Judge: Elaine W. Mandel, Case: 23SMCV00118, Date: 2023-03-17 Tentative Ruling

Case Number: 23SMCV00118    Hearing Date: March 17, 2023    Dept: P

Tentative Ruling

Davis v. Optimum Brain Neurofeedback Center et al., Case No. 23SMCV00118

Hearing Date March 17, 2023

Defendants Smiley and Optimum Brain Neurofeedback Center’s Demurrer to Complaint (UNOPPOSED)

Plaintiff Davis received neurofeedback treatments from defendants Optimum Brain Neurofeedback Center and Smiley. Davis alleges the treatment caused her to suffer a hemorrhage and brain damage. Optimum and Smiley demur. Davis does not oppose.

A demurrer is an all-or-nothing procedure, meaning a party cannot demur to part of a cause of action. People v. Union Pacific Railroad Co. (2006) 141 Cal.App.4th 1228, 1243.

Unfair Competition

California’s Unfair Competition statute provides a private cause of action for “unlawful, unfair or fraudulent” business acts or practices. Cal. Bus. & Prof. Code §17200 et. seq. Optimum and Smiley argue this claim is based on allegations that defendants failed to disclose they were not licensed psychologists. As such disclosure is not legally required, the failure to disclose cannot support a §17200 claim. However, plaintiff alleges other bases for the unfair competition claim. As to the other allegations, defendants argue they are “contentions and conclusions of law without any factual basis.” The complaint lists alleged unfair business practices (see para. 34). Each is sufficiently specific to support an unfair competition claim. OVERRULED.

Consumer Legal Remedies Act

Defendants demur to the CLRA (Civil Code 1750 et seq.) claim, arguing CLRA does not apply to businesses providing health care services. Courts have entertained CLRA claims against healthcare providers, suggesting they are not exempt. E.g. Gray v. Dignity Health (2021) 70 Cal. App.5th 225. Plaintiff failed to provide a supporting affidavit, as required under Cal. Civ. Code §1780. Under the statute, the cause of action is subject to dismissal. SUSTAINED.

Negligence

Defendants argue the negligence claim is unclear, failing to state the duty of care allegedly violated. The complaint alleges defendants’ “duty to exercise reasonable care in providing QEEG and neurofeedback treatment.” Complaint ¶ 11. For purposes of pleading, this is sufficient. OVERRULED.

Products and Premises Liability

Defendants argue plaintiff does not identify a product defendants allegedly sold or a specific alleged dangerous condition on defendants’ property. These are essential elements of the claims and are not alleged. SUSTAINED.

Motion to Strike Punitive Damages Allegations

Defendants move to strike the request for punitive damages. Outside of conclusory language alleging “malicious, despicable” and “contemptible” behavior, no fact alleged rise to the level of fraud, malice, or oppression, as required. GRANTED.