Judge: Malcolm Mackey, Case: 20STCV45492, Date: 2023-01-10 Tentative Ruling
Case Number: 20STCV45492 Hearing Date: January 10, 2023 Dept: 55
ANYANWU
v. ST. JOHN’S WELL CHILD & FAMILY CENTER 20STCV45492
Hearing Date: 1/10/23,
Dept. 55
#12: DEMURRER TO
PLAINTIFF’S SECOND AMENDED COMPLAINT;
MOTION TO STRIKE.
Notice: Okay
Opposition
MP:
Defendants ST.
JOHN’S WELL CHILD & FAMILY MEDICAL CENTER and KOUROSH MICHAEL BERAL, D.D.S.
RP:
Plaintiff
Summary
On 11/30/20, Plaintiff HENRY ANYANWU filed a Complaint.
On 4/15/22, Plaintiff filed a First Amended
Complaint, alleging: Before and during Plaintiff’s dental treatments, each defendant misrepresented, in a marketing
scheme, to Plaintiff and others, that Defendant EDWARD MORANDO was licensed,
authorized and qualified to perform tooth extractions and other dental services. Defendants ST. JOHN’S WELL CHILD & FAMILY
MEDICAL CENTER and KOUROSH MICHAEL BERAL, D.D.S. and DR. DEHGHAN-SHIRAZI failed
to properly train, screen, and supervise, management, staff and medical care
workers. As a result, defendants induced
Plaintiff to provide treatments, and Plaintiff could not seek treatment from
licensed and qualified dental care professionals immediately after being harmed
and injured by Defendants. Plaintiff
discovered the scheme in April 2020, when Plaintiff was contacted by law enforcement
authorities.
The causes of action are:
1. FRAUD AND DECEIT
2. FRAUDULENT CONCEALMENT
3. LACK OF INFORMED
CONSENT
4. BATTERY
5. GENERAL NEGLIGENCE
6. DENTAL MALPRACTICE
7. IIED
8. VIOLATION OF B&P
17200
9. NOTICE OF CLAIM FOR PROFESSIONAL
NEGLIGENCE
10. NOTICE OF CLRA CLAIM
FOR DAMAGES.
On 8/8/22, the Court Clerk receive-stamped Plaintiff’s
Second Amended Complaint, having claims for:
1. FRAUD AND DECEIT
2. FRAUDULENT CONCEALMENT
3. MEDICAL BATTERY
4. GENERAL NEGLIGENCE
5. INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS
6. VIOLATION OF BUSINESS
AND PROFESSIONS CODE SECTION 17200
7. PROFESSIONAL
NEGLIGENCE
8. VIOLATION OF THE
CONSUMER LEGAL REMEDIES ACT.
MP
Positions
Moving parties request an order sustaining the
demurrer to the Second Amended Complaint, and granting the motion to
strike, on bases including the following:
·
Plaintiff’s First Cause of Action for
Fraud and Deceit is uncertain, ambiguous, conclusory and fails to state
facts with sufficient specificity as required.
His pleading consist of nothing more than general statements that
something happened which led him to believe defendants were licensed dentists.
·
Plaintiff’s Second Cause of Action for
Fraudulent Concealment is uncertain, ambiguous, conclusory and fails to
state facts with sufficient specificity as required.
·
Plaintiff’s Third Cause of Action for
Medical Battery is uncertain, ambiguous, conclusory, fails to state
sufficient facts and is duplicative of the Negligence causes of action, all of
which should properly be pled as a single cause of action for Professional
Negligence. Plaintiff has not alleged
any facts to support any cause of action separate and apart from Professional
Negligence. Larson v. UHS of Rancho
Springs, Inc. (2014) 230 Cal.App.4th 336.
Plaintiff failed to allege any facts demonstrating that any
non-consented touching of plaintiff occurred.
The alleged failure to inform him of the unlicensed status and risks of
his providers is at most lack of informed consent but not battery.
·
Plaintiff’s Fourth Cause of Action for
General Negligence is uncertain, ambiguous,
conclusory, fails to state sufficient facts and is duplicative of the Negligence
claims.
·
Plaintiff’s Fifth Cause of Action for
Intentional Infliction of Emotional Distress is uncertain, ambiguous,
conclusory, fails to state sufficient facts and is duplicative of the
Negligence claims. Plaintiff makes no allegation of outrageous conduct directed
at him for the primary purpose of causing him distress, but instead admitted it
was directed at making profits. There is
no indication that a tooth extraction cannot be performed by someone other than
a licensed dentist.
·
Plaintiff’s Seventh Cause of Action for
Violation of Business and Profession Code §17200 is uncertain, ambiguous,
conclusory, fails to state sufficient facts and is duplicative of the
Negligence claims. Plaintiff did not
allege any conduct likely to deceive members of the public, but only misleading
advertising. Plaintiff further cannot
identify any law violated by defendants.
·
Plaintiff’s Eighth Cause of Action for
Violation of the Consumer Legal Remedies Act is uncertain, ambiguous,
conclusory, fails to state sufficient facts and is duplicative of the
Negligence claims.
·
The Court should strike allegations
regarding unsupported punitive damages, statutory damages, attorneys’ fees and
injunctive relief. Plaintiff is only
entitled to plead damages which may be awarded for a negligence cause of
action. Plaintiff is required to move
for permission to allege punitive damages against a health care provider. Code of Civ. Proc. § 425.13(a). As for injunctive relief, plaintiff has not
alleged “threatened future harm” to plaintiff requirement. Plaintiff does not
have standing to pursue injunctive relief on behalf of non-parties or the
public pursuant to California Bus. & Prof. Code §17204.
·
RP Positions
Opposing party advocates denying, on bases including
the following:
·
The demurrer and motion are moot, because
they addressed the First Amended Complaint, but a Second Amended
Complaint was filed.
Tentative
Ruling
The demurrer is sustained, based upon all of its page
numbers.
The motion to strike is granted, for the reasons
stated.
Twenty days’ leave to amend.
The Second Amended Complaint, only receive-stamped, is
deemed filed and served this date.
Because the demurrer already addressed the Second
Amended Complaint, the next one filed with this leave to amend would be a Third
Amended Complaint.
The opposition incorrectly states that the demurrer
and motion addressed the First Amended Complaint and that a Second Amended
Complaint was filed. The opposition did
not address the merits. A judge in a
civil case is not "'obligated to seek out theories [a party] might have
advanced, or to articulate … that which … [a party] has left
unspoken.'" Mesecher v.
Judges have discretion to allow amended complaints
filed without complainants filing motions for leave to amend, under some
circumstances. See Harlan v. Department
of Transp. (2005) 132 Cal.App.4th 868, 873
("While the court had discretion to require a noticed motion before
permitting Harlan to file the second amended complaint late, we think it also
had discretion under these circumstances to accept the filing without a noticed
motion.").
Finally, as to demurrer rulings, statements of
decision may consist of references to appropriate page numbers. CCP §472d.