Judge: Loren G. Freestone, Case: 37-2022-00046883-CL-PN-CTL, Date: 2024-03-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 08, 2024

02/09/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Limited  Professional Negligence Demurrer / Motion to Strike 37-2022-00046883-CL-PN-CTL CARUSO VS MOFID [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Mehrdad Mark Mofid and M. Mark Mofid, M.D. APC's (collectively, Mofid) demurrer to Plaintiff Jonathan Caruso's first amended complaint (FAC) is OVERRULED.

Caruso filed a sur-reply two days before the hearing on this motion. The Code of Civil Procedure contemplates a motion, an opposition, and a reply. (See Code Civ. Proc., § 1005, subd. (b).) The court declines to consider the unauthorized sur-reply. (See Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Breach of Contract Mofid demurs to the second cause of action for breach of contract. Mofid argues (1) Caruso judicially admits in the FAC that there was no contract, (2) Caruso fails to allege whether the contract was written, oral, or implied; (3) Caruso failed to attach a copy of any written contract or set out its terms verbatim; and (4) Caruso fails to allege that he was promised a certain result.

As to the first argument, Caruso alleges that 'no legally valid contract ever existed' to the extent 'the parties did not have a meeting of the minds as to what the patient would receive in exchange for the $6,528.48 he paid to the defendant.' However, Caruso also alleges 'if a contract is found to exist the defendant breached the contract' by 'failing to remove the dent in the patient's nose.' Caruso is permitted to plead in the alternative. (See Klein v. Chevron U.S.A. Inc. (2012) 202 Cal.App.4th 1342, 1389 ['a plaintiff may plead inconsistent claims that allege both the existence of an enforceable agreement and the absence of an enforceable agreement']; see also Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 [the doctrine of judicial estoppel 'obviously contemplates something other than the permissible practice of simultaneously advancing in the same action inconsistent claims'].) As to the second argument, this is a limited civil case. In limited civil cases, only general demurrers are permitted. (Code Civ. Proc., § 92, subd. (a).) 'Special demurrer are not allowed.' (Id. at subd. (c).) A demurrer on the ground that the complaint fails to specify the nature of the contract is a special demurrer.' (See Code Civ. Proc., § 430.10, subd. (g); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶¶ 7:37–38, 7:59, 7:90; see also Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401.) Calendar No.: Event ID:  TENTATIVE RULINGS

3061879  40 CASE NUMBER: CASE TITLE:  CARUSO VS MOFID [IMAGED]  37-2022-00046883-CL-PN-CTL As to the third argument, a plaintiff may allege a cause of action for breach of contract-written or oral-simply by alleging the 'legal effect' of the contract. (Miles, supra, 236 Cal.App.4th at p. 401–402; Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98; Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) As to the fourth argument, 'if a plaintiff can prove to a properly instructed jury that a surgeon has clearly promised a particular result (as distinguished from a mere generalized statement that the result will be good), and that the patient consented to an operation or other procedure in reliance on that promise, there can be recovery on the theory of warranty (or, to give the theory its more accurate name, breach of contract).' (Depenbrok v. Kaiser Foundation Health Plan, Inc. (1979) 79 Cal.App.3d 167, 171.) Here, as alleged in the FAC, Mofid promised Caruso a particular result-that 'the dent in his nose would completely disappear after the surgery and healing process.' Mofid utilized computer software to show Caruso an image of how his face would look after the procedure. The computer generated imaged showed the dent completely disappeared with no discoloration. Caruso asked Mofid whether he could achieve the results shown on the computer screen, to which Mofid responded with an unqualified 'yes.' Based on Mofid's representations, Caruso agreed to have him perform the procedure. This is sufficient for pleading purposes.

For the reasons set forth above, the demurrer to the breach of contract claim is overruled.

CLRA Mofid demurs to the fourth cause of action for violation of the Consumers Legal Remedies Act. Mofid argues that 'claims based on medical malpractice are not within the purview of the CLRA.' The CLRA applies to any 'transaction intended to or that results in the sale . . . of . . . services to any consumer.' (Civ. Code, § 1770, subd. (a).) It is an 'unfair' and 'deceptive act' in violation of the CLRA to represent that 'services are of a particular standard, quality, or grade . . . if they are of another.' (Id.

at subd. (a)(7).) 'Transaction' is defined as 'an agreement between a consumer and another person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.' (Civ. Code, § 1761, subd. (e).) 'Services' are defined as 'work, labor, and services for other than a commercial or business use.' (Id. at subd. (b).) 'Consumer' is defined as 'an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household services.' (Id. at § 1761, subd. (d).) Here, as alleged, Caruso (a consumer) allegedly paid Mofid $6,528.48 (a transaction) in exchange for a rhinoplasty (services). Mofid allegedly promised Caruso that he would raise the bone and completely remove the dent (a particular standard/quality/grade). However, Mofid did not raise the bone to remove the dent and instead told Mofid after the procedure that the 'skin will thicken up' in that area (an unfair/deceptive act). This is sufficient to state a claim under the CLRA.

Notably, patients have been allowed to bring CLRA claims against hospitals based on deceptive promises regarding medical services. (See, e.g., Naranjo v. Doctors Medical Center of Modesto Inc.

(2023) 90 Cal.App.5th 1193, 1218–1219 [patient could state CLRA claim on the ground that medical center charged a patient service fee for emergency medical care without having disclosed the fee in advance].) Consumers have also been allowed to bring CLRA claims against businesses based on deceptive promises regarding body modifications. (See, e.g., Consumer Justice Center v. Trimedica International Inc. (2003) 107 Cal.App.4th 595, 603–605 [consumer could state CLR claim on ground that supplement company falsely stated that its product 'enlarges women's breasts'].) There is no reason why Caruso cannot similarly state a CLRA claim based on the allegations in this case.

Also notable is the fact that the CLRA contains certain express exemptions. For example, the CLRA does not apply to transactions involving the construction or sale of real estate. (Civ. Code, § 1754.) The Calendar No.: Event ID:  TENTATIVE RULINGS

3061879  40 CASE NUMBER: CASE TITLE:  CARUSO VS MOFID [IMAGED]  37-2022-00046883-CL-PN-CTL CLRA also does not apply to the owners or employees of any advertising medium absent any knowledge of the violations. (Id. at § 1755.) Under the maximum of statutory interpretation expressio unius est exclusio alterius, 'if exemptions are specified in a statute, [courts] may not imply additional exemptions unless there is a clear legislative intent to the contrary.' (Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 881.) Here, there is no such clear intent to further restrict the application CLRA.

Rather, the Legislature intended that the CLRA be 'liberally construed and applied to promote its underlying purposes,' including 'protect[ing] consumers against unfair and deceptive business practices.' (Code Civ. Proc., § 1760.) The only case Mofid cites in support of his argument for a 'medical malpractice' exemption is an order from a case pending in Los Angeles Superior Court. 'California state trial court decisions in other cases have no precedential value and cannot be cited.' (Wood v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 742, 763 fn. 13.) For the reasons set forth above, the demurrer to the CLRA claim is overruled.

Conclusion The demurrer is overruled.

Mofid shall file an answer within 10 days.

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