Judge: Gary Y. Tanaka, Case: 21TRCV00715, Date: 2022-09-21 Tentative Ruling
Case Number: 21TRCV00715 Hearing Date: September 21, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Wednesday, September 21, 2022
Department B Calendar No. 6
PROCEEDINGS
Mauro Restrepo v. Sophie Adams, et al.
21TRCV00715
Sophie Adams, et al.’s Demurrer to Complaint
Sophie Adams, et al.’s Motion to Reclassify
TENTATIVE RULING
Sophie Adams, et al.’s Demurrer to Complaint is sustained with 20 days leave to amend, in part, and without leave to amend, in part.
Sophie Adams, et al.’s Motion to Reclassify is denied without prejudice.
Background
Plaintiff filed the Complaint on October 1, 2021. Plaintiff alleges the following facts. Plaintiff engaged Defendant Sophie Adams’ psychic services for a Tarot card reading, and she informed Plaintiff that he suffered from “mala suerte” (bad luck). Plaintiff paid a deposit of $1,000, towards a $5,100 charge, to reinstate good luck which would help save Plaintiff’s marriage. Defendant’s services did not remove mala suerte and did not help save Plaintiff’s marriage. Plaintiff alleges the following causes of action: 1. Fraud; 2. Negligence; 3. Negligence Per Se; 4. NIED; 5. IIED; 6. Civil Conspiracy.
Meet and Confer
Defendants submitted a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl., Gary Kurtz, ¶¶ 2-5.)
Demurrer
A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)
Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
Defendants demur to the Complaint and each cause of action on the ground that the causes of action fail to state facts sufficient to constitute a cause of action.
First Cause of Action for Fraud against Sophie Adams
Defendant’s demurrer to the first cause of action for Fraud is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.
“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. “Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff must state facts which “show how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.
Plaintiff alleges that Defendant falsely represented on a website that she was a “PHD.” The specific representation on the website allegedly was that Defendant as a “PHD Life Coach.” (Complaint, ¶ 17.) Plaintiff has failed to allege specific facts to show that this representation was knowingly false. Plaintiff merely sets forth conclusions. Plaintiff does not specifically what the term “PHD” stands for. For example, generally individuals with a doctorate degree may earn a “PhD,” not a “PHD.” It is uncertain as to whether Plaintiff meant to indicate “PhD” or whether, in fact, “PHD” was intended, and that “PHD” has a distinct meaning in the psychic community which is distinct from the meaning of “PhD” in the academic community. Plaintiff has failed to allege specific facts to demonstrate intent to deceive or to induce reliance by this alleged representation of Defendant’s “PHD”, justifiable reliance, and resulting damages. Again, the allegations are conclusory. For example, as to the element of justifiable reliance, even assuming Plaintiff had intended to state “PhD,” Plaintiff has not alleged specific facts to allege that a psychic that has a “PhD” is much more reliable or successful in removing mala suerte than a psychic who does not have a PhD.
Therefore, Defendant’s demurrer to the first cause of action is sustained with 20 days leave to amend.
Second Cause of Action for Negligence against Sophie Adams
Defendant’s demurrer is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.
The elements of a cause of action for negligence are duty, breach, causation, and damages. Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78. Here, Plaintiff has failed to allege sufficient facts of breach, causation, and damages. The allegations essentially consist of the following: Defendant informed Plaintiff that Defendant could remove mala suerte for a charge of $5,100.00. (Complaint, ¶¶ 19-22.) However, Plaintiff only paid $1,000.00. There are no allegations to indicate that Defendant agreed that mala suerte could be removed for only $1,000 rather than $5,100.00. In fact, upon the plain face of the allegations which the Court must deem as true, $5,100.00 was apparently required to remove mala suerte, not $1,000.00. Plaintiff has not alleged what result was expected or represented by Defendant if only $1,000.00 was paid to Defendant. Thus, there are insufficient facts to demonstrate breach of duty and causation of damages.
Third Cause of Action for Negligence Per Se Against All Defendants
Defendants’ demurrer to the third cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.
Evidence Code § 669 provides, in relevant part, “(a) The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Ramirez v. Nelson (2008) 44 Cal.4th 908, 917-18.
Plaintiff specifically alleges the following: “Plaintiff is informed and believes, and based thereon alleges, that Defendants, and each of them, have breached said duty by failing to comply with the provisions of the City of Palos Verdes Estates Municipal Code Section 18.42.030(c) (Home Occupations Permitted. Section C: The street address of the residence shall not be used for advertisements.), and City of Palos Verdes Estates Municipal Code Section 18.42.030(f) (No signs associated with a home occupation will be permitted. There shall not be any exterior indication of the home occupation or variation from other residential character of the property.)” (Complaint, ¶ 44.) Plaintiff also refers to another statute related to permitting of fortune telling services but admits that he has no facts of a violation of that statute. (Id. at ¶ 45.)
However, Plaintiff has failed to allege facts to show that these alleged violations proximately caused injury to Plaintiff’s person or property. Plaintiff has also failed to allege facts to show that the alleged injury suffered by Plaintiff, the continuing existence of “mala suerte,” was the type of death or injury that the described ordinances or regulations were designed to prevent. Finally, Plaintiff fails to allege facts to show that he was within the class of persons for whose protection these ordinances, or regulations were adopted.
Therefore, Defendants’ demurrer to the third cause of action is sustained with 20 days leave to amend.
Fourth Cause of Action for Negligent Infliction of Emotional Distress Against All Defendants
Defendant Sophie Adams’ demurrer to the fourth cause of action is sustained without leave to amend.
Defendants George R. Adams, Tiffany Winston, Christ Koutroumbus and Polly Koutroumbus demurrer to the fourth cause of action is sustained with 20 days leave to amend.
Negligent Infliction of Emotional Distress is not an independent cause of action. Instead, emotional distress is a component of damages that may be recoverable in a Negligence cause of action. See, Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588.
As to Sophie Adams, the cause of action is duplicative of the second cause of action. Thus, her demurrer is sustained without leave to amend.
As to Defendants George R. Adams, Tiffany Winston, Christ Koutroumbus and Polly Koutroumbus, Plaintiff has failed to allege any facts to indicate that these individuals had a duty of care owed to Plaintiff, breached the duty of care, or caused damages to Plaintiff. Essentially, the only facts alleged against these individuals is that they somehow were aware that Sophie Adams was engaging in a psychic business. These allegations, on their own, are insufficient facts to meet the elements of negligence.
Fifth Cause of Action for Intentional Infliction of Emotional Distress Against Sophie Adams
Defendant Sophie Adam’s demurrer to the fifth cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.
“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–29.
Here, Plaintiff has failed to allege facts demonstrating each of the elements of the cause of action. The allegation that mala suerte was not removed does not constitute extreme and outrageous conduct. Again, the Court notes that according to Plaintiff’s own allegations it would have taken $5,100 to remove mala suerte, not $1,000.00. Also, even if Plaintiff had paid the full $5,100, that a psychic was not able to prevent bad luck in the future to an individual who engaged in the psychic’s services does not constitute extreme and outrageous conduct. In addition, insufficient facts of intent to cause emotional distress, or reckless disregard for the probability of suffering emotional distress are stated. Finally, the element of causation of severe emotional distress is pled merely with conclusions.
Sixth Cause of Action for Conspiracy Against George R. Adams, Tiffany Winston, Christ Koutroumbus and Polly Koutroumbus
Defendants’ demurrer is sustained without leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.
“Although conspiracy to commit a tort is not a separate cause of action from the tort itself, alleging a conspiracy fastens liability on those who agree to the plan to commit the wrong as well as those who actually carry it out. [¶] The elements of a civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act done in furtherance of the common design. The major significance of a conspiracy cause of action lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong ... regardless of the degree of his activity. The essence of the claim is that it is merely a mechanism for imposing vicarious liability; it is not itself a substantive basis for liability. Each member of the conspiracy becomes liable for all acts done by others pursuant to the conspiracy, and for all damages caused thereby.” Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 323–24 (internal citations and quotations omitted). “Conspiracy, however, is not an independent cause of action. When a plaintiff otherwise states a cognizable cause of action for a civil wrong, he or she may allege conspiracy as a basis of liability as to more than one defendant.” Faunce v. Cate (2013) 222 Cal.App.4th 166, 172–173.
The demurrer to the sixth cause of action is sustained without leave to amend because Civil Conspiracy is not an independent cause of action. In addition, the Court notes that there are no facts to show formation and operation of the conspiracy. Also, no independent cause of action that would support liability against Defendants has been stated. Leave to amend is provided to allege facts of the conspiracy within the independent causes of action.
Motion to Reclassify
Code Civ. Proc., § 86(a)(1) states, in relevant part: “The following civil cases and proceedings are limited civil cases: (1) A case at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to twenty-five thousand dollars ($25,000) or less.” Code Civ. Proc., § 403.040(a) states, in relevant part: “The plaintiff, cross-complainant, or petitioner may file a motion for reclassification within the time allowed for that party to amend the initial pleading. The defendant or cross-defendant may file a motion for reclassification within the time allowed for that party to respond to the initial pleading. The court, on its own motion, may reclassify a case at any time.” Code Civ. Proc., § 403.040(b) states: “If a party files a motion for reclassification after the time for that party to amend that party's initial pleading or to respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving party shows good cause for not seeking reclassification earlier.”
Reclassification is appropriate where “the action . . . will necessarily involve the determination of questions not within the jurisdiction of the court.” Walker v. Superior Court (1991) 53 Cal.3d 257, 269 (emphasis in original.) A case should only be reclassified as limited if the jurisdictional amount necessarily cannot be reached. See Id. at 273. This is a high standard that amounts to “legal certainty.” Id. at p. 270. A case should not be reclassified if the court believes it is merely unlikely that the jurisdictional amount will be reached. Id.
The motion is denied without prejudice because Defendant did not file the motion within the time to respond to the Complaint and failed to submit any facts to show good cause for not seeking reclassification earlier. In addition, Defendant did not submit competent evidence to show that the jurisdictional amount cannot be reached.
Therefore, the motion to reclassify is denied without prejudice. The Court also notes that the statutory scheme allows for the Court to reclassify at any time at its own motion, and, thus, the Court reserves its right to reclassify the action at any time on its own motion.
Defendants are ordered to give notice of this ruling.