Case Number: KC068188 Hearing Date: May 09, 2016 Dept: O

Donald Ray Pierre v. Southern California Permanente Medical Group (KC068188)

Defendant Southern California Permanente Medical Group’s DEMURRER

Respondent: Plaintiff Donald Ray Pierre, in pro per

TENTATIVE RULING

Defendant Southern California Permanente Medical Group’s demurrer is SUSTAINED. The court will hear from Plaintiff whether leave to amend should be granted.

REQUEST FOR JUDICIAL NOTICE:
The court takes judicial notice of the records in the underlying action, Case No. CV12-07984-JGB(MANx), including the Settlement Agreement, attached to the Declaration of Gina Gi, filed on December 21, 2015. (Ev C § 452(d).) The Court notes that a portion of the Settlement Agreement, i.e., pages 1-2, is attached to the Complaint as Exhibit C. When a plaintiff attaches part of a contract to a complaint, the court may take judicial notice of the entire contract in ruling on a demurrer. (Employers Ins. Co. v. State of Cal. (1970) 3 Cal.3d 573, 575 n. 1, noting such facts, but only implying the rule.) Further, when a complainant references an agreement in the complaint, and gives no indication why judicial notice would be improper, the court may take judicial notice of the complete document. (Salvaty v. Falcon Cable TV (1985) 165 Cal.App.3d 798, 800.) Courts have also taken judicial notice of contracts not attached to complaints, where the complainants provided or referenced them with their briefing, without objection. (San Francisco Unif. Sch. Dist. ex rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal.App.4th 438, 444 n.5, citing Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666, fn. 2.)

The court also takes judicial notice of the Internal Revenue Service’s 2015 Instructions for Form 1099-MISC, attached to Defendant’s request as Exhibit D. (Ev C § 452(b).)

[The Court notes that Defendant’s Motion for an Order to File Request for Judicial Notice under Seal is set for 5/25/16, but that as of the date of the hearing of this demurrer, the documents have not been ordered sealed.]

DEMURRER:
Defendant Southern California Permanente Medical Group (“SCPMG” or “Defendant”) demurs to each of the four causes of action asserted in Plaintiff Donald Ray Pierre’s (“Plaintiff”) Complaint on the grounds that they fail to state facts sufficient to constitute a cause of action and that they are uncertain.

FIRST CAUSE OF ACTION FOR CONTRACTUAL FRAUD:
The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See CC § 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

The Complaint alleges that Defendant reported a fraudulent document to the Internal Revenue Service (“IRS”) after Plaintiff reported the error to Defendant numerous times (Complaint, Page 6, Lines 9-10); Defendant breached the settlement agreement, fraudulently conspired to retaliate against Plaintiff and to recuperate funds from the settlement agreement loss (Id., Page 6, Lines 11-13); and that Defendant reported a fraudulent, retaliatory, breach of settlement agreement document with a conspiratorial undercurrent to the IRS (Id., Page 6, Lines 13-15).

The Complaint, however, fails to allege fraud with the required specificity. Further, the Complaint fails to adequately allege a misrepresentation. While it appears that Plaintiff is alleging that Defendant should not have reported the settlement amount of $200,000.00 to the IRS, the Settlement Agreement specifically provides that “an Internal Revenue Form 1099 will be issued to Plaintiff and Wagner & Pelayes, LLP, for the Settlement Sum less the amount for which a W-2 is issued…” (RJN, Exh. C, Settlement Agreement, ¶ 2.) The Settlement Agreement also provides that “Plaintiff understands and agrees that he is solely responsible for all tax obligations, including all reporting and payment obligations…” (Ibid.)

It also appears that the Complaint is so uncertain that Defendant cannot reasonably respond. Thus, the demurrer to the first cause of action is sustained.

SECOND CAUSE OF ACTION FOR RETALIATION:
The elements of a retaliation claim in the employment context are: (1) plaintiff engaged in a protected activity as employee; (2) employer subjected Plaintiff to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. (Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 874.)

The Complaint fails to allege that Plaintiff engaged in a protected activity as an employee and/or an adverse retaliatory conduct by Defendant. Further, it appears that the Complaint is so uncertain that Defendant cannot reasonably respond. The demurrer to the second cause of action is sustained.

THIRD CAUSE OF ACTION FOR BRACH OF CONTRACT:
The elements for breach of contract cause of action are: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

The Complaint fails to allege Defendant’s breach of the Settlement Agreement. As discussed above, the Settlement Agreement specifically provides that “an Internal Revenue Form 1099 will be issued to Plaintiff and Wagner & Pelayes, LLP, for the Settlement Sum less the amount for which a W-2 is issued…” (RJN, Exh. C, Settlement Agreement, ¶ 2.) The the demurrer to the third cause of action is sustained.

FOURTH CAUSE OF ACTION FOR CONSPIRACY:
Conspiracy itself is not a separate cause of action; rather, it is a theory of vicarious liability under which certain defendants may be held liable for torts committed by others (i.e., all parties to a conspiracy are jointly liable for tortious acts committed by any of them pursuant to the conspiracy). (Okun v. Sup.Ct. (Maple Properties) (1981) 29 Cal.3d 442, 454; Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.)

The Complaint fails to adequately allege the underlying tort. The complaint must allege acts that would have given rise to a tort cause of action without the conspiracy. Absent such allegations, the conspiracy allegations are meaningless. (Manor Invest. Co., Inc. v. F.W. Woolworth (1984) 159 Cal.App.3d 586, 595 (disapproved on other grounds in Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 521.) The demurrer to the fourth cause of action is sustained.