On 06/17/2020 AAA T L C HEALTH CARE, INC filed a Contract - Other Contract lawsuit against BARBARA DAVIS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL L. STERN and BARBARA M. SCHEPER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MICHAEL L. STERN
BARBARA M. SCHEPER
AAA T.L.C. HEALTH CARE INC
ZASLAVSKY NEAL S.
ZASLAVSKY NEAL S. ESQ.
STEINER LEONARD SAMUEL
5/13/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (CASE MANAGEMENT CONFERENCE; NON-APPEARANCE CASE REVIEW RE POS...) OF 05/13/2021
5/13/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; NON-APPEARANCE CASE REVIEW RE POS...)
4/23/2021: Summons - SUMMONS CROSS-COMPLAINT
1/26/2021: Proof of Service (not Summons and Complaint)
1/8/2021: Proof of Service (not Summons and Complaint)
1/8/2021: Reply - REPLY OMNIBUS REPLY IN SUPPORT OF MOTIONS TO COMPEL DISCOVERY RESPONSES
1/15/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)
1/15/2021: Notice - NOTICE OF ENTRY OF ORDER
12/30/2020: Reply - REPLY IN FURTHER SUPPORT OF DEMURRER
1/4/2021: Opposition - OPPOSITION TO EX PARTE APPLICATION TO PERMIT PLAINTIFF TO FILE SUR-REPLIES
1/4/2021: Opposition - OPPOSITION OMNIBUS OPPOSITION TO THREE MOTIONS TO COMPEL DISCOVERY RESPONSES
1/5/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR LEAVE TO FILE SUR-REPLIES...)
12/21/2020: Proof of Service (not Summons and Complaint)
12/23/2020: Case Management Statement
10/21/2020: Notice - NOTICE OF CONTINUANCE OF CMC AND HEARING ON DEFENDANT'S DEMURRER
9/11/2020: Declaration - DECLARATION PURSUANT TO C.C. P. SECTION 430.41(A)(2)
6/17/2020: Civil Case Cover Sheet
Hearing07/13/2021 at 08:30 AM in Department 30 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Docketat 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Non-Appearance Case Review (Re Posting of Jury Fees by Plaintiff or Waiver) - Not Held - Vacated by CourtRead MoreRead Less
Docketat 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Case Management Conference - Not Held - Vacated by CourtRead MoreRead Less
Docketat 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Order to Show Cause Re: (If This Case Should be Reclassified as a Limited Jurisdiction Matter) - Not Held - Vacated by CourtRead MoreRead Less
DocketCertificate of Mailing for ((Case Management Conference; Non-Appearance Case Review Re Pos...) of 05/13/2021); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Case Management Conference; Non-Appearance Case Review Re Pos...)); Filed by ClerkRead MoreRead Less
DocketNotice of Settlement; Filed by AAA T.L.C. Health Care, Inc (Plaintiff)Read MoreRead Less
DocketAnswer; Filed by Barbara Davis (Defendant)Read MoreRead Less
DocketCross-Complaint; Filed by Barbara Davis (Defendant)Read MoreRead Less
DocketSummons (Cross-Complaint); Filed by Barbara Davis (Defendant)Read MoreRead Less
DocketMinute Order ( (Court Order re Peremptory Challenge)); Filed by ClerkRead MoreRead Less
DocketNotice of Case Reassignment/Vacate Hearings; Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Court Order re Peremptory Challenge) of 06/29/2020); Filed by ClerkRead MoreRead Less
DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by AAA T.L.C. Health Care, Inc (Plaintiff)Read MoreRead Less
DocketSummons (on Complaint); Filed by AAA T.L.C. Health Care, Inc (Plaintiff)Read MoreRead Less
DocketOrder to Show Cause Failure to File Proof of Service; Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by AAA T.L.C. Health Care, Inc (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by AAA T.L.C. Health Care, Inc (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: 20STCV22948 Hearing Date: January 15, 2021 Dept: 30
AAA T.L.C. Health Care, Inc. vs. Davis, et. al., Case No. 20STCV22948
Tentative Ruling re: Plaintiff’s Motions to Compel Responses to Interrogatories, Requests for Admissions, and Request for Production of Documents
Plaintiff served its discovery requests on October 29, 2020; responses were due on December 2, 2020. On November 24, 2020, Defense counsel requested a nearly two (2) month extension to respond. Plaintiff granted a 2-week extension to December 16, 2020. Defendant served its responses timely on December 16, 2020. (See Zaslavsky Decl., ¶¶ 4-9, Exs. G-J.)
Plaintiff served and filed the motions on December 21, 2020. The motions are denied. If Plaintiff is dissatisfied with these responses, Plaintiff should have filed motions to compel further responses along with the required separate statements.
If a motion to compel response is filed, the court “shall” impose a monetary sanction against the losing party unless it finds that party made or opposed the motion “with substantial justification” or other reasons make the sanction “unjust.” (Code Civ. Proc., § 2031.300, subd. (c).) As the Court has found that Plaintiff failed to file the correct motions, the Court finds that sanctions are in order. The Court orders Plaintiff’s counsel to pay Defendant’s counsel $2,100 within thirty (30) days of today’s date.
Case Number: 20STCV22948 Hearing Date: January 07, 2021 Dept: 30
AAA T.L.C. Health Care, Inc. vs. Davis, et. al., Case No. 20STCV22948
Tentative Ruling re: Defendant’s Demurrer to Complaint; Motion to Strike
Defendant Barbara Davis (Defendant) demurs to the complaint. The demurrer is sustained with ten (10) days leave to amend.
In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)
First Cause of Action for Breach of Contract
The essential elements of a cause of action for breach of contract are: (1) the contract, (2) the plaintiff’s performance of the contract or excuses for nonperformance, (3) the defendant’s breach, and (4) the resulting harm to the plaintiff. (Careau & Co. v. Sec. Pacific Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
The general rule for pleading a breach of contract is that the Plaintiff must
allege the existence of a contract and allege whether the contract is oral or written. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 (McKell).) The contract can be attached to the complaint and incorporated by reference, plead verbatim within the body of the complaint, or plead as to its legal effect through allegations. (Ibid.)
Here, Plaintiff alleges the existence of a written contract but has not attached it to the complaint. Plaintiff has also failed to plead the contract’s terms or its legal effect. In fact, Plaintiff fails to allege who it contracted with. Although in paragraph BC-1 on page 3 Plaintiff alleges that its claim is based on a written contract, the only entity alleged to have entered a contract is the Plaintiff itself. Nowhere in the complaint is there any allegation that Plaintiff specifically contracted with Defendant.
Plaintiff argues that it has sufficiently alleged this contractual relationship in the complaint, alleging that “Mrs. Davis signed each timesheet ‘attest[ing] to acceptance of responsibility for charges incurred for the care and services that [she had] received….’” (Complaint at p. 10, ¶ 19.) However, signing a timesheet with an acknowledgment of responsibility is not the same as entering a contract for Plaintiff to provide in-home medical care to Defendant.
Second Cause of Action for Common Counts
Plaintiff is alleging that Defendant is liable on a book account and for the reasonable value of services rendered. Defendant is not demurring to the common count for services rendered, and instead is demurring to the book account claim.
The common count referred to as “book account” or “open book account” is based on a statement kept by the creditor showing the debits and credits between the debtor and creditor. It must (a) arise from a contract or fiduciary relationship, (b) be made in the ordinary course of business, and (c) be kept in any reasonably permanent manner, for example in a bound book, on cards or sheets, or fastened in a book or to a backing. (Code Civ. Proc., § 337a.) Monies due under an express contract, such as rent due under a lease, cannot be recovered in an action on an “open book account” in the absence of a contrary agreement between the parties. (Tsemetzin v. Coast Fed. Sav. & Loan Assn. (1997) 57 Cal.App.4th 1334, 1343.)
A common count must state directly or impliedly the relationship or the express or implied legal principle upon which a promise to the plaintiff is predicated. (Vaughn v. Certified Life Ins. Co. of Cal. (1965) 238 Cal.App.2d 177.) A complaint alleging that the plaintiff performed certain services for the defendant, their reasonable value, that they were rendered at the special instance and request of the defendant, and that they are unpaid meets the requirements of a common count in quantum meruit. (Brown v. Crown Gold Milling Co. (1907) 150 Cal.376; Haggerty v. Warner (1953) 115 Cal.App.2d 468.)
Here, Plaintiff alleges that on March 30, 2020, Plaintiff sent an invoice to Mrs. Davis in the amount of $14,819.25 for the services it had provided during that week. Defendant crossed off the total amount due and paid $1,160.00. Plaintiff returned Defendant’s payment via check on May 7, 2020. Along with returning Defendant’s payment, Plaintiff included a demand for payment in full of the $14,819.25.
This is not sufficient to state a claim for an open book account. Plaintiff argues that its timesheets and invoices are sufficient for the proposes of a book account but does not cite any authority for this proposition. Nowhere in the complaint does Plaintiff allege that these timesheets or invoices are kept in a reasonably permanent form and manner. Instead, this appears to be to be an action for monies due under an express contract, which Plaintiff has failed to allege.
Moreover, because Defendant is not demurring to the common count for the reasonable value of services rendered, the book account claim is entirely duplicative. Both common counts are based on the exact same facts and seek the same relief. (See Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 [demurrer is proper where causes of action are merely a duplication].)
Third Cause of Action for Fraud
‘Promissory fraud’ is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.] An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973–974.) The elements of fraud are: “ ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud; (d) justifiable reliance; and (e) resulting damage.’ ” (Id. at p. 974.) To establish a claim of promissory fraud one must show that the defendant did not intend to honor the contractual promises when they were made. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 (Tenzer).)
Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (Small).) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)
Here, Plaintiff is alleging both fraudulent misrepresentation and promissory fraud. Plaintiff has failed to allege any facts as to the alleged misrepresentations. Plaintiff does not allege, for example, the time that that Defendant made any representations, how these representations were transmitted, to whom these representations were made, who with authority to speak for Plaintiff relied upon these representations, or any other specific facts required for the pleading of a fraud cause of action.
Moreover, Plaintiff’s allegations fail to establish any fraudulent intent. The specificity requirement applies equally to the element of intent to defraud and a plaintiff may not establish intent by relying on the fact that the promises were not performed. (Tenzer, supra, 39 Cal.3d at p. 30; see also Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1059–1060 [“Each element must be alleged with particularity”].) For fraudulent intent, “something more than nonperformance is required to prove the defendant’s intent not to perform his promise.” (People v. Ashley (1954) 42 Cal.2d 246, 263.)
Here, Plaintiff’s fraud claim is premised entirely on the alleged breach of a contract to pay for Plaintiff’s medical services. “ ‘The mere failure to perform a promise made in good faith does not constitute fraud.’ ” (Building Permit Consultants Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1414.) The fact that Defendant attempted to pay what she believed to be the proper value for Plaintiff’s services does not show fraudulent intent. Instead, it shows that she did intend to pay Plaintiff but merely disagreed with the amount owed.
Based on the foregoing the motion to strike is moot.
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