Katich vs. Peifer

Merits

Defendants move under CCP section 437c(f)(1) for summary adjudication on the claims for intentional misrepresentation or concealment and negligent misrepresentation or concealment.

Legal Standard “[F]rom commencement to conclusion, the party moving for summary judgment [or summary adjudication] bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.... There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19.)

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)

Misrepresentation Claims Defendants contend the misrepresentation claims fail, because “Plaintiff’s FAC does not include any allegations of affirmative statements alleged to be misrepresented.” (Memo. of P&A at pp. 6, 9.) Where, as here, Defendants contend that the allegations in the pleadings fail to state a cause of action, the motion for summary adjudication is treated like a motion for judgment on the pleadings and the allegations in the pleading must be accepted as true. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.)

To establish a claim for intentional misrepresentation, a plaintiff must prove:

1. That the defendant represented to the plaintiff that a fact was true; 2. That defendant’s representation was false; 3. That defendant knew that the representation was false when the defendant made it (or that the representation was made recklessly and without regard for its truth); 4. That defendant intended that plaintiff rely on the representation; 5. That plaintiff reasonably relied on defendant’s representation; 6. That plaintiff was harmed; and 7. That plaintiff’s reliance on defendant’s representation was a substantial factor in causing plaintiff’s harm. (CACI no. 1900.)

A claim for negligent misrepresentation includes the same elements, except the plaintiff need not show the defendant knew the representation was false (or that it was made recklessly without regard for the truth), instead, the plaintiff may prove that, although the defendant may have honestly believed that the representation was true, the defendant had no reasonable grounds for believing the representation was true when it was made. (CACI no. 1903; see also Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 845 [“The tort of negligent misrepresentation is similar to fraud, except that it does not require scienter or an intent to defraud”].)

The misrepresentation claims must be pleaded with specificity, i.e., it “necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384; see also National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.) “To withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Plaintiff failed to allege any facts supporting the elements of intentional or negligent misrepresentation (as opposed to concealment) in the FAC. In his opposition, Plaintiff claims that he pled allegations of intentional misrepresentations in paragraphs 13 through 41 of the FAC (under his second cause of action), which were incorporated into his third causes of action. Specifically, Plaintiff points to the allegations that “Dr. Peifer documented in his notes of Mr. Katich’s January 10, 2023 visit that he made statements to ‘reassure to patient that that (sic) is normal and that he will gradually get his feeling back’” and “Dr. Peifer documented that he ‘explained to patient that his sensitivity was due to lack of

hygiene.’” (Opp’n at pp. 12-13, citing FAC at ¶¶ 24, 42.) However, Plaintiff does not allege that he relied on any of these “notations” or on the statements that were purportedly made according to the notations. Rather, Plaintiff expressly alleges under his second cause of action, that: “Defendant SCOTT PEIFER, D.D.S. intended that plaintiff rely upon, and plaintiff did in fact rely upon, defendant’s concealment of the truth that the implant had been placed into the inferior nerve canal. Defendant intentionally induced plaintiffs reliance on his concealment in order to try to evade liability for having improperly and negligently placed the implant in the inferior alveolar nerve canal as well as over-drilling the osteotomy into the nerve canal.” (FAC at ¶ 38, emphasis added.)

And, under his third cause of action, that: “Plaintiff justifiably relied on defendant SCOTT PEIFER, D.D.S.’s concealment of the fact that the dental implant had been placed inside the inferior alveolar nerve canal.” (FAC at ¶ 47, emphasis added.)

In his opposition, Plaintiff claims discovery has “further” established that “Dr. Peifer affirmatively told Mr. Katich the implant was only ‘close to the nerve’ and that ‘everything looked okay’ or ‘good.’” (Opp’n at p. 13.) It is unclear why discovery would be required for Plaintiff to “discover” what misrepresentations were made to him, and which misrepresentations he relied on. Plaintiff cannot pivot to allegations of a misrepresentation that was not alleged in his complaint, because “[t]he complaint limits the issues to be addressed at the motion for summary judgment.” (Laabs v.

City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) The FAC is replete with allegations that Dr. Peifer “concealed” or failed to disclose that the implant had allegedly been placed inside the nerve canal. (See FAC at ¶¶ 19, 21, 22, 23, 24, 26, 28, 29, 33, 35, 38, 39, 45, 46, 47, 49.) Conspicuously absent from the FAC are allegations of facts that Dr. Peifer made a false representation to Plaintiff, that Dr. Peifer intended Plaintiff to rely on that representation, that Plaintiff reasonably replied on it, etc.

In preparing this motion, Defendants were justified in responding only to the facts set forth specifically in the FAC; they are not expected to respond to theories that were not actually pled. (De Meo v. Cooley LLP (2025) 115 Cal.App.5th 17, 44.)

As such, summary adjudication is granted on Plaintiff’s claims for intentional misrepresentation and negligent misrepresentation.

Concealment Claims The Court denies summary adjudication on the concealment claims, because Plaintiff has shown there is a triable issue of fact as to whether Dr. Peifer was aware of having allegedly placed a dental implant inside Plaintiff’s inferior alveolar nerve canal, and having concealed it from Plaintiff.

Deceit is defined by Civil Code section 1710 to include the “suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” (Civ. Code, § 1710, subd. (3).) “Judicial interpretations of section 1710, subdivision 3 state that to support a cause of action for fraud by concealment a plaintiff must show (1) concealment of a material fact by the defendant; (2) the defendant had a duty to disclose that fact to the plaintiff; (3) the defendant concealed the fact with an intent to induce reliance by the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he or she did with knowledge of the concealed fact; and (5) the plaintiff suffered injury.” (Doe v. Superior Court (2015) 237 Cal.App.4th 239, 244.)

Defendants contend that Plaintiff cannot meet his burden of showing Dr. Peifer had knowledge of the dental implant being placed in Plaintiff’s nerve canal, because Dr. Peifer testified (at deposition and in his declaration) that, each time he represented to Plaintiff the implant at tooth #30 was close to the inferior alveolar nerve canal, Dr. Peifer never knew the implant was inside the inferior alveolar nerve canal. (See Disputed Fact no. 24.) However, this fact is disputed by the testimony of Plaintiff’s expert witness, Dr.

Wyatt, who opines that a “hypothetical oral surgeon with the same level of training in viewing cone beam CT scans as Dr. Peifer and the same professional experience with viewing ‘approximately 1,000’ cone beam CT scans as Dr. Peifer would have been aware– from a review of the pre-operative cone beam CT scan of Mr. Katich and any of the five (5) post-operative cone beam CT scans of Mr. Katich–that the surgical drilling process to create the osteotomy (hole) in Mr. Katich’s lower jawbone had extended significantly beyond the intended depth, through the inferior alveolar nerve canal, and into the inferior cortical border of the right inferior alveolar nerve canal, causing nerve damage.” (ROA 170 [Wyatt Decl. at ¶ 11].)

Additionally, Plaintiff’s other expert, Dr. Husain, also testifies to that effect. (ROA 176 [Husain Decl. at ¶ 19].)

Based on the evidence presented, the Court cannot adjudicate this question of fact as a matter of law. Accordingly, the motion is granted as to the negligent and intentional misrepresentation claims and denied as to the concealment claims.

Defendants shall give notice of the ruling.

6. 2025-1514475 The Court overrules Defendants Aurora Heights, LLC, JJT Toner vs. Properties, LLC, IBILTIT, Inc., and Bandera Land Company, Inc.’s Aurora Demurrer to Plaintiffs Matthew Toner, Lawrence G. Toner, Willian Heights, LLC J. Toner, Pauline Toner, as Trustee (derivatively on behalf of