Judge: Gail Killefer, Case: 23STCV09064, Date: 2024-02-28 Tentative Ruling

Case Number: 23STCV09064    Hearing Date: February 28, 2024    Dept: 37

HEARING DATE:                 Wednesday, February 28, 2024

CASE NUMBER:                   23STCV09064

CASE NAME:                        Joseph Nguyen, D.C. Chiropractic, Inc. v. Southwest Legal Group

MOVING PARTY:                 Defendant Southwest Legal Group

OPPOSING PARTY:             Plaintiff Joseph Nguyen, D.C. Chiropractic, Inc

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer with Motion to Strike

OPPOSITION:                        25 January 2024

REPLY:                                  29 January 2024

TENTATIVE:                         Defendant’s demurrer is sustained with 10 days leave to amend. Defendant’s motion to strike is granted with 10 days leave to amend. A Non-Appearance OSC re: Amended Complaint is scheduled for March 22, 2024, at 8:30 a.m.  The Case Management Conference is taken off calendar.

Background

On April 24, 2023, Joseph Nguyen, D.C. Chiropractic, Inc. (“Plaintiff”) filed a Complaint against Southwest Legal Group (“Defendant”) and Does 1 to 100, alleging a single cause of action for conversion.

On October 11, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), again alleging a single cause of action for conversion. Defendant now demurs to the FAC and moves to strike Plaintiff’s request for punitive damages. Plaintiff opposes the Motion. The matter is now before the court.

Discussion

I.         Legal Standard

A.        Demurrer 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For purposes of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ 

B.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

C.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Demurrer[1]

A.        Conversion

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp.(2007) 148 Cal.App.4th 97, 119.) “Money may be the subject of conversion if the claim involves a specific, identifiable sum . . . .” (WelcoElectronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 209.) 

The FAC alleges that Plaintiff entered into agreements with Defendant’s clients to provide medical services to Defendant’s clients. (FAC ¶ 5.) Each client gave Plaintiff a lien against any proceeds received by Defendants on the clients’ behalf and Defendants had notice of the liens and agreed to hold and maintain Plaintiff’s money in trust until the liens were discharged. The Plaintiff billed a total of $193,735 for services rendered. (Compl. ¶¶ 6, 10.) Defendants used the bills provided by Plaintiff to settle personal injury cases. (Compl. ¶ 6.)

Defendant demurs to the conversion claim on the basis Plaintiff failed to allege dates as to when the services were provided in order to see if the three-year statute of limitation has run on Plaintiff’s claims. (CCP § 338(c)(1).) Defendant further asserts that the FAC fails to identify the names of clients, the dates of treatment, and the bills in question. The court agrees that Plaintiff must provide dates as to when the liens were signed so that Defendant to assess if Plaintiff’s claims are barred.

The demurrer to the conversion cause of action is sustained with leave to amend.

III.      Motion to Strike

Defendant moves to strike Paragraph 16 from the FAC which alleges:

Plaintiff is informed and believes and on the basis of said information and belief alleges that Defendants’ conduct was taken with the intent to injure Plaintiff, or with a willful and conscious disregard of Plaintiff’s rights and property. Plaintiff is informed and believes and on the basis of said information and belief alleges that such fraudulent conduct constitutes clear and convincing evidence of despicable, outrageous, oppressive, and malicious conduct pursuant to California Civil Code §3294. As such, Plaintiff is entitled to punitive damages and exemplary damages against Defendants herein for the sake of example and to punish Defendants for their unlawful conduct.

(FAC ¶ 16.)

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)¿ The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.)¿¿ “Malice” is defined in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) Fraud means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294(c)(3).)¿

As the demurrer to the conversion claim has been sustained with leave to amend, the motion to strike is granted with leave to amend. Moreover, the court notes that Plaintiff fails to plead facts sufficient to show that Plaintiff is entitled to punitive damages. Plaintiff must allege facts to show that Anthony Lopez, as a managing agent of Defendant, acted or ratified conduct that was done with malice, oppression, or fraud in interfering with Plaintiff’s liens. Plaintiff must also allege what the specific “interfering” conduct was and state facts that the conduct was intentional or done with conscious disregard for the Plaintiff’s rights.

Accordingly, Defendant’s motion to strike is granted with leave to amend.

Conclusion

Defendant’s demurrer is sustained with 10 days leave to amend. Defendant’s motion to strike is

granted with 10 days leave to amend. A Non-Appearance OSC re: Amended Complaint is set for

March 22, 2024, at 8:30 a.m.  The Case Management Conference is taken off calendar.

Defendant to give notice.