Judge: Kevin C. Brazile, Case: 20STCV24883, Date: 2023-02-01 Tentative Ruling

Hearing Date: February 1, 2023

Case Name: Ma v. Vista Del Mar Child and Family Services, et al.

Case No.: 18STCV07962

Matter: Demurrer; Motion to Strike

Moving Party: Defendant Vista Del Mar Family and Child Services

Responding Party: Plaintiff Dan Ma

Notice: OK

Ruling: The Demurrer is overruled.

The Motion to Strike is granted in part, without leave to amend.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On September 14, 2021, Plaintiff Dan Ma filed the operative Fourth Amended Complaint (“4AC”) against Defendant Vista Del Mar Child and Family Services for (1) fraudulent inducement, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) breach of written contract, and (5) breach of oral contract.  

The allegations of the 4AC are as follows. Plaintiff gave her child up for adoption through Defendant, an adoption agency.  Plaintiff signed a relinquishment agreement as to her child.  Plaintiff could not speak English and was not shown an English translation of the agreement.  She also had a difficult time understanding the formal Mandarin agreement that was provided to her.  However, Plaintiff was told by the Defendant's interpreter that she had a 30-day period to cancel the agreement.  This was a fraudulent representation.  Within 30 days of signing the relinquishment agreement, Plaintiff sought to rescind the agreement and obtain her child.  Defendant refused to return Plaintiff’s child because Defendant was motivated by a substantial payment from the adoptive parents.  

1. Demurrer

Defendant Vista Del Mar Child and Family Services demurs to the fourth cause of action for failure to state sufficient facts.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

Previously, the Court ruled that “it is not apparent that either the English or Mandarin versions of the written relinquishment agreement provided for a 30-day cancellation period.  The TAC does not apparently allege that the written Mandarin agreement was substantively different from the English translation.  Thus, the legal basis for the written breach of contract claim is not clear to the Court.”

The 4AC now seems to allege that there was a substantive difference between the English and Mandarin versions of the subject agreement as it concerned the 30-day period described therein.  (4AC ¶¶ 52-53.)  The Court believes this is just a factual issue.

In sum, the Demurrer is overruled.  The Request for Judicial Notice is granted.  An answer is to be filed within 20 days.  

2. Motion to Strike

Defendant seeks to strike the 4AC’s references to punitive damages.

The Motion to Strike is granted with respect to the punitive damages requested for the oral contract claim for which such damages are not available.  Leave to amend is denied.

Punitive damages are otherwise allowable for Plaintiff’s fraud claims, and ratification might be inferred.  (Civ. Code § 3294.)  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.