This case was last updated from Los Angeles County Superior Courts on 11/25/2021 at 15:52:28 (UTC).

DAVID J SMITH, M.D., ET AL. VS HENRY R. FENTON, ESQ., ET AL.

Case Summary

On 05/24/2021 DAVID J SMITH, M D filed a Contract - Professional Negligence lawsuit against HENRY R FENTON, ESQ . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9559

  • Filing Date:

    05/24/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ELAINE LU

 

Party Details

Plaintiffs

PACIFIC SURGICAL INSTITUTE OF PAIN MANAGEMENT INC.

SAN DIEGO COMPREHENSIVE PAIN MANAGEMENT CENTER INC.

SMITH DAVID J M.D.

Defendants

FENTON HENRY R. ESQ.

FENTON LAW GROUP LLP

Attorney/Law Firm Details

Plaintiff Attorney

RIFAT MATTHEW

Defendant Attorney

WAXLER ANDREW J.

 

Court Documents

Reply - REPLY DEFENDANTS HENRY R. FENTON AND FENTON LAW GROUP, LLPS REPLY TO PLAINTIFFS OPPOSITION TO DEMURRER TO COMPLAINT

11/3/2021: Reply - REPLY DEFENDANTS HENRY R. FENTON AND FENTON LAW GROUP, LLPS REPLY TO PLAINTIFFS OPPOSITION TO DEMURRER TO COMPLAINT

Notice of Ruling

11/10/2021: Notice of Ruling

Order - ORDER RE: DEFENDANTS' DEMURRER TO THE COMPLAINT

11/10/2021: Order - ORDER RE: DEFENDANTS' DEMURRER TO THE COMPLAINT

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE DEFENDANTS HEN...)

11/10/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE DEFENDANTS HEN...)

Amended Complaint - AMENDED COMPLAINT (1ST)

11/12/2021: Amended Complaint - AMENDED COMPLAINT (1ST)

Opposition - OPPOSITION OF DEFS' DEMURRER TO COMPLAINT

10/28/2021: Opposition - OPPOSITION OF DEFS' DEMURRER TO COMPLAINT

Notice of Change of Address or Other Contact Information

10/14/2021: Notice of Change of Address or Other Contact Information

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: FAILURE T...)

9/27/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: FAILURE T...)

Case Management Statement

9/10/2021: Case Management Statement

Notice of Posting of Jury Fees

9/14/2021: Notice of Posting of Jury Fees

Proof of Service (not Summons and Complaint)

9/14/2021: Proof of Service (not Summons and Complaint)

Case Management Statement

9/14/2021: Case Management Statement

Declaration - DECLARATION OF ROBERT BOROWSKI IN SUPPORT OF DEFENDANTS DEMURRER TO COMPLAINT

6/30/2021: Declaration - DECLARATION OF ROBERT BOROWSKI IN SUPPORT OF DEFENDANTS DEMURRER TO COMPLAINT

Request for Judicial Notice

6/30/2021: Request for Judicial Notice

Demurrer - without Motion to Strike

6/30/2021: Demurrer - without Motion to Strike

Proof of Personal Service

6/9/2021: Proof of Personal Service

Notice and Acknowledgment of Receipt

6/3/2021: Notice and Acknowledgment of Receipt

Notice of Case Management Conference

6/3/2021: Notice of Case Management Conference

12 More Documents Available

 

Docket Entries

  • 01/04/2022
  • Hearing01/04/2022 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

    Read MoreRead Less
  • 11/12/2021
  • DocketAmended Complaint ( (1st)); Filed by David J Smith, M.D. (Plaintiff); San Diego Comprehensive Pain Management Center, Inc. (Plaintiff); Pacific Surgical Institute of Pain Management, Inc. (Plaintiff)

    Read MoreRead Less
  • 11/10/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

    Read MoreRead Less
  • 11/10/2021
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Demurrer - without Motion to Strike (DEFENDANTS HENRY R. FENTON AND FENTON LAW GROUP, LLP?S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT;) - Held

    Read MoreRead Less
  • 11/10/2021
  • DocketNotice of Ruling; Filed by Henry R. Fenton, Esq. (Defendant); Fenton Law Group, LLP (Defendant)

    Read MoreRead Less
  • 11/10/2021
  • DocketMinute Order ( (Hearing on Demurrer - without Motion to Strike DEFENDANTS HEN...)); Filed by Clerk

    Read MoreRead Less
  • 11/10/2021
  • DocketOrder (RE: DEFENDANTS' DEMURRER TO THE COMPLAINT); Filed by Clerk

    Read MoreRead Less
  • 11/03/2021
  • DocketReply (DEFENDANTS HENRY R. FENTON AND FENTON LAW GROUP, LLPS REPLY TO PLAINTIFFS OPPOSITION TO DEMURRER TO COMPLAINT); Filed by Henry R. Fenton, Esq. (Defendant); Fenton Law Group, LLP (Defendant)

    Read MoreRead Less
  • 10/28/2021
  • DocketOpposition (of Defs' Demurrer to Complaint); Filed by David J Smith, M.D. (Plaintiff); San Diego Comprehensive Pain Management Center, Inc. (Plaintiff); Pacific Surgical Institute of Pain Management, Inc. (Plaintiff)

    Read MoreRead Less
  • 10/14/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by Matthew Rifat (Attorney)

    Read MoreRead Less
18 More Docket Entries

Tentative Rulings

b"

Case Number: 21STCV19559 Hearing Date: November 10, 2021 Dept: 26

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

Superior Court of California

\r\n\r\n

County of Los Angeles

\r\n\r\n

Department 26

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n
\r\n

\r\n

DAVID J. SMITH, M.D.; SAN DIEGO\r\n COMPREHENSIVE PAIN MANAGEMENT CENTER, INC.; and PACIFIC SURGICAL INSTITUTE OF\r\n PAIN MANAGEMENT, INC.

\r\n

Plaintiffs,

\r\n

v.

\r\n

\r\n

HENRY R. FENTON; FENTON LAW GROUP,\r\n LLP; et al.,

\r\n

Defendants.

\r\n
\r\n

\r\n

Case No.: 21STCV19559

\r\n

\r\n

Hearing Date: November 10, 2021

\r\n

\r\n

[TENTATIVE] ORDER RE:

\r\n

DEFENDANTS’\r\n DEMURRER TO THE COMPLAINT

\r\n
\r\n\r\n

\r\n\r\n

Procedural\r\nBackground

\r\n\r\n

On May 24, 2021, Plaintiffs David J. Smith, M.D. (“Dr. Smith”), San\r\nDiego Comprehensive Pain Management Center, Inc. and Pacific Surgical Institute\r\nof Pain Management, Inc. (collectively “Plaintiffs”) filed the instant legal\r\nmalpractice action against Defendants Henry R. Fenton and Fenton Law Group (jointly\r\n“Defendants”). The Complaint asserts a\r\nsingle cause of action for negligence.

\r\n\r\n

On June 30, 2021, Defendants filed the instant demurrer to the\r\ncomplaint. On October 28, 2021,\r\nPlaintiffs filed an opposition. On November\r\n3, 2021, Defendants filed a reply.

\r\n\r\n

\r\n\r\n

Factual\r\nBackground

\r\n\r\n

The complaint alleges that:

\r\n\r\n

Plaintiff Dr. Smith “is a California\r\nlicensed physician and surgeon who specializes in pain management. As a\r\npart of that practice of managing chronic, intractable pain, Dr. Smith has\r\nprescribed pain medications delivered through a number of different means. (Complaint ¶ 1.)

\r\n\r\n

“On April 27, 2018, the Medical\r\nBoard filed an Accusation against Dr. Smith’s medical license. On February 13,\r\n2019, the Medical Board filed an Amended Accusation.” (Id. ¶ 6.) \r\nIn this Accusation, the Medical Board accused Dr. Smith of improperly\r\nadministering pain medication on his patients. \r\n(Id. ¶¶ 2, 4, 9.)

\r\n\r\n

On June 25, 2020,\r\nAdministrative Law Judge Vallera J. Johnson, completed her Proposed Decision in\r\nthe captioned matter and recommended discipline against Dr. Smith’s license to\r\npractice medicine.” (Id. ¶ 7.) “The Decision excluded expert testimony from\r\nDr. Smith’s expert, Jack Berger, M.D., having concluded that Dr. Smith’s expert\r\ndesignation, prepared by the Defendants, did not provide an expert report\r\nrequired by section 2334 of the Business & Professions Code. That exclusion\r\nwas made at the outset of the administrative trial by sustaining a motion to\r\nexclude evidence by the Medical Board. Dr. Smith attempted to mitigate the\r\ndamage of the exclusion of his expert by engaging the undersigned to\r\nparticipate in trial and offering his own expert testimony and that of two\r\npercipient witness physicians—all of which were rejected by the Medical Board.” (Id. ¶ 10.)

\r\n\r\n

This was because the Administrative\r\nLaw Judge applied the amended Business Code “section 2334 and excluded Dr.\r\nSmith’s expert testimony because the expert designation prepared and served by\r\nthe Defendants did not comply with section 2334 and was woefully inadequate.” (Id. ¶ 14.) “Defendants failed to prepare, submit, and\r\nserve an expert designation as they were obliged to do within the provisions of\r\nlaw applicable at the time and, consequently, Dr. Smith was deprived of expert\r\ntestimony to support his defense. It is more likely than not that, had Dr.\r\nSmith been able to present his expert testimony, he would have prevailed in the\r\nadministrative trial and would not have been disciplined.” (Id. ¶ 15.)

\r\n\r\n

The decision was adopted by the\r\nMedical Board as final and became effective on September 24, 2020. (Id. ¶¶ 7-8.)

\r\n\r\n

\r\n\r\n

Request\r\nfor Judicial Notice

\r\n\r\n

Defendants request\r\nthat the Court take Judicial Notice of:

\r\n\r\n
  1. The Complaint in\r\nthe instant action

  2. The pleadings and documents in the administrative\r\naction, captioned In the Matter of the First Amended Accusation\r\nAgainst David James Smith, M.D., Physician’s & Surgeon’s Certificate No. G\r\n66777, Medical Board of California Case No. 800- 2015-013651

  3. The pleadings and documents in the Superior Court\r\naction, captioned David J. Smith, M.D. v. Medical Board of\r\nCalifornia, Los Angeles County Superior Court Case No. 20STCP03757

  4. The pleadings and\r\ndocuments in the administrative action, captioned In the Matter of the Accusation\r\nAgainst David James Smith, M.D., Physician’s & Surgeon’s Certificate No. G\r\n66777, Medical Board of California Case No. 800-2018-042234.

\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n

\r\n\r\n

As\r\nthe court may take judicial notice of records filed with any state or federal\r\ncourt or by any state and issues not up for reasonable debate, (See\r\nEvid. Code, § 452(c), (d)), the Court grants Defendants’ requests for judicial\r\nnotice. However, the Court cannot take judicial notice of the truth of the\r\nmatter asserted therein. (See Herrera v. Deutsche Bank National Trust Co.\r\n(2011) 196 Cal.App.4th 1366, 1375.)

\r\n\r\n

\r\n\r\n

Legal Standard

\r\n\r\n

A demurrer can\r\nbe used only to challenge defects that appear on the face of the pleading under\r\nattack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311,\r\n318.) No other extrinsic evidence can be considered (i.e., no “speaking\r\ndemurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d\r\n868, 881.)

\r\n\r\n

A demurrer for\r\nsufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th\r\n740, 747.) When considering demurrers,\r\ncourts read the allegations liberally and in context. (Taylor\r\nv. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th\r\n1216, 1228.) In a demurrer proceeding,\r\nthe defects must be apparent on the face of the pleading or via proper judicial\r\nnotice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968,\r\n994.) “A demurrer tests the pleadings\r\nalone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects\r\nappear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153\r\nCal. App. 3d 902, 905.) “The only issue\r\ninvolved in a demurrer hearing is whether the complaint, as it stands, unconnected\r\nwith extraneous matters, states a cause of action.” (Hahn, supra, 147\r\nCal.App.4th at 747.)

\r\n\r\n

A special demurrer\r\nfor uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will\r\nonly be sustained where the pleading is so bad that defendant cannot reasonably\r\nrespond—i.e., cannot reasonably determine what issues must be admitted or\r\ndenied, or what counts or claims are directed against him/her. (Khoury\r\nv. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat\r\nvague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

Meet and Confer Requirement

\r\n\r\n

Code of Civil\r\nProcedure section 430.41, subdivision (a) requires that “[b]efore filing a\r\ndemurrer pursuant to this chapter, the demurring party shall meet and confer¿in\r\nperson or by telephone¿with the party who filed the pleading that is subject to\r\ndemurrer for the purpose of determining whether an agreement can be reached\r\nthat would resolve the objections to be raised in the demurrer.” The parties\r\nare to meet and confer at least five days before the date the responsive\r\npleading is due and if they are unable to meet the demurring party shall be\r\ngranted an automatic 30-day extension. (CCP § 430.41(a)(2).) The\r\ndemurring party must also file and serve a declaration detailing the meet and\r\nconfer efforts. (Id.¿at\r\n(a)(3).)¿ If an amended pleading is filed, the parties must meet and confer\r\nagain before a demurrer may be filed to the amended pleading. (Id.¿at (a).)

\r\n\r\n

The Court\r\nnotes that Defendants have fulfilled the meet and confer requirement. (Borowski Decl. ¶¶ 3-5, Ex. 1.)

\r\n\r\n

\r\n\r\n

Discussion

\r\n\r\n

Duty Owed to the Corporate Plaintiffs

\r\n\r\n

Defendants contend that they did not owe any duty\r\nto Plaintiffs San Diego Comprehensive Pain Management Center, Inc. and\r\nPacific Surgical Institute of Pain Management, Inc. (jointly “Corporate\r\nPlaintiffs”).

\r\n\r\n

“The failure to provide competent\r\nrepresentation in a civil or criminal case may be the basis for civil liability\r\nunder a theory of professional negligence. In a legal malpractice action\r\narising from a civil proceeding, the elements are (1) the duty of the attorney\r\nto use such skill, prudence, and diligence as members of his or her profession\r\ncommonly possess and exercise; (2) a breach of that duty; (3) a proximate\r\ncausal connection between the breach and the resulting injury; and (4) actual\r\nloss or damage resulting from the attorney's negligence.” (Coscia\r\nv. McKenna & Cuneo (2001) 25 Cal.4th\r\n1194, 1199.) “The general rule with\r\nrespect to the liability of an attorney for failure to properly perform his\r\nduties to his client is that the attorney, by accepting employment to give\r\nlegal advice or to render other legal services, impliedly agrees to use such\r\nskill, prudence, and diligence as lawyers of ordinary skill and capacity\r\ncommonly possess and exercise in the performance of the tasks which they\r\nundertake.” (Lucas v. Hamm (1961) 56 Cal.2d\r\n583, 591.)

\r\n\r\n

However,\r\nthere can be no such liability unless defendant owed a duty to\r\nplaintiffs to avoid the asserted wrongdoings. (2) Whether such a duty existed\r\nis a question of law and depends on a judicial weighing of the policy\r\nconsiderations for and against the imposition of liability under the\r\ncircumstances.” (Goodman v. Kennedy (1976)\r\n18 Cal.3d 335, 342.)

\r\n\r\n

However, privity of contract is not\r\nrequired. Rejecting the\r\nrequirement of privity, [the Supreme Court] said in Biakanja: ‘The\r\ndetermination whether in a specific case the defendant will be held liable\r\nto a third person not in privity is a matter of policy and involves the\r\nbalancing of various factors, among which are the extent to which the\r\ntransaction was intended to affect the plaintiff, the foreseeability of harm to\r\nhim, the degree of certainty that the plaintiff suffered injury, the closeness\r\nof the connection between the defendant's conduct and the injury suffered, the\r\nmoral blame attached to the defendant's conduct, and the policy of preventing\r\nfuture harm.’ ” (Goodman, supra, 18\r\nCal.3d at pp.342–343.) However, “[c]ourts\r\nhave generally disregarded the ‘moral blame’ factor in evaluating an\r\nattorney's duty to a nonclient.” (Chang v. Lederman (2009)\r\n172 Cal.App.4th 67, 83, Fn.7.) Instead,\r\ncourts have replaced that factor with the “burden on the profession” factor\r\ndiscussed in Lucas\r\nv. Hamm (1961) 56 Cal.2d\r\n583. (Osornio v. Weingarten (2004)\r\n124 Cal.App.4th 304, 321, Fn. 15.)

\r\n\r\n

“[T]hese factors are: ‘[1] the extent to which\r\nthe transaction was intended to affect the plaintiff, [2] the foreseeability of\r\nharm to him, [3] the degree of certainty that the plaintiff suffered injury,\r\n[4] the closeness of the connection between the defendant's conduct and the\r\ninjury ... [5] the policy of preventing future harm’ [Citation.], and [6] ‘whether\r\nthe recognition of liability [to the wrong alleged] would impose an undue\r\nburden on the profession.’ ” (Osornio, supra, 124\r\nCal.App.4th at p.330.)

\r\n\r\n

Here, as noted in the complaint and judicially\r\nnoticeable record, the accusation by the Medical Board was against only Dr.\r\nSmith. (Complaint ¶ 6; see also\r\nRequest for Judicial Notice “RJN” B, [First Amended Accusation against Dr.\r\nSmith].) Moreover, the complaint admits\r\nthat Corporate Plaintiffs are third parties. \r\n(Complaint ¶ 16, [referring to Corporate Plaintiffs as “foreseeable third parties San\r\nDiego Comprehensive Pain Management Center, Inc. and Pacific Surgical Institute\r\nof Pain Management, Inc.”] [italics added].) \r\nHere, the only allegation as to the relation of the Corporate Plaintiffs\r\nto the instant action is that “[a]t all relevant times, Dr. Smith has practiced\r\nand continues to practice through a professional medical corporation, San Diego Comprehensive Pain\r\nManagement Center, Inc. and has performed [and] continues to perform surgical\r\nprocedures nearly exclusively at Pacific Surgical Institute of Pain Management,\r\nInc.” (Id. ¶ 1.)

\r\n\r\n

Under the Biakanja/Lucas\r\nfactors, the Complaint fails to allege that Defendants owed a duty to the\r\nCorporate Plaintiffs. As to the first\r\nfactor, there is no allegation as to how the extent of Defendants’ representation\r\nof Plaintiff Dr. Smith was to affect the Corporate Plaintiffs. The alleged harm was the representation of\r\nDr. Smith for accusations against his medical license -- not the Corporate\r\nPlaintiffs. (Complaint ¶ 6; RJN B.) There is no allegation to support the\r\ncontention that Corporate Plaintiffs were intended beneficiaries of Defendants’\r\nrepresentation of Dr. Smith. Rather, the\r\ncomplaint merely alleges that Dr. Smith works for the Corporate\r\nPlaintiffs. (Complaint ¶ 1.) Thus, at most, the complaint alleges that the\r\nCorporate Plaintiffs were incidental beneficiaries.[1]

\r\n\r\n

As to the second factor, the complaint merely alleges that the harm was “foreseeable\r\n[to] third parties San Diego Comprehensive Pain Management Center, Inc. and\r\nPacific Surgical Institute of Pain Management, Inc.” (Complaint ¶ 16.) Merely alleging that Defendants’ harm was\r\nforeseeable to the Corporate Plaintiffs is insufficient as “[t]he court does\r\nnot … assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992)\r\n2 Cal.4th 962, 967.) There are no facts\r\nalleged as to why it foreseeable.

\r\n\r\n

As to the third factor, the complaint adequately alleges the certainty of\r\nloss by the Corporate Plaintiffs. Here,\r\nthe complaint alleges that but for Defendant’s failure to properly prepare,\r\nsubmit, and serve an expert designation, Dr. Smith would have prevailed in the\r\nadministrative trial and would not have been disciplined. (Complaint ¶ 15.) This discipline “gutt[ed] his ability to\r\npractice as a pain management physician,” causing harm to Plaintiffs. (Id. ¶ 16.) Thus, the alleged harm is\r\ncertain.

\r\n\r\n

However, as to the fourth factor, it is unclear the degree in closeness\r\nbetween the alleged harm, the discipline of Dr. Smith and the harm to Corporate\r\nPlaintiffs. There is no allegation as to\r\nhow the discipline gutting Dr. Smith’s ability to practice as a pain management\r\nphysician caused significant harm to the Corporate Plaintiffs. Nor are there allegations that show how Dr.\r\nSmith and the Corporate Plaintiffs are so inextricably intertwined that harm to\r\nDr. Smith is harm to the Corporate Plaintiffs.

\r\n\r\n

Finally, as to the fifth and sixth factors– the policy of preventing\r\nfuture harm and undue burden on the legal profession– the directly injured\r\nparty Dr. Smith is a Plaintiff. No facts\r\nhave been alleged as to why the Corporate Plaintiffs are necessary to prevent\r\nfuture harm. Further, the complaint does\r\nnot allege why the Corporate Plaintiffs are necessary in the instant action. Without further allegations, allowing the\r\nCorporate Plaintiffs who are alleged as nothing more than employers of Dr.\r\nSmith, (Complaint ¶ 1), would be equivalent to allowing any employer to sue for\r\nlegal malpractice for harm to their employee, greatly expanding legal\r\nmalpractice to incidental third parties.

\r\n\r\n

In\r\nsum, the weight of the facts, as the complaint is currently alleged, does not\r\nsupport a finding of a duty owed by Defendants to the Corporate\r\nPlaintiffs. Accordingly, Defendants’\r\ndemurrer is SUSTAINED.

\r\n\r\n

\r\n\r\n

Leave to Amend

\r\n\r\n

Leave to amend\r\nmust be allowed where there is a reasonable possibility of successful\r\namendment. (Goodman\r\nv. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff\r\nto show the court that a pleading can be amended successfully. (Goodman v. Kennedy,\r\nsupra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244\r\nCal.App.4th 118, 226.)

\r\n\r\n

Here, this is\r\nthe first time that the Court has sustained a demurrer on these grounds. Therefore,\r\nthe court finds it is proper to allow Plaintiff an opportunity to cure the defects\r\ndiscussed in this order by amending the complaint as discussed in this order.\r\n(See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Kong v. City of\r\nHawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

CONCLUSION AND ORDER

\r\n\r\n

Based on the foregoing, Defendants\r\nHenry R. Fenton and Fenton Law Group’s demurrer is SUSTAINED WITH LEAVE TO\r\nAMEND.

\r\n\r\n

Plaintiff is to file an amended\r\ncomplaint within twenty days of notice of this order.

\r\n\r\n

The\r\ncase management conference is continued to January 4, 2022 at 8:30 am.

\r\n\r\n

Moving Parties are to give notice and\r\nfile proof of service of such.

\r\n\r\n

\r\n\r\n

DATED: November 10, 2021 _____________________________

\r\n\r\n

Elaine\r\nLu

\r\n\r\n

Judge\r\nof the Superior Court

\r\n\r\n

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1] In\r\nopposition, Plaintiff states that Dr. Smith is the sole owner of the Corporate\r\nDefendants and thus inextricably intertwined. \r\nHowever, this is outside the complaint as it is not alleged. (Ion Equipment Corp., supra, 110\r\nCal.App.3d at p.881, [No extrinsic evidence can be considered on demurrer].) Regardless, this alone would be insufficient\r\nas Corporate Entities are separate legal entities from their owners. Merely being the majority/sole owner of the\r\nCorporate Plaintiff does not as a matter of law make Dr. Smith and the\r\nCorporate Plaintiffs inextricably intertwined as allegations that a person owns all or a majority of the corporate stock\r\nand makes all the management decisions is insufficient on its own to cause the\r\ncourt to disregard the corporate entity. (Meadows\r\nv. Emett & Chandler (1950) 99 Cal.App.2d 496, 499.) Rather, facts must be alleged to show as\r\nsuch.

\r\n\r\n
\r\n\r\n
\r\n\r\n"
related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where FENTON LAW GROUP, LLP is a litigant

Latest cases where PACIFIC SURGICAL INSTITUTE OF PAIN MANAGEMENT INC is a litigant

Latest cases represented by Lawyer RIFAT MATTHEW