Judge Mark E. Windham, Case Number: 22STCV39450, Date: 2024-01-23 Tentative Ruling

Judge: Mark E. Windham, Case: 22STCV39450, Date: 2024-01-23 Tentative Ruling

Case Number: 22STCV39450 Hearing Date: January 23, 2024 Dept: 26

Peter v. Cedars Sinai Health Ventures, et al.

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendant Cedars-Sinai Medical Center’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST, SECOND, THIRD, FOURTH, FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, AND TWELFTH CAUSES OF ACTION. THE DEMURRER IS OVERRULED AS TO THE ELEVENTH CAUSE OF ACTION.

Defendant Cedars-Sinai Medical Center’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND.

ANALYSIS:

Plaintiff Emeka V. Peter (“Plaintiff”), in pro per, filed the instant action for numerous causes of action against Defendant Cedars-Sinai Medical Center (“Defendant”) on December 21, 2022. Following Defendant’s filing of a demurrer and motion to strike with respect to the Complaint, Plaintiff filed the First Amended Complaint on February 28, 2023. Defendant filed a demurrer and motion to strike with respect to the First Amended Complaint on April 20, 2023. The demurrer and motion to strike came for hearing on July 7, 2023 but the unlimited jurisdiction court did not rule on the motions. Instead, the case was transferred to the limited jurisdiction court.

Defendant refiled the Demurrer and Motion to Strike First Amended Complaint on December 26, 2023. Plaintiff filed oppositions on January 12, 2024 and Defendant replied on January 16, 2024.

Discussion

Demurrer to First Amended Complaint

Defendant demurs to the First Amended Complaint for failure to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).) The Demurrer is accompanied by a meet and confer declaration that complies with Code of Civil Procedure section 430.41. (Meet and Confer Decl., filed 12/26/23, ¶2.)

Allegations in the First Amended Complaint

Plaintiff alleges 12 causes of action in the First Amended Complaint for: (1) Declaratory Relief; (2) Civil Conspiracy; (3) Intentional Infliction Of Emotional Distress; (4) Negligent Infliction Of Emotional Distress; (5) Replevin; (6) Breach Of An Express Oral Contract; (7) Deceit Based On Concealment; (8) Conversion; (9) Promissory Fraud; (10) Negligent Hiring & Retention Of Employee; (11) Negligence; And (12) Promissory Estoppel/Detrimental Reliance. The causes of action are all based on the following alleged facts.

The personal property that is the subject of this action includes jewelry, an iPhone, an iPad, women’s clothing and shoes, makeup, and music. (FAC, ¶2.) Plaintiff had these personal items with him when he visited Defendant’s facility on March 14, 2022. (Id. at ¶11.) Plaintiff was going to visit a family member named “Yago” who was admitted to the hospital. (Id. at ¶12.) Due to COVID-19 protocols, Plaintiff was denied entry to the facility. (Ibid.) Plaintiff suggested that a family member come down to pick up the personal property but the security guard said the only way was for a nurse to pick up the property and deliver it to Plaintiff’s relative. (Id. at ¶13.) Plaintiff gave the personal property to a nurse and called their relative after five to ten minutes to see if the property had been received. (Ibid.) The relative said the personal property had not been received; even hours after Plaintiff visited the facility, their relative had not received the property. (Id. at ¶14.) Plaintiff followed up the next day to no avail and was advised to file a complaint with Risk Management. (Id. at ¶¶17-19.) Months after filing the complaint, no one from the office contacted Plaintiff to resolve the issue. (Id. at ¶20.) Plaintiff has suffered “significant emotional stress, trauma, anger, anxiety” as a result of the loss of the property. (Id. at ¶22.)

Defendant demurs to the first cause of action for declaratory relief on the ground that there is another form of relief available to Plaintiff. (Citing General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 471.) Plaintiff has alleged multiple causes of action for money damages based on the same facts that give rise to the claim for declaratory relief. Nor does the opposition address the case law cited in the Demurrer. Instead, Plaintiff cites the rule that declaratory relief is proper if the complaint shows the existence of a controversy arising from a written instrument. (Opp., p. 5:6-12.) This authority is inapplicable because there is no alleged written instrument. Therefore, the demurrer to the first cause of action is sustained.

The third cause of action for intentional infliction of emotional distress requires facts alleging (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 suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) The First Amended Complaint does not allege extreme and outrageous conduct by Defendant. It alleges that personal property given into Defendant’s possession by Plaintiff was not delivered. Whether done intentionally or recklessly, neither of which is alleged, Defendant’s conduct does not rise to the level required for a cause of action for intentional infliction of emotional distress. The demurrer to the third cause of action is sustained.

Negligent infliction of emotional distress is not a claim permitted concerning the loss of only personal property. (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.) Plaintiff’s opposition does not provide any authority to dispute this rule. The demurrer to the fourth cause of action is sustained.

For the replevin cause of action, Defendant demurs on the grounds that Plaintiff has not pled facts showing that Defendant is in possession of the personal property, as opposed to it being in the possession of Plaintiff or some other person. Defendant cites Ramacciotti v. Galiano (1943), 59 Cal. App. 2d 8, which held a cause of action for replvin “will not lie unless at the time

the action is commenced defendant has the possession of the property or the power to deliver it in satisfaction of a judgment for its possession . . . .” (Ramacciotti v. Galiano (1943), 59 Cal. App. 2d 8, 11-12.) The First Amended Complaint, however, sufficiently alleges that the personal property was delivered into Defendant’s possession. (FAC, ¶¶13, 27, 54.) The demurrer provides no analysis of these allegations to demonstrate their insufficiency.

In the reply, however, Defendant points out that “Under current California law, the common law forms of action named replevin, detinue and trover are addressed by the tort of conversion of tangible personal property.” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1020.) The cause of action for conversion is subject to a 90-day statute of limitations. (Code Civ. Proc., § 341a.) The incident regarding Plaintiff’s property took place nine months before the instant action was filed, and therefore, more than 90 days passed before the conversion action was brought. Plaintiff argues in opposition that this rule does not apply when there has been fraudulent concealment but points to no allegations of fraudulent concealment in the First Amended Complaint. (Opp., p. 10:1-22.) The demurrer to the fifth cause of action for replevin and the eighth cause of action for conversion are sustained.

The cause of action for breach of oral contract does not allege the existence of a contract between the parties, which requires a meeting of the minds, consideration, and an understanding of the goals of the agreement. (See Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1231.) As with the rest of the First Amended Complaint, Plaintiff simply alleges leaving the personal property with the nurse. (FAC, ¶¶59-64.) The demurrer to the sixth cause of action is sustained.

The seventh cause of action is for fraud and alleges Plaintiff was the victim of an intentional act of deception. The elements of fraud are (1) misrepresentation; (2) knowledge of falsity (or “scienter”); (3) intent to defraud (induce reliance); (4) justifiable reliance; and (5) resulting damage. (Conroy v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255.) It is also black letter law that fraud must be alleged with specificity, meaning that the pleadings must allege facts as to “‘how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73.) Plaintiff does not provide facts identifying any misrepresentation, any specific person making the misrepresentation, or an intent to deceive. (FAC, ¶¶66-69.) The demurrer to the seventh cause of action is sustained. Regarding the other fraud causes of action (conspiracy, promissory fraud, and promissory estoppel), the First Amended Complaint also does not satisfy the heightened pleading standard. (Id. at ¶¶ 81-87, 98-101.) The demurrer to the second, ninth, and twelfth causes of action are also sustained.

The tenth cause of action is for negligent hiring. “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238Cal.App.4th 889, 902.) The First Amended Complaint does not allege the existence of any person in a supervisorial position. In fact, it does not even allege a specific person acting on Defendant’s behalf. (FAC, ¶¶89-91.) The demurrer to the tenth cause of action is sustained.

The Court notes that the notice of demurrer refers to the 11th cause of action for negligence but does not address it in the demurrer itself. Therefore, the demurrer to the 11th cause of action is overruled.

Motion to Strike Portions of First Amended Complaint

Defendant moves to strike the portions of the First Amended Complaint in which Plaintiff asks for punitive damages. The Motion is brought pursuant to Code of Civil Procedure section 436, on the grounds that the Court may “strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) As with the Demurrer, Defendant has filed the required meet and confer declaration required by Code of Civil Procedure section 435.5. (Meet and Confer Decl., filed 12/26/23, ¶2.)

Punitive damages are authorized by Civil Code section 3294 in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” (Civil Code, § 3294, subd. (a).) Malice means conduct that is intended by the defendant to cause injury to the plaintiff or despicable conduct that is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civil Code, § 3294, subd. (c)(1).) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code, § 3294, subd. (c)(2).) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code, § 3294, subd. (c)(3).)

Following the ruling on the demurrer, the only remaining cause of action is for negligence. This cause of action, nor the facts alleged in support thereof, rise to the level of oppression, fraud, or malice. Furthermore, “section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary damages be committed by an ‘officer, director, or managing agent.’” (Civil Code, § 3294, subd. (b).) The First Amended Complaint does not specify what person at the facility is responsible for the wrongful conduct such that an award of punitive damages is proper against Defendant as a corporation. The Motion to Strike, therefore, is granted.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment, however, the burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Regarding the causes of action for which the demurrer was sustained, and the request for punitive damages, Plaintiffs’ oppositions provide no information demonstrating additional facts can be alleged to amend those claims. Therefore, leave to amend is denied.

Conclusion

Defendant Cedars-Sinai Medical Center’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND.

Moving party to give notice.