Judge: Maurice A. Leiter, Case: 21STCV46247, Date: 2022-08-23 Tentative Ruling

Case Number: 21STCV46247    Hearing Date: August 23, 2022    Dept: 54

Hearing Date: August 23, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint and Motion to Strike

Moving Party: Defendant Valley Gastroenterology Consultants Medical Center, Inc.

Responding Party: None

T/R:     DEFENDANT’S DEMURRER IS SUSTAINED WITH LEAVE TO AMEND. THE MOTION TO STRIKE IS MOOT.

PLAINTIFF TO FILE AND SERVE A FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers. No opposition has been received.

BACKGROUND

            On December 20, 2021, Plaintiff Raoul J. Severo sued Defendants Valley Gastroenterology Consultants Medical Center, Inc., et al., asserting causes of action for (1) negligence; (2) negligent misrepresentation; (3) UCL violations; (4) intentional misrepresentation; (5) concealment; (6) false promise; (7) conspiracy; (8) violation of the Fair Credit Reporting Agencies Act; and (9) violation of the California Consumer Credit Reporting Agencies Act.

            Defendants performed a colonoscopy on Plaintiff. Plaintiff alleges Defendants represented that the procedure and anesthesia were completely covered by Plaintiff’s insurance. Plaintiff alleges this was false, and the anesthesia bill eventually was referred to creditors.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendant Valley Gastroenterology Consultants Medical Center, Inc. demurs to the second through seventh causes of action on the ground that Plaintiff has failed to state sufficient facts. Plaintiff alleges the following facts in support of the complaint:

16. Plaintiff was under the care of Defendants for a surgery which involved a colonoscopy with hemorrhoidal banding.

17. Defendants assured Plaintiff that the entire cost of the surgery will be covered through his insurance.

18. None of the Medical Defendants notified Plaintiff of any unpaid balance.

19. Plaintiff was surprised to find out that AmSurg Anesthesia referred an outstanding bill to collections.

20. The CRA Defendants were made aware of the dubious collection claims.

21. The CRA Defendant's failed to rectify their error after it was brought to their attention.  

(Compl. ¶¶ 16-21.)

            From these facts, Plaintiff alleges causes of action for fraud and UCL violations. In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  Plaintiff has failed to allege any specific facts establishing fraud and UCL violations against moving Defendant.

            Defendant’s demurrer is SUSTAINED. The motion to strike is MOOT.