Judge: Maurice A. Leiter, Case: 24STCV17079, Date: 2024-11-25 Tentative Ruling

Case Number: 24STCV17079    Hearing Date: November 25, 2024    Dept: 54

Hearing Date: November 25, 2024

Department 54, Judge Maurice Leiter

Demurrer to Complaint and Motion to Strike

Moving Party: Defendant Affiliated Pathologists Medical Group, Inc.

Responding Party: Plaintiff Paul DiCocco

T/R:      DEFENDANT’S DEMURRER TO THE FIRST, SECOND AND THIRD CAUSES OF ACTION IS OVERRULED.

THE DEMURRER TO THE FIFTH CAUSE OF ACTION IS SUSTAINED.

THE MOTION TO STRIKE IS DENIED.

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, opposition, and reply.

BACKGROUND

On July 10, 2024, Plaintiff Paul DiCocco filed a complaint against Defendant Affiliated Pathologists Medical Group, Inc., asserting causes of action for (1) fraudulent inducement; (2) negligent misrepresentation; (3) fraud by concealment; (4) whistleblower retaliation; (5) defamation; and (6) intentional infliction of emotional distress. Plaintiff alleges Defendant misrepresented the job title and duties for which Plaintiff was hired. Plaintiff dismissed the sixth cause of action October 28, 2024.

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.)

A. First, Second, and Third Causes of Action for Fraud

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) 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.)

Defendant demurs to the first, second and third causes of action for fraud on the ground that they fail state sufficient facts. Plaintiff alleges he applied and interviewed for a “Gross Technician” position at Defendant’s medical practice. Once hired, Plaintiff was given a badge with the title “Physician’s Assistant” and was assigned work that should be performed by a PA, rather than GT. Plaintiff alleges Defendant made these misrepresentations to induce Plaintiff to do the work of a PA with the lower salary of a GT. This is sufficient to allege causes of action for fraud.

The demurrer to the first, second, and third causes of action is OVERRULED.

B. Fifth Cause of Action for Defamation

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)

Defendant demurs to the fifth cause of action on the grounds that Plaintiff fails to allege to whom the defamatory statements were made and what the defamatory statements were. In opposition, Plaintiff acknowledges the deficiencies in this cause of action and requests leave to amend.

The demurrer to the fifth cause of action is SUSTAINED with leave to amend.

C. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) 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." (CCP § 436.)

Punitive damages are available in noncontract cases where the defendant is guilty of “oppression, fraud, or malice.”  (Civil Code § 3294(a).)  Conclusory allegations are insufficient to support a claim for punitive damages.  (See, e.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 620.)  However, “the stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner's complaint.”  (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.)

Defendant moves to strike Plaintiff’s claim for punitive damages. As Plaintiff has sufficiently alleged fraud, Plaintiff has alleged entitlement to punitive damages.

The motion to strike is DENIED.