Judge: Stephen P. Pfahler, Case: 22CHCV00619, Date: 2023-02-08 Tentative Ruling
Case Number: 22CHCV00619 Hearing Date: February 8, 2023 Dept: F49
Dept.
F-49
Date:
2-8-23
Case
#22CHCV00619
DEMURRER
MOVING
PARTY: Defendant, Eric Babayan, DDS, et al.
RESPONDING
PARTY: Plaintiff, Sherry Wright
RELIEF
REQUESTED
Demurrer
to the Complaint
SUMMARY
OF ACTION
Plaintiff
Sherry Wright alleges the orthodontic care and treatment provided by Eric
Babayan, DDS, fell below the standard of care, and Dr. Babayan fraudulently
billed an additional $4,000 on top of the $3,950 paid for said negligent work. On
August 10, 2022, Plaintiff, in pro per filed a complaint for “fraud,
negligence, breach of contract” seeking damages of $100,000.
RULING: Sustained with
Leave to Amend.
Defendants
Eric Babayan, D.D.S., et al. submit the subject demurrer to the complaint on
grounds of standing and failure to state facts supporting any and all
identified causes of action.
The
complaint is apparently brought for allegedly substandard orthodontic care
delivered to the unidentified minor child. Sherry Wright improperly appears on
behalf of the minor in pro per. The court docket shows no appointment of a
guardian ad litem at the time of the tentative ruling publication cutoff. The
demurrer is therefore sustained on the basis of standing. (J.W.
v. Superior Court (1993) 17 Cal.App.4th 958, 967.)
The caption of the
complaint identifies three causes of action--fraud, negligence, breach of
contract—without specific and separate identification of the individual causes
of action and identification of the parties directed. (Cal. Rules Ct., rule
2.112.)
The court declines to
address the substantive merits of the complaint unless and until the specific
causes of action are specifically presented, and Plaintiff establishes a basis
of standing. The
court sustains the demurrer with 45 days leave to amend. This is the first time
the demurrer was submitted to the court for consideration. The court cites Code
of Civil Procedure section 430.41 to Plaintiff, which states in relevant part:
(e) (1) In
response to a demurrer and prior to the case being at issue, a complaint or
cross-complaint shall not be amended more than three times, absent an offer to
the trial court as to such additional facts to be pleaded that there is a
reasonable possibility the defect can be cured to state a cause of action. The
three-amendment limit shall not include an amendment made without leave of the
court pursuant to Section 472, provided the amendment is made before a demurrer
to the original complaint or cross-complaint is filed.
The court treats the subject demurrer as its first
review of the action.
Defendants to give notice.