Judge: H. Jay Ford, III, Case: 23SMCV01072, Date: 2023-10-26 Tentative Ruling

Case Number: 23SMCV01072    Hearing Date: October 26, 2023    Dept: O

  Case Name:  Yaghoubzadeh v. Moradi, et al.

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendant David R. Moradi

RESP. PARTY:         Plaintiff Crystal Yaghoubzadeh

TENTATIVE RULING

Defendant David R. Moradi’s Demurrer to the Plaintiff’s 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, and 8^th Causes of Action in the FAC is OVERRULED. Defendant David R. Moradi’s Motion to Strike Plaintiff’s FAC Prayer Paragraphs Seven and Nine is DENIED. Plaintiff successfully alleges all the elements for the 2^nd–8^th Causes of Action in the FAC. 

I.                Defendant’s Demurrer to the FAC  

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

a.     2^nd Cause of action - Violation Of Health And Safety Code under §§ 123100, Et Seq - OVERRULED

“[A]ny adult patient of a health care provider . . . and any patient's personal representative shall be entitled to inspect patient records upon presenting to the health care provider a request for those records and upon payment of reasonable costs.” (Health & Saf. Code, § 123110(a).)

“A health care provider shall permit this inspection during business hours within five working days after receipt of this request.” (Id.) “Any patient or her representative shall be entitled to a paper or electronic copy of all or any portion of her records that they have a right to inspect, upon presenting to the healthcare provider a request specifying the records to be copied.” (Health & Saf. Code § 123110(b)(1).) “A health care provider shall ensure that copies are transmitted within 15 days after receiving the request.” (Health & Saf. Code § 123110(b)(1).)

“Any patient or representative aggrieved by a violation of Section 123110 may, in addition to any other remedy provided by law, bring an action against the health care provider to enforce the obligations prescribed by Section 123110. Any judgment rendered in the action may, in the discretion of the court, include an award of costs and reasonable attorney fees to the prevailing party.” (Health & Saf. Code § 123120.)

Plaintiff alleges:

(1)     Defendant Moradi is a health care provider within the meaning of Health and Safety code § 123105. (FAC, ¶ 38.)  

(2)     Plaintiff submitted formal record requests to Defendant pursuant to Health and Safety Code § 123110 on November 9, 2021, and December 13, 2022, and Defendant knowingly and intentionally continues to withhold the requested medical records to this date. (FAC, ¶ 39, 40, 41.)

(3)     Plaintiff alleges that through Defendant not providing her with the requested records she will be irreparably harmed by denying her access to her own medical records for which Plaintiff has no plain, speedy or adequate remedy at law. (FAC, ¶ 42.)

The Court finds that Plaintiff has sufficiently alleged a cause of action for Violation of Health And Safety Code under §§ 123100, Et Seq.  Defendant’s Demurrer to the 2^nd Cause of Action is OVERRULED.

b.  2nd Cause of Action—Negligent Hiring And Supervision – OVERRULED

For a Negligent hiring and Supervision claim a Plaintiff must plead: 1) That Defendant hired employees named in Complaint; 2) That the employee was unfit or incompetent to perform the work for which they were hired; 3) That Defendant knew or should have known that employee was unfit or incompetent and that this unfitness or incompetence created a particular risk to others; 4) That employee unfitness or incompetence harmed Plaintiff; and 5) That Defendant’s negligence in hiring and supervising said employee was a substantial factor in causing Plaintiffs’ harm. (See, CACI, No. 426 - Negligent Hiring, Supervision, or Retention of Employee.)

Plaintiff’s FAC alleges that Defendant Moradi works out of Defendant Agaki’s office, that Moradi hired and supervised other named and unnamed defendants (employees), and that Defendants are alter egos and/or joint enterprises. (FAC at ¶¶ 6-8, 46, 52). Plaintiff alleges:

(1)   Moradi hired employees (FAC, ¶ 46);

(2)   the employees were unfit and incompetent to perform the dental or orthodontic work which they were hired (FAC, ¶ 47);

(3)   “Defendant[] knew or should have known that Employee Defendants [DOES 1-50] were, or became, unfit and incompetent to perform the orthodontic and dental work for which they were hired to perform and that this unfitness and incompetence created a risk to others, including Plaintiff” (FAC, ¶ 48);

(4)   that employee unfitness or incompetence harmed Plaintiff; (FAC at ¶¶ 49-50); and

(5)   that Defendants negligence in hiring and supervising said employee was a substantial factor in causing Plaintiff’s harm. (FAC at ¶¶ 49-50.)

The Court finds Plaintiff has successfully alleged all the elements of Negligent Hiring And Supervision. Defendant’s Demurrer to the 3^rd cause of action is OVERRULED.

a.     4^th cause of action —Fraudulent Misrepresentation

“The elements of fraud . . . are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

"A fraudulent misrepresentation is one made with the knowledge that it is or may be untrue, and with the intention that the person to whom it is made act in reliance thereon. It must appear, however, not only that the plaintiff acted in reliance on the misrepresentation but that he was justified in his reliance. He may not justifiably rely upon mere statements of opinion, including legal conclusions drawn from a true state of facts, unless the person expressing the opinion purports to have expert knowledge concerning the matter or occupies a position of confidence and trust. If, however, the opinion or legal conclusion misrepresents the facts upon which it is based or implies the existence of facts which are nonexistent, it constitutes an actionable misrepresentation." (Wilke v. Coinway, Inc. (1967) 257 Cal.App.2d 126, 136, citations omitted, emphasis added)

Plaintiff alleges:

            (1) Moradi made numerous specific misrepresentations to the Plaintiff on or about March                                                                    of 2021, April of 2021, and October 22, 2021 at 2:00 p.m. (FAC, ¶¶ 57–58);

            (2) Moradi knew the misrepresentations were false (FAC, ¶ 57);

            (3) that Defendant intended to defraud Plaintiff or induce reliance so that Plaintiff would                                                                be obligated to pay Defendant additional money for Defendant’s services  (FAC, ¶¶ 58,     72.);

            (4) that Plaintiff was unaware of the truth and justifiable relied on Defendant’s             misrepresentations (FAC, ¶ 59); and

(6)   that Plaintiff sustained damages. (FAC, ¶¶ 60–61.)

Plaintiff further argues against Defendant’s reliance on Wilke, and Plaintiff argues Wilke supports the Plaintiff’s complaint. Under Wilke, Moradi is a person “expressing an opinion purporting to have expert knowledge concerning the matter or occupies a position of confidence and trust.” (Opposition, p. 15; Wilke, supra, 257 Cal.App.2d at p. 136.) Defendant’s statements may have been an opinion as argued by Defendant, but the opinion is still actionable under Wilke because of Defendant’s purported professional skill and knowledge in orthodontic work.

Plaintiff has sufficiently alleged the elements of Fraudulent Misrepresentation. Defendant’s Demurrer to Plaintiff’s 4^th Cause of Action is OVERRULED.

b.     5^th Cause of Action—Negligent Misrepresentation - OVERRULED

“Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for that belief, he or she may be liable for negligent misrepresentation. If, however, defendant's belief is both honest and reasonable, the misrepresentation is innocent and there is ordinarily no tort liability.” (5 Witkin, Summary of California Law (2005) Torts, §818.)

To state a viable cause of action for negligent misrepresentation, a party must plead the following:  “[1] misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; [2] ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and [3] resulting damage.” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc., (2004) 115 Cal.App.4th 1145, 1154.)

Plaintiff successfully plead the elements for Fraudulent Misrepresentation above, and the same set of allegations and facts apply to Negligent Misrepresentation. More specifically, Plaintiff pleads the following:

(1)   Defendant Moradi made numerous misrepresentations to Plaintiff (FAC, ¶¶ 53–56, 62);

            (2) that Defendant’s ignorance of the truth and justifiable reliance on the                                                                                                          misrepresentation by Plaintiff (FAC, ¶¶ 64–66); and

            (3) that Plaintiff was harmed or damaged (FAC, ¶¶ 67–68).

Plaintiff has successfully alleged the elements of Negligent Misrepresentation. Defendant’s Demurrer to Plaintiff’s 5^th Cause of Action is OVERRULED.

c.      6^th  Cause of Action—Fraudulent Concealment - OVERRULED

“The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.”  (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

There are “four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.”  (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

Plaintiff alleges:

(1)   Defendant Moradi intentionally suppressed facts from Plaintiff including but not limited to that Defendant’s standard of care was not up to standards of the knowledge, skill, competence and/or care for licensed skilled Orthodontic providers in the Los Angeles County. (FAC, ¶ 71);  

(2)   Defendant had a duty to disclose these above-mentioned suppressed facts since Defendant was Plaintiff’s physician (FAC, ¶ 73);

            (2) that Defendant knew such misrepresentations were false (FAC, ¶¶ 71–72);

            (3) that Defendant intended to defraud Plaintiff or induce reliance by concealing facts                                                              (FAC, ¶¶ 72, 75);

            (4) that Plaintiff was unaware of the truth and justifiable relied on Defendant’s             misrepresentations (FAC, ¶ 74); and

            (5) that Plaintiff sustained damages. (FAC, ¶¶ 77–78.)

Thus, Plaintiff has successfully alleged all the elements of Fraudulent Concealment.  Defendant’s Demurrer to Plaintiff’s 6^th Cause of Action is OVERRULED.

d.     7^th Cause of Action—Intentional Infliction Of Emotional Distress – OVERRULED

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. “Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].)

Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court. (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 [affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct].) If reasonable persons may differ, it is for the jury to determine whether the conduct was actually outrageous. (Id.)

Here, Plaintiff incorporates, repeats, and realleges all allegations throughout the complaint. (FAC, ¶ 79.) Plaintiff alleges Defendant’s behavior, alleged within the FAC, was outrageous (FAC, 80.) The FAC includes alleged facts pleading fraudulent misrepresentation, fraudulent concealment and dental malpractice that could reasonably reach outrageous behavior, and thus is a question of fact for the jury. The Plaintiff alleges Defendant intended to cause emotional distress or acted with reckless disregard of the probability that Plaintiff would suffer emotional distress by realleging other allegations in the complaint, namely Defendant’s fraudulent concealment of facts intending to prolong treatment obligating Plaintiff to pay additional money for Defendant’s services. (FAC, ¶¶ 81, 72.) Plaintiff alleges that as a direct and proximate result of Defendant’s conduct, Plaintiff suffered, and continues to suffer, and will suffer in the future, severe emotional distress. (FAC, ¶ 82–83.)

Thus, Plaintiff has successfully alleged all the elements of IIED. Defendant’s Demurrer to Plaintiff’s 7^th Cause of Action is OVERRULED.

e.      8^th Cause of Action—Declaratory Relief Re: Health And Safety Code §§ 123100, Et Seq.

“To allege facts sufficient to state a cause of action for declaratory relief, the plaintiff must allege two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.” Childhelp, Inc. v. City of Los Angeles (2023) 91 Cal.App.5th 224, 235, as modified (May 5, 2023), [internal citations omitted].)

Here, Plaintiff’s claim for Declaratory Relief under Health and Safety Code §§ 123100, et seq is a proper subject of declaratory relief because Plaintiff successfully alleges Defendant violated § 123100 by not providing requested medical records within the statutory fifteen day period and has yet to supply the records. Under Health and Safety Code § 123120, “[a]ny patient or representative aggrieved by a violation of Section 123110 may, in addition to any other remedy provided by law, bring an action against the health care provider to enforce the obligations prescribed by Section 123110.” (Health & Saf. Code § 123120, emphasis added.) Declaratory relief, along with injunctive relief mentioned in the prayer for relief, are other remedies provided by law and thus are in line with the statute.

Plaintiff also alleges this statutory violation creates an actual controversy because “(i) that Health and Safety Code § 123100, et seq. requires that Defendant[] provide true and correct copy of Plaintiff's medical records; (ii) Defendant did not, and continue[s] to not, comply with Health and Safety Code § 123100, et seq.; and (iii) that such breach warrants the issuance of the herein requested injunctive relief to enjoin the violation,” further a “[a] judicial determination is necessary and appropriate at this time, so that the parties may ascertain their respective rights and duties under Health and Safety Code § 123100, et seq.” (FAC, ¶¶ 85, 86.)

Thus, Plaintiff has successfully alleged all the elements for Declaratory Relief under Health and Safety Code §§ 123100, et seq.  Defendant’s Demurrer to Plaintiff’s 8^th Cause of Action is OVERRULED.

II.             Motion to Strike - DENIED

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

“Any judgment rendered in the action may, in the discretion of the court, include an award of costs and reasonable attorney fees to the prevailing party.” (Health & Saf. Code, § 123120.)

“A preliminary injunction is an interim remedy designed to maintain the status quo pending a decision on the merits. It is not, in itself, a cause of action. Thus, a cause of action must exist before injunctive relief may be granted.” (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.)

Defendant first moves to strike Plaintiff’s Prayer for attorney’s fees and costs under the Violation of Health and Safety Code §§ 123100, et seq. (MTS, p. 5; see FAC, Prayer ¶ 7, p 16.) However, Health and Safety Code §123120 provides for reasonable attorney’s fees and costs to the prevailing party in a cause of action brought under a violation of Health and Safety Code § 123100. Plaintiff has successfully brought a cause of action under Health and Safety Code § 123100, and thus if Plaintiff is successful in their claim they are entitled to attorney’s fees and costs. Defendant’s Motion to Strike Plaintiff’s Prayer ¶ 7 is DENIED.

Defendant next moves to Strike Plaintiff’s FAC Prayer ¶ 9, “[t]hat an injunction shall be issued against Defendants, and each of them, which shall require Defendants to provide true and correct copies of Plaintiff's patient records and shall enjoin Defendants from violating Health and Safety Code § 123100, et seq.” (FAC Prayer ¶ 9, p. 16.) However, Plaintiff correctly points out in the opposition, that they are permitted to plead and pray for injunctive relief in the FAC, since they may at some point move for injunctive relief in relation to whether they win declaratory relief. (See Raju v. Superior Court (2023) 92 Cal.App.5th 1222, 1251, as modified on denial of reh'g (July 6, 2023).) Thus, Defendant’s Motion to Strike Plaintiff’s Prayer ¶ 9 is DENIED.