Case Number: *******2984 Hearing Date: July 8, 2022 Dept: 30
Department 30, Spring Street Courthouse
July 8, 2022
Demurrer with Motion to Strike filed by Defendant Roger Thai
The demurrer is overruled.
The motion to strike is granted.
An answer must be filed within 30 days after the date of this order.
Moving party is ordered to provide notice.
On April 19, 2022, Plaintiff Monica Molina (hereinafter “Plaintiff”) filed a Complaint against Roger Thai (hereinafter “Defendant”) alleging : (1) general negligence, (2) intentional tort and (3) breach of contract, and is seeking compensatory and punitive damages. (Compl., p. 4-5). The punitive damages are requested with respect to only the second cause of action, intentional tort.
This case arises out of an incident that took place in 2020 when Defendant, a dentist, extracted Plaintiff’s right front tooth to replace it with an implant and the result led to Plaintiff having to seek a new implant from another provider.
Defendant demurs to Plaintiff’s Second Cause of Action for Intentional Tort and Third Cause of Action for Breach of Contract on the grounds that neither cause of action state sufficient facts to allege a cause of action under CCP 430.10(e).
Additionally, Defendant argues that each of Plaintiff’s allegations are duplicative, and the facts actually only give rise to a single cause of action. (Demurrer, p. 5).
Finally, Defendant moves to strike the claim for punitive damages.
A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action, or as used in this subdivision, is “uncertain,” which includes ambiguous and unintelligible. (Code of Civ. Proc. 430.10(e), (f)).
When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)
Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. (CCP, 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, 436(a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)
In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, 3294, subd. (a).)
“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)
“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)
California Code of Civil Procedure Section 425.13 requires plaintiffs to seek leave of the court prior to alleging punitive damages against a healthcare provider if the actions at issue arise out of the professional negligence of that healthcare provider.
Identifying a cause of action as an intentional tort does not in and of itself remove that cause of action from the coverage of Section 425.13. Intentional misrepresentations relating to the provision of medical care are covered by Section 425.13. (Divino Plastic Surgery, Inc. v. Superior Court (2022) 78Cal.App.5th 972.)
Second Cause of Action: Intentional Tort
Although Plaintiff, attorney in pro per, does not label the particular intentional tort alleged, the facts alleged appear to be an allegation of intentional misrepresentation by Defendant.
The elements for a cause of action for intentional misrepresentation are (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (See Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [52 Cal.Rptr.2d 650] [combining misrepresentation and scienter as a single element]) “Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other.” (See City of Atascadero v. Merrill Lynch, Pierce,
Fenner & Smith (1998) 68 Cal.App.4th 445, 482).
In Plaintiff’s Complaint, she alleges that the procedure to extract her front tooth was “. . . undergone on the representation by [Defendant] to [Plaintiff] that he was the business partner of [Plaintiff’s] previous dentist, Richard Glassman.” (Compl., p. 2, 1). “[Defendant] misrepresented his relationship with Richard Glassman.” (Id). “[Defendant’s] misrepresentation. . . turned out to be false. . .[and]in reliance to these falsehoods, [Plaintiff] agreed to have emergency dental services performed on her to her damage and detriment. (Id). “Such conduct by [Defendant] was done with malice, oppression, and fraud.” (Id). [Defendant] had ample opportunity to cure his breaches but maliciously and oppressively ignored [Plaintiff’s] communications.” (Id).
These allegations are sufficient allege a cause of action for intentional misrepresentation.
Third Cause of Action: Breach of Contract
“To prevail on a cause of action for breach of contract, the plaintiff must prove
(1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (See Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.
Here, Plaintiff alleges essentially that she had a contract with Defendant to replace her extracted tooth with a working implant. Plaintiff alleges that she paid $6,000 for the work, but that the implant was done improperly and had to be replaced by another dentist.
Here, Plaintiff has made out a sufficient claim for breach of contract.
The fact that the same or similar conduct may give rise to more than one cause of action does not mean that a Plaintiff may only go forward only with one cause of action.
It is not improper for Plaintiff two pursue simultaneously both causes of action, particularly at this pleading stage.
Motion to Strike
The motion to strike punitive damages is granted. Pursuant to Section 425.13, Plaintiff must file a motion to seek permission to allege punitive damages.