Case Number: 19NWCV00255 Hearing Date: December 10, 2019 Dept: SEC

DIAZ, et al. v. DE LA CRUZ RODRIGUEZ, et al.

CASE NO.: 19NWCV00255

JUDGE: OLIVIA ROSALES

HEARING: 12/10/19

#3

TENTATIVE ORDER

Defendant Chantiste Beal, D.M.D.’s demurrer to Plaintiffs’ Complaint is OVERRULED. Defendant is ordered to file and serve her Answer within 10 days.

Defendant Chantiste Beal, D.M.D.’s motion to strike portions of plaintiffs’ Complaint is GRANTED only as to moving Defendant.

Moving Party to give NOTICE.

BACKGROUND

On March 20, 2019, plaintiffs Maria Diaz and Martin Joseph-Hernandez Salamanca (“Plaintiffs”) filed a dental malpractice action against Defendants Gloria Monica De La Cruz Rodriguez (“Rodriguez”), Chantiste Beal, D.M.D. (“Defendant”), Ernesto Tena, D.D.S. (“Tena”), Aury Arroyo Lourenco, DDS (“Lourenco”), A A Lourenco Dental Corporation dba De La Cruz Dental (“De La Cruz Dental”), and Ali Sabbaghzadeh, D.D.S. (“Sabbaghzadeh”).

The Complaint alleges that Defendant Rodriguez controlled an unlicensed dental practice and held herself out as a licensed dentist and performed dental procedures on Plaintiffs. The Co-Defendants are alleged to be conspirators. Based on these facts, the Complaint asserts causes of action for:

Intentional Misrepresentation

Negligent Misrepresentation

Battery

Breach of Fiduciary Duty

Professional Negligence

Lack of Informed Consent

Negligent Hiring and Supervision

On December 2, 2019, the court (1) overruled defendant Sabbaghzadeh’s demurrer, (2) overruled defendants Lourenco and De La Cruz Dental’s demurrer, and (3) granted defendants Lourenco and De La Cruz Dental’s motion to strike treble damages and attorney’s fees from the Complaint.

Defendant Chantiste Beal, D.M.D. now demurs to all causes of action because Plaintiffs’ claims lack sufficient unity of interest and are improperly joined. Defendant also generally demurs to the first, second, third, fourth, sixth, and seventh causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain. Defendant also demurs to the first, second, third, fourth, and sixth causes of action on the grounds that they are duplicative. Defendant also moves to strike Plaintiffs’ prayer for treble damages and attorney’s fees from the Complaint.

ANALYSIS

Meet and Confer

Code of Civil Procedure section 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id., subd. (a)(3).) A similar meet and confer process and declaration is required for motions to strike. (Code Civ. Proc., § 435.5.)

Defendant’s counsel asserts that on June 7, 2019 she spoke with Plaintiffs’ counsel telephonically, but the parties were unable to resolve the issues, thus necessitating Defendant’s demurrer and motion to strike. (Lam Decl., ¶ 3.) This declaration is sufficient to comply with the statutory requirements. (Code Civ. Proc., § 430.41, subd. (a)(3)(A); § 435.5, subd. (a)(3)(A).)

Defendant Chantiste Beal, D.M.D.’s Demurrer

Defendant Chantiste Beal, D.M.D. demurs to the entire Complaint on the grounds that plaintiffs Maria Diaz and Martin Joseph-Hernandez Salamanca’s claims lack sufficient unity of interest and are improperly joined. Defendant also individually demurrers the first, second, third, fourth, sixth, and seventh causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain. Defendant also demurrers to the first, second, third, fourth, and sixth causes of action on the grounds that they are duplicative.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) No other extrinsic evidence can be considered. (Ibid.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1228.)

A special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond because it cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 (Khoury).) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

MISJOINDER

Defendant argues that Plaintiffs claims lack sufficient unity of interest and are improperly joined.

Pursuant to Code of Civil Procedure section 378:

(a) All persons may join in one action as plaintiffs if:

(1) They assert any right of relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or

(2) They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.

(b) It is not necessary that each plaintiff be interested as to every cause of action or as to all relief prayed for. Judgment may be given for one or more of the plaintiffs according to their respective right to relief.

Plaintiffs Diaz and Salamanca’s claims are not improperly joined because they allege a conspiracy or fraud of a single scheme. Specifically, Plaintiffs allege a scheme arising from Defendants’ unauthorized operation of a dental practice. (Complaint, ¶¶15-29.)

Demurrer is OVERRULED.

UNCERTAINTY

The court notes that Defendant states that the Complaint is ambiguous and uncertain in her notice of motion; however, she does not discuss this argument anywhere else in her demurrer.

Demurrer on grounds of uncertainty will not be sustained unless the complaint is so bad that the defendant cannot reasonably respond. (Khoury, supra, 14 Cal.App.4th at p. 616.)

The court finds the Complaint is not so uncertain that Defendants cannot reasonably respond.

Demurrer on ground of uncertainty is OVERRULED.

FIRST and SECOND CAUSES OF ACTION – Intentional and Negligent Misrepresentation

Defendant argues that Plaintiffs’ claims for misrepresentation are insufficiently pled and lack the requisite specificity.

FRAUD: The elements are:

Misrepresentation (false representation, concealment, or nondisclosure);

Knowing of falsity (scienter);

Intent to defraud or induce reliance;

Justifiable reliance; and

Damages.

(See Civ. Code, § 1709; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184 (Charnay).)

NEGLIGENT MISREPRESENTATION: The elements are:

The defendant must have made a representation as to a past or existing material fact;

The representation must have been untrue;

Regardless of his or her actual belief the defendant must have made the representation without any reasonable ground for believing it to be true;

The representation must have been made with the intent to induce plaintiff to rely upon it;

The plaintiff must have been unaware of the falsity of the representation; he or she must have acted in reliance upon the representation and he or she must have been justified in relying upon the representation; and

As a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage.

(Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402.)

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). (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 783.)

The Complaint alleges that (1) Rodriguez verbally represented herself to Plaintiffs as “Dr. Monica” and stated that she was the dentist in charge of the practice (Complaint, ¶¶ 30-38, 62); (2) Rodriguez was not a licensed dentist (Complaint, ¶ 19); (3) Defendant was aware that Rodriguez was not licensed to practice and had no reasonable grounds to believe the representations she and the other Defendants made to Plaintiffs were true (Complaint, ¶¶ 21, 24, 64); (4-6) Rodriguez made representations to Plaintiffs that she was a licensed dentist in order induce them to undergo unnecessary and medically unjustified dental treatments that they would not have agreed to had they known that Rodriguez was unlicensed (Complaint, ¶ 57). Plaintiffs additionally allege that Defendant conspired with Rodriguez in committing the fraud (Complaint, ¶ 10). Plaintiffs meet the specificity requirement by stating that the representations were made by Defendant through “mid-2017”. (Complaint, ¶¶ 46, 63(b).) Scienter and intent to defraud are alleged at ¶ 47; reliance is alleged at ¶ 54; and resulting damages are alleged at ¶¶ 58-60, 67-68.

The court finds the allegations are sufficiently particular. Demurrer is OVERRULED.

THIRD and SIXTH CAUSES OF ACTION – Battery and Lack of Informed Consent

Defendant argues that Plaintiffs’ claims for battery and lack of informed consent are insufficiently pled and duplicative.

THIRD CAUSE OF ACTION

BATTERY: The elements of a medical battery are:

That the defendant performed a medical procedure without the plaintiff’s consent;

That the plaintiff was harmed; and

That the defendant’s conduct was a substantial factor in causing the harm.

(CACI 530A).

Defendant contends that the allegations in the Complaint sound in negligence, rather than battery. However, as discussed above in section 3 on pages 4 through 5, the court overrules Defendant’s demurrer to Plaintiffs’ misrepresentation claims. Fraud vitiates consent because the offensive nature of the contact is altered according to the identity or capacity of the actor in relation to the person subjected to contact. (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938–939.) The Compliant adequately alleges fraud in the inducement of medical procedures, which, in turn, supports a claim for medical battery.

Demurrer to the battery claim is OVERRULED.

SIXTH CAUSE OF ACTION

LACK OF INFORMED CONSENT: Plaintiff may plead as separate “counts,” both medical malpractice and malpractice done without the knowledge or consent of the patient. (See Figlietti v. Frick (1928) 203 Cal. 246, 247, allowing pleading in separate, inconsistent counts for willful injuries and negligence arising from the same transaction.)

Lack of informed consent is not a separate “cause of action,” but may be pled as a separate “count” under the 5th cause of action for professional negligence. Therefore, the Clerk is ordered to strike the “6th cause of action” by interlineation, and as corrected, demurrer is OVERRULED.

FOURTH and FIFTH CAUSES OF ACTION – Breach of Fiduciary Duty and Professional Negligence

Defendant argues that Plaintiffs’ claims for breach of fiduciary duty and professional negligence are duplicative.

FOURTH Cause of Action

BREACH OF FIDUCIARY DUTY: The elements of a breach of fiduciary duty claim are:

A fiduciary duty;

Breach of that duty; and

Damage caused by the breach.

(Charnay, supra, 145 Cal.App.4th at p. 182; Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

FIFTH CAUSE OF ACTION

PROFESSIONAL NEGLIGENCE: The elements of a professional negligence claim are as follows:

The duty of the professional to comport with the standard of care by using such skill, prudence, and diligence as other members of his or her profession commonly possess and exercise;

A breach of that duty;

Proximate causal connection between the breach and the resulting injury; and

Actual loss or damage resulting from the breach of that duty.

(Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

Defendant contends that the 4th and 5th causes of action are duplicative because Plaintiffs plead the same cause, duty, and breach.[1] A demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

Contrary to Defendant’s contention, Plaintiffs’ 4th cause of action for breach of fiduciary duty and 5th cause of action for professional negligence arise from separate theories of recovery. On the one hand, Plaintiffs’ breach of fiduciary duty claims arise from Defendant’s fiduciary obligations as the co-owner of a business, De La Cruz Dental. (Complaint, ¶¶ 79-80.) On the other hand, Plaintiffs’ 5th cause of action for professional negligence arises from Defendant’s provision of dental services to Plaintiffs. (Complaint, ¶¶ 87-88.) Plaintiffs’ 4th cause of action seeks recovery for Defendant’s negligent operation of a dental practice, whereas Plaintiffs’ 5th cause of action seeks recovery for Defendant’s negligent provision of dental services. These separate theories of recovery demonstrate that Plaintiffs’ 5th cause of action is not duplicative of their 4th cause of action.

Demurrer is OVERRULED.

SEVENTH CAUSE OF ACTION

Defendant argues that Plaintiffs’ claim for negligent supervision is insufficiently pled because their allegations are conclusory.

NEGLIGENT HIRING AND SUPERVISION: The elements are:

An employer’s hiring an employee;

Who is incompetent or unfit;

The employer had reason to believe undue risk of harm would exist because of the employment; and

The harm occurs.

(Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213–1214; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.)

Under California law, individuals, including corporate officers or those with a special relationship to the plaintiff, may be personally liable for the tort of negligent hiring and supervision. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 876.)

The Complaint alleges Defendant Beal is a licensed dentist who purchased shares in the corporation which was doing business as De La Cruz Dental of which Plaintiffs were patients, and which corporation later changed its name to Lourenco Corporation; Rodriguez acted as an agent, partner or co-venturer of Defendant Beal; Defendant Beal failed to train and supervise Rodriguez and knew or should have known her unfitness – namely that she was not a licensed dentist but was engaged in the unlicensed practice of dentistry. (Complaint, ¶¶ 7, 19-32, 103-104.) Plaintiffs’ sufficiently plead a claim for negligent hiring.

Demurrer is OVERRULED.

Motion to Strike

Defendant moves to strike treble damages and attorney’s fees.

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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 Civ. Proc., § 436, subd. (b).) It may be an abuse of discretion to deny leave to amend after granting a motion to strike a complaint if the defect is curable. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.)

Code of Civil Procedure section 1029.8, subdivision (a) provides:

Any unlicensed person who causes injury or damage to another

person as a result of providing goods or performing services for

which a license is required under Division 2 (commencing with

Section 500) or any initiative act referred to therein, Division 3

(commencing with Section 5000), or Chapter 2 (commencing with

Section 18600) or Chapter 3 (commencing with Section 19000) of

Division 8, of the Business and Professions Code, or Chapter 2

(commencing with Section 25210) or Chapter 3 (commencing with

Section 25230) of Part 3 of Division 1 of Title 4 of the Corporations

Code, shall be liable to the injured person for treble the amount of

damages assessed in a civil action in any court having proper

jurisdiction. The court may, in its discretion, award all costs and attorney’s fees to the injured person if that person prevails in the

action.

Plaintiffs stipulate that “Code of Civil Procedure section 1029.8 does not permit recovery of attorneys’ fees and treble damages against Dr. Beal herself but the [c]ourt cannot strike the requested relieve entirely from the Complaint because the Complaint alleges Defendant Rodriguez is unlicensed.” (Limited Opposition, 2:11-14.)

In accordance with the court’s December 2, 2019 on Lourenco’s motion to strike, Defendant’s request to strike attorney’s fees and treble damages under Code of Civil Procedure section 1029.8 is GRANTED only as to moving Defendant based upon the theory that Defendant was a co-conspirator, and therefore liable under Code of Civil Procedure section 1029.8. Attorney’s fees and treble damages remain valid as to Rodriguez because Plaintiffs allege that she was an unlicensed professional.

Conclusion and Order

Defendant’s demurrer is OVERRULED. Defendant is ordered to file and serve her Answer within 10 days

Defendant’s motion to strike is GRANTED only as to moving Defendant.

Moving Party to give NOTICE.

[1] The court notes that although Defendant states that she demurs to the 4th cause of action for insufficient facts in her notice of motion, she does not assert those grounds in the body of her memorandum of points and authorities in support of her demurrer.

Case Number: 19NWCV00302 Hearing Date: December 10, 2019 Dept: SEC

MIN v. MASTER PROPERTY IMPROVEMENT CO., INC.

CASE NO.: 19NWCV00302

JUDGE: OLIVIA ROSALES

HEARING: 12/10/19