Judge Elaine W. Mandel, Case Number: 22SMCV01853, Date: 2023-06-30 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01853, Date: 2023-06-30 Tentative Ruling

Case Number: 22SMCV01853 Hearing Date: January 26, 2024 Dept: P

Tentative Ruling

Von Neitsch v. Bedford Dental Group, et al., Case No. 22SMCV01853

Hearing date January 26, 2024

Defendants’ Demurrer to First Amended Complaint

Plaintiff alleges dental malpractice and breach of implied contract against defendants Daniel E. Naysan, D.D.S. and M. Nayssan D.D.S., Inc. Defendants demur to the breach of contract claim on the ground that it is duplicative of the negligence claim.

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.

Defendants argue the cause of action for breach of contract alleges the cosmetic dental services were not performed to plaintiff’s satisfaction, and these allegations also form the basis for the negligence claim. Because the breach of contract claim does not add to the amended pleading, defendants argue demurrer should be sustained.

The parties allegedly entered into an implied contract wherein defendants were to give plaintiff an “attractive, balanced smile,” but plaintiff alleges the cosmetic dentistry was not properly performed. FAC at ¶¶ 16, 18.

Generally, “a doctor is not a ‘warrantor of cures” and is not “required to guarantee results.” See Huffman v. Lindquist (1951) 37 Cal.2d 465, 475. Nevertheless, the court must accept the factual assertions as true, and allegations are to be liberally construed. See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Code Civ. Proc. §452. Though this cause of action is based on an implied contract, not an express one, determination of whether this purported warranty was provided is beyond the scope of a demurrer.

Though the breach of contract claim is premised on the same conduct as the negligence claim, plaintiff may plead breaches of different duties based on the same conduct. Code Civ. Proc. §3537. Some cases sustained demurrer on the ground that a cause of action which merely duplicates another cause of action and adds nothing to the complaint by way of fact or theory. E.g., Award Metals v. Superior Court (1991) 228 Cal.App.3d 1128, 1135. However, the better view is that the objection that a cause of action is duplicative of another in the complaint “is not a ground on which a demurrer may be sustained.” Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890. “[I]t is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. (Citation omitted). This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” Id. OVERRULED. Defendants to answer within 15 days.