MICHAEL JOSHUA SOBEL VS Z DENTAL GROUP, INC. (CORPORATION)

Tentative Rulings

Case Number: 19STLC07834 Hearing Date: September 13, 2021 Dept: 26

Sobel v. Z Dental Group, Inc., et al 19STLC07834

JUDGMENT ON THE PLEADINGS

(Code Civ. Proc., § 438; Smiley v.\r\nCitibank (1995) 11 Cal.4th 138, 145-146)

TENTATIVE RULING:

Defendant Z Dental Group, Inc.’s Motion for Judgment on the\r\nPleadings is GRANTED.

DEFENDANT TO FILE PROPOSED JUDGMENT WITHIN TEN (10) DAYS OF\r\nTHIS ORDER.

ANALYSIS:

Plaintiff Michael Joshua Sobel (“Plaintiff”) filed the instant action for\r\ndental malpractice against Defendant Z Dental Group, Inc. (“Defendant”)\r\non August 22, 2019. On October 21, 2019, Defendant filed an Answer in pro per.\r\nAt the February 2, 2021 hearing on Plaintiff’s discovery motions, the Court noted\r\nthat Defendant improperly answered in pro per and must appear in the action\r\ngoing forward through an attorney. (Minute Order, 02/02/21.) On March 10, 2021,\r\nDefendant filed a substitution of attorney and the Court discharged the Order\r\nto Show Cause regarding Defendant’s legal representation on March 30, 2021.\r\n(Minute Order, 03/30/21.)

Defendant filed the instant\r\nMotion for Judgment on the Pleadings on May 3, 2021. To date, no opposition has\r\nbeen filed.

Legal Standard

The standard for ruling on a motion\r\nfor judgment on the pleadings is essentially the same as that applicable to a\r\ngeneral demurrer, that is, under the state of the pleadings, together with\r\nmatters that may be judicially noticed, it appears that a party is entitled to\r\njudgment as a matter of law. (Bezirdjian\r\nv. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v.\r\nCalifornia Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory\r\njudicial notice may be treated as part of the complaint and may be considered\r\nwithout notice to the parties. Matters which are subject to permissive judicial\r\nnotice must be specified in the notice of motion, the supporting points and\r\nauthorities, or as the court otherwise permits. (Id.) The motion may not be\r\nsupported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d\r\n221, 236.)

A statutory motion for judgment\r\non the pleadings brought pursuant to Code of Civil Procedure section 438, et\r\nseq. must be accompanied by a meet and confer declaration. (See Code Civ.\r\nProc., § 439 [moving party must file declaration demonstrating an attempt to\r\nmeet and confer in person or by telephone, at least five days before the date a\r\nmotion for judgment on the pleadings is filed].) However, a common law motion\r\nfor judgment on the pleadings does not require a meet and confer effort. (See Smiley\r\nv. Citibank (1995) 11 Cal.4th 138, 146.)

Discussion

The\r\ninstant Motion for Judgment on the Pleadings is brought on both statutory and\r\ncommon law grounds and is supported by a meet and confer declaration. (Motion,\r\nSands Decl., ¶¶3-5 and Exh. A.) Defendant argues that the Complaint and the\r\ncauses of action for negligence and dental malpractice fails to allege facts\r\nsufficient to state a cause of action.

The\r\nelements of a negligence cause of action are duty, breach, causation and\r\ndamages. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463.)\r\nSimilarly, the elements for professional malpractice are “(1) a duty to use\r\nsuch skill, prudence, and diligence as other members of the profession commonly\r\npossess and exercise; (2) a breach of the duty; (3) a proximate causal\r\nconnection between the negligent conduct and the injury; and (4) resulting loss\r\nor damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 [citing\r\nJohnson v. Superior Court (2006) 143 Cal.App.4th 297, 305].)

The form\r\nComplaint simply states that the causes of action against Defendant are general\r\nnegligence and dental malpractice without any supporting allegations. (Compl.,\r\n¶10.) A form Complaint is required to attach supporting allegations with\r\nrespect to the named causes of action. (Ibid.) Here, no attachments with\r\nfactual allegations are part of the Complaint. Therefore, no facts are alleged\r\nin support of either cause of action. Nor has Plaintiff opposed the Motion to\r\ndemonstrate that the Complaint can be amended to properly state these causes of\r\naction against Defendant.

Accordingly,\r\nthe Motion for Judgment on the Pleadings is GRANTED WITHOUT LEAVE TO AMEND.

Conclusion

Defendant Z Dental Group, Inc.’s Motion for Judgment on the\r\nPleadings is GRANTED.

DEFENDANT TO FILE PROPOSED JUDGMENT WITHIN TEN (10) DAYS OF\r\nTHIS ORDER.

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Moving party to give notice.

Case Number: 19STLC07834    Hearing Date: February 02, 2021    Dept: 26

Sobel v. Z Dental Group, Inc., et al.

MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION

(CCP §§ 2031.300, 2023.010)

TENTATIVE RULING:

Defendant Z Dental Group, Inc.’s Motion for Order Compelling Plaintiff to Respond to Request for Production of Documents is PLACED OFF CALENDAR.

Order to Show Cause Re: Status of Defendant’s Legal Representation is set for March 30, 2021 at 10:00 am in Department 26 in the Spring Street Courthouse.

ANALYSIS:

Plaintiff Michael Joshua Sobel (“Plaintiff”) filed the instant action for dental malpractice against Defendant Z Dental Group, Inc. (“Defendant”) on August 22, 2019. On October 21, 2019, Defendant filed an Answer in pro per. Defendant filed the instant Motion to Compel Responses to Request Production of Documents, also in pro per, on December 21, 2020. To date, no opposition has been filed.

Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. [Citation.]” (Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621.) An entity must be represented by a lawyer in legal proceedings and may not represent itself (either directly or through a non-lawyer agent) in litigation, as such an act would be the unauthorized practice of law. (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101).) This rule applies to all entities regarded as separate from their owners, including partnerships and unincorporated associations. (See Clean Air Transport Systems, supra, 19 Cal.App.3d at 578.) (corporation); Albion River Watershed Protection Ass’n v. Department of Forestry & Fire Protection (1993) 20 Cal.App. 4th 34, 37 (unincorporated association); Aulisio v. Bancroft (2014) 230 Cal. App. 4th 1518, 1519-20 (trustee for trust).

Therefore, the Court sets an Order to Show Cause re Status of Defendant’s Representation for March 30, 2021 at 10:00 a.m. in Dept. 26 in the Spring Street Courthouse, for Defendant to advise the Court as to the status of its representation by counsel. As a corporation, Defendant may not represent itself in this litigation, and may only appear through counsel. The continued failure of Defendant to obtain counsel may result in the striking of its Answer in these proceedings at a future date.

Defendant’s Motion for Order Compelling Plaintiff to Respond to Request for Production of Documents is PLACED OFF CALENDAR.

Court clerk to give notice.