Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22STCV05360, Date: 2024-02-21 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22STCV05360, Date: 2024-02-21 Tentative Ruling

Plaintiffs Suzanne Swerner and Hana Sabour may amend their complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Invasix, Inc. dba InMode (“Defendant”) demurs to Plaintiffs Suzanne Swerner and Hana Sabour (“Plaintiffs”)’s fifth cause of action for fraud and ninth cause of action for intentional infliction of emotional distress, and it also moves to strike Plaintiffs’ claims for punitive damages.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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, subd. (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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

In the fifth cause of action in the complaint, Plaintiffs allege that Defendant Claire Jimeno was an agent or employee of Defendant, she was introduced as an expert on the subject procedure, she represented that the procedure was minimally invasive and that Plaintiffs would see an immediate result, and she told Plaintiffs that the procedure had no risks involved and would not involve incision, swelling, or a long recovery. (Compl. ¶ 66.) Jimeno was the company representative training doctors on the devices, and she knew that the procedure involved incisions, would require downtime, there were risks involved as shown by Plaintiffs’ injuries, and Plaintiffs’ faces swelled after the procedure, such that Jimeno knew no results would be immediately evident. (Ibid.) Plaintiffs also allege that Jimeno concealed these same facts from Plaintiffs, and she made a false promise when she promised that Defendant Abdelmajid Sabour, MD would perform the procedure without risks, incisions, or downtime. (Ibid.)

Defendant argues that Plaintiffs have pled only conclusory statements, but the Court is not so convinced. Plaintiffs have sufficiently stated a claim for fraud despite the fact that their claim is not sufficiently clear as to whether they are pleading concealment, intentional misrepresentation, or negligent misrepresentation, as Plaintiffs are permitted to pled alternative theories of recovery, and the claim may be clarified during the pendency of this action. Further, the trier of fact has sufficient facts to conclude that Jimeno spoke for Defendant, she knew the facts were false, as she was familiar with the procedure, and Plaintiffs relied on these representations. Accordingly, Defendant’s demurrer to the fifth cause of action is OVERRULED.

“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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

In the ninth cause of action, Plaintiffs allege that Defendant caused Plaintiffs emotional distress through the same conduct alleged in the fifth cause of action. (Compl. ¶¶ 99-104.) Defendant argues that Plaintiffs’ use of conclusory statements renders this claim insufficient, but as discussed above, the Court finds that Plaintiffs have sufficiently stated their fraud claim. Further, while reasonable minds may differ as to whether the conduct was sufficiently outrageous, “it is for the jury . . . to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.) Thus, Defendant’s demurrer to the ninth cause of action is OVERRULED.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

For the reasons stated above, the Court finds that Plaintiffs have sufficiently stated a claim for fraud, which could support claims for punitive damages. However, a corporate employer like Defendant may be liable for punitive damages only where the acts supporting the award were performed by or with knowledge of or with ratification by corporate officials. (Civ. Code, § 3294, subd. (b).) Plaintiffs have alleged no facts that would allow the trier of fact to conclude that corporate officials were aware of the likelihood of injury, that they ratified the wrongful conduct which ultimately caused harm to Plaintiffs, or that they knew of Jimeno’s misrepresentations. Upon amending the complaint, Plaintiffs must allege specific facts in this regard to support an award for punitive damages, and conclusory statements will not suffice. Accordingly, Defendant’s motion to strike is GRANTED with thirty (30) days leave to amend.