DEMURRER

 Defendants, with the exception of James Kidong Cho and Tiffani C. Wu, demur to the 1st -13th causes of action, as supplemented by the Short Form Complaints, on the grounds that each cause of action is uncertain and fails to state sufficient facts.

1st, 2nd and 8th causes of action.[1] Defendants demur to the First Cause of Action for Professional Negligence, Second Cause of Action for Lack of Informed Consent and Eighth Cause of Action for Breach of Fiduciary Duty in the ground that the Master Complaint, as supplemented by the short form complaints, fails to establish which specific defendants allegedly owed and breached duties to each individual plaintiff and, further, fails to allege the specific alleged acts giving rise to the claims.

The complaint alleges that Defendants performed unnecessary pulpotomies and crown placements and that the procedures were performed below the standard of care.  Plaintiffs are not required to allege evidentiary facts so, at this pleading stage, the allegations are sufficient to allege negligence, lack of informed consent and breach of fiduciary duty.  The issue of exactly which defendant engaged in exactly what conduct is something that can, and should, be resolved through discovery.  The demurrers to the 1st, 2nd and 8th causes of action are overruled.

3rd cause of action.  Defendants demur to the Third Cause of Action for Battery on the ground that the complaint does not allege absence of consent.  “Battery is an offensive and intentional touching without the victim’s consent.”  Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645.  In the context of medical treatment, ‘a battery occurs if the physician performs a `substantially different treatment’ from that covered by the patient’s expressed consent.”  Kaplan, 162 Cal.App.4th at 647. While plaintiffs do not allege that no consent was given, they do allege that the dental procedures were unnecessary and that there was no informedconsent.  The latter allegation is sufficient because it can reasonably be inferred that a “substantially different treatment” from that covered by the patient’s expressed but uninformed consent, was performed.  The demurrer to the 3rd cause of action for battery is overruled.

4th, 5th and 6th causes of action.  Defendants demur to the Fourth Cause of Action for Intentional Misrepresentation of Material Facts, Fifth Cause of Action for Concealment of Material Facts and Sixth Cause of Action for Negligent Misrepresentation of Material Facts on the ground that they are not pled with the requisite specificity.

Under the facts as alleged, Defendants would have equal or greater knowledge regarding the alleged misrepresentations and concealments.  Accordingly, less specificity is required.

Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217.  The current allegations are sufficient and the demurrers to the 4th, 5th and 6th causes of action are overruled.

7th cause of action.  Defendants demur to the Seventh Cause of Action for Intentional Infliction of Emotional Distress on the ground that the facts alleged do not support a claim of intentional infliction of emotional distress.  “[T]here is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility.  The process evoked by the test appears to be more intuitive than analytical.  Thus, whether conduct is ‘outrageous’ is usually a question of fact.”  So v. Shin (2013) 212 Cal.App.4th 652, 671-672.  So long as a finder of fact could decide that the alleged conduct is outrageous, the claim is sufficiently pled.  Angie M. v. Superior Court (1995) 37 Cal.App.3th 1217, 1226-1227.  Here, Plaintiffs allege that Defendants intentionally performed unnecessary dental surgery on children.  That is sufficient, at this stage, to raise the necessary question of fact and the demurrer to the 7th cause of action is overruled.

9th cause of action.  Defendants demur to the Ninth Cause of Action for Illegal Ownership and Operation of Dental Clinics on a variety of grounds but, primarily on the ground that the code sections upon which Plaintiffs rely are silent as to whether private individuals may file a civil claim.  Neither side provides any authority relating to the statutes which are at issue which are silent as to a private cause of action.  That silence is not determinative and as Defendants did not provide any authority to support their argument, the demurrer to the 9th cause of action is overruled.

10th cause of action.  Defendants demur to the Tenth Cause of Action for Declaratory Relief on the ground that the claim seeks only a judicial determination and the alleged facts do not allow the Court to make the requested determination.  Declaratory relief is a remedy that “operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.”  Babb v. Superior Court (1971) 3 Cal.3d 841, 848.  Plaintiffs allege past wrongs and seek remedies for those wrongs.  Declaratory relief is inappropriate where a party claims a fully matured cause of action for damages.  Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497. The demurrer to the 10th cause of action is sustained with 30 days leave to amend.

11th cause of action.  Defendants demur to the Eleventh Cause of Action for Violations of Business Code § 17200 on the ground that the clinics where the wrongdoing occurred have been sold to third parties, so there is no wrongdoing to be enjoined.  That argument is outside the four corners of the complaint and cannot be considered on demurrer.  Defendants further argue that the claim fails because Plaintiffs have not alleged facts showing any threat of future injury. Threat of future injury is not a prerequisite for a § 17200 claim which allows for restitution and injunctive relief.  The demurrer to the 11th cause of action is overruled.

12th cause of action.  Defendants demur to the 12th cause of action for conspiracy on the ground the individual defendants were employees and corporate employees cannot conspire with her/his corporate employer.  The alleged fact of employment is outside the four corners of the complaint and cannot be considered on demurrer.  Defendants also demur on the ground that conspiracy is not an independent cause of action and, in any case, Plaintiffs do not allege the essential elements of conspiracy.

“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.”  Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.

While it is true that conspiracy is not a cause of action and that allegations as to a conspiracy, like alter ego allegations, are more properly pled under the heading “General Allegations”, sustaining the demurrer so that defendants can move these allegations to a different part of the complaint promotes form over substance which the court is disinclined to do.

As to whether the requirements for a conspiracy have been properly pled, given California’s liberal pleading requirements, Plaintiffs have sufficiently alleged entitlement to recovery under a conspiracy theory. The demurrer to the 12th cause of action is overruled. 

13th cause of action.  Defendants demur to the Thirteenth Cause of Action for Aiding and Abetting on the ground that Plaintiffs have not alleged facts showing that any defendant had actual knowledge of the allegedly wrongdoing.   Liberally construing the complaint, the allegations are sufficient to allege a claim of aiding and abetting.  The demurrer to the 13th cause of action is overruled.

MOTION TO STRIKE

Defendants ask the Court to strike the punitive damages claims from all of the short form complaints because they are alleged without a court order in violation of CCP § 425.13.  Defendants also seek a proscriptive order prohibiting any claim of punitive damages from any coordinated plaintiff who has yet to file a short form complaint, i.e. Andrew Delatorre, Alysia Martinez, Iris Munoz and Jessica Denia Santiago.

Plaintiffs do not oppose the motion except as to Sierra Pacific Dental Consultants, LLC; Gruenbaum Advisory Services, J&G Dental Advisors, LLC; Marsha A. Jacks; John Williams Fehmer, or Samuel Harold Guenbaum.  Plaintiffs assert that the complaint does not allege that those individuals/entities are health care providers within the meaning of CCP § 425.13.

As this is a motion to strike, it must be determined based on the allegations of the complaint.  While the complaint alleges that most of the defendants are health care providers who fall within the parameters of § 425.13, it does not allege that the defendants listed in the prior paragraph are health care providers.  Complaint, ¶¶ 4-6 and 11-13.  Accordingly, the motion to strike is denied as to Sierra Pacific Dental Consultants, LLC; Gruenbaum Advisory Services, J&G Dental Advisors, LLC; Marsha A. Jacks; John Williams Fehmer, and Samuel Harold GuenbaumThe motion to strike is granted and claims for punitive damages are stricken from all complaints as to the remaining defendants.  The motion is granted without prejudiceto Plaintiffs seeking an order to add punitive damages claims at some point in the future.  The Court will not issue the requested proscriptive order but reminds Plaintiffs that they may not seek punitive damages against a healthcare provider without a court order.  CCP § 425.13.

Defendants also seek to strike the entire complaints of the following plaintiffs who, allegedly, have not complied with CRC, Rules 3.520-3.523 to become add-on plaintiffs: Camilla Duarte, Janel Gomez and Martin Rodriguez.  According to the Court’s records, those individuals have not appeared in this action so there is nothing to strike and the motion is denied as to that request.

Plaintiffs to give notice.

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