Judge: Walter P. Schwarm, Case: 30-2021-01208574, Date: 2023-07-18 Tentative Ruling

Motion No. 1:

Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc., and Hokyung Lee) Demurrer to Plaintiff’s Third Amended Complaint (Demurrer), filed on 12-8-22 under ROA No. 193, is SUSTAINED in part and OVERRULED in part as set forth below.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]”

Thompson v. Spitzer (2023) 90 Cal.App.5th 436, 451-452 (Thompson), provides, “ ‘A demurrer  must dispose of an entire cause of action to be sustained.’ [Citation.] Thus, a court must overrule a demurrer to a cause of action if it is based on at least one viable theory of liability.”

The Demurrer challenges the third, fourth, and sixth causes of action contained in Plaintiff’s (Young Sohn) Third Amended Complaint (TAC), filed on 11-7-22 under ROA No. 181, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Motion; 2:3-17.)

Third Cause of Action (Elder Abuse):

Citing Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148 (Winn), the Motion states, “. . . a cause of action for neglect under Elder Abuse only applies in situations where a patient was hospitalized or other custodial relationship with the defendant.” (Demurrer; 7:3-4.)  Plaintiff’s Opposition to Defendants’ Demurrer to Third Amended Complaint (Opposition), filed on 4-10-23 under ROA No. 231, responds, “Defendants are attempting to skew the actual allegations in the Complaint to fit within the interpretation that best suits their argument for no liability. The financial abuse alleged is NOT a situation where a patient was hospitalized or other custodial relationship with the defendants, but the fact that based upon the intentional misrepresentations by Defendant JIN DENTAL.” (Opposition; 6:23-26 (Uppercase and Italics in Opposition.)

Welfare and Institutions Code section 15610.07, subdivision (a), states, “(a) ‘Abuse of an elder or a dependent adult’ means any of the following: [¶] (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. [¶] (3) Financial abuse, as defined in Section 15610.30.”

Welfare and Institutions Code section 15610.63, provides in part, “ ‘Physical abuse’ means any of the following: [¶] (a) Assault, as defined in Section 240 of the Penal Code. [¶] (b) Battery, as defined in Section 242 of the Penal Code. . . .”

Welfare and Institutions Code section 15610.30 states in part, “(a) ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70. [¶] (b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult. . . .”

Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar), states, “ ‘The elements of fraud, which give rise to the tort action for deceit, 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.’ [Citations.]” “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Id., at p. 645.) Italics in Lazar.)

Winn explains, “Beyond the assertion that defendants treated Mrs. Cox at outpatient ‘clinics’ operated by defendants, plaintiffs offer no other explanation for why defendants' intermittent, outpatient medical treatment forged a caretaking or custodial relationship between Mrs. Cox and defendants. No allegations in the complaint support an inference that Mrs. Cox relied on defendants in any way distinct from an able-bodied and fully competent adult's reliance on the advice and care of his or her medical providers. Accordingly, we hold that defendants lacked the needed caretaking or custodial relationship with the decedent. [¶] Plaintiffs cannot bring a claim of neglect under the Elder Abuse Act unless the defendant health care provider has a caretaking or custodial relationship with the elder or dependent adult. Here, plaintiffs rely solely on defendants' allegedly substandard provision of medical treatment, on an outpatient basis, to an elder. But without more, such an allegation does not support the conclusion that neglect occurred under the Elder Abuse Act. To elide the distinction between neglect under the Act and objectionable conduct triggering conventional tort remedies—even in the absence of a care or custody relationship—risks undermining the Act's central premise.” (Winn, supra, 63 Cal.4th at p. 165.)

The TAC alleges financial elder abuse pursuant to Welfare and Institutions Code section 15610.30. (For example, see TAC at ¶ 80.)  The TAC also alleges physical abuse under Welfare and Institutions Code section 15610.63. (For example, see TAC at ¶ 15610.63.)  Since the TAC does not plead elder abuse under a neglect theory (Welf. & Inst. Code, § 15610.57, Winn does not apply.  Welfare and Institution Code sections 15610.30 and 15610.63 do not require a caretaking relationship.

Paragraph 84 of the TAC alleges, “Defendants stood in a position of trust to Plaintiff as his health care providers and appropriated his money with the intent to defraud Plaintiff by treatment planning, over-billing, and rendering dental treatment to Plaintiff was neither warranted nor requested by Plaintiff.”

As to elder abuse based on financial abuse, the TAC does not sufficiently plead an intent to defraud with respect to the $13,000.00 alleged in paragraph 80 of the TAC.  For example, paragraph 83(c) of the TAC alleges that Defendants unduly induced “. . . Plaintiff to agree to pay for $13,000 for extra 14 implants . . ., but the TAC does not describe how Defendants unduly induce Plaintiff to pay $13,000.00. Although paragraph 84 of the TAC alleges an intent to defraud, the TAC does not sufficiently plead how Defendants committed fraud in the alleged taking of the $13,000.00.  

As to physical abuse under Welfare and Institutions Code section, Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495-1496 (Piedra), states, “ ‘ “A battery is any intentional, unlawful and harmful contact by one person with the person of another. . . . A harmful contact, intentionally done is the essence of a battery. . . . A contact is ‘unlawful’ if it is unconsented to. . . .” [Citation.] The elements of a civil battery are: “ ‘1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did not consent to the contact; [and][¶] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.’ ”  [Citation.]’ [Citations.] [¶] ‘Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.’ [Citation.] Consent is not necessary for medical treatment provided in an emergency. [Citation.] When a physician obtains the patient's consent to a particular treatment and administers that treatment, but an undisclosed inherent complication with a low probability occurs, the patient has a claim for negligence, not battery.” CACI Nos. 530A and 530B describe two forms of medical battery. CACI No. 530A pertains to a procedure where a plaintiff does not consent, or “. . . consented to one medical procedure . . .” but the defendant “. . . performed a substantially different medical procedure. . . .” (CACI No. 530A.)  CACI 530B applies to a medical battery based on conditional consent. 

People v. Miranda (2021) 62 Cal.App.5th 162, 173 (Miranda), states, “ ‘A battery is any willful and unlawful use of force or violence upon the person of another.’ (§ 242.) It thus has two stated elements: (1) a use of ‘force or violence’ that is (2) ‘willful and unlawful.’ [Citation.] As to the first element, ‘ “[i]t has long been established that “the least touching” may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.” ’ [Citation.] As to the second element, a touching is unlawful if it is ‘ “harmful or offensive.” ’ [Citation.]”

The TAC sufficiently pleads elder abuse based on physical abuse because the TAC alleges that Plaintiff did not request the dental treatment. (For example, see TAC at ¶¶ 81 and 84.) In other words, the TAC adequately alleges that Plaintiff did not consent to the treatment.  Although the TAC does not adequately allege elder abuse based on financial abuse, the court does not have the authority to sustain the Demurrer to the third cause of action because the third cause of action pleads a viable theory based on physical abuse.  Therefore, the court OVERRULES the Demurrer to the third cause of action.

Fourth Cause of Action (Conspiracy to Commit Fraud and Deceit):

The TAC pleads, “In or around February 2018, Defendants and each of them knowingly and willingly conspired and agreed among themselves to break the medical law that Defendant KIM and DOES 1-25, inclusive, an unlicensed dentist, would treat patients, including Plaintiff.” (TAC, ¶ 90; Uppercase in TAC.) 

The Demurrer contends that the fourth cause of action “. . . is subject to a 3-year statute of limitations (Code of Civil Procedure section 338(d)) . . . Plaintiff’s Third Amended Complaint was not filed until November 7, 2022, more than 4 years thereafter.” (Demurrer; 9:3-8.) Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409 (Norgart), provides, “The amended complaint would have related back to the original one.  The relation-back doctrine requires that the amended complaint  must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one. [Citations.]” (Italics in Norgart.)

Plaintiff filed the Complaint on 7-6-21 under ROA No. 1.  The Complaint alleged a cause of action for fraud as the fifth cause of action.  The fifth cause of action in the Complaint alleges generally that Defendants engaged in fraudulent conduct in connection with their treatment of Plaintiff in 2018. (Complaint, ¶¶ 64-70.)  Therefore, the court finds that the TAC’s fourth cause of action relates back to the filing of the original Complaint because both causes of action are based on the same general set of facts about Defendants’ conduct in treating Plaintiff in 2018. 

The Demurrer also states, “Plaintiff did not obtain the Court’s permission to assert these new causes of action . . . .” (Demurrer; 8:19.)  Relying on Stueve Brothers Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 323 (Stueve), the court’s 11-1-22 Minute Order noted that conspiracy to commit a tort is not a separate cause of action.  The court’s 11-1-22 Minute Order states, “Although the court SUSTAINS the Demurer to the fourth cause of action, Plaintiff may still assert a conspiracy theory in an amended complaint.” (Emphasis in 11-1-22 Minute Order.)  The court’s 11-1-22 Minute Order explicitly permitted Plaintiff to allege a conspiracy theory.

Based on the above, the court OVERRULES the Demurrer to the fourth cause of action.

Sixth Cause of Action (Negligent Misrepresentation):

CACI No. 1903 sets forth the elements necessary to establish a cause of action for negligent misrepresentation.  Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 (Cadlo), states, “The well-known elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages. [Citation.] The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance. [Citation.] In both causes of action, the plaintiff must plead that he or she actually relied on the misrepresentation. [Citation.] [¶] Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged. [Citation.] The policy of liberal construction of pleadings is not generally invoked to sustain a misrepresentation pleading defective in any material respect. [Citation.] Thus, the mere assertion of ‘reliance’ is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show a bona fide claim of actual reliance. [Citation.]”

Paragraph 116 of the TAC pleads, “When Defendant JIN DENTAL advertised that they provide dental service for seniors over 65 and patients would be directly treated by Defendant ALEXANDER CHUNG, a prosthodontist with 15 years’ experience, they represented to Plaintiff that it was true. Instead, they illegally hired the unlicensed dentist. This advertisement is a cruel bait-and-switch because, from the outset, they needed the large number of patients, which is a material factor in determining the sale price of the practice. Their main purpose is to sell the dental practice and Defendant HOKYUNG LEE, as a dental practice broker, controls and manages the practice. JIN DENTAL is well aware of this false advertisement. Therefore, Defendant had no reasonable grounds for believing the representation that the prosthodontist with 15 years’ experience would provide dental service for seniors was true when they made it. It is obvious that JIN DENTAL intended for their patients, including Plaintiff, rely on this representation when the patients choose their medical provider. As the result, Plaintiff reasonably relied on JIN DENTAL’s representation.” (Uppercase in TAC.) 

The TAC insufficiently alleges that Defendants intended to induce Plaintiff’s reliance on the alleged misrepresentation.  Further, the TAC does not allege the specifics of Defendant’s reliance on the above misrepresentation.   Therefore, the court SUSTAINS the Demurrer to the sixth cause of action.

Based on the above, the court OVERRULES Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc., and Hokyung Lee) Demurrer to Plaintiff’s Third Amended Complaint, filed on 12-8-22 under ROA No. 193, as to the third and fourth causes of action.  The court SUSTAINS the Demurrer as to the sixth cause of action with 14 days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Defendants are to give notice.

Motion No. 2:

Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc., and Hokyung Lee) Motion to Strike Portions of Plaintiff’s Third Amended Complaint (Motion), filed on 12-8-22 under ROA No. 194, is DENIED.

Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out 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.”  Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”

The Motion seeks to strike paragraphs 79-97 and 114-117 of Plaintiff’s (Young Sohn) Third Amended Complaint (TAC) filed on 11-7-22 under ROA No. 181. (Motion; 1:24-2:27.)  These allegations pertain to the third, fourth, and sixth causes of action addressed by Defendants’ Demurrer in Motion No. 1.  Under Pierson, a motion to strike is not the proper procedure to challenge a complaint as to the sufficiency of the allegations that support relief.  Defendants used Motion No. 1 to challenge the sufficiency of the allegations to support the third, fourth, and sixth causes of action.  Therefore, the court DENIES Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc., and Hokyung Lee) Motion to Strike Portions of Plaintiff’s Third Amended Complaint filed on 12-8-22 under ROA No. 194.

Plaintiff is to give notice.

Motion No 3:

Plaintiff’s Motion to Compel Response to Plaintiff’s Requests for Production of Documents (Motion), filed on 1-17-23 under ROA No. 218, is GRANTED.

Code of Civil Procedure section 2031.300 states in part, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: . . . [¶] (b) The party making the demand may move for an order compelling response to the demand.”

On 11-9-22, Plaintiff served Defendants (Ojin Kwon, Hokyung Lee, and Jin Dental) with “Plaintiff’s Request for Production of Documents, Set One.” (Sohn Decl., ¶ 3 and Exhibit A.)   It appears that Defendant did not provide responses to this discovery request. (Sohn Decl., ¶ 4 and Exhibit B.)

Defendants’ Opposition to Plaintiff’s Motion to Compel Defendants’ Further Responses to Plaintiff’s Request for Production of Documents, Set One (Opposition), filed on 7-5-23 under ROA No. 279, states, “. . . we have proffered verified responses to this Request for Production of Documents, making this motion moot.” (Opposition; 3:3-4.)  Plaintiff’s 7-7-23 declaration states, “To date, Plaintiff did not receive any documents from Defendants, except for the falsified medical chart.” (Plaintiff’s 7-7-23 Decl., ¶ 4.)

Since the court does not have evidence that Defendants have provided responses to the discovery requests at issue, the court GRANTS Plaintiff’s Motion to Compel Response to Plaintiff’s Requests for Production of Documents filed on 1-17-23 under ROA No. 218.  The court orders Defendants to provide verified responses, without objection, to “Plaintiff’s Request for Production of Documents, Set One.” (Sohn Decl., ¶ 3 and Exhibit A; Code Civ. Proc., § 2031.250) within 21 days from the date of service of the notice of the court’s ruling.

The court DENIES Plaintiff’s request for a monetary sanction.  Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1020 (Kravitz), states, “We agree with Argaman that a pro se lawyer cannot recover attorney's fees as a discovery sanction. But we think that some of the costs that pro se litigants incur, if reasonably identifiable and allocable, are recoverable as sanctions-even though those costs are ones that lawyers ordinarily include in their hourly rates or other fee structures. [Citation.]”

Plaintiff is to give notice.