Judge Teresa A. Beaudet, Case 21STCV46946 2023-05-03 Tentative Ruling

Plaintiff Jane Doe (“Plaintiff”) filed this action on December 23, 2021 against Defendants Ramy Elias, M.D.; Ramy Elias, M.D., Inc.; Center for Advanced Orthopedics and Sports Medicine, LLC; Cerritos Surgery Center, LLC; Afshin A. Mashoof, M.D., Inc.; Lakewood Orthopaedic Surgical and Medical Group (“Lakewood”); E.W. Wassef, M.D., Inc. (“E.W. Wassef”); CCNI Incorporated (“CCNI”); and Andrew Wassef, M.D., Inc. (“Andrew Wassef”).

On November 7, 2022, the Court issued an Order sustaining Lakewood, E.W. Wassef, CCNI, and Andrew Wassef’s (collectively, the “Lakewood Defendants”) demurrer to the fifth, sixth, tenth, and twelfth causes of action of the FAC, with leave to amend. The Court overruled the Lakewood Defendants’ demurrer to the thirteenth cause of action of the FAC.

On November 29, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”), asserting causes of action for (1) sexual battery in violation of Civil Code § 1708.5, (2) battery, (3) domestic violence in violation of Civil Code § 1708.6, (4) assault, (5) sexual harassment, (6) gender and sex discrimination in violation of Government Code § 12940(A), (7) gender violence (Civil Code § 52.4), (8) sexual harassment by a physician (Civil Code §§ 51.9, 52), (9) professional negligence/medical malpractice, (10) failure to prevent discrimination and harassment, (11) violation of Bane Act, (12) unlawful retaliation in violation of Labor Code §1102.5, (13) violation of Labor Code § 230(f), (14) fraud, and (15) intentional infliction of emotional distress.

The Lakewood Defendants now demur to the fifth, sixth, and tenth causes of action of the SAC. Plaintiff opposes.

As an initial matter, the Court notes that the Lakewood Defendants’ counsel’s declaration filed in support of the demurrer indicates, inter alia, “[o]n December 8, 2022, I emailed Mr. Okadigbo and explained that the Fifth, Sixth, and Tenth Causes of Action in the SAC continued to be deficient for the reasons described in the email. On December 19, 2022, Mr. Okadigbo responded, stating that he disagreed and that no further meet and confer was necessary.” (Roy Decl., ¶ 7, Exs. C-D.) The Court notes that the Lakewood Defendants’ counsel’s declaration and the exhibits attached thereto do not demonstrate that the parties met and conferred by telephone or in person regarding the Lakewood Defendants’ demurrer to the SAC.

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” (Emphasis added.)

¿Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the demurrer.

In light of the foregoing, the hearing on the Lakewood Defendants’ demurrer is continued to May 31, 2023 at 10:00 a.m. in Dept. 50.¿

The Lakewood Defendants are¿ordered to meet¿and confer¿with Plaintiff within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, the Lakewood Defendants are to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with¿Code of Civil Procedure section 430.41, subdivision (a)(3) within 15 days of this order.¿¿

Superior Court of California

County of Los Angeles

Department 50

Plaintiff Jane Doe (“Doe”) filed this action on December 23, 2021 against a number of defendants including Ramy Elias, M.D. (“Elias”). On November 29, 2022, Doe filed the operative Second Amended Complaint, asserting a number of causes of action.

On March 7, 2022, Elias filed a Cross-Complaint against a number of Cross-Defendants, including Doe. On June 13, 2022, Elias filed a First Amended Cross-Complaint (“FACC”), asserting causes of action for (1) fraud, (2) attempted extortion, (3) slander per se, (4) conversion, (5) intentional infliction of emotional distress, and (6) conspiracy to commit fraud.

On November 17, 2022, the Court issued an Order sustaining Cross-Defendants’ demurrer to the first, third, and sixth causes of action of the FACC, with leave to amend. The Court overruled the demurrer to the fourth and fifth causes of action.

On December 5, 2022, Elias filed the operative Second Amended Cross-Complaint (“SACC”), asserting causes of action for (1) fraud, (2) attempted extortion, (3) slander per se, (4) conversion, (5) intentional infliction of emotional distress, and (6) conspiracy to commit fraud.

Doe and the other cross-defendants (collectively, the “Cross-Defendants”) now demur to the first and sixth causes of action of the SACC. Elias opposes.[1]

In the SACC, Elias alleges that he met Doe several years ago through her family and because of the friendship between Elias and Doe’s family, he developed a friendship with Doe. (SACC, ¶ 9.) Doe reached out to Elias to discuss her interest in attending medical school. (SACC, ¶ 10.) Doe asked Elias if she could live in his condominium in San Diego while she studied for the MCATs. (Ibid.) Elias agreed to allow Doe to move in, rent free, wherein he paid all the utilities and provided her with spending money. (Ibid.)

Elias and Doe began dating in or around September 2019. (SACC ¶ 11.) As the relationship proceeded, Doe started mentioning to Elias that she “felt guilty about everything they were doing together,” and she stated she wanted them to have an Islamic marriage ceremony, known as a Nikah, to make it “feel ok for her.” (SACC, ¶ 19.) Doe insisted that the ceremony take place on October 10, 2020. (SACC, ¶ 23.)

In December 2020, Doe found pictures of Elias’s four year-old daughter on his iPad. (SACC, ¶ 28.) Doe started driving by the house where Elias’s daughter and her mother were living, and Doe would take pictures of the house and call his daughter’s mother at all hours of the night. (SACC, ¶ 30.) Elias alleges that in January 2021, Doe’s behavior became so erratic that Elias decided he did not wish to remain in a relationship with Doe, so he told her “I divorce you”, which is all that is required to end an Islamic marriage. (Ibid.)

Elias alleges that Doe filed a false police report alleging that Elias had raped her. (SACC, ¶ 32.) Elias alleges the matter was investigated by the police and district attorney and the matter was dismissed as unfounded. (Ibid.) In addition, Doe’s attorney sent Lakewood Orthopaedic Surgical and Medical Group (“Lakewood”), where Elias was a partner, a communication repeating these allegedly false allegations. (SACC, ¶ 33.) As a result, Elias’s partners at Lakewood voted to dissolve the partnership, which cost Elias half of his income and resulted in Elias having to file a lawsuit to protect his partnership rights. (Ibid.)

Cross-Defendants assert that the first cause of action for fraud and the sixth cause of action for conspiracy to commit fraud must fail.

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. Thus the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect…This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [internal quotations, citations, and emphasis omitted].)

In support of the first cause of action for fraud, Elias alleges that Doe insisted that the couple take part in an Islamic marriage ceremony in order for her not to feel guilty about having sexual relations with Elias. (SACC, ¶ 38.) Elias alleges that he was very adamant that he was not interested in a legal marriage, and Doe verbally assured him on multiple occasions, as well on at least six occasions in writing, that she had no interest in a legal marriage. (See SACC, ¶ 38.)

Elias alleges that Doe “made the misrepresentations alleged above, with the intention of inducing [Elias] to rely on them when he agreed to participate in the Nikah, which she knew was not a legal civil union.” (SACC, ¶ 43.) Elias also alleges that Doe “made these misrepresentations because she fully intended to claim that Cross-Complainant had mislead [sic] her as to the nature of their relationship in order for her to profit financially.” (SACC, ¶ 42.) Doe also allegedly “made these misrepresentations, so that if Cross-Complainant refused to provide for her and her family financially, she could later claim that Cross-Complainant sexually assaulted her in effort to extort him into paying her large sums of money.” (SACC, ¶ 42.)

Cross-Defendants assert that Elias’s fraud cause of action fails to establish detrimental reliance. Cross-Defendants assert that “Ms. Doe’s alleged expression of a lack of interest in a legal marriage neither caused a legal marriage to happen nor resulted in an outcome that Cross-Complainant did not want, given his willingness to perform the Nikah ceremony…” (Demurrer at p. 10:15-17.) Indeed, to the contrary, Elias alleges that Doe “told [Elias] that she had discussed this with her mother, and they agreed that a legal ceremony was not necessary at this time.” (SACC, ¶ 19.) Elias also alleges that the “[t]he Nikah is not recognized as a legal marriage ceremony by the State of California.” (Ibid.)

Cross Defendants also assert that “[i]nsofar as [Elias] maintains that Ms. Doe misrepresented her interest in a legal marriage to facilitate his continued provision of financial benefits to her (SACC ¶ 22), this claim falls flat on its face. Elias fails to plead how participating in a religious ceremony for marriage creates any obligation upon him to provide for Ms. Doe financially…” (Demurrer at p. 12:1-4.)

In the opposition, Elias points to paragraph 40 of the SACC in support of the assertion that the element of justifiable reliance has been pled. This paragraph of the SACC alleges that “[Elias] believed Jane Doe’s representations that she was not interested in a legal marriage with [Elias]. Cross-Complainant would not have gone through with the Nikah ceremony had he believed that Jane Doe wanted to have a legal marriage with him, as he was already legally married and he was not ready to take that step with Jane. Doe. [Elias] was fully willing to hold off on engaging in sexual intercourse with Jane Doe and he would have ended his relationship with Jane Doe had she ever told him about her true intentions for the couple to be legally married.” (SACC, ¶ 40.) Elias argues in the opposition that “[i]f ELIAS had known that DOE was using the ceremony as a stepping stone to a civil union, he never would have proceeded with the ceremony, thus protecting himself from DOE’s specious rape and sexual assault allegations.” (Opp’n at p. 6:18-21.) But Elias does not point to any allegations in the SACC that he and Doe were ever legally married or entered into a “civil union.” As discussed, Elias alleges that “[t]he Nikah is not recognized as a legal marriage ceremony by the State of California.” (SACC, ¶ 19.)

The Court still does not see how the allegations establish that Elias relied on Doe’s alleged misrepresentations that she had no interest in a legal marriage, and that Elias suffered damages as a result. Elias does not contend that Doe’s alleged misrepresentations resulted in him taking part in a legal marriage, and the Court does not see how Doe allegedly misrepresenting the fact that she had no interest in legal marriage resulted in damage to Elias. As noted by Cross-Defendants, “[a]n action for fraud or deceit also demands proof of damages caused by misrepresentations or concealment of information. Fraudulent representations which work no damage cannot give rise to an action at law. A complete causal relationship between the fraud or deceit and the plaintiff’s damages is required.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 131-132 [internal quotations and citations omitted].)

Based on the foregoing, the Court sustains Cross-Defendants’ demurrer to the first cause of action for fraud.

Next, Cross-Defendants assert that because the claim for fraud against Plaintiff is legally insufficient, the sixth cause of action for conspiracy to commit fraud is likewise insufficient. Cross-Defendants note that “[c]onspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652.)

In the sixth cause of action for conspiracy to commit fraud, Elias alleges that “Cross-Defendants are Muslim and are aware that the Nikah is not a legal marriage ceremony,” and that “Cross-Defendants are responsible for the harm because each of them was a part of a conspiracy to deprive Cross-Complainant of his money and property by having him rely upon their fraudulent misrepresentations that he should partake in the Islamic marriage ceremony, which Cross-Defendant Jane Doe intended to use against him later when she claimed she was defrauded by Cross-Complainant in order to get him to pay her money to support her and her family.” (SACC, ¶¶ 71, 75.) However, the Court finds that because Elias’s underlying tort of fraud has still not been adequately pleaded, the conspiracy to commit fraud cause of action likewise fails to state a claim. Thus, the Court sustains Cross-Defendants’ demurrer to the sixth cause of action for conspiracy to commit fraud.

For the foregoing reasons, the Court sustains Cross-Defendants’ demurrer to the first and sixth causes of action, without leave to amend. As set forth above, the Court sustained Cross-Defendants’ demurrer to, inter alia, the causes of action for fraud and conspiracy to commit fraud in the FACC. (See November 17, 2022 Order.) In addition, Elias has not demonstrated any way that he could amend the first and sixth causes of action to alleviate the problems with the causes of action discussed above.

Cross-Defendants are ordered to file their answer to the SACC within 10 days of this Order.¿

[1]The Court notes that the SACC, Cross-Defendants’ demurrer and Elias’s opposition to the demurer contain redactions. On March 22, 2022, the Court issued an Order granting Doe’s request to place Elias’s original Cross-Complaint under seal because it contains identifying characteristics of Doe. As to the redactions in the demurrer and opposition, Code of Civil Procedure section 367.3, subdivision (b)(1) provides in part that “[a] protected person who is a party in a civil proceeding may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the protected person and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the protected person.” In addition, “[i]n cases where a protected person proceeds using a pseudonym under this section…[a] party filing a pleading, discovery document, or other document in the action shall exclude or redact any identifying characteristics of the protected person from the pleading, discovery document, or other document, except for a confidential information form filed pursuant to this subdivision.” (Code Civ. Proc., § 367.3, subd. (b)(2)(C)(i).)

JANE DOE, Plaintiff, vs. RAMY ELIAS, M.D., et al., Defendants.	Case No.:	21STCV46946
	Hearing Date:	May 3, 2023
	Hearing Time: 10:00 a.m. ORDER RE: DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
AND RELATED CROSS-ACTION

JANE DOE, Plaintiff, vs. RAMY ELIAS, M.D., et al., Defendants.	Case No.:	21STCV46946
	Hearing Date:	May 3, 2023
	Hearing Time: 10:00 a.m. [TENTATIVE] ORDER RE: CROSS-DEFENDANTS’ DEMURRER TO SECOND AMENDED CROSS-COMPLAINT OF CROSS-COMPLAINANT RAMY ELIAS, M.D.
AND RELATED CROSS-ACTION