Ismail, Sellam v. Jang DDS Inc.

A party may demur where the pleading does not state facts sufficient to constitute a cause of action or where the pleading is uncertain. (Code Civ. Proc., § 430.10, subds. (e), (f).) A pleading is “uncertain” if it is ambiguous and unintelligible. (Id. at subd. (f).) A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed true no matter how improbable they may seem. (Del E.

Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The court may only refer to matters outside the pleading that are subject to judicial notice. (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1223.)

Breach of Contract

Plaintiff’s second cause of action alleges breach of contract. To state a cause of action for breach of contract, plaintiff must plead the existence of a contract, his performance of the contract or excuse for nonperformance, defendant's breach and resulting damage. Where the existence of a written contract is alleged, plaintiff must attach and incorporate by reference a copy of the written agreement, or set out the terms verbatim. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)

Plaintiff alleges, “On or about September 27, 2024, Plaintiff had a scheduled appointment at Defendant Smile Time Dental's office in Rocklin, California, at 1:00 p.m. for the installation of a dental crown and to address the cracked tooth. Plaintiff was directed to check in via a computer terminal, requiring electronic acknowledgment of a form with statements plaintiff could not agree to, including confirmation that the fit of the uninstalled crown was satisfactory and acknowledgment of information not yet received.

These clauses were impossible to affirm prior to receiving services. Plaintiff raised concerns with the receptionist, noting a similar issue during a prior visit where offending clauses were removed to allow signing. The receptionist initially offered to print the form for manual edits but later claimed she could not. She contacted the office owner, who was reportedly ‘in a meeting,’ and informed Plaintiff that services would not be provided without signing the form. An implied or express contract existed between Plaintiff and defendants for dental services, including the crown procedure and treatment of the infected tooth, based on the scheduled appointment, prior visits, and prescription of antibiotics.

Plaintiff performed all obligations, including arriving on time and taking prescribed medication. defendants breached by denying service, canceling the appointment without cause, failing to treat the infected tooth, and terminating the relationship, which contributed to Plaintiff's stroke and cancellation of hernia surgery. As a proximate result, Plaintiff suffered damages in an amount to be proven at trial.” (Complaint ¶¶ 9, 11-12, 29-32.)

The Court of Appeal has outlined how a party may show the existence of an enforceable contract:

Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.” (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.) “To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (Ladas v.

California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770; Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407.) “Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” (Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481, 289 P.2d 785; Civ. Code, § 1598; see also Ladas, supra, 19 Cal.App.4th at p. 770.) “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Rest.2d Contracts, § 33, subd. (2); (accord Weddington Productions, Inc. v.

Flick (1998) 60 Cal.App.4th 793, 811.) But “[i]f ... a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” (Weddington Productions, Inc., supra, 60 Cal.App.4th at p. 811.)

Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.

Plaintiff has not pled the terms of the alleged contract; plaintiff’s performance or excused nonperformance; and plaintiff has not linked the alleged damages to defendant’s conduct.

As to the second cause of action for breach of contract, the demurrer is sustained.

Fraud

Plaintiff’s third cause of action alleges fraud. To establish a fraud claim, plaintiff must allege (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud or induce reliance, (4) justifiable reliance, and (5) resulting damage. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Each element must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff pleads facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Plaintiff fails to allege all elements of his fraud claim with specificity. Further, as pled this claim is uncertain. As to the third cause of action for fraud, the demurrer is sustained.

Intentional Infliction of Emotional Distress

Plaintiff’s fourth cause of action alleges intentional infliction of emotional distress. Plaintiff must allege “extreme and outrageous conduct,” meaning conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Schlauch v. Hartford Acc. & Indemnity Co. (1983) 146 Cal.App.3d 926, 936.) Plaintiff must also allege that he suffered severe or extreme emotional distress as a result of the defendant's conduct. This distress must be significant and not trivial or fleeting. (Safechuck v.

MJJ Productions, Inc. (2023) 94 Cal.App.5th 675, 697.) Here, plaintiff fails to allege extreme and outrageous conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Further, plaintiff fails to allege facts supporting the contention that he suffered severe or extreme emotional distress as a result of defendant’s actions. As to the fourth cause of action for intentional infliction of emotional distress, the demurrer is sustained.

Violation of Bus. & Prof Code § 17200

Defendant states plaintiff’s fifth cause of action for violation of Business and Professions Code § 17200 is ambiguous, unintelligible, and fails to allege facts sufficient to constitute this cause of action.

Plaintiff alleges, “Defendants engaged in unlawful, unfair, and fraudulent business practices, including deceptive forms, denial of care, failure to treat an infected tooth to be a violation of the Dental Practice Act (Bus. & Prof Code § 1680), and retaliation, harming plaintiff (including causing or contributing to the stroke and cancellation of hernia surgery) and the public. Plaintiff seeks injunctive relief, restitution, and attorney fees (if applicable). (Complaint ¶¶ 44-45.)

“[A]n action under the Unfair Competition Law (UCL) ‘is not an all-purpose substitute for a tort or contract action ... Prevailing plaintiffs are generally limited to injunctive relief and restitution. [Citations.] Plaintiffs may not receive damages ... or attorney fees.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Ca1.4th 163, 179.) “Restitution under [BPC] section 17203 is confined to restoration of any interest in ‘money or property, real or personal, which may have been acquire by means of such unfair competition.’ A restitution order against a defendant thus requires both that money or property have been lost by a plaintiff, on the one hand, and that it have been acquired by a defendant, on the other.” (Zhang v. Superior Court (2013) 57 Ca1.4th 364, 371.)

Plaintiff fails to allege sufficient facts showing a causal link between the alleged UCL violations and the injury to plaintiff. As plaintiff’s complaint fails to allege a loss of money or property by plaintiff or a gain of money or property by defendant, plaintiff would have no equitable recovery. It is similarly unclear what injunctive relief is sought.

As to the fifth cause of action for violation of Business and Professions Code § 17200, the demurrer is sustained.

Breach of Fiduciary Duty

The elements of a breach of fiduciary duty claim are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395.)

The complaint alleges plaintiff arrived for a dental appointment, refused to sign the requested form, and had future services cancelled. (Complaint ¶¶ 44-45.) These allegations are insufficient to plead the elements of a claim for breach of fiduciary duty.

As to the sixth cause of action for breach of fiduciary duty, defendant’s demurrer is sustained.

Defendant’s motion to strike

Prayer for punitive damages

Defendant moves to strike the prayer for punitive damages.

Punitive damages are recoverable in fraud actions which allege fraud by concealment of material facts. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1241; Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 946-947.) Furthermore, plaintiffs need not prove all of the concealments or misrepresentations pleaded. It is adequate that the evidence supports one material fraudulent concealment or misrepresentation of fact. Oakes v. McCarthy Co., 267 Cal. App. 2d 231, 261, 73 Cal. Rptr. 127 (Ct. App. 1968). The allegations of entitlement to punitive damages based on fraud cannot be read in isolation but rather must be read in the context of all of the facts alleged in the entirety of the pleading. Clauson v. Superior Court (1998) 67 Cal. App.4th 1253, 1255; Perkins v. Superior Court (1981) 117 Cal. App.3d 1, 6.).

As stated above, plaintiff fails to allege the elements of his fraud claim with specificity. Therefore, defendant’s motion to strike the prayer for punitive damages is granted.

Conclusion

In summary, defendant’s demurrer is sustained with leave to amend. Defendant’s motion to strike the prayer for punitive damages is granted. Any amended complaint shall be filed and served within ten days of service of notice of entry of order.

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