Judge: Nathan Vu, Case: 20-01164404, Date: 2022-08-29 Tentative Ruling
Case Management Conference
The Court will conduct the case management conference in this case immediately after the hearing on the demurrer.
Demurrer
The Court SUSTAINS the demurrer of Defendant Yuzheng Shen as to the Second and Fourth Causes of Action of the First Amended Complaint, with 21 days leave to amend.
Defendant Yuzheng Shen demurs to the First Amended Complaint (FAC) of Plaintiff Ling Han.
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.) Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)
Second Cause of Action (Fraud)
The FAC alleges that prior to the purchase, Defendant Shen never informed Plaintiff that a clinic can be owned and operated only by a licensed medical doctor and instead represented that a lay person could own a “clinic” and that such ownership was a status symbol. (FAC ¶¶ 14-15.)
The elements of a cause of action for
intentional misrepresentation are: (i) misrepresentation; (ii) defendant’s
knowledge of the statement’s falsity; (iii) defendant’s intent to defraud;
(iv) plaintiff’s justifiable reliance; and (v) resulting damage. (Chapman
v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) Fraud must be plead
with specificity. (Committee on Children’s Television, Inc. v. General
Foods Corp. (1983) 35 Cal.3d 197, 216, superseded by statute on another
ground as stated in California for Disability Rights v. Mervyn’s, LLC
(2006) 39 Cal.4th 223, 227.)
Active concealment or suppression of facts is the equivalent of actual fraud. (Civ. Code, § 1572(3).) The elements of a cause of action for fraudulent concealment are: (i) concealment or suppression of a material fact; (ii) by a defendant with a duty to disclose the fact to the plaintiff; (iii) defendant’s intent to defraud plaintiff by intentionally concealing or suppressing the fact; (iv) plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (v) as a result, the plaintiff sustained damage. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162; see also Civ. Code, § 1573.)
“A duty to speak may arise in four ways: it may be directly imposed by statute or other prescriptive law; it may be voluntarily assumed by contractual undertaking; it may arise as an incident of a relationship between the defendant and the plaintiff; and it may arise as a result of other conduct by the defendant that makes it wrongful for him to remain silent.” (SCC Acquisitions, Inc. v. Central Pac. Bank (2012) 207 Cal.App.4th 859, 860.) Where there is no fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff. (Warner Construction Corp. v. L.A. (1970) 2 Cal.3d 285, 294 [footnotes omitted].)
With respect to a claim for intentional misrepresentation, the FAC does not allege with sufficient specificity the alleged misrepresentation(s), such as the specific statements that were untrue, when and where they were made, and in what manner.
With respect to a claim for active concealment or suppression of facts, the FAC does not allege facts to show that Defendant Shen had any duty to disclose to Plaintiff.
Fourth Cause of Action (Emotional Distress).
The FAC alleges that Defendant Shen’s fraud caused Plaintiff extreme emotional distress. (FAC ¶¶ 15-16, 30-32.)
To state a claim for intentional infliction of emotional distress, plaintiff must allege: (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, 1050-51.)
“A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Id.) Further, that conduct must be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1002 [re groundwater contamination].)
The complaint must plead specific facts that establish severe emotional distress resulting from defendant's conduct.” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal. App. 4th 1093, 1114.)
Here, the FAC fails to allege any extreme and outrageous conduct by Defendant Shen or specific facts to establish that Plaintiff suffered severe emotional distress.
Defendant’s request for judicial notice is denied as unnecessary. A party may refer to and the Court may consider documents previously filed in the same case without a request for judicial notice. (See Weil & Brown, Cal. Prac. Guide: Civil Proc. Before Trial (The Rutter Group 2021) ¶ 9.53.1a.)
Moving Defendant shall give notice of this ruling.