Judge: Mark E. Windham, Case: 24STLC03395, Date: 2024-09-10 Tentative Ruling
Case Number: 24STLC03395 Hearing Date: September 10, 2024 Dept: 26
Cooper v. Strom, MD, et al.
DEMURRER
(CCP § 430.10, et seq.)
TENTATIVE RULING:
Defendant
Carey B. Strom, MD’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO
AMEND.
ANALYSIS:
On May 10, 2024, Plaintiff Scott
Cooper (“Plaintiff”) filed the instant action against Defendant Carey B. Strom,
MD (“Defendant”). The Complaint alleges a single cause of action for breach
intentional or negligent misrepresentation. Defendant filed the instant
Demurrer to the Complaint on July 26, 2024. No opposition has been filed to
date.
Discussion
The Demurrer is accompanied by a
meet and confer declaration as required by Code of Civil Procedure section
430.41. (Demurrer, Pluma Decl., ¶¶1-2.) Defendant
demurs on the grounds that the Complaint fails to allege facts sufficient to
state a cause of action and uncertainty. (Citing Code Civ. Proc., § 430.10,
subd. (e).)
The Complaint alleges that
Defendant misrepresented the necessity of a medical procedure and that the cost
of the procedure would be covered by insurance. (Compl., ¶FR-2.) The
representations were false because the procedure was unnecessary and the cost
of the procedure was not fully covered by insurance. (Ibid.)
Defendant demurs to the Complaint
for failure to allege facts sufficient to state a cause of action and relies on
case law that “every element of a cause of action for fraud must be alleged
both factually and specifically . . . .” (Cooper v. Equity Gen. Ins.
(1990) 219 Cal.App.3d 1252, 1262.) The Demurrer correctly argues that Complaint
does not meet this pleading standard based on the conclusory allegations set
forth above. The Complaint does not allege any information about the
misrepresentations, including who made them and to whom, in what manner, or in
what location. (Compl., ¶FR-2.) Nor does the Complaint allege all the elements
of fraud, including that Defendant intended for Plaintiff to rely on the
misrepresentations, whether Plaintiff relied on the statements, and whether Plaintiff’s
reliance resulted in their damages. (CACI 1900 and 1903; id. at ¶¶FR-5
and FR-6.) In fact, the Complaint does not allege that Plaintiff suffered any
damages. (Ibid.)
Therefore, the Complaint fails to
allege facts sufficient to state a cause of action for intentional or negligent
misrepresentation. The Demurrer to the Complaint is sustained.
Leave to Amend
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.)
The burden is on the complainant to show the Court that a pleading can
be amended successfully. (Id.)
Plaintiff has neither filed an opposition to the instant Demurrer, nor filed an
amended complaint correcting the defects in the pleadings. Plaintiff,
therefore, has not shown a basis for leave to amend.
Conclusion
Defendant
Carey B. Strom, MD’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO
AMEND.
Moving party to give notice.