Judge: Douglas W. Stern, Case: 21STCV37015, Date: 2022-12-13 Tentative Ruling

Case Number: 21STCV37015    Hearing Date: December 13, 2022    Dept: 68

Jilla Ghassemzadeh vs. Bruce J. Crispin, et al., Case No.: 21STCV37015

(1) Demurrer to Complaint and (2) Motion to Strike

BACKGROUND

This action was initiated by Plaintiff representing herself. The Third Amended Complaint is the first filed by her attorney.  Plaintiff’s most recent complaint alleges six causes of action for (1) negligence; (2) intentional misrepresentation; (3) negligent misrepresentation; (4) fraud in the inducement; (5) fraud in concealment; and (6) medical/dental malpractice. These causes of action arise out of an incident in which Plaintiff claims that Defendant made certain representations to Plaintiff regarding a dental procedure that Defendant was performing, then allegedly failed to follow through on those representations.

Procedural

This action was originally filed by Plaintiff on October 7, 2021. Plaintiff has amended her original complaint several times, and the most recent iteration is Plaintiff’s Third Amended Complaint, filed by Plaintiff on October 14, 2022. There have also been prior demurrers with motions to strike filed and ruled on in this case. Defendant filed the Demurrer with Motion to Strike that is now before the Court on October 31, 2022. Plaintiff filed an opposition to the demurrer only, not the motion to strike, on November 30, 2022. Defendant filed a reply on December 5, 2022.

Judicial Notice

Defendant requested that the Court take judicial notice of the four versions of Plaintiff’s complaint and Defendant’s dental license information from the Dental Board of California. The Court grants this request.

MOVING PARTY’S GROUNDS FOR THE DEMURRER         

Defendant demurs to the first five causes of action of the Third Amended Complaint (TAC) on the basis that they fail to state facts sufficient to constitute a cause of action. No challenge is made to the Sixth Cause of Action for Medical Malpractice.

ANALYSIS

The Demurrer

As a general matter, a demurrer tests the pleading based on defects that must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

First Cause of Action for Negligence

The First Cause of Action is styled as being a claim for negligence.  The Third Amended Complaint contains some general allegations in paragraphs 1-11.  The First Cause of action incorporates those and adds the following:

“13. Defendants ha da [sic] duty of care and a duty to act in a way that does not harm others including Plaintiff.

14. They breached that duty as described above.”

The elements required to plead and prove a cause of action for negligence are: (1) the existence of a duty, (2) a breach of that duty which (3) proximately causes (4) an injury to a plaintiff to whom the duty is owed. (De Armond v. Southern Pacific Co. 253 Cal. App. 2d 648, 61.)

Defendant argues that Plaintiff’s cause of action for negligence is duplicative of its Sixth Cause of Action for Medical/Professional Malpractice.  The Sixth Cause of Action in its entirety states:

“23. Plaintiff re-alleges and incorporates by reference every allegation contained in the preceding paragraphs of this Complaint as though set forth herein.”

Defendant does not challenge the sufficiency of the Sixth Cause of Action.

Case law indicates that claims which merely duplicate other claims in a pleading are subject to demurrer. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 14.) Plaintiff has not pled facts sufficient to show why she should be able to maintain both causes of action.

The Court agrees that merely duplicative cause of action should not be pleaded.  However, the Court is at a loss to understand why it should sustain the demurrer to the First Cause of Action and leave the Sixth Cause of action, rather than allow Plaintiff to simply place the label “Medical Malpractice” on its First Cause of Action.  That is the claim where she alleged the duty and breach of duty.  The Sixth Cause of Action contains no allegations whatsoever.  Therefore, Defendant should be prepared to explain why the elimination of a duplicative claim should be addressed by the outcome suggested by Defendant.

The Court believes that the appropriate order is to SUSTAIN the demurrer and allow Plaintiff to amend the negligence/medical malpractice claim as Plaintiff sees proper but eliminate the purely duplicative claims.

Second and Third Causes of Action for Intentional and Negligent Misrepresentation

The California Supreme Court has established the requirements for pleading an intentional misrepresentation-fraud claim, which Plaintiff has not met. In Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, the Court set forth the elements of an intentional misrepresentation claim, as follows: (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. (See also, Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) 

The Court emphasized that in California “… fraud must be pled specifically…” and that “… general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The Court made clear that its “… particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.) The reason for such detail, the Court explained, is because causes of action sounding in fraud involve an attack on the defendant’s character. (Id.; See also, Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904.)

The tort of negligent misrepresentation is like intentional misrepresentation, except that it does not require scienter or an intent to defraud. “…[T]he same elements of intentional fraud also comprise a cause of action for negligent misrepresentation, with the exception that there is no requirement of intent to induce reliance…” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 845 (internal citation omitted).) 

“Negligent misrepresentation requires an assertion of fact, falsity of that assertion, and the tortfeasor’s lack of reasonable grounds for believing the assertion to be true. It also requires the tortfeasor’s intent to induce reliance, justifiable reliance by the person to whom the false assertion of fact was made, and damages to that person. An implied assertion of fact is ‘not enough’ to support liability.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 154 (internal citation omitted).)

Plaintiff has not yet pled facts sufficient to show how, when, where, and by what means the alleged misrepresentations were made by Defendant. As such, Plaintiff has failed to satisfy the particularity requirement and has not pled the causes of action for intentional misrepresentation and negligent misrepresentation with sufficient specificity.

While Defendant contends that this should be the last attempt to properly plead the claim, the Court is mindful that Plaintiff was representing herself when the prior complaints were filed.

Accordingly, Defendant’s demurrer as to Plaintiff’s Second and Third Causes of Action is SUSTAINED with leave to amend.

Fourth and Fifth Causes of Action for Fraud in the Inducement and Fraud in Concealment

            California Civil Code Section 1710 identifies four kinds of fraud: 1) intentional misrepresentation; 2) concealment; 3) false promise; and 4) negligent misrepresentation. 

            The California Supreme Court has established the requirements for pleading a fraud claim. (See, Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The Court emphasized that in California “… fraud must be pled specifically…” and that “… general and conclusory allegations do not suffice.” (Id. at 645.) The reason for such detail, the Court explained, is because causes of action sounding in fraud involve an attack on the defendant’s character. (Id.; See also, Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904.)

Concealment occurs when a person has intentionally failed to disclose or actively hides a known fact to induce reliance on the false representation. For concealment cases, there must be a legal duty to disclose the fact to the plaintiff but instead, the defendant intentionally suppressed the fact with the intent to defraud. (See, La Jolla Village Homeowner’s Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 115; See also, Judicial Council of California Civil Jury Instructions, CACI No. 1901 - Concealment.) Intentional Concealment is a type of fraud that must be specifically pled.

            Here, Plaintiff has not pled the causes of action for fraud in the inducement and fraud in concealment with sufficient specificity. Plaintiff has failed to plead facts that show intent on the part of Defendant. As such, Plaintiff has not pled facts sufficient to maintain causes of action for fraud in the inducement and fraud in concealment.

            Accordingly, Defendant’s demurrer as to Plaintiff’s Fourth and Fifth Causes of Action is SUSTAINED with leave to amend.

The Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Punitive Damages

Defendant requests that the Court strike Plaintiff’s request for punitive damages from Plaintiff’s Third Amended Complaint (TAC, Prayer at Paragraph 3, Page 10).

Punitive damages are only awarded in a narrow set of circumstances where a defendant intends to cause harm. (Woolstrum v. Mailoux (1983) 141 Cal.App.3d Supp. 1, 10 [quoting Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286].) Thus, a claim for punitive damages can be stricken if it fails to provide facts sufficient to support allegations of intent. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) Punitive damages claims are typically improper in a negligence claim because negligence is, by its very definition, unintentional. (Woolstrum, supra, 141 Cal.App.3d Supp. at p. 10 (quoting Prosser, Law of Torts (4th ed. 1971) p. 9).)

To sufficiently plead a claim for punitive damages pursuant to Civil Code §3294, a plaintiff must satisfy circumstances of "malice, oppression, or fraud," supported by facts alleged with sufficient particularity. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) These allegations are held to a heightened pleading standard: a plaintiff may not state a mere conclusion of law to support a cause of action. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6.) More importantly, the plaintiff may not simply "plead . . . a claim for damages in the language authorizing such damages." (Id.) While some conclusory statements may be permitted, they must make sense in the context of the Complaint taken as a whole. (Id.)

California Code of Civil Procedure § 425.13 provides, in pertinent part: 

(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a Complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.

Plaintiff has not pleaded facts sufficient to show that Defendant intended to cause harm or alleged facts with sufficient particularity to show that there was malice, oppression, or fraud on the part of Defendant. Additionally, Defendant, as a dentist, is a healthcare provider against whom Plaintiff has stated a cause of action for professional negligence. As such, Plaintiff cannot maintain a claim for punitive damages without a Court order.

Accordingly, Defendant’s motion to strike Plaintiff’s punitive damages claim is GRANTED with leave to amend.

Attorney’s Fees

            Defendant requests that the Court strike the request for attorney’s fees from Plaintiff’s Third Amended Complaint (TAC, Prayer at Paragraph 5, Page 10).

            The “American Rule” is that absent a contract or statute providing otherwise, each party to litigation should bear his or her own attorney’s fees. (See, Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 246-255 (1975); Griggs v. Board of Trustees (1964) 61 Cal.2d 93.) 

California has codified the “American Rule.” Pursuant to California Code of Civil Procedure § 1021: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”

            Plaintiff has not indicated what statute or agreement gives her the ability to request attorney’s fees in this case. As such, Plaintiff cannot maintain a claim for attorney’s fee.

            Accordingly, Defendant’s motion to strike Plaintiff’s request for attorney’s fees is GRANTED with leave to amend.

            The demurrer is SUSTAINED with 20 days leave to amend.

            The Motion to Strike is GRANTED in its entirety with 20 days leave to amend.