Demurrer (Judge Thierry Patrick Colaw)


Demurrer of Defendant Tushar Ramnik Doshi to Plaintiffs? Second Amended Complaint:

  1. The demurrer challenge to 1st and 5th causes of action (coas) of the Second Amended Complaint (2nd AC) asserted by plaintiffs is overruled in its entirety.

(a) 1st cause of action for breach of contract (k) is now sufficiently certain, and states a cause of action indicating that Dr. Doshi breached the written monthly purchase and assignment agreements at issue, herein (2nd AC paragraphs 25, 27-32).? Dr. Doshi?s contractual obligation to reimburse plaintiffs for purchased patient accounts that become uncollectible for any reason pursuant to paragraph 2.9 of those agreements and breach by Dr. Doshi, with resulting damages to plaintiffs, are clearly set forth.

 

(b) Requiring plaintiffs to spell out each of many years of monthly purchase and assignment agreements, would result in an unreasonably inflated and unnecessarily cluttered operative pleading.? Such detail can be reasonably be developed by discovery.

 

(c) No statute of limitation bar facially applies here where the misconduct alleged was purportedly continuing and ongoing until the June, 2014. There is an inferential discovery of Dr. Doshi?s alleged wrongdoing by plaintiffs at paragraphs 27, and 30. [See Wyatt v. Union Mortgage Co. (1979) 24 Cal 3d 773, 786.]

Furthermore, if last ?purchase and assignment agreement? with Dr. Doshi was June, 2014 ? even the 8/24/15 Doe 3 Amendment applicable to Dr. Doshi was considerably less than 4 years from that date (4 year deadline applicable to breach of written contract pursuant to CCP ? 337) ? i.e. no complete elimination of these claims, without even needing to confirm the application of the ?relation-back? doctrine.

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(d) The sham pleading doctrine does not apply, since plaintiff has made no ?inconsistent allegations? without explanation. The Opposition papers point out that moving Dr. Doshi need not have been a party to the ?business services agreement?, in order to be a party to the ?monthly purchase and assignment agreements?.

 

While indemnity coa (5th coa) might address the same k obligation addressed by the 1st coa, it is reasonable to infer from the facts and k language pled, that a separate indemnity obligation might exist, separate and apart from the plaintiffs? right to reimbursement if a purchased patient account becomes uncollectable for any reason.? [See 2nd AC paragraphs 30, 54, 56-58.]

 

  1. Moving papers appear to fail to comply with CRC ? 2.104, requiring type not smaller than 12 points.? Defense counsel invited to take note of that observation by the court.? Future failure to comply with that rule, may result in rejection of the motion, itself (in the interests of preserving the eyesight of Judicial Officers and Court Staff).

 

Court, in its discretion, is inclined to rule on this demurrer, despite Opposition indication that moving defendant Dr. Doshi has not complied with ?meet/confer? requirements of new CCP ? 430.41, applicable to demurrers ? as further meet/confer is unlikely to resolve this pleading dispute, in these circumstances.

 

  1. Moving Party Defendant shall answer within 15 days.
  2. Plaintiff Montebello shall give Notice