Judge: Richard S. Whitney, Case: 37-2023-00016822-CL-BC-CTL, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - December 21, 2023

12/22/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Limited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00016822-CL-BC-CTL LACHICA VS GOKANI MEDICAL APC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT GOKANI MEDICAL APC'S DEMURRER TO PLAINTIFF ANGELA LACHICA'S COMPLAINT is OVERRULED.

Defendant Gokani Medical APC ('Defendant') demurs to Plaintiff ANGELA LACHICA's ('Plaintiff') entire complaint, which includes causes of action for breach of contract, conversion, and unfair competition.

When considering a demurrer, '[t]he pleading must be read as if it contained all matters of which the court could properly take judicial notice even in the face of allegations in the pleading to the contrary.' (Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 47.) '[W]e give the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context.' (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564.) 'If the facts appearing in the attached exhibit contradict those expressly pleaded, those in the exhibit are given precedence.' (Id. at 567–568.) Plaintiff explains her position that the breach of contract arises out of her interpretation of the contract that she properly cancelled the contract before the auto-renewal. The agreement provides the effective date is 'the date that you sign this Agreement or when Saffron & Sage accept payment for your Membership, whichever is later.' (Complaint, Exhibit.) The complaint attaches evidence the agreement was signed on April 12, 2022. The agreement provides the membership 'will automatically renew every month or year thereafter, on the same terms as indicated in this Agreement, unless canceled by you in writing thirty (30) days prior to the end of your Membership Term.' (Complaint, Exhibit.) Plaintiff could cancel by March 12, 2022. 'On February 2, 2023, and again on February 25, 2023, Plaintiff communicated to S&S, through the same contact she had been assigned over the life of her membership at S&S to communicate with, her desire to cancel her membership with S&S....' (Complaint, ¶ 9.) Contrary to Defendant's representation, Plaintiff does not allege the cancelation was only via discussions, rather than in writing. While the complaint includes an email from a 'Melody Mendez' who states she was following up from a 'conversation' with the concierge, there is no indication the 'conversation' was not in writing. Rather, the allegations later state Melody Mendez wrote: 'Meaning your membership cancellation request sent to us in February will be your formal cancellation for the membership that renewed 02/01/2023.' (Complaint, ¶ 9.) An in-person conversation is not something that is necessarily 'sent.' Further, it is of no significance that Plaintiff does not allege notifying Defendant of the cancelation via 'service@saffronsageliving.com' as that email is merely noted as optional ('You may send a cancellation request to service@saffronsageliving.com'). (Complaint, Exhibit.) The demurrer is overruled as to the breach of contract claim.

Calendar No.: Event ID:  TENTATIVE RULINGS

2998726  49 CASE NUMBER: CASE TITLE:  LACHICA VS GOKANI MEDICAL APC [IMAGED]  37-2023-00016822-CL-BC-CTL Defendant also asserts the Court lacks jurisdiction because the amount in controversy is less than $10,000. However, Plaintiff prays for 'in no event less than $10,000,' she seeks attorney's fees, and punitive damages. 'There is no question that punitive damages may be recovered in an action for conversion.' (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678.) The amount in controversy exceeds $10,000. The demurrer is overruled as to the jurisdiction argument.

As to conversion Defendant cites the fact Plaintiff did not specify a specific amount of money. 'Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.' (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 [Citation omitted].) Here, the conversion claim incorporates the allegations above, which include that Plaintiff was improperly charged '$6,300' on her credit card and Defendant 'refused to credit Plaintiffs card back.' (Complaint, ¶ 11.) Defendant's argument fails. The demurrer is overruled as to the conversion claim.

Finally, Defendant challenges the unfair competition claim because the fairness of the terms of the contract are not a reason that supports unfair business practice, citing Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401. Nolte analyzed whether contract terms were unlawful and found they were not. The court also stated: We have held that '[a] business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits. [Citations.] The determination whether a business practice is unfair ' ' 'involves an examination of [that practice's] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim.... [Citations.]' [Citation.]' ' ' (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473 [49 Cal.Rptr.3d 227].) Whether a practice is unfair is a 'determination ... of fact which requires a review of the evidence from both parties.

[Citation.] It thus cannot usually be made on demurrer.' (Ibid.) (Id. at 1407–1408.) Taking Plaintiff's allegations as true, the Court finds it cannot decide as a matter of law that Plaintiff has failed to allege unfair competition. First, Plaintiff alleges that Defendant knowingly breach its contract with its customer to obtain an unfair advantage. 'Plaintiff is also informed and believes and based thereon alleges that Defendants' conduct was intended to discourage and/or eliminate competition through unfair competition, to confuse members of the public as their rights in canceling their contracts with S&S (including Plaintiff), and specifically to damage Plaintiff for Defendants' own unlawful and unfair enrichment.' (Complaint, ¶ 24.) Defendant's argument fails. The demurrer is overruled as to the unfair competition claim.

The demurrer is overruled in its entirety.

Calendar No.: Event ID:  TENTATIVE RULINGS

2998726  49