Judge: Walter P. Schwarm, Case: 30-2019-01100016, Date: 2022-12-06 Tentative Ruling

Motion No. 1:

Defendants’ (Sohail Idries Simjee, D.M.D., Inc. dba Cool Smiles Orthodontics and Jolen Voight, RDA) Motion to Dismiss (Motion), filed on 7-28-22 under ROA No. 526, is GRANTED in part and DENIED in part as set forth below.

The Motion states, “. . . as discussed herein, this lawsuit against Jolen Voight and Sohail I. Simjee, D.M.D., Inc. d/b/a cool Smiles Orthodontics should be dismissed pursuant to California Code of Civil Procedure, section 581, subdivision (f)(2).

Plaintiff’s (Danut Tanasescu) Opposition to Defendants’ Motion for Dismissal of Jolene Voight and Cool Smiles Orthodontics (Opposition), filed on 11-22-22 under ROA No. 548), states, “The Second COA for breach of the Agreement contract and the Sixth COA for money paid and received are before the Court for adjudication on the merits. The two causes of action have both plaintiffs' intertwined claims against the Doctor cumulatively including Sohail Idries Simjee, as president and doctor, and business Sohail I. Simjee, DMD, Inc. d.b.a. Cool Smiles Orthodontics.” (Opposition, 10:10-14.)

Code of Civil Procedure section 581, subdivision (f)(2), states, “(f) The court may dismiss the complaint as to that defendant when: . . . [¶] (2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”  Cano v. Glover (2006) 143 Cal.App.4th 326, 330 (Cano), states, “The failure to amend and state a cause of action against defendant is an admission that plaintiff has stated the case as strongly as he can and there are no facts that could be alleged to cure the defect. [Citation.]  ‘Somewhere along the line, litigation must cease.’ [Citation.]”

On 2-10-22, the court sustained Defendants’ demurrer to as to the fifth and seventh cause of action in Plaintiff’s Second Amended Complaint (SAC) filed on 7-26-21 under ROA No. 290. (2-10-22 Minute Order; The SAC is attached as Exhibit D to the declaration of Irene A. Yousefi.)  As a result, the only remaining causes of action are the second cause of action (Breach of Contract against the Doctor) and the sixth cause of action (Common Counts against the Doctor).

Here, the SAC defines “Doctor” at paragraph 12 as follows: “All defendants are cumulatively referenced hereon as Defendant-Doctor or defendants. In addition, Defendant Sohail I. Simjee, DMD, MMSc., Defendant Sohail I Simjee, DMD, Inc., and Defendant Cool Smiles Orthodontics, together with Associate Doctors and corporations as part of the composed pre dispute arbitration agreement (PDAA) are hereinafter jointly referred to as the Doctor as applicable.” The second and sixth of causes of action of the SAC are brought by “ Doctor.”

Since “Doctor” is not defined in the SAC as including Defendant—Jolene Voight, the court finds that the SAC’s remaining causes of action do not allege a claim against Defendant—Jolene Voight. Pursuant to Cano, the court construes Plaintiff’s failure to amend to allege a claim against Defendant—Jolene Voighe as an admission that Plaintiff cannot allege any such claim. For this reason, the court GRANTS Defendants’ Motion as to Defendant—Jolene Voight, R.D.A. 

The court does not grant Defendants’ Motion as to Defendant—Sohail I. Simjee, D.M.D., Inc. dba Cool Smiles Orthodontics because paragraph 12 of the SAC defines “Doctor” to include this defendant and the second and sixth causes of action are alleged against Defendant “Doctor.”

Therefore, the court GRANTS Defendants’ (Sohail Idries Simjee, D.M.D., Inc. dba Cool Smiles Orthodontics and Jolen Voight, RDA) Motion to Dismiss, filed on 7-28-22 under ROA No. 526, is GRANTED as to Defendant—Jolene Voight, R.D.A.  The court DENIES the Motion as to Defendant—Sohail I. Simjee D.M.D. Inc. d/b/a Cool Smile Orthodontics.

Defendants are to give notice.

Motion No. 2:

Plaintiff’s (Danut Tanasescu) Motion for an Order to Stay All Proceedings filed as an Ex Parte Application (Motion), filed on 11-15-22 under ROA No. 538, is DENIED.

Code of Civil Procedure section 916 states, “(a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. [¶] (b) When there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from.”

Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190 (Varian), provides, “Subject to certain exceptions not relevant here, ‘the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.’ (§ 916, subd. (a).) The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.] [¶] To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings “upon the matters embraced” in or ‘affected’ by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ [Citation.] [¶] The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to ‘enforce, vacate or modify [the] appealed judgment or order. [Citation.] Or the proceeding must substantially interfere with the appellate court's ability to conduct the appeal.  [Citation.]” (Footnotes 5 and 6 omitted.)

The Motion states, “All trial court proceedings post the July 1, 2022 judgment, appealed in case G061347 on the dismissal of Plaintiff S.T. upon Defendants' demurrer for lack of legal capacity, establish that the trial court proceedings in the instant action affect the effectiveness of the appeal as the trial court is enforcing the appealed judgement, therefore stay of all proceedings is warranted under CCP §916.” (Motion, 2:15-19.)

Defendants’ (Sohail Idries Simjee, DMD, Sohail I. Simjee, DMD, Inc. dba Cool Smiles Orthodontics and Jolene Voight, RDA) Opposition to Motion, filed 11-15-22 under ROA No. 544 (Opposition), contends, “Here, Plaintiff Danut is suing for Breach of Contract and Common Counts. These causes of action are based on a supposed economic arrangement Danut claimed he made with Defendant Dr. Simjee. Former plaintiff, S.T., on the other hand, was pursuing causes of action for medical malpractice. The causes of action alleged by Plaintiff and S.T. are not "intertwined" in any way, as argued by Plaintiff. The claims are distinct and separate from one another. Danut's causes of action would not be affected in any way by the appeal filed by S.T. . . . No matter the results of S.T.'s appeal (which appeals this court's sustaining of demurrer without leave since S.T. has always been unrepresented by counsel) there is no impact on Plaintiff Danut's proceedings which is based on breach of contract and common counts. Nor does Danut's proceeding have any impact on S.T.'s appeal. Thus, there is no need to stay the proceedings and the matter as to Plaintiff should proceed.” (Opposition, 4:14-26.)

On 2-10-22, the court sustained Defendants’ Demurrer to Plaintiff S.T.’s Second Amended Complaint (SAC) in its entirety on the grounds that Plaintiff S.T. lacked capacity to sue as a minor. (2-10-22 Minute Order.)  On 7-1-22, Plaintiff S.T. was dismissed from the SAC with prejudice. Plaintiff S.T. appeals from this dismissal.

Although the SAC’s second and sixth causes of action are brought by “plaintiffs against Doctors,” the second cause of action for breach of contract is based on a 10-12-12 Agreement contract between Defendants and executed by S.T.’s father, Plaintiff Danut Tanesescu. (see SAC, ¶¶ 98-100.) Exhibit A to the SAC includes a signature from Plaintiff Danut Tanesescu and “Dentist.” Paragraph 181 to the SAC alleges that Defendants are liable for “money had and received,” and paragraph 211 of the SAC prays for reimbursement to Danut Tanasescu for treatment of S.T.’s dental needs.

Based on the above, the court finds that a stay of this action is not warranted under Code of Civil Procedure section 916 because the trial court proceedings on Danut Tanasescu’s claims are not embraced by or affected by Plaintiff S.T.’s appeal. Plaintiff S.T.’s status as a Plaintiff in this action is not intertwined with Plaintiff Danut Tanasescu’s claims based on his Agreement with Defendants for dental services provided to Plaintiff S.T.

In summary, the court DENIES Plaintiff’s (Danut Tanasescu) Motion for an Order to Stay All Proceedings filed as an Ex Parte Application filed on 11-15-22 under ROA No. 538.

Plaintiff is to give notice.