Judge: Timothy B. Taylor, Case: 37-2023-00016980-CU-PN-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Professional Negligence Motion Hearing (Civil) 37-2023-00016980-CU-PN-CTL GUZMAN VS FAKHIMI [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 06/30/2023

Tentative Ruling on Motion to Strike Portions of Complaint Guzman v. Fakhimi, Case No. 2023-16980 Oct. 13, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a dental malpractice case arising from an unsuccessful course of dental implant surgery between 2019 and 2022. The complaint was filed in April of 2023. It alleges claims for professional negligence, breach of contract, negligent misrepresentation, intentional misrepresentation, and fraudulent concealment.

Presently, plaintiff seeks an order striking certain allegations from the complaint. The motion attacks the prayers for punitive damages and attorneys' fees. ROA 15-17. Plaintiff filed opposition. ROA 21.

Defendant filed reply. ROA 23. The court has reviewed the papers, and no further submissions are permitted in connection with the motion to strike.

The case is also set for a CMC. ROA 18-19.

2. Applicable Standards.

A. Code of Civil Procedure section 436 authorizes a court to strike allegations from a pleading in two situations. Under subdivision (a), the court may strike 'any irrelevant, false, or improper matter inserted in any pleading.' This provision does not authorize striking an entire cause of action, but permits the court to excise 'superfluous or abusive allegations.' Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528. Subdivision (b) provides that a court may strike 'all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.' This provision 'authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed' and 'is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.' Ferraro, 161 Cal.App.4th at 528. In either situation, the motion is addressed to the sound discretion of the trial court. Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 242.

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2992079  53 CASE NUMBER: CASE TITLE:  GUZMAN VS FAKHIMI [IMAGED]  37-2023-00016980-CU-PN-CTL B. Motions to strike are often used to challenge portions of causes of action seeking punitive damages.

PH II, Inc. Superior Court (1995) 33 Cal.App.4th 1680, 1683. In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. Civ. Code § 3294(a). As relevant here, 'fraud' is 'an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.' Civ. Code § 3294(c)(3).

C. Code of Civil Procedure section 425.13(a) requires plaintiffs in an action arising from the professional negligence of a licensed 'health care provider' to obtain a court order before including a claim for punitive damages in the complaint. 'Health care provider' means any person licensed or certified pursuant to Division 2 of the Business and professions Code, which includes dentists. See Code Civ.

Proc. § 425.13(b); see also Bus. & Prof. Code § 1625, et seq. The statute applies to intentional torts as well as negligence causes of action. Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 432.

3. Discussion and Rulings.

The motion to strike portions of the complaint is granted in part and denied in part.

A. The motion is granted without leave to amend as to the request to strike the prayer for punitive damages.

Section 425.13 covers claims based on fraud and deceit that directly relate to acts a practitioner 'ordinarily would be expected to perform as a health care provider.' Davis v. Superior Court (1994) 27 Cal.App.4th 623, 629. In this case, plaintiff alleges that defendants 'provide dental implants and other dental services.' (Complaint at ¶ 6.) She further alleges that defendants misrepresented they could 'safely and competently provide Plaintiff with dental implants and an All on 4 dental prothesis,' and then failed to inform her that she had developed an infection. (Id. at ¶¶ 130, 153.) Thus, as alleged, the fraudulent conduct occurred during defendants' rendition of dental services. Section 425.13 therefore applies to plaintiff's intentional misrepresentation and concealment claims. See Davis, 27 Cal.App.4th at 629; see also Divino Plastic Surgery, Inc. v. Superior Court (2022) 78 Cal.App.5th 972, 985 (holding that claims for intentional misrepresentation and promissory fraud were subject to section 425.13 because they arose out of conduct directly related to the provision of medical services).

This ruling is without prejudice to Plaintiff bringing a motion to amend pursuant to section 425.13.

B. The motion is denied as to the request to strike the prayer for attorney fees. The court is unable to conclude on this limited record that plaintiff is not entitled to recover attorney fees. In any event, '[t]here is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings.' Yassin v. Solis (2010) 184 Cal.App.4th 524, 533.

C. Defendants must file and serve an answer to the complaint, exclusive of the dismissed punitive damages claim, by October 23, 2023.

4. CMC.

The court will set a trial date and other litigation benchmarks.

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