Judge: H. Jay Ford, III, Case: 22SMCV00791, Date: 2023-01-31 Tentative Ruling

Case Number: 22SMCV00791    Hearing Date: January 31, 2023    Dept: O

 Case Name:  Doe v. Raanan, et al.

SUBJECT:                (1) DEMURRER TO COMPLAINT

                                    (2) MOTION TO STRIKE

MOVING PARTY:   Defendants Justin Raanan, DDS and Justin Raanan DDS, Inc.

RESP. PARTY:         Plaintiff Jane Doe, C.S.

TENTATIVE RULING

            Defendants Justin Raanan DDS and Justin Raanan DDS, Inc.’s Demurrer is OVERRULED.  Defendants’ Motion to Strike is DENIED.  Defendants to answer in 10 days. 

I. 2^nd cause of action for financial elder abuse—OVERRULED

Financial elder abuse “occurs when a person or entity does any of the following: (1) [t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder ... for a wrongful use or with intent to defraud, or both[;] [¶] (2) [a]ssists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder ... for a wrongful use or with intent to defraud, or both[; or] [¶] (3) [t]akes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder ... by undue influence ....”  Welf. & Inst. Code §15610.30(a)(1)-(3). 

            Financial elder abuse under Welfare and Institutions Code §15610.30 sets forth “three types of financial elder abuse of an elder:  (1) taking real or personal property of an elder ‘for wrongful use or with intent to defraud; (2) assisting in the same; and (3) taking ‘real or personal property an elder…by undue influence, as defined under Welfare and Institutions Code §15610.70.”  Levin v. Winston-Levin (2019) 39 Cal.App.5^th 1025, 1034 (absent finding of bad faith, double damages under Probate Code §859 may not be awarded based on undue influence theory of elder abuse). 

            Plaintiff alleges Defendants “committed financial elder abuse by appropriating and obtaining Plaintiff’s property with intent to defraud.”  See Complaint, ¶25.  Also alleges financial elder abuse based on “undue influence.”  Id. at ¶28. 

            Plaintiff alleges Defendants took Plaintiff’s credit card and charged the same for treatment not actually rendered.  Id. at ¶¶25-29.  Plaintiff allege the charges deviated from the treatment plan that she agreed to and included procedures to which she had not consented.  Id.

            Plaintiff’s allegations state a claim for financial elder abuse based on intent to fraud.  Plaintiff also states a separate claim for fraud.  Regardless of whether financial elder abuse is a separate cause of action or a remedy for tort, Plaintiff alleges sufficient facts to support a financial elder abuse cause of action or the remedies provided for under the Elder Abuse Act.  “[I]t is unclear whether financial abuse is a separate tort or remedial.  Perhaps the plaintiff must plead and prove a recognized theory for relief either in tort or contract and, having accomplished that task, additionally plead the elements of financial abuse. Or it may be necessary only to plead and prove the elements of ‘financial abuse.’”  Balisok, California Practice Guide:  Elder Abuse Litigation (Rutter Group 2022), ¶8:14. 

Plaintiff also states a claim based on intent to defraud.  Plaintiff need only allege one of the three possible grounds set forth in Welf. & Inst. Code §15610.30(a)(1)-(3) to state a claim for financial elder abuse.  Thus, regardless of the sufficiency of Plaintiff’s undue influence allegations, the demurrer is overruled.  See New Livable Calif. V. Assn. of Bay Area Governments (2020) 59 Cal.App.5^th 709, 714-715 (plaintiff need only plead facts showing that he may be entitled to some relief). 

Defendant’s demurrer to the 2^nd cause of action for financial elder abuse is OVERRULED. 

II.  3^rd cause of action for physical elder abuse—OVERRULED

            Under the Elder Abuse Act, “‘physical abuse’ means any of the following:…(b) Battery, as defined in Section 242 of the Penal Code.”  Welf. & Inst. C. §15610.63(b).  “A battery is any willful and unlawful use of force or violence upon the person of another.”  Pen. Code, § 242.  A custodial or caretaker relationship is not an element of physical abuse under the Elder Abuse Act, although it is an element of neglect under the Elder Abuse Act.  See Welf. & Inst. C. §15610.57(a)(1). 

            Plaintiff alleges that Defendants performed certain procedures without obtaining any consent thereto.  See Complaint, ¶¶37-38.  Plaintiff is not alleging that a procedure was performed without informed consent.  Plaintiff’s allegations therefore allege medical battery.  See Perry v. Shaw (2001) 88 Cal.App.4^th 658, 664 (affirming jury verdict that defendant committed medical battery where plaintiff consented to procedure for removal of excess skin and defendant performed breast augmentation procedure to which she had not consented). 

            A medical battery is an unconsented touching that is unlawful.  Plaintiff therefore alleges a battery that qualifies as “physical abuse” under the Elder Abuse Act.  Defendants’ demurrer is OVERRULED.   

III.  4^th cause of action for fraud—OVERRULED

The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  See Civil Code §1709.  Fraud actions are subject to strict requirements of particularity in pleading.  See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.  A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation.  See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782. 

            Plaintiff alleges that Defendants represented they would perform specific dental procedures in accordance with the standard of care and a written treatment plan, and they would only perform the procedure on teeth and tissue requiring dental surgery.  See Complaint, ¶¶43-44, 47.  Plaintiff alleges Defendants made these misrepresentations knowing that they were false.  Id. at ¶45.  Defendants allegedly knew they were going to perform procedures below the standard of care and on areas of Plaintiff’s teeth and gums that did not require surgery.  Id.  Defendants allegedly did this for financial gain.  Id. at ¶46.  Plaintiff alleges these statements were made in writing and verbally during the initial consult on 5-6-21.  Id. at ¶¶45, 47. 

The allegations are allegations of fact that must be accepted as true.  Accepting them as true, Plaintiff states a claim for fraud with specificity. 

The claim is not a claim for negligence.  Plaintiff is not alleging in the 4^th cause of action that Defendants merely performed surgery below the standard of care.  Plaintiff is alleging that Defendants fraudulently represented that they would perform the surgery using the applicable standard of care and only in areas that required surgery. 

Defendants’ Demurrer to the 4^th cause of action for fraud is OVERRULED.

IV.  Motion to Strike—DENIED

            Defendants’ Motion to Strike Plaintiff’s request for fees and costs pursuant to Welf. & Inst. C. §15657.5 is DENIED.  Plaintiff sufficiently states a claim for elder abuse under Welf. & Inst. C. §15657.5 based on financial and physical elder abuse.  Plaintiff’s allegations support a finding that Defendants acted maliciously and fraudulently by intentionally performing unnecessary procedures for financial gain, misrepresenting the procedures that would be performed and charging Plaintiff for procedures that were never performed or to which Plaintiff never consented.  See Complaint, ¶¶25-29, 37-38.

            Defendants’ Motion to Strike Plaintiffs’ request for damages under CC §3345 is DENIED.  CC §3345 allows for trebling of “any statutory fine, civil or other penalty, or any other remedy the purpose or effect of which is to punish or deter.”  CC §3345(b).  CC §3345(a) only applies to “actions brought by, on behalf of, or for the benefit of those individuals specific in paragraphs (1) to (3), inclusive, to redress unfair or deceptive acts or practices or unfair methods of competition…(1) Senior citizens, as defined in subdivision (f) of Section 1761.” 

Defendants argue Plaintiffs have not alleged any unfair competition or deceptive advertising.  However, CC §3345 only requires that Plaintiff’s action be brought to redress unfair or deceptive acts or practices.  Plaintiff has alleged financial elder abuse and fraud against Defendants.  These claims qualify as “unfair or deceptive acts.”  As the Supreme Court stated in Clark v. Supr. Ct. (2010) 50 Cal.4^th 605, 611-612, treble damages under CC §3345 are not limited to CLRA claims.  “[S]ubdivision (b) of section 3345 allows for trebled recovery ‘[w]henever a trier of fact is authorized by a statute’ to impose specified remedies. That provision refers to any statute that authorizes the specified remedies, not just the Consumers Legal Remedies Act.”  Clark, supra, 50 Cal.4^th at 611-612.  The statutory remedies under CC §3294 and Welf. & Inst. C. §15657.5 would be included under “any statute.” 

            Defendants’ Motion to Strike Plaintiff’s claim for damages under Probate Code §859 is DENIED.  Probate Code §859 provides, “[i]f a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to…an elder…or through the commission of elder…financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part.”  Prob. Code §859.  Defendants argue Probate Code §859 is inapplicable, because Plaintiff fails to allege that Defendants acted in bad faith and the allegations only support a claim for negligence.  As discussed in connection with the demurrer, Plaintiff successfully states a claim for fraud and financial elder abuse.  “Bad faith” is not required if a claim for financial elder abuse is successfully established.  Financial elder abuse carries its own scienter requirements, e.g. intent to defraud.