Judge: Virginia Keeny, Case: 21VECV01372, Date: 2022-08-19 Tentative Ruling

Case Number: 21VECV01372    Hearing Date: August 19, 2022    Dept: W

GHAMAR FAZLELAHI BAGHERI, et al. v. fariborz matian, et al.

Defendants Shahriar Parvizpour, D.D.S. and George Perri D.D.S., Thomas Bigley D.D.S. and Shahriar Parvizpour D.D.S., a Dental Corporation’s demurrer to the second amended complaint

Date of Hearing:        August 19, 2022                                Trial Date:       None set.

Department:              W                                                        Case No.:        21VECV01372

Moving Party:            Defendants Shahriar Parvizpour, D.D.S. and George Perri D.D.S., Thomas Bigley D.D.S. and Shahriar Parvizpour D.D.S., a Dental Corporation

Responding Party:     Plaintiffs Ghamar Fazlelahi Bagheri and Ebrahim Bagheri

Meet and Confer:      Yes. (Lam Decl. ¶¶ 2-3, Exhs. A-B.)

BACKGROUND

On May 5, 2022, Plaintiffs Ghamar Fazlelahi Bagheri and Ebrahim Bagheri filed the operative Second Amended Complaint (“SAC”) against Defendants Fariborz Matian, DDS, Fariborz Matian, Inc. Shahriar Parvizpour, DDS and George Perri DDS, Thomas Bigley DDS and Shahriar Parvizpour DDS, a Dental Corporation (erroneously sued as Perri, Bigley, & Parvizpour) asserting causes of action for (1) Professional Negligence; (2) Breach of Contract; (3) Fraud & Deceit; (4) Elder Abuse – Financial; (5) Elder Abuse – Intentional Infliction of Emotional Distress; (6) Elder Abuse – Physical; and (7) Loss of Consortium.

Plaintiffs allege in 2009 Mrs. Bagheri received negligent dental implant treatment with Dr. Matian. Plaintiffs further allege Mrs. Bagheri was referred to Defendant Dr. Parvizpour for the surgery which would replace Defendant Dr. Matian’s improperly placed implants. However, Defendant Dr. Parvizpour acted improperly by writing an opinion letter regarding the Mrs. Bagheri’s dental condition and her implant treatment.

[Tentative] Ruling

Defendants Shahriar Parvizpour, D.D.S. and George Perri D.D.S., Thomas Bigley D.D.S. and Shahriar Parvizpour D.D.S., a Dental Corporation’s Demurrer to the Second Amended Complaint is SUSTAINED without leave to amend.

DISCUSSION

Demurrer

Defendants demur to the third, fourth, fifth, and, seventh causes of action on the grounds the claims do not state facts sufficient to constitute a cause of action against the Parvizpour Defendants and that the fourth cause of action is duplicative. The court shall address each in turn.

i.                    Third Cause of Action – Fraud and Deceit

Defendants demur to the third cause of action on grounds the cause of action has not been pled with the requisite particularly and specificity.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “It is settled that a plaintiff, to state a cause of action for deceit based on a misrepresentation, must plead that he or she actually relied on the misrepresentation.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088.)

Defendants first argue that Plaintiffs’ fraud claim continues to fail to sufficiently plead reliance on any alleged misrepresentation by the Parvizpor Defendants. (Demurrer at pg. 4.) They reason that, even if they misrepresented Dr. Le’s availability, Plaintiffs left the office because they only wanted to be seen by Dr. Le. (Demurrer at pg. 5; SAC ¶¶ 56E, 65F, 67.) Also, in terms of any reliance on Dr. Parvizpour’s opinion letter, this is undermined by the fact that Plaintiffs wrote a reply letter, pointing out the alleged misconduct by the Defendants. (Demurrer at pg. 5; SAC ¶ 50, Exh. 1.) Defendants next argue that Dr. Parvizpour’s letter was only an opinion letter and opinions are constitutionally protected activity. (Demurrer at pg. 6, relying on Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 452.)  Lastly, Defendants argue that this cause of action continues to fail to sufficiently allege scienter on the part of any of the Parvizpor Defendants. They contend that the SAC makes no attempt to allege ultimate facts regarding the Parvizpour Defendants’ knowledge of the falsity of any alleged misrepresentations.

In opposition, Plaintiffs argue that the reliance stems from Dr. Matian’s “claim of a lifetime guaranty and that he was sending plaintiffs to Parvizpour who would be acting as Matian's agent in arranging for the remedial treatment with Dr. Le.” (Opposition at pg. 11.) However, these were not statements made by the Parvizpour Defendants. Plaintiffs argues that Dr. Matian’s statements are imputed on the Parvizpour Defendants on the assertion that Dr. Matian and the Parvizpour Defendants conspired to defraud Plaintiffs. (SAC ¶ 33, 35, 57, 67-68.) This is not persuasive because the statements made by Dr. Matian were made before Plaintiffs were introduced to the Parvizpour Defendants. There is no indication that Plaintiffs were ever damaged or harmed as a result of this alleged conspiracy. Furthermore, Plaintiffs have not alleged reliance on the 2019 letter drafted by the Parvizpour Defendants as they have also alleged they did not want to see another doctor and responded negatively to the letter, finding fault with the opinions reached. Instead, Plaintiffs allege the Parvizpour Defendants wrote a letter, falsely stating that they could not find a correlation between Mrs. Bagheri’s pain and the implants. “The law is quite clear that expressions of opinion are not generally treated as representations of fact, and thus are not grounds for a misrepresentation cause of action.” (Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 308.) Moreover, the SAC continues to fail to allege any intent by the Parvizpour Defendants to defraud the Plaintiffs.

Accordingly, the court sustains the demurrer to the third cause of action without leave to amend.

ii.                  Fourth Cause of Action – Elder Abuse: Financial

Defendants demur to the fourth cause of action on the grounds the Parvizpour Defendants never received any monies from Plaintiffs.

To establish financial elder abuse, the plaintiff must allege that the defendant took or retained the plaintiff’s property; that the plaintiff was 65 years of age or older at the time of the conduct; that the defendant took or retained the property for a wrongful use or with the intent to defraud; that the plaintiff was harmed; and that the defendant’s conduct was a substantial factor in cause the plaintiff’s harm. (See CACI, § 3100.)

The Parvizpour Defendants argue the Plaintiffs fail to set forth any allegations wherein the Parvizpour Defendants took or appropriated any personal or real property of the Plaintiffs with the intent to defraud. (Demurrer at pg. 8-9.) The Plaintiffs only saw the Parvizpour Defendants once briefly and never paid him any monies.

In opposition, Plaintiffs argue that the Parvizpour Defendants are liable for financial elder abuse by conspiring with Dr. Matian to defraud Plaintiffs. (Unruh v. Truck Insurance Exchange (1972) 7 Cal. 3d 616, 631.) However, as stated above, the conspiracy has not been sufficiently alleged because Plaintiffs were not harmed by the Parvizpour Defendants’ conduct. Regardless, the Parvizpour Defendants were not introduced to Plaintiffs until 2019. Thus, they cannot be liable for any alleged financial elder abuse that occurred prior to then, as Dr. Matian was the one who was paid for the implant treatment.  

Accordingly, the court sustains the demurrer to the fourth causes of action without leave to amend.

iii.                Fifth Cause of Action – Elder Abuse: Intentional Infliction of Emotional Distress

Defendants demur to the fifth cause of action on the grounds Plaintiffs do not allege any extreme conduct by the Parvizpour Defendants. (Demurrer at pg. 9.)

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

The Parvizpour Defendants argue Plaintiffs again attempt to apply an intentional tort onto the Parvizpour Defendants based only upon the prior 2009 actions of the co-Defendant Dr. Matian. Defendants contend there are no allegations in the fifth cause of action regarding any acts by the Parvizpour Defendants, much less acts that are so outrageous and extreme as to exceed all bounds of civilized society.

The court agrees. All the allegations regarding intentional infliction of emotional distress pertain to the Plaintiffs’ dental treatment with Defendant Dr. Matian in 2009. Again, Plaintiffs have not sufficiently alleged any allegations of conspiracy.

Accordingly, the court sustains the demurrer to the fifth cause of action without leave to amend.

iv.                Seventh Cause of Action – Loss of Consortium

Defendants demur to the seventh cause of action on the ground that the other claims fail as to the Parvizpour Defendants. (Demurrer at pg. 10.) The court agrees. “[I]n California each spouse has a cause of action for loss of consortium, as defined herein, caused by a negligent or intentional injury to the other spouse by a third party.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal. 3d 382, 408.) Because Plaintiffs are unable to maintain their other causes of action against the Parvipour Defendants, their loss of consortium claim also fails.

Accordingly, the court sustains the demurrer to the seventh cause of action without leave to amend.