Opinion
B311588
04-06-2022
VICTORIA MEADOR, Plaintiff and Appellant, v. ELITE PLASTIC SURGERY, INC., Defendant and Respondent.
Victoria Meador, in pro. per.; Huarte Appeals and Anne M. Huarte for Plaintiff and Appellant. Finnegan & Diba, Kasey Diba and Matthew Sichi for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20SMCP00012 Harry Jay Ford III, Judge. Affirmed.
Victoria Meador, in pro. per.; Huarte Appeals and Anne M. Huarte for Plaintiff and Appellant.
Finnegan & Diba, Kasey Diba and Matthew Sichi for Defendant and Respondent.
CHAVEZ, J.
Victoria Meador (appellant) purports to appeal from the denial of her motion to reconsider the trial court's decision to sustain a demurrer in favor of respondent Elite Plastic Surgery, Inc. doing business as Hughes Plastic Surgery (respondent). Appellant provides no authority concerning whether such an order is appealable. However, we treat the matter as an appeal from the court's final judgment of dismissal entered after the trial court sustained respondent's demurrer to appellant's first amended complaint (FAC) without leave to amend.
The trial court sustained respondent's demurrer pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), because appellant "fail[ed] to properly identify or allege recognized causes of action," rendering "the entire pleading uncertain." Appellant does not address the problems that formed the basis for the trial court's ruling on demurrer, nor does she make any effort to articulate a cognizable cause of action. Further, appellant's briefs on appeal are incomprehensible and fail to conform to the California Rules of Court. Specifically, appellant has failed to provide a summary of facts, supported by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(C), (2)(C).) Appellant has also failed to provide reasoned argument supported by citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [an appellant waives any challenge to the trial court's ruling "[b]y failing to provide adequate record citations or make any cognizable claims of error" on appeal].)
While appellant provides string citations to three cases, quotes from the cases are set off from the text, and appellant does not make any reasoned argument as to how the cited caselaw supports her claim of error on appeal.
We find that appellant has failed to meet her burden of showing error and affirm the judgment.
FACTUAL BACKGROUND
Appellant failed to provide a factual summary of the case. We therefore look to the FAC and the trial court's written opinion for its summary of "some basic facts that [were] comprehensible."
Appellant alleged that "she paid [respondent] $24,000 for a surgery that [respondent] never performed, and that [respondent] could not perform because [appellant] was not medically cleared to undergo the procedure." Based on exhibits attached to her complaint, however, appellant agreed that "if she cancelled the surgery within 14 days of the scheduled surgery date, she would be responsible for 100% of the surgery cost."
In connection with her proposed surgery, appellant signed a contract captioned "Fees Associated with Scheduling, Rescheduling or Canceling Surgery" (contract). The contract was attached as an exhibit to appellant's original complaint. The document explained the reasons for the penalties imposed for cancellation or rescheduling of surgery:
Appellant apparently excluded the contract from her FAC, but the trial court noted that appellant could not omit the exhibit to avoid its damaging effect. (Citing Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1387.)
"Rescheduling/cancellation of surgery usually results in last-minute openings on the surgery schedule that do NOT get re-filled due to lead-times required in scheduling other patients to fill the vacated time slots. The impact is very significant lost revenue to our Corporation and our Staff. Because of this potential impact, we ask that our patients carefully plan the specific date that they select for surgery. Our fee system was established to motivate our patients to plan a suitable date and stay on schedule." (Boldface omitted.)
The contract also contained a table listing the fees a patient would be required to pay if the patient cancelled or rescheduled a surgery. The table lists various penalties ranging from rescheduling a month prior to the surgery, to rescheduling within 14 days of the surgery, to full cancellation of the surgery within 14 days of the surgery. The penalty for complete cancellation of surgery within 14 days of the surgery results in the largest penalty-a loss to the patient of "100% of cost of surgery." Appellant signed and dated the form on November 8, 2018, acknowledging that her surgery date was January 7, 2019.
Handwritten notes, which appear to be made by appellant on the signed contract, state that $8,000 was paid on November 7, 2018, with the remaining balance of $16,000 due three weeks prior to the surgery.
Respondent asserted that appellant cancelled the surgery on December 31, 2018, less than 14 days before the scheduled surgery date. Appellant did not challenge the truth of respondent's assertions. The doctor's note that appellant provided to respondent is dated "12/31/18."
In her motion to augment the record on appeal, appellant asserts that these items were part of the record below but were left out of the designated record due to clerical error.
Appellant did not establish in the trial court that she could allege any facts that would render the contract unenforceable.
PROCEDURAL HISTORY
Appellant filed her initial complaint on January 7, 2020. Two days later, appellant filed a declaration attaching exhibits to the complaint.
On February 10, 2020, counsel for respondent wrote to appellant, acknowledging service of the complaint and commencing the meet and confer process prior to filing a demurrer. In the letter, counsel informed appellant of respondent's position that the complaint was "unintelligible, vague, uncertain, and lacks specif[icity] as to each cause of action." Appellant did not respond.
On February 12, 2020, counsel for respondent telephoned appellant and explained to her the reasons that respondent planned to file a demurrer. Counsel spent at least 30 minutes on the phone with appellant and determined that appellant did not intend to amend her complaint.
Respondent filed its demurrer and motion to strike on February 13, 2020. On February 21, 2020, appellant voluntarily filed the FAC. However, a side-by-side comparison of the two documents revealed that the only change appellant made was to correct one number in a citation to Assembly Bill No. 1116, from "Chapter 609" to "Chapter 509."
Respondent's counsel again attempted to meet and confer with appellant. After appellant failed to respond to respondent's attempt on March 27, 2020, respondent filed its demurrer and motion to strike portions of the FAC. Respondent argued that each purported cause of action failed to state facts sufficient to constitute a cause of action and was uncertain.
Appellant's causes of action were (1) predatory deceptive trade, (2) predatory business tort, (3) predatory unfair business practice (breach of contract), and (4) attempted violation of "California Assembly Bill No. 1116 Chapter 509."
The hearing on respondent's demurrer and motion to strike was held on August 6, 2020. Prior to the hearing, the court issued a tentative ruling. The detailed ruling provided that the demurrer was sustained for uncertainty pursuant to Code of Civil Procedure section 430.10, subdivision (f). The court noted that appellant failed to properly identify or allege recognized causes of action. The court also sustained the demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the ground that appellant failed to state a cause of action. The court noted that while appellant pled some comprehensible facts, "Fundamentally, [appellant] fails to plead any facts that would make [respondent's] retention of the $24,000 wrongful." Finally, the court found that appellant failed to carry her burden of establishing that the defects raised by the demurrer were reasonably capable of cure with leave to amend.
Later that day, after considering the moving papers, opposition, and oral argument, the court adopted its tentative ruling.
On August 11, 2020, appellant filed her motion for reconsideration. The motion failed to offer new relevant law or facts, instead arguing that the trial court erred in sustaining respondent's demurrer. The motion was fully briefed and argued on December 15, 2020. After taking the matter under submission, the court later denied it, noting that the motion did not meet the requirements of Code of Civil Procedure section 1008.
The court referenced Code of Civil Procedure section 1088, but we assume this is a typographical error, as appellant's motion was brought pursuant to Code of Civil Procedure section 1008.
On February 17, 2021, appellant filed her notice of appeal from the "dismissal of Motion to reconsider granting of demurrer." We treat the appeal as an appeal from the judgment of dismissal entered after the trial court sustained respondent's demurer without leave to amend.
DISCUSSION
I. Applicable law and standard of review
A demurrer tests the legal sufficiency of a pleading. (Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.App.5th 1092, 1103 (Brown).) We review de novo a trial court's ruling on a demurrer. (Ibid.) "We accept as true all material facts properly pleaded in the complaint, but do not assume the truth of contentions, deductions, or conclusions of fact and law." (Ibid.) However, "[a] party may not avoid demurrer by suppressing facts, including those that are judicially noticeable, which prove the pleaded facts false." (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.) "Where facts appearing in attached exhibits or judicially noticed documents contradict, or are inconsistent with, the complaint's allegations, we must rely on the facts in the exhibits and judicially noticed documents." (Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1015.)
"'"[W]hen a demurrer is sustained without leave to amend, 'we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.'"'" (Brown, supra, 60 Cal.App.5th at p. 1103.) Appellant bears the burden of showing a reasonable possibility that her complaint can be amended to state a cause of action. (Ibid.)
II. Appellant has failed to state any cognizable cause of action
Respondent's demurrer was sustained on two grounds: uncertainty and failure to state a cause of action. We recognize that "'"[d]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond."'" (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 (Fistes).) Further, a general demurrer should only be sustained for failure to state a cause of action if the complaint fails to state a claim under any legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)
We review appellant's allegations de novo to determine whether the FAC was legally sufficient. (Brown, supra, 60 Cal.App.5th at p. 1103.)
A. Appellant's allegations
Appellant's FAC lists purported causes of action for "predatory deceptive trade[, ] predatory business tort[, ] predatory unfair business practice (breach of contract)[, and] attempted violation of California Assembly Bill No. 1116 Chapter 509." (Capitalization omitted.) While appellant fails to name recognized causes of action, we must review the substantive factual allegations to determine whether they were sufficient to apprise respondent of appellant's claims against respondent. (Fistes, supra, 38 Cal.App.5th at p. 695.)
Appellant alleges that she paid $24,000 for a cosmetic surgery procedure that she never received and could not receive due to being "disqualified" by her doctor as not medically fit for the procedure. Appellant alleges that respondent "attempted to violate the CALIFORNIA ASSEMBLY BILL no. 1116 Chapter 509 amendment by not adhering to it's [sic] requirements specifically laid out for them."
The bill to which appellant refers, which is alternatively referred to throughout her briefs on appeal as the "Donda West Law," was codified under Business and Professions Code section 2259.8 (section 2259.8) and Business and Professions Code section 1638.2 (section 1638.2).
Appellant referenced the letter faxed from her doctor to respondent before the surgery date, indicating that appellant was "not medically cleared for surgery." The date of the note is "12/31/18." Appellant alleged that she took it upon herself to determine if she was medically cleared for the procedure after she was diagnosed with broken ribs due to osteoporosis and "various other conditions she had including a blood clot." Appellant alleged that respondent threatened that if she did not go through with the surgery, she would lose her $24,000, and "held over her head a two page 'contract' . . . that threatened her of losing her monies if she does not go through with the cosmetic surgery on the date scheduled." Appellant alleged that she was faced with a choice to go through with the surgery, endangering her life, or lose her $24,000. Appellant asserted "THIS type choice [sic] is clearly defined as WILLFUL RECKLESS TORT by [respondent]." Appellant further alleged that the staff at the surgery center called her repeatedly for two days after the surgery date, urging her to schedule another date. Appellant alleges that respondent "refused to return" her money, citing the two-page contract attached to the complaint. Appellant asserted that "[t]his 'contract' and conduct by [respondent] was clearly deceptive, invalid and tortuous [sic] due to the circumstances of this instance."
Pursuant to the contract, appellant would lose $2,500 if she rescheduled the surgery within a month of the surgery date-as opposed to the full amount of $24,000 for a cancellation.
Appellant appears to allege that the contract was unfair because it did not provide that she would be refunded the $24,000 if she were not medically cleared for the procedure within the 30 days preceding the appointment.
Under count 1, for "Predatory Deceptive Trade," appellant alleged that respondent was in violation of the "Uniform Deceptive Trade Practices Act" because appellant was not informed that she had to be medically cleared nor in what time frame. Appellant also alleged that she was not informed that she would lose her money if she were found to be not medically cleared for the procedure. Had she been so informed, appellant alleges, she would have gotten medically cleared before she paid any money to respondent.
Under count 2, "Predatory [B]usiness Tort," appellant asserted the same facts-that respondent knowingly and willfully did not disclose the 30-day medical clearance requirement to appellant. Appellant asserted that respondent attempted to force her to ignore her doctor's orders and attempted to violate California law.
Under count 3, "(Breach of contract) California Consumer Protection Laws," appellant alleged that respondent should not have scheduled the surgery date so far in advance because respondent knew of appellant's condition on the day she scheduled her surgery. Further, appellant appeared to allege that respondent's cancellation policy should have provided exceptions. Appellant asserted that respondent intended to violate the law and insisted on keeping her money when she declined to go through with the surgery.
Under count 4, "Attempted violation of California Assembly Bill No. 1116, Chapter 509 appellant alleged that respondent's attempts to encourage her to appear for the surgery when she was not medically cleared to do so was an attempt to "violate[] the instructions of this law." Appellant concluded that respondent was guilty of attempting to violate the law and should be punished.
B. The substantive allegations do not state a cause of action under any legal theory
Appellant cites no law suggesting that respondent breached any obligation to her. Appellant repeatedly asserts that respondent attempted to violate California Assembly Bill No. 1116, chapter 509 (2009-2010 Reg. Sess.), now codified as sections 1638.2 and 2259.8.
Section 1638.2 reads:
"(a) Notwithstanding any other provision of law, a person . . . who holds a permit to perform elective facial cosmetic surgery issued pursuant to this article may not perform elective facial cosmetic surgery on a patient, unless the patient has received, within 30 days prior to the elective facial cosmetic surgery procedure, and confirmed as up-to-date on the day of the procedure, an appropriate physical examination by, and written clearance for the procedure from, either of the following:
"(1) A licensed physician and surgeon.
"(2) A person . . . who holds a permit to perform elective facial cosmetic surgery issued pursuant to this article.
"(b) The physical examination described in subdivision (a) shall include the taking of an appropriate medical history.
"(c) An appropriate medical history and physical examination done on the day of the procedure shall be presumed to be in compliance with subdivisions (a) and (b).
"(d) A violation of this section shall not constitute a crime."
Section 2259.8 is substantively very similar to section 1638.2, except that it applies to "elective cosmetic surgery" in general (§ 2259.8) and is not limited to "elective facial cosmetic surgery" (§ 1638.2). Section 2259.8 also provides that, in addition to the physician performing the surgery or another licensed physician, the physical examination may be performed by a certified nurse practitioner or a licensed physician's assistant. (§ 2259.8, subd. (a)(3) & (4).) Section 2259.8, subdivision (e) also provides, "[s]ection 2314 shall not apply to this section."
Appellant contracted with respondent to perform procedures including a "tummy tuck," "lipo," "thigh lift," and "butt grafting," among others.
Section 2314, subdivision (a) provides, "[u]nless it is otherwise expressly provided, any person, whether licensed under this chapter or not, who violates any provision of this article is guilty of a misdemeanor."
Because respondent did not perform elective facial cosmetic surgery on appellant, respondent did not violate either of these provisions. Appellant provides no authority for her position that respondent should be held liable for attempted violation of these provisions. Further, appellant cannot show an attempted violation, as respondent was entitled to perform the physical examination any time up to and including the day of surgery.
Further, there does not appear to be anything inherently unlawful about the contract. Civil Code section 1671 permits liquidated damages clauses. It provides, "a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made." (Civ. Code, § 1671, subd. (b).) Thus, the statute places the burden on appellant to prove that the clause was unreasonable at the time she signed it. Appellant has alleged no such facts. While she asserts that she informed respondent of her medical condition on December 31, 2018, she makes no allegations that respondent should have known she was unfit for surgery on the day that the contract was made (Nov. 8, 2018). While appellant complains that she did not understand that she could not cancel if she was not medically cleared for the surgery, the contract provides no exceptions. Thus, there was no reason for appellant to believe that there were exceptions under any circumstances. There are no allegations that appellant was coerced into signing the contract, nor does appellant provide legal authority that a liquidated damages contract for elective surgery is not enforceable.
Appellant correctly cites Business and Professions Code section 17200 as providing that "unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . . ." However, she provides no authority that a contract such as the one she signed is unlawful, unfair or fraudulent. On the contrary, as discussed above, it appears to be a lawful liquidated damages contract. Appellant further cites Business and Professions Code section 1750, which defines the term "dental assistant" and appears to be irrelevant. Assuming appellant intended to cite Civil Code section 1750, appellant has failed to provide any authority that the contract in question violates the Consumers Legal Remedies Act. (Civ. Code, § 1750 et seq.)
The thrust of appellant's position is that it was simply unfair for respondent to keep her money under the circumstances. As the trial court noted, a theory of unjust enrichment appears to be the closest actionable claim. The equitable principle of unjust enrichment "is based on the idea that 'one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.'" (County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 542.) However, appellant is required to show that respondent's retention of the money was "unjust." (Ibid.) The theory of unjust enrichment is based on the notion that an individual should not be permitted to "'take advantage of his own wrong.'" (Ward v. Taggart (1959) 51 Cal.2d 736, 741.) In other words, appellant must show that respondent gained her money through some "'wrongful act.'" (Ibid.) Appellant has not shown that respondent engaged in any wrongful act. She has not shown that the contract was illegal or that she was misled in any way.
In sum, the allegations are vague, uncertain, and fail to state a cause of action.
III. Appellant has failed to show a reasonable possibility that the defects can be cured by amendment
On appeal from a demurrer sustained without leave to amend, the appellant bears the burden of showing how the defects in the complaint can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Appellant has made no attempt to convince this court that her FAC can be amended to assert a valid cause of action. In fact, appellant reiterates her allegations and states that they "can not be simpler in explanation."
The contract appellant signed permits respondent to keep 100 percent of the cost of surgery where a procedure is cancelled in its entirety within 14 days of the scheduled surgery. Appellant asserts no facts suggesting that the contract was unenforceable or unreasonable at the time she signed it. Instead, without citing any analogous legal authority, she reiterates her claim that her money should be refunded, in violation of the express terms of the contract. Neither the record nor appellant's briefs on appeal indicate any ability of appellant to plead facts that would establish a theory of liability. Under the circumstances, we find that the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs of appeal.
We concur: LUI, P. J., HOFFSTADT, J.