Case Name: Katherine Pesic v. Zouves Fertility Center, et al.
Case No.: 2014-1-CV-271935

Currently before the Court are the following matters: (1) the demurrer by defendant Shelley Tarnoff (“Tarnoff”) to the first amended complaint (“FAC”) of plaintiff Katherine Pesic (“Plaintiff”); (2) the motion by Tarnoff to strike portions of Plaintiff’s FAC; (3) the demurrer by defendants Christo Zouves, M.D. (“Zouves”) and Zouves Fertility Center (“ZFC”) (collectively, “Zouves Defendants”) to the FAC of Plaintiff; and (4) the motion by Zouves Defendants to strike portions of Plaintiff’s FAC.

Factual and Procedural Background

This action arises out of the alleged use of decedent Ivan Pesic’s (“Pesic”) genetic material by defendant Joyce Chin (“Chin”) to conceive two children.

In late 2010, Chin began receiving fertility treatments from ZFC and the purported father of any child created as a result of the treatments was to be Pesic. (FAC, ¶ 9.) Around that time, Pesic was diagnosed with cancer and Zouves Defendants were aware of the same. (Ibid.) Pesic’s sperm was collected and preserved by ZFC. (Ibid.)

Subsequently, from 2011 through September 2012, Pesic received cancer treatments. (FAC, ¶ 10.) During that time period, Chin underwent six unsuccessful in vitro fertilization cycles at ZFC using Pesic’s sperm and her eggs. (Id., at ¶ 11.)

On July 30, 2012, Tarnoff—an attorney and licensed marriage and family therapist—conducted a psychological evaluation of Pesic and Chin as required by Zouves Defendants as a condition for performing “Egg Donor IVF,” a procedure whereby Pesic’s sperm would be used to fertilize eggs provided by an ovum donor. (FAC, ¶¶ 4, 12, and 15-16.) The evaluation was also required under the terms of an Ovum Donation Agreement executed by Pesic, Chin, an ovum donor, and the ovum donor’s husband, and an Egg Donation Services Agreement executed by Pesic, Chin, and an egg donor agency. (Id., at ¶¶ 12-14, and 16.) The psychological evaluation was conducted by telephone. (Id., at ¶ 16.)

After the evaluation, Tarnoff prepared and sent a report to Zouves Defendants. (FAC, ¶ 16.) In her report, Tarnoff told Zouves Defendants that Pesic and Chin were both in “good general health,” they had been married for 12 years, they had two children, and it was “OK to proceed.” (Ibid.)

Pesic traveled to Japan on September 24, 2012. (FAC, ¶ 17.) Chin allegedly claims that Pesic signed an Informed Consent to Undergo In Vitro Fertilization and Embryo Transfer on that same date. (Ibid.) Although no ZFC employee saw Pesic sign the document, “a ZFC employee witnessed his signature.” (Ibid.)

On October 13, 2013, Pesic executed his last will and testament, leaving all of his property to Plaintiff—his wife—without any provision for posthumously-conceived children. (FAC, ¶ 19.) Later that day, Pesic passed away. (Ibid.)

Two days later, Chin signed three additional consent forms for the “Egg Donor IVF” procedure. (FAC, ¶ 20.) ZFC allowed Chin to take the forms home with her in order to obtain Pesic’s signature. (Ibid.) Subsequently, Chin allegedly signed the consent forms in Pesic’s name and returned the forms to ZFC, but did not inform ZFC that she signed for Pesic as well as herself. (Ibid.) An employee of ZFC then signed the consent forms. (Ibid.)

In late October, Plaintiff informed Chin that Pesic had passed away. (FAC, ¶ 21.) Chin did not inform Plaintiff that she planned to use Pesic’s sperm to fertilize donor eggs and have the fertilized eggs transferred to her. (Ibid.) Chin did not tell Zouves Defendants or the egg donor agency that Pesic had died. (Ibid.)

Thereafter, on November 3, 2012, Zouves or ZFC harvested eggs from the ovum donor and fertilized some of those eggs with Pesic’s cryogenically-preserved sperm. (FAC, ¶ 22.) Prior to the use of Pesic’s sperm, Chin did not present Zouves Defendants with a certified copy of his death certificate as required by the Informed Consent and Agreement for Longterm Cryopreservation and Storage of Semen dated February 5, 2011. (Ibid.) In addition, Chin and Zouves Defendants did not notify Plaintiff of the intended use of Pesic’s sperm. (Ibid.)

On November 8, 2012, Zouves or ZFC transferred two of the fertilized eggs to Chin’s body. (FAC, ¶ 23.) Prior to the embryo transfer, Chin did not present Zouves Defendants with a certified copy of Pesic’s death certificate or inform them that Pesic was dead. (Ibid.) Additionally, Chin and Zouves Defendants did not notify Plaintiff of the transfer. (Ibid.) Chin then gave birth to twins—Maya Ivan Chen and Milo Ivan Chen—in July 2013, and filed claims for child support against Pesic’s estate on behalf of the twins and her son, Marco Ivan Chen. (Id., at ¶¶ 24-25.)

On December 12, 2017, Plaintiff, as an individual and administrator of Pesic’s estate, filed the operative FAC against Tarnoff and Zouves Defendants (collectively, “Defendants”), alleging causes of action for: (1) intentional misrepresentation (against Tarnoff); (2) negligent misrepresentation (against Tarnoff); (3) negligence (against Tarnoff); (4) conversion (against Defendants); (5) breach of fiduciary duty (against Defendants); (6) negligence (against Zouves Defendants); (7) negligence per se (against Defendants); and (8) equitable indemnity (against Defendants).
Approximately one month later, Defendants filed the pending demurrers and motions to strike. Plaintiff filed papers in opposition to the matters on April 25, 2018. On May 1, 2018, Defendants filed reply papers in support of their respective matters.

Discussion

I. Demurrer by Tarnoff

Tarnoff demurs to the first, second, third, fourth, fifth, seventh, and eighth causes of action of the FAC on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

A. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 (Shearson).) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (South Shore), internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align), internal citations and quotations omitted.)

B. Standing

As an initial matter, Tarnoff argues that the Court should sustain the demurrer to the claims alleged against her, to the extent they are alleged by Plaintiff in her individual capacity, because Plaintiff lacks standing. (Mem. Ps. & As., pp. 5:5-6:28.) Specifically, Tarnoff asserts that Plaintiff, as an individual, lacks standing to bring these claims because there are no allegations that she engaged in conduct directed at Plaintiff, she undertook “any obligations … directly to Plaintiff,” she made any misrepresentations to Plaintiff, or she owed any duty to Plaintiff. (Ibid.)

Standing refers to whether the plaintiff has an interest in the litigation. (Martin v. Bridgeport Community Ass’n, Inc. (2009) 173 Cal.App.4th 1024, 1031.) “To have standing to sue, a person, or those whom he properly represents, must ‘ “have a real interest in the ultimate adjudication because [he] has [either] suffered [or] is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.” ’ [Citation.]” [Citation.] Code of Civil Procedure section 367 establishes the rule that ‘[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.’ A real party in interest is one who has ‘an actual and substantial interest in the subject matter of the action and who would be benefited or injured by the judgment in the action.’ [Citation.]” (Id., at pp. 1031-32.)

Here, Tarnoff fails to demonstrate that Plaintiff, in her individual capacity, lacks standing to bring her claims. Tarnoff does not attempt to show that Plaintiff has not suffered or is not about to suffer an injury of sufficient magnitude. Moreover, Tarnoff does not attempt to show that Plaintiff does not have an interest in the subject matter of the action or that she would not be benefitted or injured by the judgment in this action. Furthermore, Tarnoff appears to concede that Plaintiff has alleged that she is about to suffer an injury of sufficient magnitude; Tarnoff states that Plaintiff, “as heir to her husband,” alleges that she stands to inherit less from her husband’s estate as a result of Defendants’ conduct. (Mem. Ps. & As., p. 6:1-6.) Thus, Tarnoff has not established that Plaintiff lacks standing to prosecute this action as an individual.

Notably, rather than addressing the issue of standing, Tarnoff’s arguments address whether Plaintiff adequately alleges some of the elements of her claims (e.g., whether misrepresentations were made to Plaintiff and whether any duty was owed to Plaintiff).
The Court will address these arguments below in connection with its discussion of specific causes of action.

C. First and Second Causes of Action
Tarnoff argues, amongst other things, that the first and second causes of action for intentional and negligent misrepresentation, respectively, fail because there are no allegations that she made any misrepresentation to Plaintiff or Pesic.

The elements of intentional misrepresentation are: “(1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.) A cause of action for negligent misrepresentation is comprised of the same elements, except there is no requirement of intent to defraud; rather, the defendant must have made the representation without reasonable ground for believing it to be true. (Ibid.; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173-74 (Small).) Fraud and negligent misrepresentation claims must be pled with specificity. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645; Small, supra, 30 Cal.4th at p. 184.)

Here, as Tarnoff persuasively argues, Plaintiff fails to plead any facts showing that Tarnoff made a misrepresentation of material fact to Plaintiff or Pesic. Instead, Plaintiff alleges that Tarnoff made various misrepresentations to the Zouves Defendants. (FAC, ¶¶ 27-31.)

In opposition, Plaintiff contends that this deficiency is not fatal to her claim because she alleges that Tarnoff intended to induce Zouves’ patients, such as Pesic, to rely on the misrepresentations. In support of her position, Plaintiff cites Geernaert v. Mitchell (1995) 31 Cal.App.4th 601 (Geernaert). However, Geernaert does not help Plaintiff. In that case, the court states, “[a] defendant will not escape liability if he makes a misrepresentation to one person intending that it be repeated and acted upon by the plaintiff.” (Id., at p. 605.) In the FAC, Plaintiff does not allege that Tarnoff intended her alleged misrepresentations to Zouves Defendants to be repeated or that Tarnoff had reason to expect that the alleged misrepresentations would be repeated to Plaintiff or Pesic. Plaintiff merely alleges that “Tarnoff intended to induce [Zouves Defendants] to rely on that representation and, by extension, to induce [Zouves Defendants’] patients who were referred to Tarnoff to rely on that representation.” (FAC, ¶ 31.) Therefore, Plaintiff’s allegations fail to state a claim for intentional or negligent misrepresentation.

Accordingly, Tarnoff’s demurrer to the first and second causes of action is SUSTAINED, with 10 days’ leave to amend.

D. Third and Fifth Causes of Action

Tarnoff argues initially argues that the third and fifth causes of action for negligence and breach of fiduciary duty, respectively, fail because she did not owe any duty to Plaintiff, as an individual, or Pesic.

With respect to duties allegedly owed to Plaintiff, Tarnoff points out that she is not alleged to have had any interaction or relationship with Plaintiff. Tarnoff also notes that Plaintiff, as an individual, claims injury as a result of being Pesic’s heir, but there are no allegations that she undertook any action with respect to the administration of Pesic’s estate.

This argument is well-taken. As to the third cause of action, “[a]n action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “[T]he existence of a duty is a question of law for the court.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237; Kentucky Fried Chicken of California, Inc. v. Super. Ct. (1997) 14 Cal.4th 814, 819.) Plaintiff’s negligence claim is based on actions allegedly undertaken by Tarnoff in her capacity as an attorney and a licensed marriage and family therapist. The general rule is that privity of contract is a requisite to a professional negligence claim. (Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137.) As Tarnoff persuasively argues, there are no allegations demonstrating that Tarnoff had any interaction or relationship with Plaintiff, or that Plaintiff was in privity with Tarnoff. Moreover, there are no allegations in the FAC showing that Plaintiff was the intended third-party beneficiary of any legal services Pesic sought from Tarnoff. (See Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 530 [courts have stated that “the general rule [is] that an attorney owes a duty of care, and is thus answerable in malpractice, only to the client with whom the attorney stands in privity of contract. Exceptions have been recognized only rarely, and then only when the specific facts of the case showed that the beneficiaries who sought standing to sue the fiduciary’s attorney were intended, third party beneficiaries of the contract to provide legal services.”].) Thus, Plaintiff, in her individual capacity, fails to state a claim for negligence against Tarnoff.

With respect to the fifth cause of action, “[i]n order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. The absence of any one of these elements is fatal to the cause of action.” (Brown v. California Pension Administrators & Consultants, Inc. (1996) 45 Cal.App.4th 333, 347-48 (Brown); see also CACI, No. 605.) “While breach of fiduciary duty is a question of fact, the existence of legal duty in the first instance and its scope are questions of law.” (Kirschner Brothers Oil, Inc. v. Natomas Co. (1986) 185 Cal.App.3d 784, 790.) As articulated above, Plaintiff does not allege facts showing that she had any relationship with Plaintiff let alone a fiduciary relationship. Consequently, Plaintiff, in her individual capacity, fails to state a claim for breach of fiduciary duty against Tarnoff.

Next, regarding duties allegedly owed to Pesic, Tarnoff contends that any duties she had as a result of conducting the psychological evaluation were owed to Zouves Defendants—not Pesic—because she was hired by Zouves Defendants to conduct the evaluation. This argument is not well-taken. There is no allegation in the FAC that Zouves Defendants hired Tarnoff. Consequently, Tarnoff’s argument is premised on a fact that may not be properly considered by the Court on demurrer. (See South Shore, supra, 226 Cal.App.2d at p. 732 [on demurrer, courts are confined to the face of the pleading and any judicially noticeable material].) Furthermore, Tarnoff does not address allegations in the fifth cause of action that Tarnoff breach duties owed to Pesic as a result of her role as Pesic’s attorney. (FAC, ¶ 63.)

Finally, Tarnoff argues that the claims for negligence and breach of fiduciary duty alleged by Plaintiff in her capacity as administrator of Pesic’s estate fail because Pesic’s estate did not sustain injury or damage. Tarnoff states that the only injury or damage alleged to have resulted from her negligence and breach of fiduciary duty “is that [Chin] gave birth to children that [Pesic] wanted” and “their presence in the world does not constitute ‘damage’ to the [e]state for purposes of a negligence claim.” (Mem. Ps. & As., p. 8:13-26.) This argument is not well-taken. There is no allegation in the FAC establishing that Pesic wanted Chin to use his genetic material after his passing to conceive children. Furthermore, Tarnoff otherwise fails to present reasoned argument or legal authority demonstrating that the birth of the twins and the subsequent claims for child support made by Chin are insufficient to constitute injury or damage to the estate. Consequently, this point is deemed to lack merit. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie); see Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

For these reasons, Tarnoff’s demurrer to the third and fifth causes of action is OVERRULED to the extent the claims are brought by Plaintiff as administrator of Pesic’s estate and SUSTAINED, with 10 days’ leave to amend, to the extent the claims are brought by Plaintiff as an individual.

E. Fourth Cause of Action

Tarnoff argues that the fourth cause of action for conversion fails because Pesic wanted to conceive a child with Chin, “including if necessary after his death, and … he made substantial efforts to achieve this.” (Mem. Ps. & As., p. 9:2-23.) Tarnoff asserts that “[t]his included … Pesic having his sperm harvested and cryogenically preserved after he was diagnosed with cancer.” (Ibid.) Tarnoff concludes that there was no conversion of Pesic’s genetic material because he consented to the use of it by Chin to conceive children after his death.

This argument lacks merit. As Plaintiff persuasively argues, there are no allegations in the FAC providing that Pesic wanted Chin to conceive children using his genetic material after his death or that he consented to the same. Instead, the FAC alleges that the various conditions necessary to the posthumous use of Pesic’s genetic material were never met. (FAC, ¶ 22.)

Accordingly, Tarnoff’s demurrer to the fourth cause of action is OVERRULED.

F. Seventh Cause of Action

Tarnoff argues that the seventh cause of action for negligence per se fails because “the only statute that the [FAC] identifies, Probate Code section 249.5[ ], does not support a claim for negligence per se.” (Mem. Ps. & As., p. 10:19-22.) In other words, Tarnoff contends that she did not violate the subject statute because it does not impose any duties on her.

In opposition, Plaintiff implicitly concedes that Tarnoff’s argument is well-taken as she simply requests leave to amend “to allege general negligence under a res ipsa loquitur theory[ ] based on the failure of any notification to the [e]state prior to the posthumous conception[ ] as required under Probate Code section 249.5.” (Opp’n., p. 12:19-24.)

Therefore, Tarnoff’s demurrer to the seventh cause of action is SUSTAINED, with 10 days’ leave to amend.

G. Eighth Cause of Action

Tarnoff argues, amongst other things, that the eighth cause of action for equitable indemnity fails because Plaintiff fails to allege that she is a joint tortfeasor with Pesic’s estate.

In opposition, Plaintiff expressly concedes that the claim fails because she does not allege that Pesic’s estate and Tarnoff are joint tortfeasors. (See Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1176-1177 [equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis. . . . A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.”], internal citations omitted; see also Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 573-574 [“[U]nlike express indemnity, neither traditional equitable indemnity nor implied contractual indemnity is available ‘in the absence of a joint legal obligation to the injured party.’ [Citation.] Under this principle, ‘ “ ‘there can be no indemnity without liability,’ ” ’ that is, the indemnitee and the indemnitor must share liability for the injury. [Citation.] Thus, no indemnity may be obtained from an entity that has no pertinent duty to the injured third party [citation], that is immune from liability [citation], or that has been found not to be responsible for the injury [citation].”].)

Accordingly, Tarnoff’s demurrer to the eighth cause of action is SUSTAINED, without leave to amend.

II. Motion to Strike by Tarnoff

Tarnoff moves to strike the request for punitive damages and attorney fees from the FAC.

A. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or 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.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 (Turman) citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

B. Punitive Damages

Tarnoff argues that Plaintiff’s request for punitive damages should be stricken from the FAC because the first, fourth, and fifth causes of action, which form the basis of the request for punitive damages, fail for the same reasons articulated in her demurrer to those claims.

As indicated above, Tarnoff’s demurrer to the fourth cause of action for conversion is not well-taken and that claim survives demurrer. Tarnoff does not present any other arguments explaining why the conversion claim cannot serve as a basis for Plaintiff’s request for punitive damages.
Accordingly, Tarnoff’s motion to strike the request for punitive damages is DENIED.

C. Attorney Fees

Tarnoff argues that Plaintiff’s request for attorney fees should be stricken from the FAC because Plaintiff has not identified any contractual or statutory basis authorizing an award of attorney fees.

In opposition, Plaintiff concedes that her request for attorney fees is deficient. Plaintiff requests leave to amend to allege an entirely new cause of action—a violation of Penal Code section 496—to support her request for attorney fees.

Plaintiff’s request for leave to amend to add a new cause of action is improper; such a request must be made pursuant to a noticed motion. (See People v. Clausen (1967) 248 Cal.App.2d 770, 785-786 (Clausen); see also Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380 (Dye); Code Civ. Proc., § 472, subd. (a).) However, the Court finds that leave to amend the request for attorney fees is appropriate at this time as Plaintiff may yet be able to allege some valid basis for the request.

Therefore, Tarnoff’s motion to strike the request for attorney fees is GRANTED, with 10 days’ leave to amend.

III. Demurrer and Motion to Strike by Zouves Defendants

A. Request for Judicial Notice

Plaintiff asks the Court to take judicial notice of two federal class action complaints involving non-parties.

The federal class action complaints are not proper subjects of judicial notice. Those complaints are not relevant to any material issue raised by the pending matters, which is a precondition to judicial notice. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [any matter to be judicially noticed must be relevant to a material issue].) Moreover, pleadings filed in an action are of no precedential value and, therefore, it is immaterial that the federal complaints “characterized the failure to properly maintain and safeguard cryogenically preserved material as something other than professional negligence ….” (Opp’n., p. 10:9-10.)

Accordingly, Plaintiff’s request for judicial notice is DENIED.

B. Demurrer

Zouves Defendants demur to the fourth, fifth, seventh, and eighth causes of action of the FAC on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Zouves Defendants also demur to the fourth, fifth, and seventh causes of action on the ground of uncertainty. (See Code Civ. Proc., § 430.10, subd. (f).)

1. Procedural Issues

As a preliminary matter, Plaintiff asserts that the demurrer is procedurally improper because it does not identify the name of the party filing the demurrer immediately below the number of the case or identify the name of the party whose pleading is the subject of the demurrer. Plaintiff further asserts that the demurrer is procedurally deficient because it does not set forth each ground for demurrer in a separate paragraph.

Even assuming for the sake of argument that Zouves Defendants’ demurrer is defective in the manner described by Plaintiff, Plaintiff has not been prejudiced by the purported defects. Zouves Defendants’ demurrer and memorandum of points and authorities clearly identify Zouves Defendants as the demurring parties and Plaintiff as the party who’s pleading is the subject of the demurrer. Those documents also set forth each of the grounds for demurrer in detail with respect to each cause of action. Most importantly, Plaintiff filed a detailed opposition to the demurrer. Thus, the Court will reach the merits of the demurrer. (See Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237 [court may reach merits of dispute despite a violation of California Rules of Court].)

2. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Shearson, supra, 221 Cal.App.3d at p. 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore, supra, 226 Cal.App.2d at p. 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align, supra, 179 Cal.App.4th at p. 958, internal citations and quotations omitted.)

2. Uncertainty

Zouves Defendants demur to the fourth, fifth, and seventh causes of action of the FAC on the ground of uncertainty. However, the demurrer is devoid of any argument specifying an allegation in the FAC that Zouves Defendants contend is uncertain, ambiguous, and/or unintelligible.

“[T]he failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30.) Furthermore, “[w]hen [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority,” the point is treated as waived. (Badie, supra, 67 Cal.App.4th at pp. 784-85; see Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Accordingly, Zouves Defendants’ demurrer to the fourth, fifth, and seventh causes of action on the ground of uncertainty is OVERRULED.

3. Failure to Allege Sufficient Facts

a. Fourth Cause of Action

Zouves Defendants argue that the fourth cause of action for conversion fails because two “recognized exceptions” apply. (Mem. Ps. & As., pp. 11:16-12:12.) They assert that the first exception is “based on circumstances in which ‘the person transferring possession may have the legal power to convey to a bona fide transferee a good title,’ as, for example, when ‘a principal has clothed an agent in apparent authority exceeding that which was intended.’ ” (Id., at pp. 11:26-12:2.) Zouves Defendants state that the second exception “concerns goods obtained by means of a fraudulent misrepresentation”; “[i]f the party who committed the fraud then sells the goods to ‘a bona fide purchaser’ who ‘takes for value and without notice of the fraud, then such purchaser gets good title to the chattel and may not be held for conversion (though the original converter may be).’ ” (Id., at p. 12:3-8.) They contend that those exceptions apply here because Pesic “willingly (and lawfully) gave possession of his sperm to ZFC for the purpose of impregnating [Chin]”; Chin failed to notify them that Pesic had passed away, “thereby triggering the requirement of a produced death certificate”; the “sperm was used for its intended purpose, impregnating [Chin]”; they “had legal possession of the sperm and authority to use it as instructed” by Pesic”; and Chin failed to notify them “of a change of circumstances that would have triggered a change in management of that sperm.” (Id., at p. 12:9-20.)

These arguments are not well-taken. First, Zouves Defendants fail to establish that they had lawful authority to convey Pesic’s sperm to Chin after Pesic passed away. They do not adequately discuss the allegations in the FAC that the alleged preconditions to the transfer of Pesic’s sperm, e.g., Pesic’s physical presence or the presentation of a death certificate, were never met. Zouves Defendants do not explain why they purportedly had the legal power to transfer Pesic’s sperm to Chin when those preconditions had not been met. Second, Zouves Defendants fail to present any reasoned argument or legal authority demonstrating that they were bona fide purchasers of Pesic’s genetic material.

Accordingly, Zouves Defendants’ demurrer to the fourth cause of action is OVERRULED.

b. Fifth Cause of Action

Zouves Defendants argue that the fifth cause of action for breach of fiduciary duty fails because Plaintiff has not alleged that she was their patient; a doctor-patient relationship is not a fiduciary relationship; any fiduciary duty owed to Pesic was “limited to the duty of disclosure in obtaining consent for procedures or treatment”; and Plaintiff does not allege that they failed to obtain Pesic’s informed consent.

As Zouves Defendants persuasively argue, there are no allegations demonstrating that they had a fiduciary relationship with Plaintiff, as an individual. In fact, Zouves Defendants are not alleged to have had any interaction or relationship with Plaintiff. Consequently, Plaintiff, in her individual capacity, fails to state a claim for breach of fiduciary duty against Zouves Defendants. (See Brown, supra, 45 Cal.App.4th at pp. 347-48 [“[i]n order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. The absence of any one of these elements is fatal to the cause of action.”].)
Zouves Defendants’ remaining arguments are not well-taken. First, case law establishes that a doctor-patient relationship, such as the alleged relationship between Zouves Defendants and Pesic, is a fiduciary relationship. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748 (Hahn) [“[t]he doctor-patient relationship is a fiduciary one”]; see Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164 [providing that physicians owe fiduciary duties to their patients].) Second, Zouves Defendants do not cite any legal authority providing that the only fiduciary duty owed by a physician to his or her patient is a duty to obtain the patient’s informed consent. (See Badie, supra, 67 Cal.App.4th at pp. 784-85; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Notably, case law indicates that physicians owe their patients fiduciary duties in addition to the duty to obtain informed consent, such as a duty “not to misrepresent the nature of a patient’s medical condition …” (See e.g., Hahn, supra, 147 Cal.App.4th at pp. 748-49.) As Zouves Defendants do not point to any legal authority supporting their contentions, their arguments are not well-taken and they fail to show that they did not owe any fiduciary duties to Pesic.

Therefore, Zouves Defendants’ demurrer to the fifth cause of action is OVERRULED to the extent the claim is brought by Plaintiff as administrator of Pesic’s estate and SUSTAINED, with 10 days’ leave to amend, to the extent the claim is brought by Plaintiff as an individual.

c. Seventh Cause of Action

Zouves Defendants argue that the seventh cause of action for negligence per se fails because they do not owe Plaintiff any duty under Probate Code section 249.5.

In opposition, Plaintiff implicitly concedes that Zouves Defendants’ argument is well-taken as she simply requests leave to amend “to allege general negligence under a res ipsa loquitur theory[ ] based on the failure of any notification to the [e]state prior to the posthumous conception[ ] as required under Probate Code section 249.5.” (Opp’n., p. 12:17-21.)

Therefore, Zouves Defendants’ demurrer to the seventh cause of action is SUSTAINED, with 10 days’ leave to amend.

d. Eighth Cause of Action

Zouves Defendants argue that the eighth cause of action for equitable indemnity fails because it is duplicative of the sixth cause of action for negligence.

This argument is not well-taken. Even assuming for the sake of argument that the eighth cause of action is duplicative of the sixth cause of action, that a cause of action is duplicative is not a ground on which a demurrer may be sustained. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 (Blickman); see Tracfone Wireless, Inc. v. Los Angeles County (2008) 163 Cal.App.4th 1359, 1368 [indicating same]; see also Code Civ. Proc., § 430.10 [setting forth the grounds for demurrer].) While some cases indicate that duplicative causes of action “may be disregarded” or stricken (see e.g. Ponce-Bran v. Trustees of Cal. State Univ. (1996) 48 Cal.App.4th 1656, 1658, Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395, and Bionghi v. Metropolitan Water Dist. of So. California (1999) 70 Cal.App.4th 1358, 1370), the Sixth District Court of Appeal has found that duplicativeness “is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment” (Blickman, supra, 162 Cal.App.4th at p. 890; see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350 [on a motion for summary judgment the California Supreme Court stated that “where breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous”]). This Court follows the Sixth District’s guidance and declines to sustain the demurrer on this basis. (See McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315 [as a practical matter, a superior court ordinarily will follow an appellate opinion emanating from its own district].)

For this reason, the demurrer to the eighth cause of action is OVERRULED.

C. Motion to Strike

Zouves Defendants move to strike the request for “treble damages” and damages sought in connection with the fourth cause of action for conversion.

1. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or 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.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman, supra, 191 Cal.App.4th at p. 63 citing Clauson, supra, 67 Cal.App.4th at p. 1255.)

2. Treble Damages

Zouves Defendants argue that the Court should strike Plaintiff’s request for treble damages because the court (Hon. Joseph H. Huber) previously struck those damages in its order filed on May 28, 2015.

This argument is well-taken. The May 28, 2015 court order previously struck Plaintiff’s request for treble damages against Zouves Defendants. Moreover, although the court indicated that its ruling did not preclude Plaintiff from bringing a motion pursuant to Code of Civil Procedure section 425.13 at a future date to seek amendment of her complaint, no such motion was brought.

In opposition, Plaintiff contends that the request for treble damages should not be stricken because she should be given leave to amend her FAC to allege an entirely new cause of action—a violation of Penal Code section 496—to support her request for treble damages. Plaintiff’s request for leave to amend to add a new cause of action is improper; such a request must be made pursuant to a noticed motion. (See Clausen, supra, 248 Cal.App.2d at pp. 785-86; see also Dye, supra, 195 Cal.App.4th at p. 1380; Code Civ. Proc., § 472, subd. (a).) Consequently, the request for treble damages is improper at this time. However, the Court finds that leave to amend the request for treble damages is appropriate as Plaintiff may yet be able to allege some valid basis for the request.

For these reasons, Zouves Defendants’ motion to strike the request for treble damages is GRANTED, with 10 days’ leave to amend.

3. Damages Sought In Connection With Conversion Claim

Zouves Defendants argue that the prayer for damages arising from the fourth cause of action for conversion must be stricken from the FAC because the conversion claim fails for the reasons articulated in their demurrer.

This argument is lacks merit. As indicated above, Zouves Defendants’ demurrer to the fourth cause of action for conversion is not well-taken and that claim survives demurrer. Zouves Defendants do not present any other arguments explaining why the damages sought in connection with conversion claim should be stricken.

Accordingly, Zouves Defendants’ motion to strike the damages sought in connection with the conversion claim is DENIED.