Judge Lynne M. Hobbs, Case Number: 24STCV07632, Date: 2024-08-28 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV07632, Date: 2024-08-28 Tentative Ruling

Case Number: 24STCV07632 Hearing Date: August 28, 2024 Dept: 61

SARA EHSANI-NIA, AN INDIVIDUAL vs NAREK OHANIAN, AN INDIVIDUAL, et al.

TENTATIVE

Defendants Narek Ohanian, D.D.S. and Narek Ohanian D.D.S. Dental Corporation’s Demurrer and Motion to Strike Portions of the First Amended Complaint is OVERRULED. Defendants’ motion to strike is GRANTED with 20 days leave to amend as to the prayer for attorney fees, and DENIED as to the prayer for punitive damages.

Plaintiff to provide notice

DISCUSSION

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants Narek Ohanian, D.D.S. and Narek Ohanian D.D.S. Dental Corporation (Defendants) demurrer to the second through fourth causes of action for breach of fiduciary duty, fraud, and constructive fraud, alleged by Plaintiff Sara Sani-Nia (Plaintiff) on the grounds that Plaintiff has not alleged the specific misconduct that Defendants committed or the injury that Plaintiff suffered. (Demurrer at pp. 6–8.)

“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.” (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 838.) The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach. (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.) ”A breach of a fiduciary duty usually constitutes constructive fraud.” (Knox v. Dean (2012) 205 Cal.App.4th 417, 434.)

Plaintiff’s claims are adequately pleaded. Although Defendants argue that Plaintiff pleads no causal “nexus” between their alleged conduct and Plaintiff’s injury, the FAC is reasonably clear on this point. It is alleged that Dependents recommended a full set of veneers to replace one cracked veneer, that this procedure was recommended with knowledge that it was not necessary, (FAC ¶¶ 14–15.) It is further alleged that this procedure was performed negligently, causing Plaintiff pain and suffering — despite Defendants’ assurances that the procedure was free of risk. (FAC ¶¶ 14, 20–22.) Plaintiff thus alleges both breach of duty and injury resulting therefrom.

Plaintiff’s fraud claims are also adequately stated. The particularity requirement applicable to fraud claims “necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) Plaintiff alleges that the above representations regarding the necessity of the veneer procedure, as well as the risk-free nature of the procedure, were made orally and in person by Defendants in January and February 2023. (FAC ¶ 14.) Plaintiff alleges that she suffered injury when Defendants performed the procedures negligently, causing her pain, suffering, and distress. (FAC ¶¶ 20–22.)

The demurrer is therefore OVERRULED.

II. MOTION TO STRIKE

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)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike 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.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants move to strike Plaintiff’s prayer for punitive damages and attorney fees, on the grounds that insufficient facts are alleged in support of the punitive damages claim, and that no basis for seeking attorney fees is alleged. (Motion at pp.

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294, subd. (a).) The terms are defined as:

1. “Malice” means 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.

2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

3. “Fraud” 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.

(Civ. Code § 3294, subd. (c).)

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct.

(Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

As discussed in relation to Defendants’ demurrer, Plaintiff alleges that Defendants lured Plaintiff into a dental procedure on false assurances of its necessity, and also as to the absence of any risk. It is also alleged that they negligently performed the surgery, causing pain and suffering to Plaintiff. The court must accept these allegations as true for the purposes of these challenges to the pleadings, and they suffice to state a claim for punitive damages based on fraud and malice. (Blank, supra, 39 Cal.3d at p. 318.)

But Defendants’ argument as to the prayer for attorney fees is more persuasive. Litigants are ordinarily expected to bear their own attorney fees, absent contractual agreement or statute to the contrary. (Civ. Code § 1021.) The FAC seeks attorney fees without pleading any legal basis therefore.

Plaintiff in opposition argues that fees may be sought under Health & Safety Code § 123120, which permits fees to a prevailing party in “an action against the health care provider” alleged to have violated Health & Safety Code § 123110. (Health & Safety Code § 123120.) Section 123110, meanwhile, requires medical providers to make records available to patients. (Health & Safety Code § 123110, subd. (a).) Plaintiff notes that the FAC contains an allegation that Defendants have falsified Plaintiff’s medical records and have “failed to provide full disclosure to plaintiff in violation of plaintiff’s rights.” (FAC ¶ 18.)

Plaintiff’s argument fails, however, because under Health & Safety Code § 123120, fees are available to a prevailing party who “bring[s] an action against the health care provider to enforce the obligations prescribed by Section 123110.” (Health & Safety Code § 123120.) Plaintiff here makes a factual allegation of a failure to make “full disclosure” of indeterminate nature, but have neither made reference to Health & Safety Code § 123110 nor alleged any claim using it as a basis. Thus no fees are available under that statute.

The motion to strike is therefore GRANTED with leave to amend as to the prayer for attorney fees, and DENIED as to the prayer for punitive damages.