This case was last updated from Fresno County Superior Courts on 03/03/2018 at 08:51:57 (UTC).

XXXXX

Case Summary

On 02/19/2013 XXXXX was filed as a Contract - Business lawsuit. This case was filed in Fresno County Superior Courts, Bf Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Smith, Bruce, Hamilton, Jeffrey Y, Black, Donald, Snauffer, Mark and Hamilton, Jeffrey Y.. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0517

  • Filing Date:

    02/19/2013

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Business

  • Court:

    Fresno County Superior Courts

  • Courthouse:

    Bf Sisk Courthouse

  • County, State:

    Fresno, California

Judge Details

Judges

Smith, Bruce

Hamilton, Jeffrey Y

Black, Donald

Snauffer, Mark

Hamilton, Jeffrey Y.

 

Party Details

Plaintiff

Ramos, Alma

Defendants

Coast Dental Services, Inc

Coast Dental Services, LLC

Attorney/Law Firm Details

Plaintiff Attorney

Webb, Lenden F.

Webb & Bordson 466 W. Fallbrook Avenue Ste.102

Fresno, CA 93711

Defendant Attorney

Osborn, Laurence C.

 

Court Documents

Minute Order Attachment

Minute Order Attachment

Clerk's Certificate of Mailing

Clerk's Certificate of Mailing; Comment: I certify that I am not a party to this cause and a true copy of the Order on Pretrial Discovery was placed in a sealed envelope and placed for collection and mailing on the date and at the place shown below following our ordinary business practice. I am readily familiar with this court's practice for collection and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. Place of Mailing: Fresno, California on 7/12/16 . Parties served: see attached

Order filed

Order filed; Judicial Officer: Black, Donald; Comment: Order on Pretrial Discovery

Association of Attorney filed

Civil Document; Comment: of Counsel

Reply filed

Reply; Comment: Plaintiff's Reply to opposition to motion for class certification

Declaration Filed

Declaration Filed; Comment: of Laurence C. Osborn in support of opposition to plaintiff's motion for class certification

Declaration Filed

Motion (No Fee); Comment: Declaration in support of motion for leave to file 6th Amended Complaint

Stipulation and Order to Continue Trial filed

Stipulation and Order to Continue Trial filed; Judicial Officer: Black, Donald; Comment: Trial continued to: Jury Trial to 8/8/16 @ 9 am in Dept 501 TRR to 8/5/16 @ 9:30 am in Dept 501 No MSC set signed by Judge Black

Opposition filed

Civil Document; Comment: of Defendants to Plaintiff's Motion for Class Certification: Memorandum of Points and Authorities in Support thereof

Ex parte Filed

Ex parte Filed; Comment: Amended Notice of Application for Ex Parte Order to Continue Trial and all Relative Dates

Declaration Filed

Declaration Filed; Comment: of Trial Attorney Pursuant to the California Rules of Court

Declaration Filed

Declaration Filed; Comment: of Lisa Morrison

Memorandum of Points and Authorities

Memorandum of Points and Authorities

Declaration Filed

Declaration Filed

Notice of Motion

Notice of Motion; Comment: and Motion for leave to amend the complaint

Declaration Filed

Declaration Filed; Comment: of Lawrence C. Osborn in Support of Opposition to Plaintiff's Motion for Class Certification

Order filed

Order filed; Judicial Officer: Black, Donald; Comment: Order On Request For Pretrial Discovery Conference

Memorandum of Points and Authorities

Memorandum of Points and Authorities; Comment: Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Leave to Amend the Third Amended Complaint

61 More Documents Available

 

Docket Entries

  • 07/29/2016
  • View Court Documents
  • Disposition: Judgment- Request for Dismissal filed; Judgment Type: Request for Dismissal filed; Party Names: Ramos, Alma; Coast Dental Services, LLC; Black, Donald; Comment: With Prejudice as to Entire Action of All Parties Causes of Action

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  • 11/07/2016
  • CRC225 Dismiss After Settlement- Hearing Time: 1:00 PM; Cancel Reason: Dismissed

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  • 08/08/2016
  • Jury Trial- Judicial Officer: Snauffer, Mark; Hearing Time: 9:00 AM; Cancel Reason: Settled; Comment: Christopher Noyes 447-8800 lp

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  • 08/05/2016
  • Trial Readiness- Judicial Officer: Snauffer, Mark; Hearing Time: 9:30 AM; Cancel Reason: Settled; Comment: Christopher Noyes 447-8800 lp

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  • 07/29/2016
  • View Court Documents
  • Request for Dismissal Received - Pending Review- Request for Full Dismissal; Comment: Request For Dismissal

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  • 07/29/2016
  • Motion - In Limine- Judicial Officer: Black, Donald; Hearing Time: 1:30 PM; Cancel Reason: Settled; Comment: set from order on 2/10/16

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  • 07/29/2016
  • Pre Trial Discovery Conference- Judicial Officer: Black, Donald; Hearing Time: 1:30 PM; Cancel Reason: Off Calendar; Comment: set from order on 2/10/16

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  • 07/22/2016
  • View Court Documents
  • Notice of Hearing- Notice of Hearing; Comment: 225 Dismissal Hearing set for November 7, 2016 at 1:00 PM in RM 104

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  • 07/22/2016
  • View Court Documents
  • Notice of Settlement filed- Notice of Settlement of Entire Case

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  • 07/13/2016
  • View Court Documents
  • Minute Order Attachment- Minute Order Attachment

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261 More Docket Entries
  • 08/14/2014
  • Financial info for Ramos, Alma: Counter Payment Receipt # 193472 Ramos, Alma $20.00

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  • 08/14/2014
  • Financial info for Ramos, Alma: Transaction Assessment $60.00

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  • 08/14/2014
  • Financial info for Ramos, Alma: Transaction Assessment $20.00

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  • 03/11/2014
  • Financial info for Ramos, Alma: Counter Payment Receipt # 187942 Ramos, Alma $20.00

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  • 03/11/2014
  • Financial info for Ramos, Alma: Transaction Assessment $20.00

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  • 04/11/2013
  • Financial info for Ramos, Alma: Counter Payment Receipt # 176580 Ramos, Alma $150.00

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  • 04/11/2013
  • Financial info for Ramos, Alma: Transaction Assessment $150.00

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  • 02/19/2013
  • Financial info for Ramos, Alma: Counter Payment Receipt # 174679 Ramos, Alma $435.00

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  • 02/19/2013
  • Financial info for Ramos, Alma: Transaction Assessment $435.00

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  • 02/19/2013
  • Financial: Ramos, Alma; Total Financial Assessment $1,290.00; Total Payments and Credits $1,290.00

    Read MoreRead Less

Complaint Information

E-FILED

Lenden F. Webb (SBN 236377) 2/11/2016 2:16:55 PM

WEBB LAW GROUP, APC FRESNO COUNTY SUPERIOR COURT A Professional Corporation

466 W. Fallbrook Ave., Suite 102 By: M. Meza, Deputy

Fresno, CA 93711

Telephone: (559) 431-4888 Facsimile: (559) 8§21-4500

Email: LWebb(@WBLawGroup.com

Attorney for Plaintiff, ALMA RAMOS, individually, and on behalf of the general public

SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO

CIVIL UNLIMITED DIVISION

) Case No.: 13CECG00517 )

) FIFTH AMENDED CLASS ACTION

) COMPLAINT FOR: ALMA RAMOS, individually, and on behalf % © Breach of Contract of the general public | 5 Open Account Plaintiff, ) 3. Unfair Business Practices (Bus. & ) Prof. Code §17200) V. ) 4. Accounting ) S. Consumer Legal Remedies Act (Cal. COAST DENTAL SERVICES, INC., a g Civil Code §1750 et seq.) Florida corporation, dba SMILECARE, and . Does 1 through 25, inclusive, % And Demand for Jury Trial Defendants. % [Amendments in Bold] ) Plaintiff herein alleges as follows: I.

JURISDICTION

1. Plaintiff ALMA RAMOS is, and at all relevant times herein was, a resident of

the County of Fresno, and all events and occurrences alleged herein took place in the Counties of Fresno, Kern, Los Angeles, San Diego, Napa, Santa Clara, San Joaquin, Alameda, Solano, Sonoma, Placer, Riverside, San Bernardino, Orange, Santa Barbara, Stanislaus, Sacramento, and Contra Costa. Plaintiff brings this action on behalf of herself and in a representative

capacity on behalf of all similarly situated consumers.

capacity on behalf of all similarly situated consumers. 2. Defendant COAST DENTAL SERVICES, INC., a Florida corporation, dba SMILECARE (“SMILECARE”) 1s, and at all relevant times herein was a corporation authorized to do and doing business in the following Counties of California: Fresno, Kern, Los Angeles, San Diego, Napa, Santa Clara, San Joaquin, Alameda, Solano, Sonoma, Placer, Riverside, San Bernardino, Orange, Santa Barbara, Stanislaus, Sacramento, and Contra Costa.

2. Defendant COAST DENTAL SERVICES, INC., a Florida corporation, dba SMILECARE (“SMILECARE”) 1s, and at all relevant times herein was a corporation authorized to do and doing business in the following Counties of California: Fresno, Kern, Los Angeles, San Diego, Napa, Santa Clara, San Joaquin, Alameda, Solano, Sonoma, Placer, Riverside, San Bernardino, Orange, Santa Barbara, Stanislaus, Sacramento, and Contra Costa.

3. Plaintiff 1s informed, and thereon alleges, that DOES 1 through 12 are persons, corporations, or other entities which reside or are authorized to do and are doing business in the State of California. The true identities of DOES 1 through 12 are currently unknown to Plaintiff; therefore Plaintiff now sues DOES 1 through 12 by fictitious names. Plaintiff will amend this Complaint to state the proper names of each Doe Defendant when its identity 1s discovered.

4. Plaintiff is informed and believes and thereon alleges that DOES 13 through 25 are persons, corporations, or other entities which reside or are authorized to do and are doing business in the State of California. The true identities of DOES 13 through 25 are currently unknown to Plaintiff and therefore Plaintiff prays for leave to amend this Complaint to assert the proper names of each Doe Defendant when its identity 1s discovered. Plaintiff is informed and believes and there on alleges that DOES 13 through 25 were the managerial agent, employee, predecessor, subsidiary successor, joint venturer, co-conspirator, alter ego, and/or representative of each and every other Defendant named herein or identified as DOES 1 through 12, and acted with the permission, authorization and/or ratification and consent of each and every other Defendant at all relevant times herein.

5. Plaintiff is informed and believes, and therefore alleges that each fictitiously named Defendant, including DOES 9 through 17, is in some way responsible for, participated in, or contributed to the matters of which Plaintiff complains of, and has legal responsibility for those matters.

6. Plaintiff is informed and believes and thereon alleges that, at all relevant times,

each of the defendants, whether named or fictitious, was the agent or employee of each of the

each of the defendants, whether named or fictitious, was the agent or employee of each of the other defendants, and in doing the things alleged to have been done in the Complaint, acted within the scope of such agency or employment, or ratified the acts of the other. IL.

other defendants, and in doing the things alleged to have been done in the Complaint, acted within the scope of such agency or employment, or ratified the acts of the other. IL.

GENERAL ALLEGATIONS

7. For at least four (4) years prior to the filing of this action and through to the date of judgment (“Liability Period” OR “Class Period”), SMILECARE has had a consistent policy of not 1ssuing refunds to its patients when due.

8. Specifically, SMILECARE has and continues to enter into Treatment Plans with patients which outline the dental services to be provided by SMILECARE, the cost of such services, the amount to be paid by insurance, and the amount to be paid by the patient (“Treatment Plan™).

9. Thereafter when patients discontinue treatment under a Treatment Plan, do not receive services under the Treatment Plan, are billed incorrectly, and/or overpay for the costs of the services outlined in the Treatment Plan by direct payment to SMILECARE or through payment by insurance and/or a third-party finance company SMILECARE refuses to return to the patient the credit balance on the patient’s account in the form of a refund.

10. Plaintiff 1s informed and believes and thereon alleges that during the Liability Period, the officers, directors, and/or managing agents of SMILECARE, including, but not limited to, SMILECARE’S regional and district managers, affirmatively, purposefully, and knowingly implemented and enforced SMILECARE’S policy and practice of refusing to return any monics due to patients in the form of a refund despite their actual knowledge of the patient’s right to the return of the same.

11. Specifically, Plaintiff is informed and believes and thereon alleges that at least once per week during the Liability Period, SMILECARE'’S officers, directors, and/or managing agents of SMILECARE, including, but not limited to, SMILECARE’S regional and district managers, would advise employees at all SMILECARE locations by telephone or in person,

that “no refunds are to be given” to patients for “any reason.”

that “no refunds are to be given” to patients for “any reason.” 12. Plaintiff 1s informed and believes and thereon alleges that SMILRECARE’S officers, directors, and/or managing agents, including, but not limited to, SMILECARE’S regional and district managers, advised SMILECARE employees at all locations not to issue patient refunds and to purposefully withhold patient refunds to deliberately benefit the financial well being of SMILECARE to the financial detriment of its patient(s).

12. Plaintiff 1s informed and believes and thereon alleges that SMILRECARE’S officers, directors, and/or managing agents, including, but not limited to, SMILECARE’S regional and district managers, advised SMILECARE employees at all locations not to issue patient refunds and to purposefully withhold patient refunds to deliberately benefit the financial well being of SMILECARE to the financial detriment of its patient(s).

13. SMILECARE refuses and continues to refuse to return any monies due to the patient in the form of a refund despite repeated verbal and/or written requests for the same.

14. SMILECARE has engaged and continues to engage in the acts and practices herein alleged as part of a pattern, plan, and/or scheme directed at members of the public with the 1ntent to retain any monies received on a patient’s account despite the fact that a refund may

be due as a result of overpayment, incorrect billing and/or lack of receipt or cancellation of

SErvICces. III.

CLASS ALLEGATIONS

15. Plaintiff brings this and each following cause of action as a class action pursuant

to California Code of Civil Procedure Section 382. 16. The class that Plaintiff represents consists of:

a. SUBCLASS A: The Proposed Putative Subclass, SUBCLASS A, shall include all persons who have, or had, a credit balance with DEFENDANT during the CLASS PERIOD, who have, or had, this credit balance on their account with DEFENDANT for a period of at least Five Hundred and Forty-Five (545) days, and who did not receive any dental services from DEFENDANT during the same Five Hundred and Forty-Five (545) day time period, who have requested a refund from the same credit balance.

The “credit balance” amount will be limited to interest on monies withheld for the time period the credit balance was held by DEFENDANT in addition to the lower amount of the following two options:

i) the credit balance, OR,

i) the credit balance, OR, ii) the amount proffered directly from the patient during the patient’s relationship with the DEFENDANT (via cash, check, credit card, debit card, gift card, money order, wire transfer, ACH transfer,

ii) the amount proffered directly from the patient during the patient’s relationship with the DEFENDANT (via cash, check, credit card, debit card, gift card, money order, wire transfer, ACH transfer,

credit application transfer, third party financing).

b. SUBCLASS B: The Proposed Putative Subclass, SUBCLASS B, shall include all persons who have, or had, a credit balance of at least Two Hundred and Fifty Dollars ($250.00) with DEFENDANT during the CLASS PERIOD, who have, or had, this credit balance on their account with DEFENDANT for a period of at least Five Hundred and Forty-Five (545) days, and who did not receive any dental services from DEFENDANT during the same Five Hundred and Forty-Five (545) day time period, and who have not requested a refund from the same credit balance; this Subclass excludes all persons who have, or had, the credit balance reduced by at least Seventy-Five Dollars ($75.00) within the same Five-Hundred Forty-Five (545) day period.

The “credit balance” amount will be limited to interest on monies withheld for the time period the credit balance was held by DEFENDANT in addition to the lower amount of the following two options:

i) the credit balance, OR,

ii) the amount proffered directly from the patient during the

patient’s relationship with the DEFENDANT (via cash, check, credit card, debit card, gift card, money order, wire transfer, ACH transfer, credit application transfer, third party financing).

SUBCLASS C: The Proposed Putative Subclass, SUBCLASS C, shall include all persons not included in SUBCLASS A or B who have, or had, a credit balance of at least Two Hundred and Fifty Dollars ($250.00) with DEFENDANT during the CLASS PERIOD, who have, or had, this credit balance on their account with DEFENDANT for a period of at least One Hundred and Twenty (120) days, and who did

SUBCLASS C: The Proposed Putative Subclass, SUBCLASS C, shall include all persons not included in SUBCLASS A or B who have, or had, a credit balance of at least Two Hundred and Fifty Dollars ($250.00) with DEFENDANT during the CLASS PERIOD, who have, or had, this credit balance on their account with DEFENDANT for a period of at least One Hundred and Twenty (120) days, and who did not receive any dental services from DEFENDANT during the same One Hundred and Twenty (120) day time period, and who have requested a refund from the same credit balance. The “credit balance” amount will be limited to interest on monies withheld for the time period the credit balance was held by DEFENDANT in addition to the lower amount of the following two options: i) the credit balance, OR,

not receive any dental services from DEFENDANT during the same One Hundred and Twenty (120) day time period, and who have requested a refund from the same credit balance. The “credit balance” amount will be limited to interest on monies withheld for the time period the credit balance was held by DEFENDANT in addition to the lower amount of the following two options: i) the credit balance, OR,

ii) the amount proffered directly from the patient during the

patient’s relationship with the DEFENDANT (via cash, check, credit card, debit card, gift card, money order, wire transfer, ACH transfer,

credit application transfer, third party financing).

17. The proposed CLASS PERIOD shall be defined as 4 years prior to the filing of the present action. 18. Members of Subclasses A, B and C shall collectively be referred to as

“members of the proposed class,” “class,” or “class members”.

19. The above-described class should be certified for class action treatment because: a. The class 1s so numerous that joinder of all members would be impracticable; b. The factual questions are common to the class; C. The legal 1ssues are common to the class; d. Plaintiff’s claims are typical of the claims of all members of the class; €. Plaintiff will fairly and adequately represent and protect the interests of

the class by vigorously litigating this suit through attorneys who are skilled and experienced in class actions and unlawful business practice litigation; and

f. Questions or law and fact common to all members of the class predominate over questions affecting only individual members, and a class action is superior to

any other available method for the fair and efficient resolution of this controversy.

any other available method for the fair and efficient resolution of this controversy. 20. Plaintiff is unable to state the precise number of potential members of the proposed class because that information 1s in the possession of SMILECARE. Plaintiff is informed and believes that the proposed class numbers are at least in the hundreds and are so numerous that joinder of all members would be impracticable. The exact size of the proposed class, and the identity of the members thereof, will be readily ascertainable from the business records of SMILECARE.

20. Plaintiff is unable to state the precise number of potential members of the proposed class because that information 1s in the possession of SMILECARE. Plaintiff is informed and believes that the proposed class numbers are at least in the hundreds and are so numerous that joinder of all members would be impracticable. The exact size of the proposed class, and the identity of the members thereof, will be readily ascertainable from the business records of SMILECARE.

21. There is a community of interest among the members of the proposed class in that there are questions of law and fact common to the proposed class that predominate over questions affecting only individual members. These questions include, inter alia, whether SMILECARE has unlawfully refused to return monies due to the proposed class.

FIRST CAUSE OF ACTION BREACH OF CONTRACT

(As to All Defendants)

22. Plaintiff hereby realleges and incorporates Paragraphs 1 through 21 as though the same were set forth wholly and fully herein.

23. Plaintiff, and members of the proposed class, are informed and believe, and thereon allege, that they entered into written contracts with SMILECARE, wherein they agreed to pay SMILECARE for dental services to be performed as outlined in the Treatment Plans.

24. Plaintiff, and members of the proposed class, are further informed and believe, and thereon allege, that in accordance with the terms of the written contracts, SMILECARE was required to refund any monies due to them when services under the Treatment Plans were 1) terminated 2) not performed, 3) incorrectly billed, and/or 4) overpaid.

25. Plaintiff, and members of the proposed class, 1) terminated dental services to be performed as outlined under the Treatment Plans, 2) did not receive dental services as outlined in the Treatment Plans, 3) were incorrectly billed for dental services under the Treatment Plans, and/or 4) overpaid on their accounts with SMILECARE through direct pay, insurance, and/or a

third-party finance company.

third-party finance company. 26. In the four (4) years preceding the filing of this action, Plaintiff, and members of the proposed class, requested the return of monies already paid for the services outlined on the Treatment Plans that were 1) terminated 2) not performed, 3) incorrectly billed, and/or 4) overpaid.

26. In the four (4) years preceding the filing of this action, Plaintiff, and members of the proposed class, requested the return of monies already paid for the services outlined on the Treatment Plans that were 1) terminated 2) not performed, 3) incorrectly billed, and/or 4) overpaid.

27. SMILECARE has breached the terms of the written contracts by failing and refusing and continuing to fail and refuse to return to Plaintiff, and members of the proposed class, the monies due to them 1n the form of a refund as a result of 1) termination of the services outlined in the Treatment Plan, 2) failure to provide services as outlined in the Treatment Plan, 3) incorrect billing, and/or 4) overpayment.

28. Plaintiff, and members of the proposed class, have performed all terms and conditions, covenants, and promises required of them to be performed in accordance with the terms of the written contracts.

29, As a direct and proximate result of SMILECARE’S breach of the written contracts, Plaintiff, and the members of the proposed class, have been damaged in an amount to be proven at trial, plus interest, attorney’s fees, and costs.

30. Plaintiff, and members of the proposed class, are informed and believe, and thereon allege, that the written contracts at issue contain a prevailing party attorney’s fees provision. Plaintiff does not currently have a copy of the aforementioned written contracts in her custody, possession, or control, however, Plaintiff has requested copies of the same, among other things, through written discovery and will amend this pleading accordingly once received from SMILECARE.

SECOND CAUSE OF ACTION OPEN ACCOUNT

(As to All Defendants) 31. Plaintiff hereby realleges and incorporates Paragraphs 1 through 30 as though the same were set forth wholly and fully herein. 32. Within the Liability Period, SMILECARE became indebted to Plaintiff, and

members of the proposed class, on an open account for money due to Plaintiff in the amount of

members of the proposed class, on an open account for money due to Plaintiff in the amount of $2,589.52, as a result of funds paid to SMILECARE for services to be rendered in accordance with a Treatment Plan that was either 1) terminated 2) not performed, 3) incorrectly billed, and/or 4) overpaid.

$2,589.52, as a result of funds paid to SMILECARE for services to be rendered in accordance with a Treatment Plan that was either 1) terminated 2) not performed, 3) incorrectly billed, and/or 4) overpaid.

33. The exact sums due to the members of the proposed class shall be capable of identification upon receipt of SMILECARE’s response to written discovery propounded by Plaintiff.

34, Neither the whole nor any part of the above sums has been paid and although a demand therefore has been made there 1s now due, owing, and unpaid an amount to be proven at the time of trial together with interest thereon at the legal rate.

THIRD CAUSE OF ACTION VIOLATION OF UNFAIR COMPETITION LAW

(Business and Professions Code §17200 et seq.) (As to All Defendants)

35. Plaintiff incorporates paragraphs 1 through 34 as though fully alleged herein.

36. During the Liability Period, office managers and other employees of SMILECARE represented to Plaintiff, and members of the proposed class, at SMILECARE offices located in Fresno, Kern, Los Angeles, San Diego, Napa, Santa Clara, San Joaquin, Alameda, Solano, Sonoma, Placer, Riverside, San Bernardino, Orange, Santa Barbara, Stanislaus, Sacramento, and Contra Costa Counties, that Plaintiff, and members of the proposed class:

a. Would be billed for work performed as outlined in their Treatment Plans; and b. Would be refunded for any monies paid to SMILECARE (by the patient

or by insurance on behalf of the patient) for services that were 1) not performed, 2)

terminated, 3) incorrectly billed, and/or 4) overcharged.

37. Plaintiff, and members of the proposed class, relied on the above-referenced

misrepresentations made by SMILECARE’S managers and employees by agreeing to pay for

misrepresentations made by SMILECARE’S managers and employees by agreeing to pay for services outlined in their respective Treatment Plans, all to the detriment of Plaintiff, and members of the proposed class.

services outlined in their respective Treatment Plans, all to the detriment of Plaintiff, and members of the proposed class.

38. SMILECARE’S misrepresentations and business policies and practices in billing Plaintiff, and members of the proposed class, for services and then failing to refund monies when due as alleged herein, constitutes unlawful and unfair activity prohibited by Business and Professions Code §17200 et seq.

39. SMILECARE has failed and refused, and continues to fail and refuse, to refund monies due to Plaintiff, and the members of the proposed class, for services identified under their respective Treatment Plans that were 1) terminated 2) not performed, 3) incorrectly billed, and/or 4) overpaid. Such refunds were due upon the happening of one or more of the above- referenced events.

40. In addition, Plaintiff contends that SMILECARE has an ongoing business policy and practice of overcharging, incorrectly billing, and/or failing to refund money due to its patients despite demands from patients for the return of the same.

41. The actions of SMILECARE i1n failing to refund and continuing to fail to refund monies when due to Plaintiff, and members of the proposed class, constitutes unlawful, unfair, and deceptive business practices, within the meaning of Business and Professions Code §17200 et seq.

42. Plaintiff, and the members of the proposed class, are entitled to equitable relief against such unlawful practices in order to prevent SMILECARE from continuing with its unlawful and unfair business practices of failing and refusing to refund monies to patients when due, and to avoid a multiplicity of lawsuits. They bring this cause individually and as members of the general public as a representative of all others subject to SMILECARE’S unlawful acts and practices.

43, As a result of its unlawful acts, SMILECARE has reaped and continues to reap unfair benefits at the expense of Plaintiff, and the members of the proposed class. Plaintiff, and the members of the proposed class, along with future patients of SMILECARE, will suffer

harm and injury as a result of being deprived of the use and benefit of monies that are due to

harm and injury as a result of being deprived of the use and benefit of monies that are due to them which SMILECARE has a pattern and practice of failing to refund when due. SMILECARE should be made to disgorge these 1ll-gotten gains and restore to Plaintiff, and the members of the proposed class, the wrongfully withheld refunds.

them which SMILECARE has a pattern and practice of failing to refund when due. SMILECARE should be made to disgorge these 1ll-gotten gains and restore to Plaintiff, and the members of the proposed class, the wrongfully withheld refunds.

44. Plaintiff, and the members of the proposed class, are informed and believe and thereon allege, that SMILECARE has been and continues to be unjustly enriched through their failure to return the monies due to Plaintiff, and the members of the proposed class.

45. Plaintiff, and the members of the proposed class, are informed and believe and thereon allege, that Plaintiff, and the members of the proposed class, are and will continue to be prejudiced by SMILECARE'’S unfair business practices, which include, but are not limited to applying a uniform unfair and unlawful policy of not issuing refunds to its patients when due.

46. As a direct and proximate result of the unfair business practices of SMILECARE, Plaintiff, and the members of the proposed class, are entitled to equitable relief, including full restitution and/or disgorgement of all monies that SMILECARE has unlawfully refused to refund to Plaintiff, and the members of the proposed class, as a result of the business practices and acts described herein.

FOURTH CAUSE OF ACTION ACCOUNTING

(As to All Defendants)

47. Plaintiff incorporates paragraphs 1 through 46 as though fully alleged herein.

48. SMILECARE is in possession of certain patient records and accounts. The full amount of monies due to be refunded to Plaintiff, and the members of the proposed class, is unknown to Plaintiff, and the members of the proposed class, and cannot be ascertained without an accounting of the monies paid and monies due to be refunded to Plaintiff, and the members of the proposed class, as a result of 1) the termination of services under the Treatment Plans, 2) failure to receive services as identified under the Treatment Plans, 3) incorrect billing, and/or 4) overpayment.

49. Plaintiff, and the members of the proposed class, demand an accounting from

SMILECARErefunds due on patient accounts during the Liability Period.

FIFTH CAUSE OF ACTION VIOLATION OF THE CONSUMER LEGAL REMEDIES ACT

(Civil Code §1750, et seq.) (As to All Defendants)

50. Plaintiff incorporates paragraphs 1 through 49 as though fully alleged herein.

51. SMILECARE is a “person” providing “services” to “consumers’ as part of a “transaction” as defined in Civil Code §1750, et seq.

52. SMILECARE has violated and continues to violate Civil Code §§1770(a)(5), 1770(a)(14), and 1770 (a)(15).

53. In addition to the unlawful business practices as alleged above, during the Liability Period, SMILECARE by and through its office managers and employees, made representations to Plaintiff, and members of the proposed class, at SMILECARE offices located in Fresno, Kern, Los Angeles, San Diego, Napa, Santa Clara, San Joaquin, Alameda, Solano, Sonoma, Placer, Riverside, San Bernardino, Orange, Santa Barbara, Stanislaus, Sacramento, and Contra Costa Counties, that:

a. Certain dental services were needed when 1n fact they were not;

b. Dental implants and/or other dental appliances were necessary when in fact they were not;

C. Certain dental treatments were needed or would provide certain benefits when in fact they were not and did not; and

d. That Plaintiff, and members of the proposed class, would only be required to pay the actual price of services rendered, when in fact SMILECARE overcharged and/or incorrectly billed Plaintiff, and members of the proposed class, for services that were performed, not performed at all, and/or terminated, and thereafter refused to return monies due.

54, Pursuant to Civil Code §1782, Plaintiff, and the members of the proposed class, have notified SMILECARE in writing of their violations of the Consumer Legal Remedies Act

(the “Notice”) and have demanded that SMILECARE correct or otherwise rectify the problem

(the “Notice”) and have demanded that SMILECARE correct or otherwise rectify the problem created by its actions as outlined herein. (4 frue and correct copy of the Notice is attached hereto as Exhibit “A” and incorporated herein by reference.)

created by its actions as outlined herein. (4 frue and correct copy of the Notice is attached hereto as Exhibit “A” and incorporated herein by reference.)

55. SMILECARE has failed to make an appropriate correction or other remedy with respect to members of the proposed class.

56. SMILECARE has engaged and continues to engage in the acts and practices herein alleged as part of a pattern, plan, and scheme directed at Plaintiff and similarly situated members of the public, with intent to deceive patients and induce them to enter into Treatment Plans and then keep patients’ money and refuse to return the same when services were 1) terminated, 2) incorrectly billed, 3) overpaid, and/or 4) not performed or provided as agreed upon.

57. Plaintiff, and the members of the proposed class, detrimentally relied on SMILECARE’s representations contained within the Treatment Plans with respect to the costs of dental services to be rendered and the understanding that if services were 1) terminated, 2) incorrectly billed, 3) overpaid, and/or 4) not performed or provided as agreed upon, Plaintiff, and the members of the proposed class would receive a refund of any monies due to them.

58. Furthermore, Plaintiff is informed and believes and thereon alleges that during the Liability Period, the officers, directors, and/or managing agents of SMILECARE, including, but not limited to, SMILECARE’S regional and district managers, affirmatively, purposefully, and knowingly implemented and enforced SMILECARE’S policy and practice of refusing to return any monies due to patients in the form of a refund despite their actual knowledge of the patient’s right to the return of the same.

59. Specifically, Plaintiff 1s informed and believes and thereon alleges that at least once per week during the Liability Period, SMILECARE’S officers, directors, and/or managing agents of SMILECARE, including, but not limited to, SMILECARE’S regional and district managers, would advise employees at all SMILECARE locations by telephone or in person, that “no refunds are to be given” to patients for “any reason.”

60. Plaintiff is informed and believes and thereon alleges that SMILRECARE’S

officers, directors, and/or managing agents, including, but not limited to, SMILECARE’S

officers, directors, and/or managing agents, including, but not limited to, SMILECARE’S regional and district managers, advised SMILECARE employees at all locations not to issue patient refunds and to purposefully withhold patient refunds to deliberately benefit the financial well being of SMILECARE to the financial detriment of its patient(s).

regional and district managers, advised SMILECARE employees at all locations not to issue patient refunds and to purposefully withhold patient refunds to deliberately benefit the financial well being of SMILECARE to the financial detriment of its patient(s).

61. Plaintiff, and members of the proposed class, have suffered damages as a result of SMILECARE’S actions as alleged herein. Accordingly, Plaintiff, and members of the proposed class, seek an award of damages pursuant to Civil Code §1780(a), subdivision (a)(1).

62. Pursuant to Civil Code §1780, subdivisions (a)(3), and (a)(5) and subdivision (e), Plaintiff, and members of the proposed class, seek an order of this Court, that includes, but is not limited to, 1) providing restitution and disgorging all revenues obtained as a result of SMILECARE’S violations of the Consumer Legal Remedies Act, and 2) to payment of Plaintiff’s and the class’s attorney fees and costs.

PRAYER

WHEREFORE, Plaintiff, and the members of the proposed class, pray for judgment

against SMILECARE as follows:

1. That the Court determine that this action be maintained as a Class action;

2. For compensatory damages in an amount according to proof with interest thereon;

3. For economic and/or special damages in an amount according to proof with

interest thereon; 4. That SMILECARE be ordered to make restitution to the Class due to its unfair practices, including, refusing to refund monies due; 5. That SMILECARE be ordered to disgorge any profits obtained as a result of its unlawful conduct;