Judge: Deirdre Hill, Case: 22TRCV00147, Date: 2023-01-31 Tentative Ruling

Case Number: 22TRCV00147    Hearing Date: January 31, 2023    Dept: M

Hearing Date:                         January 31, 2023

Moving Parties:                      Defendants Ketan Patel and Jayshree Patel

Responding Party:                  Plaintiff Martin Canter

Motion for Judgment on the Pleadings

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is GRANTED WITH 20 DAYS LEAVE TO AMEND as to the 1^st and 2^nd causes of action and GRANTED WITHOUT LEAVE TO AMEND as to the 3^rd cause of action in the complaint.

BACKGROUND

On March 1, 2022, plaintiffs Martin B. Canter, aka Matador Professional Services and Roselle Maria Clark, aka Rnqueen Nursing Consultants, Inc. (self-represented) filed a complaint against Ketan Patel, Jayshree Patel, aka Purview Hospice & Palliative Care, and aka Total Home Health, Inc. for (1) collection of monies, (2) deceptive business practices, and (3) fraud.

            On May 19, 2022, the court overruled defendants Ketan Patel and Jayshree Patel’s demurrer to the complaint.

            On June 27, 2022, defendants Ketan Patel and Jayshree Patel filed an answer.

            On July 19, 2022, the court sustained with leave to amend plaintiffs’ demurrer as to each of defendants’ affirmative defenses.

            On August 15, 2022, defendants filed a FAA.

            On August 6, 2022, the court overruled plaintiffs’ demurrer to the FAA.

            On January 12, 2023, the court denied plaintiffs’ motion for summary judgment.

LEGAL AUTHORITY

CCP § 438 states, in relevant part:  “(b)(1) A party may move for judgment on the pleadings. . . . (c)(1)  The motion provided for in this section may only be made on one of the following grounds:  (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or cause of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.  (B) If the moving party is a defendant, that either of the following conditions exist:  . . . . (ii) The complaint does not states facts sufficient to constitute a cause of action against that defendant. . . . (d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. . . .”

DISCUSSION

            Defendants Ketan Patel and Jayshree Patel request that the court enter judgment on the pleadings against plaintiff Martin Canter on the ground that the complaint fails to plead sufficient facts to constitute a cause of action against defendants.

            The complaint alleges as to plaintiff Martin Canter, he has a balance of $425 due to him.  Complaint, ¶2.  A verbal agreement was entered into between Martin Canter, dba Matador Services, and Ketan Patel of Purview Hospice & Palliative Care as well as Total Home Health, Inc. [He] was engaged to complete Initial Assessments on patients referred by the Home Sweet Home Case Management for needed services after being discharged from an extended stay in a local hospital.  Martin Canter met with each patient and/or family to make such an assessment and refer them to those needed services.  An invoice dated 7/23/21 in the amount of $425 and listed those patients where Martin Canter performed his services was generated and sent to defendants’ office.  The outstanding invoice was never paid.  Id., ¶9.

            1^st cause of action for breach of contract

            “To state a cause of action for breach of contract, [plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage.  (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290).   Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct.  If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.  (Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 59.)”  Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal. App. 3d 452, 458-59.  “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.”  Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239, 252.     

Under this cause of action, the complaint alleges that an oral agreement was struck between all parties in May 2021 and confirmed with a meeting at the Panera restaurant with all employees in attendance that Ketan Patel and wife will fund and pay for this new venture for making liaison referrals for defendants’ business entities “that prior had no patients and no field employees with the exception of one office employee.  And, that $25,000 be paid for the making referrals and that Roselle Maria Clark will be paid on a separate sliding scale for extra work she put-in in getting the business entitles . . . off the ground and running as viable and profitable.”

            Defendants contend that this cause of action appears to only apply to plaintiff Roselle Maria Clark as there is no mention of any money owed to plaintiff Martin Canter.  Defendants argue that, in any event, plaintiff Martin Canter has suffered no damages as he “has been since paid the $425 owed,” citing to the Request for Judicial Notice (Exh. 1 cancelled check).

In opposition, plaintiff contends that the action is for “collection of monies” and not “breach of contract.”

            The court DENIES defendants’ request for judicial notice.

            The court finds though that the allegations are insufficient as to plaintiff Martin Canter.  This cause of action does not incorporate the prior allegations.  The cause of action only refers to plaintiff Roselle Maria Clark.  There are no allegations of an agreement between plaintiff Martin Canter and defendants, the terms of an agreement, the breach, and the damages.  As to a claim for “collection of monies,” the allegations are uncertain as to a cause of action.  Confusingly, plaintiff refers to an “oral agreement” but does not plead the elements. 

            2^nd cause of action for unfair competition law

The purpose of the Unfair Business Practices Act (Bus. & Prof. Code §17000, et. seq.) is to “safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent and discriminatory practices by which fair and honest competition is destroyed or prevented.”  Bus. & Prof. Code §17001.  The Unfair Business Practices Act shall include “any unlawful, unfair or fraudulent business act or practice.”  Bus. & Prof. Code §17200.  The Unfair Business Practices Act is a tool with which to enjoin deceptive or sharp practices.  Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal. App. 4th 1284, 1299, fn. 6.  A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.  Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619. 

The complaint alleges that defendants are the owners, and their dba entitles did “intentionally enter into a verbal agreement to operate and fund a continual operate this known business as providing services to home-bound patients.  And after the services were given refused to make payment for said services.”

            Defendants argue that the allegations are conclusory, vague, unintelligible, and does not state a cause of action.

The court finds that the allegations are insufficient to show an unlawful, unfair, or fraudulent business act or practice.  Plaintiff does not allege any violation of an underlying law. Further, the allegations as to “injury” are insufficient.  The allegations are also conclusory and are not pled with particularity.

            3^rd cause of action for Medicare fraud

            The False Claims Act (31 U.S.C. §3729, et seq.) states in part, “any person who – (A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval . . . is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000 . . . plus 3 times the amount of damages which the Government sustains because of the act of that person.”  Under 31 U.S.C. §3730, “(b) Actions by Private Persons – (1) a person may bring a civil action for a violation of section 3729 for the person and for the United States Government.  The action shall be brought in the name of the Government. . . .”  This section sets forth the procedures to bring a qui tam action.

            The complaint alleges that defendants “did intentionally defraud Medicare known as ‘CMS’ for services not rendered and provided to patients under Title 22 of Federal Regulations on a monthly basis.”  Complaint, ¶15. 

Defendants argue that there is no private right of action for Medicare fraud.  Defendants further argue that the allegations are conclusory, vague, unintelligible and does not state a cause of action.

The court finds that there is no private right of action in superior court and that plaintiff did not follow the procedures set forth under the False Claims Act for a qui tam action.

Accordingly, the motion for judgment on the pleadings is GRANTED WITH LEAVE TO AMEND as to the 1^st and 2^nd causes of action and GRANTED WITHOUT LEAVE TO AMEND as to the 3^rd cause of action.

Defendants are ordered to give notice of ruling.