Judge: Deirdre Hill, Case: 22TRCV00147, Date: 2023-04-06 Tentative Ruling

Case Number: 22TRCV00147    Hearing Date: April 6, 2023    Dept: M

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M MARTIN B. CANTER, et al., Plaintiffs, Case No.: 22TRCV00147 vs. [Tentative] RULING KETAL PATEL, et al., Defendants. Hearing Date: April 6, 2023 Moving Parties: Defendants Ketan Patel and Jayshree Patel Responding Party: Plaintiffs Roselle Marie Clark and Martin B. Canter Demurrer to First Amended Complaint The court considered the moving and opposition papers. RULING The demurrer to the FAC and the 1st cause of action is OVERRULED as to plaintiff Roselle Marie Clark and SUSTAINED WITHOUT LEAVE TO AMEND as to Martin B. Canter. 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. On January 31, 2023, the court granted defendants’ motion for judgment on the pleadings with 20 days leave to amend as to the 1st and 2nd causes of action and granted without leave to amend as to the 3rd cause of action in the complaint. On February 17, 2023, plaintiffs filed a FAC for “breach of oral contract with reliance.” LEGAL AUTHORITY 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. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747. DISCUSSION Defendants Ketan Patel and Jayshree Patel demur to the sole cause of action, breach of oral contract, in the FAC on the grounds that the allegations are insufficient to constitute a cause of action and are uncertain. The court notes that the FAC is defective to the extent that it is not on pleading paper (line numbers) as required by Cal. Rules of Court, Rule 2.108, and plaintiffs did not comply with Cal. Rules of Court, Rule 2.112, which states that each separately stated cause of action must specifically state its number, its nature, and the party asserting it if more than one party is represented on the pleading. 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. “It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.” Civil Code §1550. “The terms of a contract are reasonably certain if they provide a basis for determining . . . the existence of a breach and for giving an appropriate remedy.” Weddington Productions, Inc. v. Flick (1998) 60 Cal. App. 4th 793, 811. The FAC alleges that the “payment is past due for services rendered per an oral agreement and the reliance therefore in starting the project and enhancing defendants’ bottom line, therefore saving his companies from closing.” Plaintiff Roselle Clark met with Ketan Patel and discussed her fees. Plaintiff Martin Canter met with plaintiff Ketan Patel to discuss the program parameters and handed him an essay on the new program called “Home Sweet Home” to provide patients for defendants’ two healthcare companies—Total Healthcare and Purloin Hospice and Palliative Care. The meeting started in April 2022 and continued through the end of May before a “reliance was agreed to and understood, supported by several written contracts that the Defendants would excuse themselves from signing after making several changes.” A separate contract was signed between “Home Sweet Home Program,” “which at the end with over 60 patients for referral for services in just a few months.” Roselle Clark and Martin Canter agreed to provide services for the new patients being signed up and working with staff to provide services expected by the Medicare standards and guidelines. The standard monies to be paid to plaintiffs was discussed and mutually agreed to. Plaintiffs would bill for extra services in meetings, seeing/serving patients and their families, and giving aid and support to the staff in their endeavors of servicing the patients and their families, which was made part of the oral contract. The FAC also alleges that all parties agreed that Roselle Marie Clark was to be paid $25,000 “to bring the program for the Patels companies benefit in increased census and revenues. Plus for her time to recruit, train, and support the staff to begin with this new start-up. A share of this $25,000 was to be paid by” Roselle Clark to Martin Canter for his assistance in the beginning to make sure the program ran smooth and Roselle Clark had knowledge and support to handle the onslaught of new business being added to defendants’ companies. All oral agreements were witnessed by others, especially at a meeting with the whole staff and the parties. “A lengthy discussion and printed handout reinforcing the words stated to them regarding the program, their staff, the billing.” “And, everyone agreed that the terms and operations were made clear.” The FAC also alleges that the problems came right away when the Patels refused to pay some of the staff, and other needed expenses. Six weeks later they closed down the “Home Sweet Home Program” after gaining 60 plus ill patients for their two companies. “This equals a potential billing of $300,000 to be, per the oral agreement,” what defendants will receive as a reimbursement by Medicare for services rendered. Defendants argue that the FAC is devoid of any facts such as description of the services rendered, the agreement’s specifics regarding compensation, copies of the alleged billings given by plaintiffs to defendants, facts regarding payment or collection of the payments owed, and duration of the services rendered. In opposition, plaintiffs do not address defendants’ arguments. The court finds that the allegations are insufficient that plaintiff Martin Canter was a party to any purported oral agreement with defendants as to a payment of $25,000 for bringing the “Home Sweet Home Program” to defendants’ companies. Rather, plaintiffs allege that plaintiff Roselle Clark was to share a portion with Martin Canter, not that defendants agreed to pay Canter. As to whether Roselle Clark sufficiently alleged an oral agreement for payment of $25,000, plaintiffs allege that the parties orally agreed that Rosell Clark was to be paid $25,000 to bring/initiate the “Home Sweet Home Program” to defendants’ companies and that a separate contract was entered into with the “Home Sweet Home Program” whereby defendants gained 60 patients. The allegations are sufficient as to the elements. The demurrer is thus SUSTAINED WITHOUT LEAVE TO AMEND as to plaintiff Martin Canter and OVERRULED as to plaintiff Roselle Marie Clark as to the 1st cause of action. Defendant to submit order dismissing Plaintiff Canter. Defendants are ordered to give notice of ruling.