialist” is “either a practice-limited or board-certified” vet. (Ibid.)

The transcript is unhelpful. The excerpts fail to show interactions between Dr. Hadar-Schwartz and Plaintiff or that Dr. Hadar-Schwartz made a misrepresentation to her. There is no indication that Plaintiff relied to her detriment on anything that Dr. Hadar-Schwartz said or did.

Plaintiff’s evidence raises triable issues of fact. The Court denies summary adjudication as to the San Fernando Valley hospital.

Defendants contend the motion should be granted because Plaintiff had no relationship or transaction with Dr. Mills. (See, e.g., Supp. Reply, pp. 9-10.)

The Court agrees. Although the “Fellow” statement arose from a discussion between Dr. Chan and Dr. Mills, Dr. Chan is the one who made the representation to Plaintiff. There is no evidence that Dr. Mills ever represented anything to her. Plaintiff fails to show a basis for holding him personally liable for what Dr. Chan said. Moreover, Plaintiff fails to present any admissible alter-ego evidence, and her supplemental opposition is silent on the issue of Dr. Mills’s liability. Summary adjudication is granted.

[1] To date, the putative class is uncertified. The motion applies to Plaintiff’s individual claims.

[2] Plaintiff deposed Dr. Elizabeth Chan and Dr. Elana Hadar-Schwartz. (See Supp. Opposition, p. 2.)

[3] Plaintiff claims Defendants cannot rely on her objections-only discovery responses to shift the burden. (See Opposition, pp. 4-5; see also Leifer Decl., Exs. 4, 5.) If Defendants’ moving brief were entirely based on her objections-only responses, the Court would agree. That is not the situation. Defendants’ declarations from ACCESS personnel shift the burden independent of Plaintiff’s responses.

[4] Defendants contend Plaintiff did not suffer an economic injury. They claim she was not overcharged. (See Reply, pp. 4-6.) The Court disagrees. She paid for continued visits that she would have discontinued. (See Plaintiff Decl., ¶¶ 11-12.) It is a triable issue whether those payments establish an economic injury.