Case Number: BC692186 Hearing Date: March 01, 2019 Dept: A

Shannon v Western Dental Services

DEMURRER

Calendar:

4

Case No.:

BC692186

Hearing Date:

3/1/19

Action Filed:

2/1/18

Trial Date:

Not set

MP:

Defendant Western Dental Services, Inc.

RP:

Plaintiff Maria Shannon

ALLEGATIONS:

Plaintiff Maria Shannon alleges that on June 9, 2016, she presented to Defendant Western Dental Services, Inc. (“Western Dental”) at its North Hollywood office for a comprehensive consultation relating to the diagnosis and treatment of her lower right molar (tooth #29). Plaintiff alleges that she was informed by a dentist that she had a mid-root horizontal fracture in the subject tooth, and she was given alternative treatment options. She decided to remove the coronal part of the tooth and leave the root in place until Western Dental could arrange for her to see a periodontist for root extraction and immediate implant. She alleges she entered into an agreement to pay by installment payments and that she made payments. (SAC, ¶¶8-11, Ex. A.)

On July 25, 2016, Defendant Allison S. Yen, D.D.S. performed the dental implant treatment. On February 6, 2017, Plaintiff returned for placement of the implant post, but the treatment was not completed because Defendant Jingjing Li, D.D.S. allegedly administered the aesthetic injection negligently, causing her to cry and bleed excessively.

Dr. Yen then moved to Western Dental’s Panorama City office, and so Plaintiff went to Dr. Yen there in order to get her dental implant. Plaintiff allege she was informed by Jason Mitchell (office manager of the North Hollywood office) that she could go to another office for an implant procedure and that her North Hollywood account would be closed. Plaintiff alleges that she was charged again by the Panorama City office for payments she made at the North Hollywood office. She alleges that Defendants began debt collection campaign against her.
The Second Amended Complaint (“SAC”) alleges causes of action for: (1) fraud; (2) IIED; (3) unfair debt collection practices; and (4) unfair business practices.

RELIEF REQUESTED:

Western Dental demurs to the 1st, 2nd, and 4th causes of action in the SAC.

DISCUSSION:

Intentional Misrepresentation against all Defendants (1st cause of action)

To allege a cause of action for fraud, the requisite elements are: (1) a representation, usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation; and (5) damage resulting from that justifiable reliance. (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.) This cause of action is a tort of deceit and the facts constituting each element must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Since the claim must be pleaded with particularity, the cause of action based on misrepresentations must allege facts showing how, when, where, to whom, and by what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) In addition, pleadings against a corporation must allege the names of the persons at the corporation and their authority to act on behalf of the corporation. (Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

In the 1st cause of action, Plaintiff alleges that Defendants falsely represented that she owed a debt to Western Dental and that they each should have known the falsity of such representation. (SAC, ¶40.) She alleges that Defendants intended her to rely on the representations to pay a debt she never owed, and that she reasonably relied on the representations and thereby lost money or property. (Id., ¶¶41-43.)

Wester Dental demurs to the fraud cause of action, arguing that Plaintiff has not pled actual and justifiable reliance on any misrepresentations and resulting damages.

Here, the allegations regarding justifiable reliance are conclusory as alleged in the SAC. Plaintiff fails to allege sufficient facts showing that her reliance on the alleged misrepresentations for payment for dental services was reasonable. In opposition, Plaintiff argues that she stood by her contention that she did not owe a debt to Western Dental, but that she did in fact have actual and justifiable reliance on Western Dental’s records showing that she owed a debt. (Opp. at p.6.) She also argues in opposition that she lacked sophistication and there was an unequal power dynamic between Plaintiff and Western Dental that made her rely on its statements as reasonable. (Id.) However, these additional facts and arguments are somewhat contradictory, plus they are not alleged in the operative complaint. As such, these “facts” constitute extrinsic matters that cannot be considered on ruling on a demurrer. Nevertheless, the Court will sustain the demurrer and grant leave to amend as it appears that Plaintiff may have additional facts that could cure the defects in this cause of action.

Next, Western Dental argues that Plaintiff has not adequately alleged damages. In the SAC, Plaintiff alleges that she incurred out-of-pocket expenses from making repeated phone calls, traveling to various Western Dental office locations, and attorney’s fees. (SAC, ¶43.) In opposition, she argues she incurred damages of gas money, phone bills, and attorney’s fees and costs. (Opp. at p.6.) However, the damages alleged by the fraud plaintiff must be caused by the actions she took in reliance on the defendant’s misrepresentations. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1064.) As pointed out by Western Dental, such damages alleged or claimed by Plaintiff do not appear to be as a result of her reliance on Western Dental’s misrepresentation (as alleged above, the SAC does not adequately alleged the element of justifiable reliance), but rather as a result of her disputing any claims that she owed a debt.

As such, the Court will sustain the demurrer to the 1st cause of action with 20 days leave to amend.

IIED against all Defendants (2nd cause of action)

The elements of the tort of intentional infliction of emotional distress are the following: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In order to avoid a demurrer, the plaintiff must allege with great specificity, the acts which she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Vazquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Christensen, supra, 54 Cal.3d at 903.) In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. (Id.) However, when reasonable persons may differ, it is for the jury, subject to the control of the Court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)

In 2nd cause of action, Plaintiff alleges that, upon information and belief, Western Dental’s conduct in confirming and ratifying the conduct alleged in the SAC was done with the knowledge that Plaintiff suffered from anxiety and that her emotional and physical distress would increase. (Id., ¶46.) Plaintiff alleges that Defendant each engaged in outrageous conduct and that such conduct was so extreme that a reasonable person would find such conduct intolerable in a civilized society. (Id., ¶47.) She alleges that Defendants intended to cause Plaintiff emotional distress and that she in fact did suffer such distress. (Id., ¶¶48-49.)

The allegations in the 2nd cause of action are conclusory and fail to allege with the requisite specificity for an IIED cause of action what outrageous conduct Western Dental engaged in that was directed at Plaintiff. She has also not alleged how this conduct was actually outrageous, except to allege in bare conclusory terms that the conduct was outrageous. At most, Plaintiff attempts to rely on her prior paragraphs alleged in the SAC. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. (Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101.) However, CCP §425.10(a)(1) requires the causes of action to contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.”
Here, Plaintiff did not comply with the requirement in CCP §425.10 because the 2nd cause of action does not contain the statement of facts constituting the IIED cause of action. Instead, she incorporated all prior facts into the cause of action and then referred to prior allegations without any specificity when pleading the essential elements of each cause of action. As a result, Plaintiff did not merely incorporate portions for informational purposes and instead imposed the burden on the Court and Defendants to find the facts that state the cause of action in another, unidentified portion of the pleadings in order to determine whether she pleaded the essential elements of each cause of action.

Also, Plaintiff relies on her information and belief that Western Dental confirmed and ratified the conduct with the knowledge of Plaintiff’s anxiety. However, a plaintiff may allege on “information and belief” any matters that are not within his personal knowledge, “if he has information leading him to believe that the allegations are true.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th 1149, 1158 [emphasis in original].) A pleading made on information and belief is insufficient if it merely asserts facts without alleging such information that leads the plaintiff to believe the allegations are true. (Id. at 1158-59.) Here, Plaintiff has failed to show the basis for her allegation on information and belief.

As such, the Court will sustain the demurrer to the 6th cause of action with 20 days leave to amend.

Unfair Business Practices against all Defendants (4th cause of action)

The purpose of the UCL is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) Section 17200 defines unfair competition to mean and include “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the false advertising law (§ 17500 et seq.)].” (Id.) Since section 17200 is written in the disjunctive, a business act or practice need only meet one of the three criteria, i.e., unlawful, unfair, or fraudulent, to be considered unfair competition under the UCL. (Id.)

Western Dental demurs to this cause of action, arguing that Plaintiff has not alleged injury in fact and damages.

A UCL claim may be brought by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. (Bus. & Profs. Code, §17204.) In the 4th cause of action, Plaintiff alleges that she has lost money or property as a result of Defendants’ unfair business practices, including out-of-pocket expenses for having to make repeated phone calls and travel to various Western Dental office locations, as well as attorney’s fees. (SAC, ¶74.) At the pleading stage, Plaintiff has sufficiently alleged an injury-in-fact as a result of Defendants’ business practices.

UCL remedies are narrow in scope, such that prevailing plaintiffs are generally limited to injunctive relief and restitution, and plaintiffs may not receive damages or attorney’s fees (except as a private attorney general under CCP §1021.5). (Zhang v. Superior Court (2013) 57 Cal.4th 364, 371.) In the demurrer, Western Dental argues that Plaintiff has not alleged a viable claim for injunctive relief or restitution, which are the only damages available to her. While the prayer for damages in the 4th cause of action alleges that she seeks general damages and temporary, preliminary, and permanent injunctive relief to enjoin Defendants from engaging in further debt collection efforts directed against her (SAC at p.14), Plaintiff has not alleged any facts showing that Defendants continue to engage in such conduct such that there is a need for an injunction. Plaintiff has also not discussed any entitlement to restitution.

Thus, the Court will sustain the demurrer on the 4th cause of action with 20 days leave to amend.

RULING:

Sustain the demurrer to the 1st, 2nd, and 4th causes of action alleged in the SAC against Western Dental with 20 days leave to amend.