Motion to Strike
3rd cause of action (unjust enrichment): Unjust enrichment can be asserted as a claim. (Lectrodryer v. SeoulBank (2000) 77 Cal. App. 4th 723, 726; compare Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) The complaint states facts sufficient to constitute this cause of action, which is pleaded as an equitable claim and alternative to the other causes of action. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 [elements]; see also FAC ¶ 42.) The demurrer is therefore OVERRULED as to this cause of action.
4th cause of action (fraud and deceit): The complaint states facts sufficient to constitute this cause of action. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements]; see also FAC ¶¶ 45-48.) Defendants improperly dispute Plaintiff’s allegations and rely on extrinsic evidence outside the four corners of the pleading. The demurrer is therefore OVERRULED as to this cause of action.
Counsel for Plaintiff shall give notice of this ruling. 12 Chapple v. Before the court is a motion to strike filed by defendants LaserAway Laseraway Medical Group, Inc. dba LaserAway (LaserAway); Roy S. Winston, Medical Group, M.D.; and Ritu Chopra, M.D. (collectively, Defendants) directed to Inc the second amended complaint (SAC) of plaintiff Dwayne Chapple (Plaintiff). For the reasons set forth below, the motion is DENIED.
Defendants move to strike the claim for punitive damages in the SAC. Punitive damages are sought in connection with the causes of action for fraud and battery and are alleged against LaserAway only. (See SAC ¶¶ 78, 93; Opp. at p. 9:15-18.)
It is not clear from the allegations in the SAC that Code of Civil Procedure section 425.13 applies. The SAC does not plead facts showing that LaserAway is a licensed healthcare provider within the meaning of Section 425.13. The SAC does not allege LaserAway is a licensed medical facility or that the individuals who performed the procedure on Plaintiff were licensed health care providers. The SAC, in fact, alleges LaserAway misrepresented that its procedures would be performed by “licensed physicians or other licensed practitioners” and also alleges LaserAway is “illegally practicing medicine.” (SAC ¶¶ 48, 69.)
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In addition, while the SAC names two licensed physicians as defendants, Plaintiff does not allege that these physicians made any misrepresentations to Plaintiff regarding his care and treatment or that these physicians performed the laser hair removal procedure on Plaintiff. The fraud and battery claims, thus, do not appear to be premised on the rendering of professional services by these two physician defendants. It thus does not appear to the Court that Section 425.13 is triggered by the inclusion of these two physician defendants.
In terms of Defendants’ argument that Plaintiff has not alleged sufficient facts to demonstrate that LaserAway acted with malice, fraud, or oppression, punitive damages may be available under the
fraud cause of action, which is adequately pleaded. (Civ. Code §3294(a).)
Defendants argue that the SAC fails to plead that any officer, director, or managing agent of LaserAway knew of, authorized, or ratified the specific conduct at issue, or personally engaged in the act of oppression, fraud or malice. (Civ. Code §3294(b).) The Court finds the allegations of the SAC sufficient.
“Ratification is a fact question and may be proved by circumstantial evidence.” (Siva v. Gen. Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 159.)
The SAC alleges that LASERAWAY made false statements on its website and social media, and through its employees Elizabeth Stump, Christa Reed, Nancy Dorado, Jennifer Salgado, Leah Becker, and Megan Martinez.” SAC ¶ 68. These allegations—that company advertising and no less than six employes repeated the same fraudulent statements—is sufficient to create an inference that the statements were made in support of a company policy created or authorized by a managing agent. (See Ibid. (“Regardless of his official title, a managing agent is an individual who has the discretion to act in ‘... a managerial capacity ... [by] making decisions that will ultimately determine corporate policy.’”))
The motion to strike is DENIED.
Plaintiff is ordered to give notice of this ruling. 13 Morton v. O/C Volkswagen Group of America, Inc. 14 Sanchez v. O/C 2J’s Lounge 15 16 17 18 19 20 21