Judge Lee S. Arian, Case Number: 23STCV16416, Date: 2023-11-17 Tentative Ruling

MOVING PARTY: Defendant Southern California Surgery Center, Inc. (“Moving Defendant”)

This is an action arising from medical malpractice. On July 13, 2023, Plaintiff Ana Bella Grijalva (“Plaintiff”) filed a complaint against Defendants Alvaro Rojas, Jesus Gallegos, Rasmed Health Clinic dba Rosemead Aesthetic Surgery and Medical Center PC, El Monte Clinica Medica General Medical Center, Inc., Southern California Surgery Center, Inc. (“Moving Defendant”), and Does 1 through 50, alleging causes of action for: (1) medical malpractice; (2) negligent hiring, retention, supervision, and/or failure to terminate; (3) common law assault; (4) common law battery; (5) sexual battery in violation of Civ. Code § 1708.5 et seq.; (6) violation of the Ralph Civil Rights Act; (7) violation of the Tom Bane Civil Rights Act; (8) premises liability; (9) intentional infliction of emotional distress; (10) negligent infliction of emotional distress; (11) breach of fiduciary duty; (12) fraud—intentional misrepresentation; (13) fraud—concealment; and (14) unjust enrichment.

Moving Defendant was personally served with the summons and complaint on August 22, 2023, according to Plaintiff’s October 30, 2023, Proof of Service of Summons.

On October 11, 2023, Moving Defendant filed and served a demurrer to the eleventh through fourteenth causes of action in the complaint, as well as a motion to strike.[1] On November 3, 2023, Plaintiff filed an opposition to the demurrer and motion to strike. On November 9, 2023, Moving Defendant filed a reply as to the demurrer and motion to strike.

The meet and confer requirement has been met as to the Demurrer and Motion to Strike pursuant to Code Civ. Proc. §§ 430.41 and 435.5.

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) A plaintiff “need not particularize matters presumptively within the knowledge” of a demurring defendant. (Strozier v. Williams (1960) 187 Cal.App.2d 528, 532.) Although Courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

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. (Ibid.) If 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).

Moving Defendant demurs to the eleventh through fourteenth causes of action in the complaint on the grounds that such causes of action fail to state facts sufficient to constitute a cause of action.

In opposition to the demurrer, Plaintiff contends that the demurrer is untimely and should not be considered. Plaintiff also asserts that the complaint alleges facts sufficient to constitute causes of action against Moving Defendant.

Code Civ. Proc. § 430.40(a) provides that “[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” A court has discretion to consider a late-filed demurrer. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 282.) The trial court can consider a late-filed demurrer “so long as its action does not affect the substantial rights of the parties.” (Ibid.)

Here, Moving Defendant was served with the summons and complaint on August 22, 2023; however, the instant demurrer was not filed until October 11, 2023. At the latest, the demurrer should have been filed by September 21, 2023. The Court, however, exercises its discretion and will consider Moving Defendant’s late-filed demurrer on the merits. Plaintiff has not indicated any prejudice due to the late filing of the demurrer.

“In order to plead a cause of action for breach of fiduciary duty . . . the plaintiff must show the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach; the absence of any one of these elements is fatal to the cause of action.” (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.) “Whether a fiduciary duty exists is generally a question of law.” (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 915.) “Whether the defendant breached that duty towards the plaintiff is a question of fact.” (Ibid.)

The Court finds that Plaintiff has not alleged a cause of action for breach of fiduciary duty. The factual allegations section of the complaint—which is incorporated by reference into each cause of action in the complaint—does not contain any specific allegations referencing Moving Defendant. (Complaint, ¶¶ 24-38.) The eleventh cause of action is set forth in a conclusory manner and does not contain any specific allegations as to any actions of Moving Defendant that purportedly breached a fiduciary duty. (Id., ¶¶ 121-127.) While Plaintiff has stated that “Defendants . . . had a duty to act with the utmost good faith in the bests interests of Plaintiff and a duty to exercise and possess the degree of skill and care in the treatment of Plaintiff,” Plaintiff has not sufficiently alleged the existence of a fiduciary relationship or how Moving Defendant breached such relationship. (Id.) In fact, the complaint contains no specific allegations as to Moving Defendant. (Complaint, ¶¶ 24-38.)

The Court therefore SUSTAINS the demurrer of Moving Defendant to the eleventh cause of action in the complaint with 20 days leave to amend.

A complaint for fraud must allege the following elements: (1) 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 fraud must be specifically pleaded.” (Ibid.) To state a fraud-based cause of action a plaintiff must plead “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.) “[F]raud must be pled specifically; general and conclusory allegations do not suffice.” (Ibid.)

The Court finds that the twelfth cause of action in the complaint is insufficiently alleged. Plaintiff makes conclusory allegations, and the twelfth cause of action is not alleged with the required particularity. (Complaint, ¶¶ 128-131.) Plaintiff has failed to allege a knowingly false representation by Moving Defendant and has failed to allege justifiable reliance. (Id.) Moreover, pursuant to the twelfth cause of action, Plaintiff has failed to allege how, when, where, to whom, and by what means the purported fraudulent misrepresentations were tendered. The twelfth cause of action is much too conclusory.

The Court therefore SUSTAINS the demurrer of Moving Defendant to the twelfth cause of action in the complaint with 20 days leave to amend.

“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 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.” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) “Each element in a cause of action for fraud . . . must be factually and specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)

Plaintiff has failed to allege the thirteenth cause of action with the required specificity. (Complaint, ¶¶ 132-140.) Plaintiff makes no specific allegations against Moving Defendant as to the thirteenth cause of action. (Id.) Plaintiff merely makes conclusory allegations without setting forth sufficient facts. (Id.) Plaintiff lumps in all defendants without differentiating between defendants and makes no specific allegations concerning Moving Defendant. (Id.)

The Court therefore SUSTAINS the demurrer of Moving Defendant to the thirteenth cause of action in the complaint with 20 days leave to amend.

There is no cause of action in California for unjust enrichment. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) Unjust enrichment does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so. (Ibid.) Unjust enrichment is a general principle, underlying various legal doctrines and remedies, rather than a remedy itself. (Ibid.)

Plaintiff has failed to cite to any legal authority in support of her argument that the fourteenth cause of action is sufficient. (Opposition at 9:1-9.) The Court finds that Plaintiff has waived such argument under Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210. Additionally, under Melchoir, supra, 106 Cal.App.4th 779, unjust enrichment is not a cause of action.

Therefore, the Court SUSTAINS the demurrer of Moving Defendant to the fourteenth cause of action without leave to amend.

“Any 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.” (Code Civ. Proc. § 435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436(a).) A 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.” (Code Civ. Proc. § 436(b).)

Moving Defendant seeks to strike punitive damages allegations from the complaint and prayer for relief therein. Moving Defendant contends that: (1) Plaintiff failed to comply with Code Civ. Proc. § 425.13; (2) the punitive damages allegations are conclusory; and (3) the complaint fails to state facts sufficient to meet the requirements of Civ. Code § 3294.

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” (Code Civ. Proc. § 425.13(a).) “The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” (Ibid.) “The clear intent of the Legislature is that any claim for punitive damages in an action against a health care provider be subject to the statute if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “conduct which is 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.” (Civil Code § 3294(c)(1).) “Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) “means 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.” California Civil Code, Section 3294(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

An employer will not be liable for punitive damages based upon the acts of an employee of the employer, unless: (1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others; or (2) the employer ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code § 3294(b).) As to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of a corporation. (Ibid.)

A managing agent is someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.) A managing agent is a person whose decisions affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 715.) The inquiry in determining whether an employee is a managing agent does not necessarily hinge on their level in the corporate hierarchy. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 421.) The critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy. (Ibid.)

Here, the Court finds that the complaint arises from the negligence of a health care provider. Plaintiff alleges that she underwent procedures and treatments with Defendants and was injured. (Complaint, ¶¶ 26-38.) Plaintiff alleges that Defendant Jesus Gallegos presented himself as a physician, but he was not a licensed physician. (Id., ¶ 26.) Plaintiff alleges that Moving Defendant is a healthcare provider. (Id., ¶ 44.) Plaintiff has not complied with Code Civ. Proc. § 425.13(a) even though the complaint arises from the professional negligence of a healthcare provider.

Moreover, the Court finds that Plaintiff not alleged sufficient facts showing malice, fraud, or oppression to warrant the imposition of punitive damages against Moving Defendant. The complaint only makes conclusory allegations as to punitive damages and does not set forth specific facts. Moreover, Moving Defendant is a corporate defendant, and the complaint does not allege any oppression, fraud, or malice on the part of Moving Defendant by an officer, director, or managing agent.

Therefore, the Court GRANTS Moving Defendant’s request to strike punitive damages allegations from the complaint and prayer for relief. Plaintiff may follow the procedure in Code Civ. Proc. § 425.13 to seek punitive damages.

Moving Defendant seeks to strike the eleventh, twelfth, thirteenth, and fourteenth causes of action form the complaint, as well as Item 9 from the Prayer for Relief. The Court has sustained the demurrer to the eleventh through thirteenth causes of action with leave to amend. The Court has sustained the demurrer to the fourteenth cause of action without leave to amend.

The Court therefore GRANTS Moving Defendant’s request to strike the eleventh, twelfth, and thirteenth causes of action from the complaint with 20 days leave to amend.

As to the fourteenth cause of action and Item 9 from the Prayer for Relief, the Court GRANTS Moving Defendant’s request to strike such language from the complaint without leave to amend due to the Court sustaining the demurrer to the fourteenth cause of action without leave to amend.

While the Notice of Motion requests that the Court strike the complaint in its entirety, the moving papers make no reasoned argument with citations to authority as to why the entire complaint should be stricken.[2] The same defect exists as to Moving Defendant’s request to strike Item 10 from the Prayer for Relief for attorneys’ fees. The moving and reply papers focus solely on striking punitive damages allegations from the complaint, as well as striking the eleventh through fourteenth causes of action from the complaint.

entire complaint as well as Item 10 from the Prayer for Relief for attorneys’ fees.

The Court SUSTAINS the demurrer of Moving Defendant to the eleventh, twelfth, and thirteenth causes of action in the complaint with 20 days leave to amend.

The Court SUSTAINS Moving Defendant to the fourteenth cause of action in the complaint without leave to amend.

The Court GRANTS Moving Defendant’s request to strike punitive damages allegations from the complaint and prayer for relief. Plaintiff may follow the procedure in Code Civ. Proc. § 425.13 to seek punitive damages.

The Court therefore GRANTS Moving Defendant’s request to strike the eleventh, twelfth, and thirteenth causes of action from the complaint with 20 days leave to amend.

entire complaint as well as Item 10 from the Prayer for Relief for attorneys’ fees.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Only the first, second, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action are asserted against Moving Defendant.

[2] Contentions are waived when a party fails to support them with reasoned argument and citations to authority under Moulton Niguel Water Dist. v. Colombo, supra, 111 Cal.App.4th 1210.