Judge: Gail Killefer, Case: 23STCV22235, Date: 2024-03-01 Tentative Ruling
Case Number: 23STCV22235 Hearing Date: March 14, 2024 Dept: 37
Ruling No. 1: Demurrer by Dr. Tahiri:
HEARING DATE: Thursday, March 14, 2024
CASE NUMBER: 23STCV22235
CASE NAME: Qiang Yang v. Youssef Tahiri, et al.
MOVING PARTY: Defendant Youssef
Tahiri
OPPOSING PARTY: Plaintiff Qiang Yang aka
Michelle Yang
TRIAL DATE: Not Set.
PROOF OF SERVICE: OK
PROCEEDING: Demurrer to Complaint
OPPOSITION: 27 February 2024
REPLY: 3
March 2024
TENTATIVE: Defendant Tahiri’s demurrer is overruled as
to the first cause of action for promissory fraud and sustained with leave to
amend to the fifth cause of action for common law misappropriation, seventh
cause of action for libel, and eighth cause of action for libel per se.
Plaintiff is given 30 days leave to amend. OSC re: Amended Complaint set for
__. The Case Management Conference is continued to ___. Defendant Tahiri to
give notice.
Background
On September 14, 2023, Qiang Yang aka
Michelle Yang (“Plaintiff”) filed a Complaint against Youssef Tahiri
(“Tahiri”), John Reinsch (“Reinisch”), and Does 1 to 50. The Complaint alleges
eight causes of action: (1) promissory fraud, (2) promissory estoppel, (3)
negligent misrepresentation, (4) quantum meruit, (5) common law
misappropriation, (6) violation of California Bus. & Prof. Code §§ 17200,
(7) libel, and (8) libel per se.
On November 30, 2023, Defendant Tahiri
filed a Cross-Complaint (“CC”) against Plaintiff Michelle Yang, David Barel,
Medical Boulevard LLC, Medical Boulevard, Inc., Y&S Enterprise Inc.
(“Y&S”), and Moses 1 to 20. The Cross-Complaint alleges six causes of
action: (1) intentional interference with economic
relations, (2) negligent interference with economic relations, (3) intentional
infliction of emotional distress, (4) negligence, (5) defamation per quod, and
(6) defamation per se.
On December 1, 2023, Defendant Youssef
Tahiri (“Tahiri”) filed a demurrer to Plaintiff’s Complaint. Plaintiff opposes
the motion. The matter is now before the court.
I. Legal Standard
Where pleadings are defective, a party may raise the defect
by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A
demurrer tests the sufficiency of a pleading, and the grounds for a demurrer
must appear on the face of the pleading or from judicially noticeable matters.¿
(CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In
evaluating a demurrer, the court accepts the complainant’s properly pled facts
as true and ignores contentions, deductions, and conclusory statements. (Daar
v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971)
5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff
will be able to prove the allegations or the possible difficulty in making such
proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 604.)
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 complainant to
show the Court that a pleading can be amended successfully. (Ibid.)
II. Demurrer[1]
A. Summary of Allegations in Complaint
Defendants are plastic and reconstructive surgeons
specializing in performing microtia surgery on children. (Compl. ¶ 8.)
Defendants formerly worked as surgeons at Cedars-Sinai Health System
(“Cedars-Sinai”). (Compl. ¶ 10.) “In 2017, Defendants were practicing plastic
and reconstructive surgery, including microtia surgery, through Cedars-Sinai’s
Department of Plastic Surgery, located in Beverly Hills, California.” (Compl. ¶
13.) Plaintiff met Defendant Dr. Tahiri when he was a student enrolled in
Plaintiff’s Chinese language class at Indiana University. (Compl. ¶ 11.) In
2017, Dr. Tahiri referred Plaintiff for a position as program coordinator for
the Department of Plastic Surgery at Cedars-Sinai. (Compl. ¶ 14, Ex. A.)
As the program coordinator, Plaintiff’s job duties included
“answering and triaging calls; scheduling appointments, surgeries, and
ancillary services; verifying patients’ insurance; managing patient
information; and processing and tracking all incoming and outgoing referrals.”
(Compl. ¶ 17.) While Plaintiff and Defendants worked for Cedars-Sinai,
Defendants asked Plaintiff to use her marketing and communication skills to
market their practice to potential patients in China despite this not being
part of her job duties. (Compl. ¶ 9.) Plaintiff maintains that travel
logistics, serving as a translator for Defendants, checking-in conferences
attended in China, and creating PowerPoint presentations, were services that
fell outside the scope of her employment with Cedars-Sinai. (Compl. ¶¶ 20, 21.)
Specifically, Dr. Tahiri told Plaintiff that the most
important thing was to get Chinese patients and for Plaintiff to seek out
potential patients to set up consultation meetings so that they would book
appointments for microtia surgery in the United States. (Compl. ¶ 21, Ex. B.)
Plaintiff asserts that Defendants relied on Plaintiff’s marketing skills to
develop a relationship with families whose children needed surgery. (Compl. ¶
22.) Consequently, Plaintiff paid and used the “WeChat” platform between 2017
to 2022 to create a group chat for families with children who needed microtia
surgery/reconstructive ear surgery.
Plaintiff used the platform to cultivate a relationship with the families
to market Defendants’ surgical services, coordinate travel, visa, and accommodations,
and schedule surgery in the United States. (Compl. ¶ 23.) Plaintiff asserts she
spent her own funds on third-party vendors to create some of the platforms,
such as WeChat and Weibo, and spent time increasing her visibility in the
WeChat groups. (Compl. ¶ 24.)
As a result of Plaintiff’s marketing efforts, Dr. Tahiri consulted
with more then 100 new Chinese patients and performed microtia surgeries on at
least 24 of those patients. (Compl. ¶ 25.)
Plaintiff asserts that Dr. Tahiri led Plaintiff to believe that he would leave
Cedars-Sinai and open his own surgical center with Plaintiff, and although the
representations were oral, they were referenced in a text stating: “Michelle!
Let’s do this. Let[']s do this thing together … I am serious … We can both
benefit from it instead of others … I am tired of being a slave … [stacks of
cash emojis]” and “We will get our surgery center. I promise you.” And “I will
work on a surgery center for us soon.” And “surgery center will happen.” (Compl. ¶ 28, Ex. C, D.)
In August of 2022, Dr. Tahiri and Dr. Reinisch left
Cedars-Sinai to join a surgical center called K&B. (Compl. ¶ 29.) Dr.
Tahiri instructed Plaintiff to make a list of all patients that she had
scheduled for surgery after his last day at Cedar-Sinai, which was October 14,
2022. (Compl. ¶ 29, Ex. D.) Plaintiff asserts that Dr. Tahiri assured Plaintiff
that he intended to keep his promise of starting a business with Plaintiff. He asked Plaintiff to find a clinic space
close to K&B where he could secretly work on his own Chinese patients in
solo practice while working with at K&B with Dr. Reinisch. (Compl. ¶ 30.)
This resulted in Plaintiff signing a lease through the medical services
organization entity, Medical Boulevard, for a medical space next to K&B’s
clinic. (Compl. ¶ 31, Ex. F.)
Plaintiff was laid off from her position at Cedars-Sinai in
October 2022, but Dr. Tahiri continued to insist that Plaintiff continue her
work of marketing to Chinese patients on his behalf. (Compl. ¶¶ 33, 34.) Even
after Plaintiff’s employment with Cedars-Sinai ended, up to December 7, 2022,
Plaintiff continued to market Dr. Tahiri’s services and he accepted the
consultations with new Chinese patients brought to him by Plaintiff and
continued to agree to perform surgeries. (Compl. ¶ 34.)
On or about December 19, 2022, Dr. Tahiri stopped responding
to Plaintiff and he and Dr. Reinisch refused to perform surgeries already
scheduled on microtia patients obtained via Plaintiff’s marketing services,
despite Defendants’ office sending emails to some patients assuring them that
surgery would proceed as planned. (Compl. ¶ 35.) Dr. Tahiri lied by telling
these patients that his medical practice had no record of any scheduled
surgery. (Compl. ¶¶ 36, 38, Ex. G.)
Plaintiff believes that to grow their clientele without
Plaintiff’s assistance, Defendants’ agent, Alic Ting (“Ting”) influenced
Plaintiff’s connection within her WeChat group to leave Plaintiff’s WeChat
group and join a WeChat group controlled by Defendants. (Compl. ¶ 39.) Defendants
did this by portraying Plaintiff as a liar. (Compl. ¶ 40.) Consequently, due to
Ms. Ting’s “libelous statements” Plaintiff was threatened within her WeChat
group and has been unable to continue marketing to Chinese microtia patients.
(Compl. ¶ 41.) Due to Plaintiff’s marketing efforts, Defendants reaped hundreds
of thousands of dollars by improperly acquiring and using Plaintiff’s WeChat
group member list that she spent years cultivating. (Compl. ¶ 42.)
Plaintiff
filed this action on September 14, 2023, alleging eight causes of action. Defendant Tahiri demurs to Plaintiff’s first
cause of action for promissory fraud, fifth cause of action for common law
misappropriation, seventh cause of action for libel, and eighth cause of action
for libel per se.
B. First Cause of Action - Promissory Fraud
“A cause of action for promissory fraud requires the
plaintiff to allege that the promissor did not intend to perform at the time
the promise was made, that the promise was intended to deceive and induce
reliance, that it did induce reliance, and that this reliance resulted in
damages.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th
1403, 1411; see also Civ. Code, § 1710.) “To maintain an action for deceit
based on a false promise, one must specifically allege and prove, among other
things, that the promisor did not intend to perform at the time he or she made
the promise and that it was intended to deceive or induce the promisee to do or
not do a particular thing.” (Tarmann v. State Farm Mut.
Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.)
“‘Promissory fraud’ is a subspecies of
the action for fraud and deceit.” (Lazar v. Superior Court
(1996) 12 Cal.4th 631, 638.) “In California, fraud must be pled specifically;
general and conclusory allegations do not suffice.” (Id. at p. 645.) “‘This particularity requirement necessitates
pleading facts which show how, when, where, to whom, and by what means
the representations were tendered.’ ” (Id. at p. 645.)
Defendant Tahiri asserts that Plaintiff’s
claim for promissory fraud fails because the promise is ambiguous such that the
court cannot determine the scope of the promised duty. “To be enforceable, a
promise must be definite enough that a court can determine the scope of the
duty and the limits of performance must be sufficiently defined to provide a
rational basis for the assessment of damages.” (Ladas v. California State Auto.
Assn. (1993) 19 Cal.App.4th 761, 770.)
The Complaint alleges that “Dr. Tahiri
led Ms. Yang to believe that he would compensate her for her services through a
business partnership with him” and that Dr. Tahiri “planned on leaving
Cedars-Sinai and that he would open a surgical center with her.” (Compl. ¶ 28.)
“Between 2017 and 2022, Ms. Yang provided approximately 12,000 hours of
marketing services on behalf of Defendants and at their request.” (Compl. ¶
27.) Plaintiff’s marketing services “were not part of her duties at
Cedars-Sinai.” (Compl. ¶ 19.) Plaintiff asserts that absent Dr. Tahiri’s
promises and representations she would not have provided marketing services
because the services fell outside the scope of her employment with
Cedars-Sinai.” (Compl. ¶ 45.) She performed such services “in order to build
the foundation of her business with Dr. Tahiri.” (Compl. ¶ 45.) This resulted
in Plaintiff entering a 3-year lease for medical space and incurring damages no
less than $1.5 million due to Plaintiff’s reliance on Dr. Tahiri’s fraudulent
representations (Compl. ¶¶ 48, 49.)
The court finds that Plaintiff’s first
cause of action is sufficiently pled. Whether Plaintiff will be able to prove
that Dr. Tahiri did not intend to perform at the time he made the
representations or that Plaintiff is entitled to the damages requested is
irrelevant when ruling on a demurrer. (See Stevens v. Superior Court
(1986) 180 Cal.App.3d 605, 609–610.) Therefore, the demurrer to the first cause
of action is overruled.
C. Fifth
Cause of Action – Common Law Misappropriation
“The elements of a claim for
misappropriation under California law consist of the following: (a) the
plaintiff invested substantial time, skill or money in developing its property;
(b) the defendant appropriated and used the plaintiff's property at little or
no cost to the defendant; (c) the defendant's appropriation and use of the
plaintiff's property was without the authorization or consent of the plaintiff;
and (d) the plaintiff can establish that it has been injured by the defendant's
conduct.” (United States Golf Assn. v. Arroyo Software Corp.
(1999) 69 Cal.App.4th 607, 618 (United States Golf Assn).)
Defendant
Tahiri asserts that Plaintiff’s misappropriation claim is improperly pled. The
court agrees because Plaintiff alleges in a conclusory manner that Ms. Ting
acting as Defendants’ agent “influenced” the Plaintiff’s connections causing
them to leave the group and join a WeChat controlled by Defendants, without
specifying facts as to how such “influence” constituted misappropriation.
(Compl. ¶ 39.) “[C]onclusionary
allegations without facts to support them are ambiguous and may be
disregarded.” (Interior Systems, Inc. v. Del E. Webb Corp.
(1981) 121 Cal.App.3d 312, 316.) Furthermore, while the Complaint alleges that
Plaintiff paid to create the WeChat group and spent her own funds on
third-party vendors, such as WeChat and Weibo, Plaintiff fails to allege that
she invested “significant” money developing the “WeChat” group. Moreover, even
if Plaintiff invested substantial time in creating the WeChat group, Plaintiff fails
to explain what economic benefit she derived from the list.
Based
on the above, the demurrer to the fifth cause of action is sustained with leave
to amend.
D. Seventh and Eighth Causes of Action – Libel and Libel Per Se
“Libel
is a false and unprivileged publication by writing, printing¿…¿which¿[in
relevant part]¿exposes any person to hatred, contempt, ridicule, or obloquy,
…¿or which has a tendency to injure him in his occupation.”¿ (Civ. Code, §
45.)¿ Libel is per se if the statement is defamatory on its face. (See
Civ. Code, § 45a.) “A statement can also be libelous per se if it
contains a charge by implication from the language employed by the speaker and
a listener could understand the defamatory meaning without the necessity of
knowing extrinsic explanatory matter.” (McGarry v. University of San
Diego (2007) 154 Cal.App.4th 97, 112.)
The
Complaint alleges on information and belief that “Dr. Tahiri made written
false, defamatory, and unprivileged remarks about Ms. Yang to Ms. Yang’s
connections that stated or implied that Ms. Yang is a liar. Rather than inform
Ms. Yang’s connections of his own refusal to perform their anticipated
surgeries, Dr. Tahiri instead lied and told Ms. Yang’s connections that his
medical practice had no record of any such surgery. However, Dr. Tahiri was on
notice of the upcoming surgeries via the requested list of all patients that
Ms. Yang scheduled for him after October 14, 2022.” (Compl. ¶ 88, Ex. E.) Upon
information and belief “Dr. Tahiri, through his Agent, also stated or implied
to Ms. Yang’s connections that they should not conduct business with Ms. Yang,
because she is a liar.” (Compl. ¶ 90.)
At
the pleading stage Plaintiff is not required to prove that the libelous
statements are false, but the court agrees that Plaintiff’s libel cause of
action is not properly pled. The Plaintiff fails to allege where and when the
written false or defamatory remark by Dr. Tahiri was made. While Plaintiff’s
opposition asserts that the false statements were made in the WeChat group, the
Complaint and the seventh cause of action fail to identify where and when the
alleged defamatory statements were made. (See Schick v. Lerner (1987)
193 Cal.App.3d 1321, 1327 [Facts not alleged in the complaint are presumed not
to exist].) Without such information, Dr. Tahiri lacks sufficient facts to
respond to Plaintiff’s allegation, prepare a defense or determine if qualified
privilege applies.
Plaintiff
also fails to state what statement(s) Ms. Ting made as Defendants’ agent that
led Plaintiff’s connections to believe that Plaintiff was a liar. “The initial
determination as to whether a publication is libelous on its face, or libelous
per se, is one of law.” (Selleck v. Globe International,
Inc. (1985) 166 Cal.App.3d 1123, 1132.) Without specification as to
what representation Ms. Ting made to Plaintiff’s business connections, the
court cannot determine if the statement is libelous, an opinion, or an opinion
that is actionable because it implies a false assertion of fact. (See Wong v. Tai Jing (2010) 189
Cal.App.4th 1354, 1370.)
Based on the above, the demurrer to the
seventh cause of action is sustained with leave to amend.
The libel per se claim is also pled on
information and belief and asserts “Dr. Tahiri, through his Agent, made written
false, defamatory, and unprivileged remarks about Ms. Yang to Ms. Yang’s
connections that Ms. Yang is a liar and that they should not conduct business
with her.” (Compl. ¶ 95.) “In the alternative, Ms. Yang alleges that Dr.
Tahiri’s publications regarding Ms. Yang are libelous on their face. The
Agent’s comments, made on behalf of Dr. Tahiri, clearly expose Ms. Yang to
hatred, contempt, ridicule, and obloquy and are calculated to injure Ms. Yang’s
reputation and occupation. The above-described publications are further
libelous on their face because the statements charge Ms. Yang with lying and
dishonesty.” (Compl. ¶ 96.)
“The initial determination as to whether
a publication is libelous on its face, or libelous per se, is one of law.” (Selleck v. Globe International, Inc. (1985) 166
Cal.App.3d 1123, 1132.) The court cannot determine if the statements made by
Dr. Tahiri or his agent were libel per se without facts asserting what the
publication was. “An essential element of libel is that the publication in
question must contain a false statement of fact; the determination of whether
the allegedly defamatory statement constitutes fact or opinion is a question of
law.” (Id. at p. 1133.) “A complaint must set forth the facts with
sufficient precision to put the defendant on notice about what the plaintiff is
complaining and what remedies are being sought.” (Leek v. Cooper (2011)
194 Cal.App.4th 399, 415.) Plaintiff’s eighth cause of action fails to provide
facts showing what libelous statement was made by Defendants, and by what means
it was published.
Accordingly, the demurrer to the eighth
cause of action is sustained with leave to amend.
Conclusion
Defendant Tahiri’s demurrer is
overruled as to the first cause of action for promissory fraud and
sustained
with leave to amend to the fifth cause of action for common law
misappropriation,
seventh
cause of action for libel, and eighth cause of action for libel per se. Plaintiff
is given 30
days
leave to amend. OSC re: Amended Complaint set for __. The Case Management
Conference
is continued to ___. Defendant Tahiri to give notice.
[1]
Pursuant to CCP § 430.41, the meet and confer
requirement has been met. (Dillard
Decl. ¶ 5, Ex. 2.)
CASE NUMBER: 23STCV22235
CASE NAME: Qiang Yang v. Youssef Tahiri, et al.
MOVING PARTY: Defendant John Reinisch
M.D.
OPPOSING PARTY: Plaintiff Qiang Yang aka Michelle
Yang
TRIAL DATE: Not Set.
PROOF OF SERVICE: OK
PROCEEDING: Demurrer with Motion to
Strike Plaintiff’s Complaint
OPPOSITION: 27 February 2024
REPLY: 4
March 2024
TENTATIVE: Defendant Reinisch’s demurrer to the fourth
cause of action for quantum meruit, fifth cause of action for common law
misappropriation, and sixth cause of action for violation of Bus. & Prof.
Code §§ 17200 is sustained with leave to amend. Defendant Reinisch’s motion to
strike is granted with leave to amend. Plaintiff is given 30 days leave to
amend. OSC re: Amended Complaint set for __. The Case Management Conference is
continued to ___. Defendant Reinisch to
give notice.
Background
On September 14, 2023, Qiang Yang aka
Michelle Yang (“Plaintiff”) filed a Complaint against Youssef Tahiri
(“Tahiri”), John Reinsch (“Reinisch”), and Does 1 to 50. The Complaint alleges
eight causes of action for (1) promissory fraud, (2) promissory estoppel, (3)
negligent misrepresentation, (4) quantum meruit, (5) common law
misappropriation, (6) violation of California Bus. & Prof. Code §§ 17200,
(7) libel, and (8) libel per se.
On November 30, 2023, Defendant Tahiri
filed a Cross-Complaint (“CC”) against Plaintiff Michelle Yang, David Barel,
Medical Boulevard LLC, Medical Boulevard, Inc., Y&S Enterprise Inc.
(“Y&S”), and Moses 1 to 20. The Cross-Complaint alleges causes of six action:UUU1) intentional interference with economic relations,
(2) negligent interference with economic relations, (3) intentional infliction
of emotional distress, (4) negligence, (5) defamation per quod, and (6)
defamation per se.
On
December 1, 2023, Defendant John Reinisch (“Reinisch”) filed a demurrer with a
motion to strike Plaintiff’s Complaint. Plaintiff opposes the Motion. The
matter is now before the court.
request
for JUDICIAL notice
The court may
take judicial notice of “official acts of the legislative, executive, and
judicial departments of the United States and of any state of the United
States,” “[r]ecords of (1) any court of this state or (2) any court of record
of the United States or of any state of the United States,” and “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) “Taking
judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
Defendant
Reinisch requests judicial notice of the following:
1) “Declaration
of Yang Xu in Support of Defendants’ Petition to Compel Arbitration and Stay
Further Proceedings,” filed on October 27, 2021, in the matter of Citizen Power
Initiatives for China, et al. v. Tencent America LLC and Tencent
International Service Pte. Ltd. Case No. 21CV375169, excluding Exhibits A
through P to the Declaration of Xu, a true and correct certified copy of which
is attached hereto as Exhibit 1.
“Courts may not take judicial notice of allegations in affidavits,
declarations and probation reports in court records because such matters are
reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz &
McCort (2001) 91 Cal.App.4th 875,
882.) Defendant Reinisch fails to show that Exhibit 1 is the type of document
the court may take judicial notice of and that the facts stated in Exhibit 1
are not reasonably subject to dispute.
Defendant Reinisch’s request for judicial notice is denied.
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, subd. (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 the purpose 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. Summary of Allegations in Complaint
Defendants are plastic and reconstructive surgeons
specializing in performing microtia surgery on children. (Compl. ¶ 8.)
Defendants formerly worked as surgeons at Cedars-Sinai Health System
(“Cedars-Sinai”). (Compl. ¶ 10.) “In 2017, Defendants were practicing plastic
and reconstructive surgery, including microtia surgery, through Cedars-Sinai’s
Department of Plastic Surgery, located in Beverly Hills, California.” (Compl. ¶
13.)
Plaintiff met Defendant Dr. Tahiri when he was a student
enrolled in Plaintiff’s Chinese language class at Indiana University. (Compl. ¶
11.) In 2017, Dr. Tahiri referred Plaintiff for a position as program
coordinator for the Department of Plastic Surgery at Cedars-Sinai. (Compl. ¶
14, Ex. A.)
As the program coordinator, Plaintiff’s job duties included
“answering and triaging calls; scheduling appointments, surgeries, and
ancillary services; verifying patients’ insurance; managing patient
information; and processing and tracking all incoming and outgoing referrals.”
(Compl. ¶ 17.) While Plaintiff and Defendants worked for Cedars-Sinai,
Defendants asked Plaintiff to use her marketing and communication skills to
market their practice to potential patients in China despite this not being
part of her job duties. (Compl. 9.) Plaintiff maintains that travel logistics,
serving as a translator for Defendants, checking-in conferences attended in
China, and creating PowerPoint presentations, were services that fell outside
the scope of her employment with Cedars-Sinai. (Compl. ¶¶ 20, 21.)
Specifically, Dr. Tahiri told Plaintiff that the most
important thing was to get Chinese patients and for Plaintiff to seek out
potential patients to set up consultation meetings so that they would book
appointments for microtia surgery in the United States. (Compl. ¶ 21, Ex. B.)
Plaintiff asserts that Defendants relied on Plaintiff’s marketing skills to
develop a relationship with families whose children needed surgery. (Compl. ¶
22.) Consequently, Plaintiff paid and used the “WeChat” platform between 2017
to 2022 to create a group chat for families with children who needed microtia
surgery/reconstructive ear surgery and cultivate a relationship with such
families to market Defendants’ surgical services and coordinate travel, visa,
accommodations, and schedule surgery in the United States. (Compl. ¶ 23.)
Plaintiff asserts she spent her own funds on third-party vendors to create some
of the platforms, such as WeChat and Weibo, and spent time increasing her
visibility in the WeChat groups. (Compl. ¶ 24.)
As a result of Plaintiff’s marketing efforts, Dr. Tahiri
gained new patients and resulted in about 121 microtia patients. (Compl. ¶ 26.)
Plaintiff asserts that Dr. Tahiri led Plaintiff to believe that he would leave
Cedars-Sinai and open his own surgical center with Plaintiff, and although the
representations were oral, they were referenced in a text stating: “Michelle!
Let’s do this. Let[']s do this thing together … I am serious … We can both
benefit from it instead of others … I am tired of being a slave … [stacks of
cash emojis]” and “We will get our surgery center. I promise you.” And “I will
work on a surgery center for us soon.” And “surgery center will happen.” (Compl. ¶ 28, Ex. C, D.)
In August 2022, Dr. Tahiri and Dr. Reinisch left
Cedars-Sinai to join a surgical center called K&B. (Compl. ¶ 29.) Dr.
Tahiri instructed Plaintiff to make a list of all patients that she had
scheduled for surgery after his last day at Ceda-Sinai, which was October 14,
2022. (Compl. ¶ 29, Ex. D.) Plaintiff asserts that Dr. Tahiri assured Plaintiff
that he intended to keep his promise of starting a business with Plaintiff and
he asked Plaintiff to find a clinic space close to K&B where he could
secretly work on his own Chinese patients in solo practice while working with
at K&B with Dr. Reinisch. (Compl. ¶ 30.) This resulted in Plaintiff signing
a lease through the medical services organization entity, Medical Boulevard,
for a medical space next to K&B’s clinic. (Compl. ¶ 31, Ex. F.)
Plaintiff was laid off from her position at Cedars-Sinai in
October 2022, but Dr. Tahiri continued to insist that Plaintiff continue her
work of marketing to Chinese patients on his behalf. (Compl. ¶¶ 32, 33.) Even
after Plaintiff’s employment with Cedars-Sinai ended, up to December 7, 2022,
Plaintiff continued to market Dr. Tahiri’s services and he accepted the
consultations with new Chinese patients brought to him by Plaintiff and
continued to agree to perform surgeries. (Compl. ¶ 34.)
On or about December 19, 2022, Dr. Tahiri stopped responding
to Plaintiff and he and Dr. Reinisch refused to perform surgeries already
scheduled on microtia patients obtained via Plaintiff’s marketing services,
despite Defendants’ office sending emails to some patients assuring them that
surgery would proceed as planned. (Compl. ¶ 35.) Dr. Tahiri lied by telling
these patients that his medical practice had no record of any scheduled
surgery. (Compl. ¶¶ 36, 38, Ex. G.)
Plaintiff believes that to grow their clientele without
Plaintiff’s assistance, Defendants’ agent, Alic Ting (“Ting”) influenced
Plaintiff’s connection within her WeChat group to leave Plaintiff’s WeChat
group and join a WeChat group controlled by Defendants. (Compl. ¶ 39.) Defendants
did this by portraying Plaintiff as a liar. (Compl. ¶ 40.) Consequently, due to
Ms. Ting’s “libelous statements,” Plaintiff was threatened within her WeChat
group and has been unable to continue marketing to Chinese microtia patients.
(Compl. ¶ 41.) Due to Plaintiff’s marketing efforts, Defendants reaped hundreds
of thousands of dollars by improperly acquiring and using Plaintiff’s WeChat
group member list that she spent years cultivating. (Compl. ¶ 42.)
Plaintiff
filed this action alleging eight causes of action: (1) promissory fraud, (2)
promissory estoppel, (3) negligent misrepresentation, (4) quantum meruit, (5)
common law misappropriation, (6) violation of California Bus. & Prof. Code
§§ 17200, (7) libel, and (8) libel per se. Defendant Reinisch demurs to
Plaintiff’s fourth, fifth, and sixth causes of action.
B. Fourth Cause of Action – Quantum Meruit
“Quantum meruit refers to the
well-established principle that ‘the law implies a promise to pay for services
performed under circumstances disclosing that they were not gratuitously
rendered.’ [Citation.] To recover in quantum meruit, a party need not prove the
existence of a contract [citation], but it must show the circumstances were
such that ‘the services were rendered under some understanding or expectation
of both parties that compensation therefor was to be made’ [citations].” (Huskinson & Brown v. Wolf
(2004) 32 Cal.4th 453, 458 (Huskinson).)
“The requisite elements of quantum meruit
are (1) the plaintiff acted pursuant to ‘an explicit or implicit request for
the services’ by the defendant, and (2) the services conferred a benefit on the
defendant.” (Port Medical Wellness, Inc. v. Connecticut General Life Insurance
Company (2018) 24 Cal.App.5th 153, 180.) “[I]n order to recover
under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for such services from the
defendant and that the services rendered were intended to and did benefit the defendant.” (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th
243, 248 [italics original].)
Defendant Dr. Reinisch asserts that after Plaintiff was laid
off from Cedars-Sinai, there are no allegations in the Complaint that he
continued to request Plaintiff’s services so that his private practice could
grow or that he benefited from Plaintiff’s services. Despite Plaintiff alleging
that about 121 microtia patients booked their surgeries with Dr. Reinisch,
Plaintiff fails to allege Dr. Reinisch expressly or by implied consent
acquiesced to Plaintiff providing marketing services after he left Cedars-Sinai
and that he agreed that Plaintiff would be compensated for providing such
services and that such services were not gratuitously provided. (See Huskinson,
supra, 32 Cal.4th at p. 458.) There are no allegations in the Complaint
that show that Dr. Reinisch knew that Plaintiff’s marketing services were
provided independently of her job at Cedars-Sinai and that Dr. Reinisch agreed
to compensate Plaintiff for providing the additional marketing services. There
are no allegations that Plaintiff looked to Defendants to provide compensation
for providing the marketing services rather than her employer of record,
Cedars-Sinai.
Furthermore, Plaintiff fails to cite case law that shows
that Defendants—as fellow employees or supervisors of Plaintiff but not
Plaintiff’s employer of record—can be held liable for failing to compensate
Plaintiff for services provided by Plaintiff while she was employed by
Cedars-Sinai if the work performed fell outside of her official job duties.
Specifically, the Complaint fails to allege facts or cite case law that would
support the finding that Defendants were not agents of Cedar-Sinai when they
asked Plaintiff to perform marketing services, such that Cedars-Sinai cannot be
held liable for Plaintiff’s lack of compensation under Respondeat Superior
liability. Accordingly, Plaintiff fails to show that Cedar-Sinai is not an
indispensable party to this action. (CCP, §§ 389.)
Based on the above, the court agrees that Plaintiff’s
quantum meruit cause of action is improperly pled.
Secondly, Defendant Reinisch asserts that because the only
benefit Plaintiff can confer on doctors from the “list” involves soliciting and
receiving remuneration for patient referrals, such conduct is prohibited by
federal and state anti-kickback statutes. (See 42 U.S.C. § 1320a-7b; Bus. &
Prof. Code, § 650; Welf. & Inst. Code, § 14107.2; see also People v.
Guiamelon (2012) 205 Cal.App.4th 383, 397.)
Plaintiff asserts that the violations apply only to programs
funded by federal and state health care programs like Medicare, Medicaid, or
Medi-Cal and does not apply to services soliciting patients who are Chinese
Nationals who pay out of pocket for elective surgeries. Furthermore, Plaintiff
asserts that she does not “seek compensation for each marketing contract that
she introduced to Dr. Reinisch that became a patient. Instead, she seeks
compensation for the hours upon hours of marketing services that
she provided to Dr. Reinisch, at his request and for his benefit.
(Compl. ¶¶ 21-28, 70-71 [emphasis original].)” (Opp. at p. 8:27-9:2.) As stated
above, the Complaint is devoid of any fact showing that Dr. Reinisch either
expressly or by implied consent requested Plaintiff’s marketing services and
that he agreed to independently or by some other means compensate Plaintiff for
providing such services. Facts not alleged in the complaint are presumed not to
exist. (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327.)
Plaintiff asserts that she provided approximately over
12,000 hours of marketing services, but Plaintiff fails to allege if such
services were provided while she worked for Cedars-Sinai coordinating patients
or if said services were provided after hours, independent of her
responsibility as program coordinator, and were not “ancillary services” she
was required to perform as a program coordinator at Cedars-Sinai. (Compl. ¶¶
17, 70.) Accordingly, the Complaint fails to allege sufficient facts to show
that Defendants alone, and not Cedars-Sinai, should be held liable for
Plaintiff’s uncompensated work, that Defendants were not agents of Cedar-Sinai
when they requested that Plaintiff perform marketing services, and that
Plaintiff and Defendants agreed that they would compensate Plaintiff separately
for performing marketing services on their behalf, such that Plaintiff was not
to be compensated by Cedars-Sani for performing marketing services. Moreover,
Plaintiff fails to allege what her rate of compensation was for providing such
services or how the parties agreed Plaintiff would be compensated for providing
such services.
Based on the above, the demurrer to the fourth cause of
action is sustained with leave to amend.
C. Fifth
Cause of Action – Common Law Misappropriation
“The elements of a claim for
misappropriation under California law consist of the following: (a) the
plaintiff invested substantial time, skill or money in developing its property;
(b) the defendant appropriated and used the plaintiff's property at little or
no cost to the defendant; (c) the defendant's appropriation and use of the
plaintiff's property was without the authorization or consent of the plaintiff;
and (d) the plaintiff can establish that it has been injured by the defendant's
conduct.” (United States Golf Assn. v. Arroyo Software Corp.
(1999) 69 Cal.App.4th 607, 618 (United States Golf Assn).)
Defendant
Reinisch asserts that the “WeChat Member List” does not constitute Plaintiff’s property,
nor does Plaintiff adequately allege how Dr. Reinisch used Ms. Ting to
misappropriate the WeChat list by communicating directly with the WeChat group.
While the Complaint alleges that Plaintiff paid to create the WeChat group and
spend her own funds on third-party vendors, such as WeChat and Weibo, Plaintiff
fails to allege that she invested “significant” money developing the “WeChat”
group. Even if Plaintiff invested substantial time in creating the WeChat
group, Plaintiff fails to explain what economic benefit she derived from the
list.
In Reeves v. Hanlon (2004) 33
Cal.4th 1140, the California Supreme Court acknowledges that the defendant's
action constituted a misappropriation of the plaintiff’s confidential client
list. (Id. at p. 1155.) Here, Plaintiff fails to allege facts to show
that the contents of the WeChat group, including the names of the families and
potential clients, were confidential, that the potential clients were
Plaintiff’s potential clients and not Defendants’ clients, and that she derived
an economic benefit from maintaining such a list. Plaintiff also fails to
allege that she “took reasonable efforts to maintain the list's secrecy under
the circumstances” or that she could sell the contents of the list to other
doctors in order to derive an independent economic value from maintaining and
cultivating the WeChat group. (Id. at p. 300.)
Finally, in a conclusory manner,
Plaintiff alleges that Ms. Ting acting as Defendants’ agent “influenced” Plaintiff’s
connections causing them to leave the group and join a WeChat controlled by
Defendants, without specifying facts as to how such “influence” constituted
misappropriation. (Compl. ¶ 39.)
“[C]onclusionary allegations without facts to support them are ambiguous
and may be disregarded.” (Interior Systems, Inc. v. Del
E. Webb Corp. (1981) 121 Cal.App.3d 312, 316.) Therefore, Plaintiff
fails to allege facts to show how defendants misappropriated Plaintiff’s WeChat
group and how such appropriation and use was done “at little to no cost to
defendant[s][.]” (United States Golf Assn., supra, 69 Cal.Ap.4th at p. 618.)
Based on the above, the demurrer to the
fifth cause of action is sustained with leave to amend.
D. Sixth
Cause of Action – Violation of Bus. & Prof. Code §§ 17200
Business and Professions
Code § 17200 (“UCL”) prohibits “any unlawful, unfair or fraudulent business act
or practice.” (Bus. & Prof. Code, § 17200; see Clark v.
Superior Court (2010) 50 Cal.4th 605, 610.) To plead this statutory
claim, the pleadings must state with reasonable particularity the facts
supporting the statutory elements of the violation. (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 619.)
“An
unlawful business practice or act is an act or practice, committed pursuant to
business activity, that is at the same time forbidden by law.” (Klein v.
Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) “A business practice
is unfair within the meaning of the UCL if it violates established public
policy or if it is immoral, unethical, oppressive or unscrupulous and causes
injury to consumers which outweighs its benefits.” (McKell v. Washington
Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.) Lastly, a fraudulent
business practice claim under section 17200 “is not based upon proof of the
common law tort of deceit or deception, but is instead premised on whether the
public is likely to be deceived.” (Pastoria v. Nationwide Ins. (2003)
112 Cal.App.4th 1490, 1499.)
“Common law misappropriation is one of a
number of doctrines subsumed under the umbrella of unfair competition.” (United States Golf Assn., supra, 69
Cal.App.4th at p. 618.) Plaintiff’s UCL claim hinges on her misappropriation
claim. (Compl. ¶ 85.) As the demurrer to the misappropriation claim has been
sustained, so is the demurrer to the seventh cause of action.
III. Motion to Strike
Defendant
Reinisch requests to strike the following from Plaintiff’s Complaint:
As the demurrer to Plaintiff’s Complaint has been
sustained with leave to amend, so is the motion to strike as Plaintiff has
failed to plead viable causes of action to support a claim for punitive damages
against Defendant Dr. Reinisch.
Conclusion
Defendant Reinisch’s demurrer to
the fourth cause of action for quantum meruit, fifth cause of action for common
law misappropriation, and sixth cause of action for violation of Bus. &
Prof. Code §§ 17200 is sustained with leave to amend. Defendant Reinisch’s
motion to strike is granted with leave to amend. Plaintiff is given 30 days
leave to amend. OSC re: Amended Complaint set for __. Defendant to give notice.
[1] Pursuant to Code Civ. Proc. section 430.41 and
section 435.5(a), the meet and confer requirement has been met. (Lee Decl. ¶
3.)