Judge: William A. Crowfoot, Case: 22STCV13792, Date: 2023-02-06 Tentative Ruling

Case Number: 22STCV13792    Hearing Date: February 6, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

I.            BACKGROUND

On February 27, 2019, plaintiff Rosevianney C. Ogumsi (“Plaintiff”) filed this medical malpractice action. 

On September 26, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against defendants Richard Dale Gentile, D.D.S. (“Gentile”), and Heydar Hamid Shahrokh, D.D.S., an individual, and Heydar Shahrock, D.D.S., Inc., dba Comfort Dental Center (erroneously sued as Comfort Dental Center), asserting causes of action for (1) professional negligence (dental malpractice), (2) intentional infliction of emotional distress, (3) negligent infliction of emotional distress, (4) unlawful, unfair, and/or fraudulent business practices (Bus. & Prof. Code § 17200, et seq), and (5) defamation.  Trial is not yet scheduled.

Gentile now demurs the fifth cause of action for defamation in the SAC.  The demurrer is unopposed.

II.          LEGAL STANDARD

The party against whom a complaint is filed may demur the pleading on the ground that it does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

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.  (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)

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 pleading alone, and not on the evidence or facts alleged.”  (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)  As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations.  (Ibid.)  However, it does not accept as true deductions, contentions, or conclusions of law or fact.  (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

III.      DISCUSSION

Gentile demurs the fifth cause of action for defamation in the SAC, arguing the following.  “Defendant’s Demurrer to Plaintiff’s defamation cause of action in Plaintiff’s First Amended Complaint was sustained by the Court because there were insufficient facts regarding Defendant Gentile’s conduct to proceed with a defamation cause of action against him.”  (Demurrer, p. 6:14-16.)  “Plaintiff’s Second Amended Complaint fails to add any new sufficient facts regarding Gentile’s conduct that can overcome this [sic] deficiencies pointed out by the Court.”  (Demurrer, p. 6:17-19.)

“Defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’  [Citation.]”  (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970.)

          “Defamation … may occur by means of libel or slander.  (Civ. Code, § 44.)”  (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)  “‘Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means.’ [Citation.]  ‘Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye ....’  [Citation.]”  (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 893 [italics in original].)

“Case law requires that statements alleged to constitute libel ‘must be specifically identified, if not pleaded verbatim, in the complaint’ [citations]; less specificity is required in the pleading of slander, given that slander may ‘be charged by alleging the substance of the defamatory statement’ [citation].”  (Ibid. [italics in original].)  (Medical Marijuana, Inc. v. ProjectCBD.com, supra, 46 Cal.App.5th at p. 893.)

Here, Plaintiff’s defamation claim in the SAC alleges the following.  “Defendants and each of them made false statements of fact about Plaintiff Ogumsi, namely that Plaintiff (their patient) Ogumsi was engaging on a criminal conduct of trespassing on their business property.”  (SAC, ¶ 72.)  The SAC further alleges that the “false statement was made to Los Angeles Police department when Plaintiff was on Defendants' business property for the purpose of obtaining her dental record.”  (SAC, ¶ 73.)  Specifically, with regard to Gentile, Plaintiff alleges that   “[o]n that occasion [that Gentile defamed her], Gentile advised a nurse in his office to call police on Plaintiff and the nurse did and reported that there was a lady unlawfully causing disturbance in the office and refusing to leave.”  (SAC, ¶ 76.)

The Court agrees with Gentile that the above allegations are insufficient to constitute a cause of action for defamation against the defendant.  The Court found in its order sustaining Gentile’s demurrer to the defamation cause of action in the First Amended Complaint that “Plaintiff alleges that the defendants made false statements that Plaintiff was a trespasser to the police.  [Citation.]  But Plaintiff never alleges that Gentile (or the nurse in Gentile’s office) made such a statement.”  (Order dated September 22, 2022, p. 4:22-24.) That finding is equally true with respect to the SAC.

Accordingly, the Court sustains the demurrer to the fifth cause of action for defamation.

“‘Where the defect raised … by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.’ [Citations.] ... It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action. [Citation.]” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174–1175 (“Velez”).)

          However, the burden is on the Plaintiff “to articulate how [she] could amend [her] pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Velez, supra, 142 Cal.App.4th at p. 1175.) To satisfy that burden, Plaintiff “must show in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Here, Plaintiff has not opposed the demurrer and, therefore, failed to articulate how she could amend her complaint to render it sufficient.

Accordingly, the Court sustains the demurrer, without leave to amend.

III.        CONCLUSION

          The Demurrer to the fifth cause of action for defamation against defendant Richard Dale Gentile, D.D.S. is SUSTAINED, without leave to amend.  

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.