Judge Teresa A. Beaudet, Case Number: 22STCV11231, Date: 2024-01-19 Tentative Ruling

On April 1, 2022, Plaintiff Robert J. Smyth-Medina, M.D., a.k.a. Robert J. Smyth, M.D. (“Plaintiff”) filed this action against a number of defendants.

On September 26, 2023, a “Stipulation and Order for Leave to File First Amended Complaint and to Continue November 29 Trial Date and Other Dates” was filed. The Stipulation provides, inter alia, that “[t]he stipulated First Amended Complaint attached as Exhibit A is deemed filed and served as of the day the court signs this stipulation.” (September 26, 2023 Stipulation at p. 2:17-18.) On September 26, 2023, the Court issued an Order providing, inter alia, that “[t]he stipulation of the Parties is approved and is hereby adopted as the Order of this Court…”

The First Amended Complaint (“FAC”) attached as Exhibit A to the September 26, 2023 Stipulation and Order alleges causes of action for (1) breach of employment contract, (2) violation of Labor Code section 226, (3) declaratory relief, (4) breach of the implied covenant of good faith and fair dealing, (5) fraudulent inducement, (6) negligent misrepresentation, (7) fraudulent concealment, and (8) civil remedies pursuant to Penal Code section 496.[1] A number of defendants are named in the FAC.

Defendants California Eye Specialists Medical Group, Inc., Payam Amini, M.D., Payam Amini, M.D., Inc., Azul Vision, Inc., and North Valley Eye Medical Group, Inc. (“NVE”) (collectively, the “Demurring Defendants”) now demur to the fourth, fifth, sixth, seventh, and eighth causes of action of the FAC. Plaintiff opposes.

In the FAC, Plaintiff alleges that he is a Board-certified physician and surgeon specializing in ophthalmology. (FAC, ¶ 1.) Before December 1, 2020, Plaintiff was a co-owner of NVE, an ophthalmology and optometry clinic. (FAC, ¶ 1.)

On or about December 1, 2020, Plaintiff and the other co-owner of NVE sold all of their stock in NVE to Payam Amini, M.D, Inc. (FAC, ¶ 2.) As part of that transaction, Plaintiff entered into an “Amended and Restated Physician Employment Agreement” dated December 1, 2020 (the “Employment Agreement”) under which he agreed to continue to work for NVE as a physician and NVE’s Medical Director. (FAC, ¶ 2.) Plaintiff alleges that “[s]tarting on or about December 1, 2020, [Plaintiff’s] employer(s), aided and abetted by the other Defendants, took illegal and improper deductions from [Plaintiff’s] wages…while intentionally failing to disclose those deductions on his employee wage statements.” (FAC, ¶ 6.)

The Demurring Defendants assert that Plaintiff’s fourth cause of action for breach of the implied covenant of good faith and fair dealing is duplicative of Plaintiff’s first cause of action for breach of employment contract.

In Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394, cited by the Demurring Defendants, the Court of Appeal noted that “[a] breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself…” (Internal quotations omitted.) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” ((Id. at p. 1395.) The Demurring Defendants assert that “[t]he Fourth Cause of Action pleads nearly identical elements, alleges the same facts, and seeks the same damages as the First Cause of Action.” (Demurrer at p. 2:28-3:1.)

Plaintiff asserts that there are allegations “of conduct extraneous to the contract sufficient to find bad faith.” (Opp’n at p. 4:13-14, emphasis omitted.) Plaintiff notes that in the fourth cause of action, he alleges that Defendants and/or their agents prevented Plaintiff from receiving the benefits he was due under the contract by, inter alia, “diverting critical clinical trial resources from Plaintiff’s clinic to other clinics such that Defendants would profit at the expense of Plaintiff’s clinical trial practice…” (Compl., ¶ 57.) Plaintiff also alleges in the fourth cause of action that “after acquiring the NVE practice, Defendants secretly terminated and/or renegotiated the terms of the Optum (f.k.a. Health Care Partners) capitated contract under which [Plaintiff’s] wages were partially based in a manner that was intended to, and did, substantially reduce the amount of his earnings.” (FAC, ¶ 57.)

Such allegations are not included in the first cause of action for breach of employment contract, which alleges, inter alia, that “[b]eginning on or around December, 2020, Defendants breached the Employment Agreement with Plaintiff by: (i) deducting improper sums from his wages, including charging Plaintiff for the ordinary costs of conducting Defendants’ business…and deducting payments Defendants made to their affiliates prior to calculating the percentage compensation to be paid to Plaintiff…(ii) failing to account for such deductions on his wage statements; (iii) failing to adequately staff the clinic sufficient to keep a full roster of clinical trial patients; and (iv) failing to provide administrative services to renew his hospital privileges.” (FAC, ¶ 42.)

In light of the foregoing, the Court overrules the demurrer to the fourth cause of action for breach of the implied covenant of good faith and fair dealing.

The Demurring Defendants assert that the fifth cause of action for fraudulent inducement fails.[2] The Demurring Defendants cite to Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469, where the Court of Appeal noted that “[t]he elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. Fraud allegations involve a serious attack on character and therefore are pleaded with specificity. General and conclusory allegations are insufficient. The particularity requirement demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Internal quotations and citations omitted.)

As to the fraudulent inducement cause of action, the Demurring Defendants assert that Plaintiff does not plead with specificity “when” the representations were made. In the fraudulent inducement cause of action, Plaintiff alleges, inter alia, as follows:

“Prior to agreeing to enter into the Employment Agreement, Plaintiff was assured by Defendant’s agent PEREZ that Defendants were sincerely interested in acquiring his practice, and employing him as an employee following the acquisition, in large part because of the substantial revenues that he was generating at the North Valley Eye clinic as the Principal Investigator in a number of ongoing clinical trials and because of his potential to attract and service additional clinical trials going forward. PEREZ further assured [Plaintiff] that Defendants intended to fully support his ongoing clinical trial practice after he became their employee such that he would continue to reach full (or nearly full) enrollment both in ongoing clinical trials and also in new clinical trials going forward. (PEREZ had, on information and belief, both actual and apparent authority to make such representations on Defendants’ behalf in his capacity as CEO of AZUL and also in his capacity as a principal of California Eye Management Services, L.P. which provides management services to the corporate defendants.)” (FAC, ¶ 60.)

Plaintiff alleges that “[o]n information and belief, the assurances provided by PEREZ were false.” (FAC, ¶ 61.) The Demurring Defendants assert that the allegation “[p]rior to agreeing to enter into the Employment Agreement” (FAC, ¶ 60) “is nothing other than a general and conclusory allegation that could point to any time in 2020 or even in 2019.” (Demurrer at p. 4:21-22.) The Demurring Defendants also note that the FAC does not allege “where” and “by what means” Perez made the allegedly false representations.

The Court agrees with the Demurring Defendants that the fifth cause of action for fraudulent inducement does not allege with specificity facts showing “when,” “where,” and “by what means” the representations were allegedly tendered. (Ibid.)

The Demurring Defendants also assert that “just as Dr. Smyth-Medina’s fraud claim fails, so does his claim for negligent misrepresentation.” (Demurrer at p. 6:20-21.) “The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” ((Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.) “Under California law, negligent misrepresentation is a species of actual fraud and a form of deceit.” ((Wong v. Stoler (2015) 237 Cal.App.4th 1375, 1388.)

In the negligent misrepresentation cause of action, Plaintiff alleges, inter alia, that “[t]he above-referenced representations of PEREZ were made without reasonable grounds for believing the representations were true when made,” and that “[Plaintiff] reasonably relied on PEREZ’s representations and was harmed thereby by suffering the damages alleged hereinabove and by entering into the Employment Agreement and losing the income he would have obtained from his clinical trial practice had he not done so.” (FAC, ¶¶ 67, 69.) The Court also does not find that the sixth cause of action for negligent representation alleges with specificity facts showing “when,” “where,” and “by what means” the representations were allegedly tendered. (Cansino v. Bank of America, supra, 224 Cal.App.4th at p. 1469.)[3]

Based on the foregoing, the Court sustains the demurrer to the fifth cause of action for fraudulent inducement and the sixth cause of action for negligent misrepresentation.

The Demurring Defendants also assert that the seventh cause of action for fraudulent concealment fails.[4] “The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” ((Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

The Demurring Defendants cite to Lingsch v. Savage (1963) 213 Cal.App.2d 729, 735, where the Court of Appeal noted that “Section 1710 of the Civil Code in relevant part provides: ‘A deceit, within the meaning of the last section, is either: . . . 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; . . .’ In order to fasten liability under the above code sections on the person charged with the concealment or nondisclosure of certain facts, it is necessary to establish that he was under a legal duty to disclose them. While such duty may arise from a fiduciary or other confidential relationship, no such relationship obtains in the case at bench and the duty of disclosure must therefore arise from other circumstances.” (Internal citations omitted.) The Demurring Defendants assert that the fraudulent concealment cause of action fails here because Plaintiff “fails to allege that the parties were in a fiduciary or confidential relationship.” (Demurrer at p. 7:9-10.)

In the opposition, Plaintiff asserts that the fraudulent concealment cause of action is adequately pled. Plaintiff cites to Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613, where the Court of Appeal noted that “[i]n transactions which do not involve 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.” (Internal quotations omitted.) “[T]he rule has long been settled in this state that although one may be under no duty to speak as to a matter, if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells but also not to suppress or conceal any facts within his knowledge which materially qualify those stated. If he speaks at all he must make a full and fair disclosure” (Ibid. [internal quotations omitted].)

In the fraudulent concealment cause of action, Plaintiff alleges, inter alia, that “PEREZ also knew at the time that he was attempting to convince [Plaintiff] to sell his practice and become an employee of Defendants that, after the sale, Defendants planned to terminate and/or renegotiate the Optum capitated contract that was responsible for a large percentage of [Plaintiff’s] wages and would replace it with another contract that was far less advantageous to [Plaintiff] but intentionally concealed this information from [Plaintiff]. Defendants, and each of them, owed a duty to [Plaintiff] to disclose the fact that they were planning to terminate and/or renegotiate the terms of the existing Optum capitated contract in a manner that would greatly disadvantage him but remained silent in order to induce him to sell NVE and to become their employee.” (FAC, ¶ 73.) Plaintiff further alleges that “Defendants, and each of them, also owed a duty to [Plaintiff] to disclose the sums they were improperly withholding from his wages in a timely manner. By making representations as to his wages in the form of regular wage statements that did not include the improper deductions that Defendants were taking, they lead [Plaintiff] to believe that his wages were higher than Defendants now contend, thereby effectively ‘pulling the wool’ over his eyes and delaying discovery of their deliberate illegal pattern and practice of blatant wage theft.” (FAC, ¶ 74.) Plaintiff alleges that “[t]hese facts were known only to Defendants who knew that they were not known to or reasonably accessible to [Plaintiff].” (FAC, ¶ 75.)

The Court finds that Plaintiff has adequately alleged that “defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp., supra, 6 Cal.App.4th at p. 613.) Thus, the Court overrules the demurrer to the seventh cause of action for fraudulent concealment.

In the eighth cause of action[5] for civil remedies pursuant to Penal Code section 496, Plaintiff alleges that “Defendants violated California Penal Code section 496 by obtaining property belonging to Plaintiff by theft and knowingly withholding the property from Plaintiff or by aiding in obtaining in knowingly withholding said property. In particular, by deliberately underpaying and withholding wages owed to [Plaintiff], Defendants committed wage theft as defined under Cal. Penal Code §487m. And, by receiving funds received by wage theft including, but not limited to diverted funds from capitated contracts owed as wages to [Plaintiff], and by persisting in withholding those wages even after [Plaintiff] discovered the improper diversions, Defendants knowingly received property in a manager [sic] constituting theft under Cal. Penal Code§ 487m and are liable for civil remedies pursuant to Cal. Penal Code §496.” (FAC, ¶ 81.)

Penal Code section 496, subdivision (a) provides that “[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.” Penal Code section 496, subdivision (c) provides that “[a]ny person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.”

The Demurring Defendants assert that the cause of action for civil remedies pursuant to Penal Code section 496 fails. They cite to Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 960, where the plaintiff (“Lacagnina”) signed an employment agreement with the company “Comprehend” by which he became director of business development. (Id. at p. 960.) Thereafter, “[i]n August 2013, without Lacagnina’s knowledge or input—and despite the prior assurance that he would ‘obviously be involved’ in hiring ‘additional salespeople’—Comprehend extended an offer of employment to Lee Black…as vice-president of sales.” (Id. at p. 963.) “One month later, in October 2013, Lacagnina was directed to transition his accounts to Black, thereby depriving Lacagnina of the ability to earn commissions on sales.” (Ibid. (internal quotations omitted).) “One month later, on November 20, 2013, Lacagnina was abruptly terminated.” (Ibid.)

The Court of Appeal rejected Lacagnina’s contention that Penal Code section 496 contains a civil remedy for, among other things, theft of labor procured by misrepresentation or false pretense. (Id. at pp. 968-969.) The Lacagnina Court reasoned that “[s]ection 496, which bears the heading, ‘Receiving stolen property,’ makes no reference to labor. Rather, it is limited by its terms to the purchase or receipt of ‘any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained ....’ But the crux of the issue is that labor is not ‘property’ as that term is used in the Penal Code. ‘[T]he Penal Code defines property to include ‘both real and personal property’ and further defines personal property to include ‘money, goods, chattels, things in action, and evidences of debt.’ The statutory definition makes no reference to labor or other services.” (Id. at p. 969 (internal citations omitted, emphasis in original).)

The Demurring Defendants assert that “Lacagnina is fatal to [Plaintiff’s] Eighth Cause of Action. Like the plaintiff in Lacagnina, [Plaintiff] also asserts that Defendants engaged in the ‘theft’ of ‘property,’ in the form of his labor…However, as explained in Lacagnina, Penal Code § 496 does not apply to the ‘theft’ of ‘labor.’” (Demurrer at p. 10:12-16.)

In the opposition, Plaintiff cites to Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 339, where the California Supreme Court granted review to address apparent conflicts in the Courts of Appeal concerning, inter alia, “whether a trial court may award treble damages and attorney’s fees under Penal Code section 496, subdivision (c)…in a case involving, not trafficking of stolen goods, but instead, fraudulent diversion of a partnership’s cash distributions.” The California Supreme Court answered “yes” to this question. (Ibid.)

The Siry Court found that “[f]undamentally, we agree with the conclusions of Bell and Switzer that section 496(c) is unambiguous, and that read together with sections 496(a) and 484, and in conformity with our standard approach to interpretation, section 496(c) must be understood as yielding the understanding attributed to it in those decisions: A plaintiff may recover treble damages and attorney’s fees under section 496(c) when property has been obtained in any manner constituting theft.” (Siry Investment, L.P. v. Farkhondehpour, supra, at page 361 [internal citation omitted].) The Siry Court further found that “section 496(c) applies concerning the conduct at issue in the present case. The unambiguous relevant language covers fraudulent diversion of partnership funds. Defendants’ conduct falls within the ambit of section 496(a): They ‘receive[d]’ ‘property’ (the diverted partnership funds) belonging to plaintiff, having ‘obtained’ the diverted funds ‘in [a] manner constituting theft.’ Defendants also ‘conceal[ed]’ or ‘withh[e]ld[]’ those funds (and/or aided in concealing or withholding them) from plaintiff. They did all of this ‘knowing’ the diverted funds were ‘so … obtained.’” (Id. at p. 361 [internal citations omitted].)

Plaintiff contends that “[h]ere, the FAC…alleges that Defendants fraudulently diverted money from, and improperly charged its own expenses to, the income streams that Defendants were contractually bound to pay to Plaintiff, which exceeded the deductions permitted under the contract, just as was held to constitute a ‘theft’ in Siry.” (Opp’n at p. 8:20-24.) But Plaintiff’s eighth cause of action alleges, inter alia, that “by deliberately underpaying and withholding wages owed to [Plaintiff], Defendants committed wage theft as defined under Cal. Penal Code §487m. And, by receiving funds received by wage theft including, but not limited to diverted funds from capitated contracts owed as wages to [Plaintiff], and by persisting in withholding those wages even after [Plaintiff] discovered the improper diversions, Defendants knowingly received property in a manager [sic] constituting theft under Cal. Penal Code § 487m and are liable for civil remedies pursuant to Cal. Penal Code §496.” (FAC, ¶ 81.) The Siry Court found that “[t]he present case does not pose whether wage theft might give rise to a claim for treble damages under section 496(c). We express no view concerning whether Lacagnina correctly distinguished between the theft of labor or services and the theft of other intangible property.” (Siry Investment, L.P. v. Farkhondehpour, supra, 13 Cal.5th at p. 352, fn. 14.)

Plaintiff also argues that “[a]fter Lacagnina, a more recently enacted wage theft statute (P.C. §487m) expressly provides that such an intentional underpayment of wages is ‘theft,’ which is the predicate act for imposition of civil remedies under P.C. §496…” (Opp’n at pp. 8:27-9:4.)[6] Penal Code section 487m, subdivision (a) provides that “[n]otwithstanding Sections 215 and 216 of the Labor Code, the intentional theft of wages in an amount greater than nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars ($2,350) in the aggregate from two or more employees, by an employer in any consecutive 12-month period may be punished as grand theft.” Penal Code section 487m was “[a]dded Stats 2021 ch 325 § 1 (AB 1003), effective January 1, 2022.” (Pen. Code, § 487m.)

But as discussed, the Siry Court noted that “[t]he present case does not pose whether wage theft might give rise to a claim for treble damages under section 496(c). We express no view concerning whether Lacagnina correctly distinguished between the theft of labor or services and the theft of other intangible property.” (Siry Investment, L.P. v. Farkhondehpour, supra, 13 Cal.5th at p. 352, fn. 14.) In addition, the Court notes that the Lacagnina Court found as follows:

“Nor does Lacagnina’s reliance on section 484 help him. That statute provides the following broad definition of theft: ‘Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property … is guilty of theft.’ (§ 484, subd. (a), italics added.) The italicized language appears in a clause codifying the common law crime of theft by false pretense, which includes defrauding another person of labor by false or fraudulent representation…However, section 484 defines theft, not property; that labor may be the object of a ‘theft’ does not transform it into ‘stolen property.’…Indeed, we find it significant that while section 484 refers to labor, section 496 does not. The difference in language between the two statutes, which are found in the same statutory scheme, is further evidence that the Legislature did not intend ‘property’ as that term is used in section 496 to include ‘labor’; otherwise, it would not have used different terms in the two statutes.” (Lacagnina v. Comprehend Systems, Inc., supra, 25 Cal.App.5th at p. 969 [emphasis in original].)

In light of the foregoing, the Court sustains the demurrer to the eighth cause of action for civil remedies pursuant to Penal Code section 496.[7]

Based on the foregoing, the Court sustains the Demurring Defendants’ demurrer to the

fifth cause of action for fraudulent inducement, the sixth cause of action for negligent misrepresentation, and the eighth cause of action for civil remedies pursuant to Penal Code section 496, with leave to amend. The Court overrules the demurrer to fourth cause of action for breach of the implied covenant of good faith and fair dealing and the seventh cause of action for fraudulent concealment.

Plaintiff is ordered to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders the Demurring Defendants to file and serve their answer to the FAC within 30 days of the date of this order. The Demurring Defendants are ordered to give notice of this order.

[1]As discussed in further detail below, starting with the fifth cause of action for fraudulent inducement, the causes of action in the body of the FAC are misnumbered.

[2]The Court notes that the caption page of the FAC states that the fifth cause of action is for fraudulent inducement. However, the body of the FAC incorrectly states that this cause of action is the “sixth” cause of action. The Court refers to the cause of action for fraudulent inducement as the “fifth” cause of action herein. In addition, the caption page of the FAC states that the sixth cause of action is for negligent misrepresentation. However, the body of the FAC incorrectly states that this cause of action is the “seventh” cause of action. The Court refers to the cause of action for negligent misrepresentation as the “sixth” cause of action herein.

[3]The Court also notes that Plaintiff does not appear to dispute that the fraudulent inducement and negligent misrepresentation causes of action do not allege “where” the representations were tendered. (See Opp’n at p. 5:12-16.)

[4]The caption page of the FAC states that the seventh cause of action is for fraudulent concealment. However, the body of the FAC incorrectly states that this cause of action is the “eighth” cause of action. The Court refers to the cause of action for fraudulent concealment as the “seventh” cause of action herein.

[5]The caption page of the FAC states that the eighth of action is for civil remedies pursuant to Penal Code section 496. However, the body of the FAC incorrectly states that this cause of action is the “ninth” cause of action. The Court refers to the cause of action for civil remedies pursuant to Penal Code section 496 as the “eighth” cause of action herein.

[6]As set forth above, Plaintiff alleges that “by deliberately underpaying and withholding wages owed to [Plaintiff], Defendants committed wage theft as defined under Cal. Penal Code § 487m.” (FAC, ¶ 81.)

[7]The Court notes that the Demurring Defendants appear to request judicial notice of a trial court order in connection with their reply. The Court denies any such purported request for judicial notice. The Court notes that “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.”¿(¿Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537¿.)¿¿

ROBERT J. SMYTH-MEDINA, M.D., a.k.a. ROBERT J. SMYTH, M.D, Plaintiff, vs. CALIFORNIA EYE SPECIALISTS MEDICAL GROUP, INC., et al., Defendants.	Case No.:	22STCV11231
	Hearing Date:	January 19, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANTS’ DEMURRERS [SIC] TO FIRST AMENDED COMPLAINT

Superior Court of California

County of Los Angeles

Department 50