Judge Michael Small, Case Number: 23STCV24742, Date: 2024-04-23 Tentative Ruling

Judge: Michael Small, Case: 23STCV24742, Date: 2024-04-23 Tentative Ruling

Case Number: 23STCV24742 Hearing Date: April 23, 2024 Dept: 57

Plaintiff Denise Washington sued Defendant O.R. Barkhordar D.D.S., Inc. (“ORB”) arising out of ORB’s application in her name for third-party financing to pay for Washington’s dental treatment at ORB’s offices without her knowledge. Pending before the Court is ORB’s demurrer to the third cause of action for breach of the implied covenant of good faith and fair dealing, the fifth cause of action for intentional misrepresentation, and the sixth cause of action for intentional infliction of emotional distress in Washington’s operative First Amended Complaint (“FAC”). The Court is sustaining the demurrer with leave to amend as to the third and sixth causes of action and overruling the demurrer as to the fifth cause of action.

Third Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing

“There is implied in every contract a covenant by each party not to do anything which will deprive the other parties thereto of the benefits of the contract. … This covenant not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose.” (Harm v. Frasher (1960) 181 Cal.App.2d 405, 417.) A claim for breach of the implied covenant of good faith and fair dealing necessarily depends on the existence of a contractual relationship between the plaintiff and defendant. (Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49.)

ORB argues in the demurrer that Washington’s claim for breach of the implied covenant of good faith and fair dealing fails as a matter of law because the FAC also does not assert a corresponding claim for breach of contract. ORB is mistaken. While such cases are “rare,” a plaintiff may choose to bring a claim for breach of the implied covenant without also bringing a claim for breach of contract. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

ORB is on firmer footing, however, with its contention that Washington’s claim for breach of the implied covenant of good faith and fair dealing fails as a matter because the FAC does not specifically allege the existence of a contract between Washington and ORB. The FAC dances around this point. It refers to “the contract Defendants required Ms. Washington to enter into as a condition of the rendering of services.” But it is unclear if this is a contract between Washington and ORB or a contract between Washington and the third-party loan servicer that ORB had Washington enter into without her knowledge to pay for dental services. Washington states in her opposition to the demurrer that the predicate contract is the “standard doctor-patient contract.” (Opposition, p. 2.) This was not pleaded in the FAC, however. Accordingly, ORB’s demurrer to the third cause of action for breach of the implied covenant of good faith and fair dealing is sustained with leave to amend.

Fifth Cause of Action: Intentional Misrepresentation

As support for the fifth cause of action for intentional misrepresentation, the FAC alleges as follows:

59. On or around May 17, 2022, [ORB’s] Front Desk Receptionist Mary Doe and [ORB dentist] Dr. Tyler Zalatimo, the employees and agents of Defendant who Ms. Washington interacted with on that day regarding her dental treatment, intentionally concealed and failed to disclose to Ms. Washington that Defendants arranged for a loan to pay for her dental treatment.

60. Front Desk Receptionist Mary Doe and Dr. Tyler Zalatimo were under a duty to disclose the facts about the loan to Ms. Washington and intended to induce Ms. Washington to go forward with the dental treatment by concealing these facts. In reasonable and justifiable reliance on this concealment, Ms. Washington initiated services under the treatment plan. Had the facts about then loan been disclosed, Ms. Washington would not have agreed to initiate services under the treatment plan.

(FAC, ¶¶ 59-60.)

ORB’s demurrer to the fifth cause of action is based on the contention that these paragraphs of the FAC fail to plead an affirmative misrepresentation -- at most, they plead concealment, says ORB. ORB’s contention is misplaced because, as Washington correctly points out, concealment is a form of misrepresentation. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) And, as ORB itself concedes, the FAC does plead concealment.

ORB also misses the mark in contending that the FAC fails to allege that ORB had a duty to disclose the facts that were concealed from Washington. Not so. The FAC alleges that ORB’s employees and agents with whom Washington had a duty to disclose, and thus, through them, ORB had a duty to disclose as well.

ORB’s demurrer to the fifth cause of action is overruled.

Sixth Cause of Action: Intentional Infliction of Emotional Distress

Washington’s claim for intentional infliction of emotional distress (“IIED”) is based on the following allegations:

20. On or around June 7, 2022, Ms. Washington had a follow-up appointment to adjust her dentures at Gardena Dental Care because the dentures she received did not fit properly. At the appointment, she received very rough treatment from the dentist, Dr. Tyler Zalatimo, and left in tears. The dentist shoved the dentures into her mouth, resulting in excruciating pain. At one point, Ms. Washington expressed her worry about not being able to eat solid foods due to the ill-fitting dentures, to which the dentist responded, “just eat donuts.”

[¶]

64. As a result of the acts of Defendants, Ms. Washington suffered and continues to suffer severe and/or permanent emotional and/or mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and/or anxiety. . . .

(FAC, ¶¶ 20, 64.)

The elements of an IIED claim are: “(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's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, internal quotes omitted.) ORB contends that Washington’s IIED claim fails because the FAC neither sufficiently pleads “extreme and outrageous conduct” nor “severe emotional distress.” The Court agrees.

As to extreme and outrageous conduct, Washington states that this level of conduct is met “if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Argarwal v. Johnson (1979) 25 Cal.3d 932, 946, overruled on other grounds.) Here the, parties were in a doctor and patient relationship, which arguably gives ORB power to harm Washington’s interest. (See So v. Shin (2013) 212 Cal.App.4th 652, 671-672.) But the FAC fails to plead this power dynamic.

As to severe or extreme emotional distress, Washington contends that alleging “severe and/or permanent emotional and/or mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and/or anxiety” is sufficient. (FAC, ¶ 64.) Severity is a “high bar,” however. (Hughes, supra, 46 Cal.4th 1035 at p. 1051.) While physical impact or injury is not required, severe emotional distress must be enduring. (State Rubbish Collectors Ass'n v. Siliznoff (1952) 38 Cal.2d 330, 338; Fletcher v. Western Nat. Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) The FAC’s allegations of enduring severe emotional distress are conclusory. In Fletcher, which Washington cites, the plaintiff’s mental reaction “continu[ed] for many months,” yet the FAC lacks more specific facts than paragraph 64 to sufficiently plead enduring emotional distress.

The Court sustains the demurrer to the sixth cause of action with leave to amend.