Judge: Upinder S. Kalra, Case: 22STCV07308, Date: 2023-02-22 Tentative Ruling
Case Number: 22STCV07308 Hearing Date: February 22, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: February
21, 2023
CASE NAME: Ali Ebneshahidi DC v. Law Office of
Willoughby and Associates Inc.
CASE NO.: 22STCV07308
DEFENDANT’S
DEMURRER WITHOUT MOTION TO STRIKE
MOVING PARTY: Defendant Law Office of Willoughby and
Associates Inc.
RESPONDING PARTY(S): Plaintiff Ali Ebneshahidi DC
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to two causes of action in the Second Amended
Complaint
TENTATIVE RULING:
1. Demurrer
as to 1st and 2nd Causes of Action is SUSTAINED, with
leave to amend.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On February 28, 2022, Plaintiff Ali Ebneshahidi DC filed a
complaint against Law Offices of Willoughby and Associates Inc.
The First Amended Complaint was filed on June 13, 2022. The
complaint raised three causes of action: (1) Breach of Contract, (2) Breach of
Implied Contract, and (3) Breach of Fiduciary Duty. This action is to recover
$93,970 in payment for services rendered under various medical liens signed by
various patients promising to pay Plaintiff. These various patients retained
Defendant in suits against unknown third parties. Plaintiff alleges that
Defendant did not use an interpleader and has failed to disburse funds.
On July 15, 2022, Defendant field a Demurrer with a Motion
to Strike, which was SUSTAINED, in part as to the 1st and 2nd
causes of action, and OVERRULED, as to the 3rd cause of action.
On November 21, 2022, Plaintiff filed a Second Amended
Complaint.
The current Demurrer was filed on December 20, 2022.
Plaintiff’s Opposition was filed on February 6, 2023.
LEGAL STANDARD
Demurrer
A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. In a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. …. The only issue involved in a demurrer hearing is whether
the complaint, as it stands, unconnected with extraneous matters, states a
cause of action.” (Hahn 147
Cal.App.4th at 747.)
Meet and Confer:
Prior to filing a demurrer, the demurring party is required
to satisfy their meet and confer obligations pursuant to Code of Civ. Proc.
§430.41, and demonstrate that they so satisfied their meet and confer
obligation by submitting a declaration pursuant to Code of Civ. Proc.
§430.41(a)(2) & (3). No declaration has been filed by
Defendant’s counsel indicating that the parties met and conferred.
ANALYSIS:
First and Second Causes of Action: Breach
of Contract & Breach of Implied Contract
Defendant argues that these causes of
action fail for two main reasons. First, these causes of action are defective
because Plaintiff failed to join necessary and indispensable parties. Because
there are various patients to have alleged contracts with Plaintiff, they are
necessary parties and Plaintiff must “join the various patients, each of which
has a separate and distinct interest.” (Demurrer 6: 7-10.) Not only are the
patients separate and distinct, Plaintiff has alleged that the funds are
subject to an interest belonging to various patients and may increase
litigation, and the alleged reason for failure to join is based on having to
enter into separate litigation, which is costly, timely, and “does not do a
great deal for the reputation of the physician…when comments on social media
platforms like Yelp can make or break a business.” (SAC ¶ 22.) This reason is
“nonsensical.” (Demurrer 8: 2-8.)
Second, the causes of action are devoid of
necessary contract details, specifically the contract. Plaintiff has failed to
allege the existence of the contract, only attaching Exhibit A “which Plaintiff
has alleged contains the same terms as the contracted sued on.” (Demurrer 8:
19-23.) Plaintiff has failed to comply with the Court’s order and either
provide the contract or their terms by their legal effect. (Id. at 8: 26 – 9: 5.)
Plaintiff argues that the complaint is
sufficient. First, the issues are between Plaintiff and Defendants. In almost
“all of these matters, the facts in each are remarkably similar.” Therefore, it
is better to conserve judicial resources rather than Plaintiff filed 31
separate cases to then have them consolidated. Second, Plaintiff argues it is
not the intent of the parties to pursue the individual patients; the issues
here relate to “Defendants’ failures to pay the amounts that they previously
agreed to pay.” (Opp. 4: 15-18.) Lastly, Plaintiff argues that the contracts
are clearly provided. Here, the terms are the same, with the difference between
the liens being the dates signed and the names of the patient. Exhibit B
provides the names of the patients and the dates of the accidents.
“To establish a cause of action for breach
of contract, the plaintiff must plead and prove (1) the existence of the
contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the
defendant’s breach, and (4) resulting damages to the plaintiff.
[Citation.]” (Maxwell v. Dolezal
(2014) 231 Cal.App.4th 93, 97-98.)
“A cause of action
for breach of implied contract has the same elements as does a cause of action
for breach of contract, except that the promise is not expressed in words but
is implied from the promisor's conduct.” (Yari
v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.)
A
review of the SAC indicates that the first two causes of action are not
sufficiently pleaded. As Defendant argues, and cites to, “A written contract
may be pleaded either by its terms—set out verbatim in the complaint or a copy
of the contract attached to the complaint and incorporated therein by
reference—or by its legal effect. [Citation.] In order to plead a contract by
its legal effect, plaintiff must ‘allege the substance of its relevant terms.”
(Heritage Pacific Financial, LLC v.
Monroy (2013) 215 Cal.App.4th 972, 993.)
Previously, this
Court stated that the Plaintiff failed to provide the separate contracts,
“which indicate which specific patient, the exact terms (despite Plaintiff
stating the terms are the same), and the specific dates.” Here, Plaintiff has
failed to comply with this. Plaintiff has only provided one contract.
Additionally, in the SAC, Plaintiff states that “in almost all matters
Willoughby signed a copy of the Lien.” Which specific matters did Willoughby
not sign? Are those included in the 31 patients? Would Willoughby have a
contract with that patient? These are questions cannot be answered without the alleged
contracts. Further, in Opposition, Plaintiff states that “if the Court believes
that a copy of each Lien is necessary then Plaintiff can adduce the same.” The
Court specifically stated in the ruling issued on November 15, 2022, that: “While
Plaintiff need not file 31 separate causes of action, the separate contracts
should be provided, which indicate which specific patient, the exact terms
(despite Plaintiff stating the terms are the same), and the specific dates.” (Ruling
11/16/2022, pg. 4.)
The First And Second Cause of Action
are SUSTAINED, with leave to amend.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Demurrer is SUSTAINED, with leave
to amend as to 1st and 2nd Causes of Action.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: February
21, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court