Judge: Gary I. Micon, Case: 24CHCV01277, Date: 2024-08-27 Tentative Ruling

Case Number: 24CHCV01277    Hearing Date: August 27, 2024    Dept: F43

Luis Barrera vs. Kings Family Dental Group, et al.

 

DEMURRER TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE

 

MOVING PARTY: Defendants Simon Masood Imanuel, D.M.D., Inc. dba Kings Family Dental Group and Simon Imanuel, D.M.D.

RESPONDING PARTY: Plaintiff Luis Barrera

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint

·         1st Cause of Action for Breach of Contract

·         2nd Cause of Action for Fraud

 

Motion to Strike

·         Page 8, paragraph 25a, in its entirety

·         Page 11, Prayer at paragraph 4 [punitive damages]

·         Page 11, Prayer at paragraph 5 [attorney fees]

 

RULING: Demurrer is sustained in part and overruled in part. Motion to strike is granted.

 

SUMMARY OF ACTION

Plaintiff Luis Barrera (Plaintiff) alleges that he went to Defendants for pain in his mouth. Plaintiff claims that Defendants told him that he would need dentures followed by permanent posts and replacement teeth implants. They told him that the total cost for the dental work would be $25,585.00. Plaintiff claims that he paid this full amount over the course of 2020, but he was only given a temporary denture device by Defendants and never received the implanted posts and teeth that he claims that he paid for. Plaintiff alleges that he suffers severe mouth pain as a result. He also alleges that his insurance was also charged $25,585.00, despite Plaintiff having personally paid this amount to Defendants.

 

Plaintiffs’ First Amended Complaint (FAC) alleges three causes of action for (1) breach of contract; (2) fraud – intentional misrepresentation; and (3) negligence.

 

Defendants filed their demurrer with motion to strike on July 11, 2024. Defendants demur to Plaintiff’s First and Second Causes of Action. Plaintiff has only filed an opposition to the demurrer, not the motion to strike.

 

ANALYSIS

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.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

            First Cause of Action for Breach of Contract

Defendants demur to the First Cause of Action on the basis that it fails to state any cause of action against Defendants and is uncertain.

 

A cause of action for breach of contract requires a pleading of (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damage to plaintiff. (See McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 104.)

 

Moreover, with respect to claims premised upon a contract, a complaint must either: (a) set forth the terms of the contract verbatim, or (b) attach a copy of the contract and incorporate it by reference. (See Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 (“If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.”).) The failure to identify the material terms of a contract renders the cause of action fatally defective. (See Twaite v. Allstate Ins. Co. (1989) 216 Cal.App.3d 239, 252-253.)

 

Defendants argue in their demurrer that Plaintiff has failed to adequately plead the terms of the alleged contract, and Plaintiff has not attached a copy of the contract to his complaint. Defendants further argue that Plaintiff has alleged that he received dental treatment but was unhappy with the treatment, so he has alleged dental negligence/malpractice at most.

 

Plaintiff argues in his opposition that he has sufficiently pled the terms of the contract because he alleged that the contract was oral because he stated that he was told that if he paid the required amount, he would get the treatment that he was promised. (FAC, ¶ 9.) He argues that because it was an oral contract, he has sufficiently alleged the contract, his performance, Defendants’ breach, and his damages.

 

Defendants argue in their reply that if it is an oral contract, then it would be barred by the two year statute of limitations. (CCP § 339.) Defendants argue that Plaintiff’s FAC alleges that the work was to be performed in 2020 and 2021 but was not completed. Therefore, this action should have been filed in 2023 at the latest, but it was filed in 2024. However, one problem with this argument is that Plaintiff’s FAC explicitly states that “Plaintiff was later told the work would be completed in 2022 and 2023,” but the work was not performed then. (FAC, ¶ 15.) That means that Plaintiff would have had until 2025 to file this action. Therefore, it is not barred by the statute of limitations.

 

Plaintiff has alleged that there was an oral agreement for Plaintiff to pay $25,585.00 in exchange for dentures, then later posts and implants. Plaintiff paid the $25,585.00, but Plaintiff alleges that the work for which Plaintiff paid was not fully performed. Finally, Plaintiff alleges that he was damaged by way of his constant pain and paying for work that was never completed.

 

For purposes of demurrer, these allegations are sufficient to maintain a cause of action for breach of oral contract. Defendants’ demurrer to Plaintiff’s First Cause of Action is overruled.

 

            Second Cause of Action for Fraud – Intentional Misrepresentation

Defendants demurrer to the Second Cause of Action on the basis that it fails to state any cause of action against Defendants and is uncertain.

 

The elements of a fraud cause of action for intentional misrepresentation are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

 

Fraud causes of action must pled with specificity, and general and conclusory allegations do not suffice. (Id. at 645.) The “particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.)

 

Plaintiff’s FAC does not contain the requisite specificity. Plaintiff does not allege when, where, and how the misrepresentation was tendered by Defendants.

 

Without more specificity, Plaintiff cannot maintain a cause of action for fraud – intentional misrepresentation. Defendants’ demurrer to Plaintiff’s fraud cause of action is sustained with leave to amend.

 

Motion to Strike

A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny 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.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” Under CCP § 436(b), the court may “[s]trike out 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.”

 

            Punitive Damages

Defendants have moved to strike Plaintiff’s allegations related to punitive damages.

 

Punitive damages are governed by Civ. Code § 3294: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code § 3294(a).)¿ 

¿ 

To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in Civ. Code § 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id. at 725.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) Fraud is defined as “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).)¿ 

 

The Court has sustained Defendants’ demurrer to Plaintiff’s fraud cause of action. Plaintiff has not otherwise alleged that Defendants acted with malice or oppression sufficient to constitute despicable conduct. Plaintiff has also not opposed Defendants’ motion to strike. Accordingly, Defendant’s motion to strike Plaintiff’s request for punitive damages is granted.

 

            Attorney Fees

Defendants have also moved to strike Plaintiff’s request for attorney fees.

 

Pursuant to CCP § 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’s FAC does not point to a statute that would entitle him to attorney fees, nor has he provided any agreement between the parties for attorney fees. Accordingly, Defendant’s motion to strike Plaintiff’s request for attorney fees is granted.

 

Defendant’s motion to strike is granted in its entirety with leave to amend.

 

CONCLUSION

Defendants’ demurrer is overruled for the First Cause of Action. Defendants’ demurrer is sustained with leave to amend for the Second Cause of Action.

 

Defendants’ motion to strike is granted with leave to amend.

 

Plaintiff is given 30 days leave to amend.

 

Moving party to give notice to all parties.