James R. Viglione, individually and as successor-in-interest for Jeanne M. Viglione vs. Dignity Health - Glendale Memorial Hospital and Health Center, et al.

It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, supra, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) "All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action." (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)¿

In a demurrer, the court "may also look to exhibits attached to the complaint for operative facts. [Citation.] And because the 'allegations that we accept as true necessarily include the contents of any exhibits attached to the complaint, . . . in the event of a conflict between the pleading and an exhibit, the facts contained in the exhibit take precedence over and supersede any inconsistent or contrary allegations in the pleading.' [Citation.]" (Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 596-97.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, "[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend." (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

II. Meet and Confer Per the declarations of Defendant's counsel Shari I. Weintraub, it does not appear that counsel for the parties met and conferred in person, via telephone, or by video conference. (See Weintraub Decl. P. 9.) Nevertheless, "[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (Code Civ. Proc. Sec. 430.41, subd. (a)(4).)

III.

Discussion

A. Fraudulent Concealment and Intentional Misrepresentation "The elements of fraud are misrepresentation, knowledge of falsity, intent to induce reliance on the misrepresentation, justifiable reliance on the misrepresentation, and resulting damages." (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 803 [citing Lazar v. Superior Court (1996) 12 Cal.4th 631].)

"In California, fraud must be pled specifically; general and conclusory allegations do not suffice." (Lazar, supra, 12 Cal.4th at p. 645.) The particularity requirement necessitates that facts be pleaded that show how, when, where, to whom, and by what means of the representations that were allegedly tendered. (Ibid.)

Further, "[a] plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must 'allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.' " (Id. [quoting Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157].)

Here, Plaintiff's causation and damages claims lack sufficient factual support. Plaintiff contends that, as a result of the alleged concealment, he believed that the cause of his mother's death was related to a stroke diagnosis and that no further autopsy was necessary given the coroner's findings. (FAC P. 34.) At the same time, Plaintiff alleges that he wished to have an autopsy because "this was a case clearly needing an autopsy" and that "defendants prevented plaintiff from having an autopsy." (Id.)

The conclusory statement that Defendants prevented him from proceeding with a private autopsy must be explained given that, at the time, Plaintiff believed an autopsy was "clearly" needed. Moreover, given the detailed recitation of the events leading to Plaintiff's decedent's death (see, e.g., FAC P.P. 8), it is unclear precisely what may have been learned through an autopsy and how that information would have avoided Plaintiff's claims of "delayed sense of closure, grieving process...delayed justice [and] emotional distress..." (FAC P. 38)

Plaintiff's fraud claims appear to be a creative means of alleging tortious spoliation, a tort that has been uniformly rejected in California. (Cedars-Sinai Med. Ctr. v. Superior Ct. (1998) 18 Cal. 4th 1 [finding no tort remedy exists for first-party intentional spoliation]; Temple Cmty. Hosp. v. Superior Ct. (1999)20 Cal. 4th 464 [holding no tort remedy for third-party intentional spoliation]; Coprich v. Superior Ct. (2000) 80 Cal. App. 4th 1081 [concluding no tort remedy exists for negligent spoliation either].)

Instead, where a party's concealment or destruction of evidence causes delay or loss of a claim, the remedy lies in evidentiary sanctions under California Code of Civil Procedure section 2023.030, not in independent tort damages. At best, Plaintiff's theory of delayed justice might support a claim of equitable tolling (see, e.g., Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal. 4th 623, 744), but that remedy is not necessary for this timely-filed suit.

While this Court could not find a California case finding that a delay in filing suit is a compensable damage in a concealment case, even giving Plaintiff the benefit of the doubt and assuming a Code of Civil Procedure section 364 letter was personally served on the day of the death, the earliest a lawsuit could have been filed would have been on September 12, 2025, and this lawsuit was filed just three months later on December 12, 2025. Based on the allegations in the FAC, there is no independent compensable loss for Plaintiff's concealment claims.

Given that Plaintiff has already unsuccessfully attempted to amend these causes of action and given that no suggestion is made how the FAC may be further amended to state a cause of action, the demurrer to the fourth and fifth causes of action is sustained without leave to amend.

RULING Defendant Dennis G. Chang, D.O.'s Demurrer to Plaintiff's First Amended Complaint is SUSTAINED without leave to amend. Defendant to file his answer to the complaint within 20 days.

Case Number: 26NNCV01550 Hearing Date: August 14, 2026 Dept: T Constantino Abia, an individual vs. Advanced Auto Care, a California business entity of unknown form, et al.

Motion to Set Aside Default Moving Party: Defendant Advanced Auto Care Responding Party: Plaintiff Constantino Abia Tentative Ruling: Grant

BACKGROUND This action arises from the repair of Plaintiff Constantino Abia's ("Plaintiff") vehicle by Defendant Advanced Auto Care ("Defendant"). On June 2, 2026, Defendant's default was entered. Defendant now moves to set aside the default. Plaintiff opposes, and Defendant replies.

ANALYSIS I.

Legal Standard

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a default taken against him through his mistake, inadvertence, surprise, or excusable neglect, and his application must be filed no more than six months after entry of the order from which relief is sought. (Code Civ. Proc. Sec. 473, subd. (b).) ¿¿

A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response.¿ Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.¿ (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d