Demurrer CLM

Cal. Super. - 2nd Dist.November 6, 2019

123 23561 378401583 562400020067960 113454 21905 89 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 08:20:00 AM JUDICIAL OFFICER PRESIDING: Benjamin Coats COUNTY OF VENTURA VENTURA DATE: 12/03/2020 DEPT: 43 CLERK: Lynnie Reeser REPORTER/ERM: CASE NO: 56-2019-00535769-CU-BC-VTA CASE TITLE: Waxer MD vs. Ventura Anesthesia Medical Group CASE CATEGORY: Civil - Unlimited CASE TYPE: Breach of Contract/Warranty EVENT TYPE: Demurrer (CLM) to Plaintiffs Third Amended Complaint MOVING PARTY: Harvey C Shew MD Inc, Harvey C Shew MD, Gary P Coppa MD, Theodore H Tuschka MD, Ventura Anesthesia Medical Group, Dong W Kim MD, Dong W Kim MD Inc, Theodore H Tuschka MD Inc, Gary P Coppa MD Inc CAUSAL DOCUMENT/DATE FILED: Demurrer to Plaintiffs Third Amended Complaint, Demurrer, Memorandum of Points and Authorities in Support thereof, Declaration of Michael A Velthoen, 10/19/2020 STOLO APPEARANCES STOLO Jerry L. Freedman, counsel, present for Defendant,Plaintiff(s) telephonically. Michael A Velthoen, counsel, present for Defendant(s) telephonically. Stolo At 9:02 a.m., court convenes in this matter with all parties present as previously indicated. Counsel have received and read the court's written tentative ruling. Matter submitted to the Court without argument. The Court finds/orders: The Court's tentative is adopted as the Court's ruling. Defendants' Demurrer to Plaintiffs Daniel Waxer, M.D.'s and Vigilant Medical Inc.'s 3rd Amended Complaint The Court GRANTS Defendants Ventura Anesthesia Medical Group's, Dong W. Kim, M.D.'s, Dong W. Kim, M.D., Inc.'s, Theodore H. Tuschka, M.D.'s, Theodore H. Tuschka, M.D., Inc.'s, Harvey C. Shew, M.D.'s, Harvey C. Shew, M.D., Inc.'s, Gary P. Coppa, M.D.'s, and Garry P. Coppa, M.D., Inc.'s request for judicial notice. The Court SUSTAINS Defendants' general demurrer to the sixth cause of action for intentional misrepresentation in Plaintiffs Daniel Waxer, M.D.'s and Vigilant Medical Group's 3rd Amended Complaint with leave to amend, on the ground that Plaintiffs fail to allege with specificity any facts indicating that their reliance on Defendants' alleged false promises caused Plaintiffs any damage. DISCUSSION: Plaintiffs fail to allege with specificity, facts indicating that their reliance on Coppa's alleged false promise that Plaintiff Waxer "would have an opportunity to be heard on the matters raised" at the December 14, VEN-FNR-10.03 MINUTE ORDER DATE: 12/03/2020 Page 1 DEPT: 43 CASE TITLE: Waxer MD vs. Ventura Anesthesia Medical Group CASE NO: 56-2019-00535769-CU-BC-VTA 2016 meeting, caused them any damage. Plaintiffs' theory of promissory fraud is that they "stood down" and failed to take steps to protect themselves, based on assurances that they would have an opportunity to be heard at the December 14 meeting. However, Plaintiffs fail to allege specific facts indicating how they could have achieved a more favorable result at the December 14 hearing if they had not "stood down." In fact, Plaintiffs allege that Defendants had already made their decision prior to the December 14 hearing: "73. Defendants...led Dan Waxer to believe he would get a 'fair shake' at the partnership meetings, when the truth was he had already been condemned on or before November 9, 2016. Defendants never intended to give Dan Waxer a fair chance...." (3rd Amended Complaint, ¶73.) Accepting these allegations as true - as the Court must in ruling on Defendants' demurrer (see Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 279) - the decision to terminate Plaintiffs' membership in VAMG had already been made on or before November 9, and Defendants had no intention of giving Plaintiffs a fair opportunity to defend themselves. Given that the decision had already been made, Plaintiffs' claim of "standing down" on November 10 did not harm them because the outcome would not have changed. Plaintiffs cannot be damaged by failing to act when those actions would not have changed the eventual result. For the foregoing reasons, the Court finds that Plaintiffs have failed to specifically allege facts indicating that their reliance on Coppa's alleged false promise that Plaintiff Waxer "would have an opportunity to be heard on the matters raised" at the December 14, 2016 meeting, caused them any damage. Therefore, the Demurrer to the sixth cause of action for intentional misrepresentation in Plaintiffs 3rd Amended Complaint is SUSTAINED. Leave to amend is granted because there has only been one prior demurrer, and because that demurrer was not sustained on the specific grounds stated above. Plaintiffs are ordered to file and serve their 4th Amended Complaint by no later than January 4, 2021. Parties waive notice. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 12/03/2020 Page 2 DEPT: 43