Noroski vs. Sienna Palmer Ogbevoen, D.D.S., Inc.

Section 437c(c) provides, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

Finally, section 437c(p)(2) states,

“A defendant or cross-defendant has met that party's burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

Ninth Cause of Action – False Advertising:

Plaintiff previously moved for summary adjudication of this claim, which the Court took under submission on 5/21/26. Now, Defendants move for summary adjudication of the claim on the grounds that (1) Defendants’ alleged false advertisements were not likely to deceive a reasonable consumer, and (2) Plaintiff lacks standing and cannot show actual reliance.

Section 17500 prohibits untrue or misleading advertising. It “broadly prohibit[s] false or misleading advertising, declaring that it is unlawful for any person or business to make or distribute any statement to induce the public to enter into a transaction ‘which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” (People v. Johnson & Johnson (2022) 77 Cal.App.5th 295, 317.) “FAL actions may be brought by the Attorney General, designated public prosecutors, or ‘any person who has suffered injury in fact and has lost money or property’ as a result of a violation of the FAL. (§ 17535.)

The trial court may enjoin FAL violators. (§ 17535.) Similar to the UCL, the Attorney General and other public prosecutors may seek civil penalties not to exceed $2,500 for each violation of the FAL. (§ 17536, subd. (a).)” (Id. at p. 318)

To prevail under a UCL false advertising claim, the plaintiff “must show that the misrepresentation was an immediate cause of the injuryproducing conduct, the plaintiff need not demonstrate it was the only cause.” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 326; see People

v. Johnson & Johnson (2022) 77 Cal.App.5th 295, 326–327.) “[A] presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material. A misrepresentation is judged to be ‘material’ if ‘a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question,’ and as such materiality is generally a question of fact unless the ‘fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable man would have been influenced by it.” (In re Tobacco II Cases, supra, 46 Cal.4th at 327.)

Here, Plaintiff alleges Defendants made untrue or misleading statements on their website. (FAC, ¶¶ 117-127.) Plaintiff alleges she viewed Defendants’ website in 2023 and relied on Defendants’ advertising when selecting Dr. Palmer as her new dentist. (Id.) Plaintiff seeks restitution of the money she paid to Defendants and equitable relief including issuance of an injunction for this violation prohibiting Defendants’ false advertising and requiring Defendants to notify current and former patients of the false advertising and make corrective disclosures. (FAC, ¶¶ 127, 128.)

The evidence presented regarding this claim is similar to the evidence the Court previously analyzed in support of Plaintiff’s motion for summary adjudication of the same claim. In short, Plaintiff presents evidence that Defendants’ website contained misrepresentations including the following:

(1) Patient testimonials regarding the prior dentist which had been modified to replace the prior dentist’s name (Dr. Schaub) with Defendant Palmer’s name. (Undisputed Material Facts [UMFs] 8, 15, 30.) Defendants do not dispute these false statements, which have since been removed, but contends they were made by the third party website manager without her knowledge and were not material to Plaintiff’s decision to visit Defendants’ office. (UMF 16.) (2) Statements on Defendants’ website that Defendants’ practice was locally owned and operated since 1984 and “Mission Viejo Proud Since 1984,” which Plaintiff asserts were false because a new operating entity took over the practice under Dr.

Palmer’s leadership in 2020. (UMFs 17-18, 28.) Again, Defendant asserts that a reasonable patient would have known Dr. Palmer was a younger dentist who could not possibly have been practicing since 1984 and such advertisements were not material to Plaintiff’s decision to obtain dental treatment with Defendants. (UMF 29.)

First, Defendants assert that the patient testimonials were mere statements of opinion or “puffery” which should not have been considered “an objective statement of fact.” (Motion, p. 6.) They further argue that Dr. Palmer purchased the business from Dr. Schaub, including the business goodwill developed in the community, so she is entitled to advertise the business’s history in the community. (Id.) They

assert the website clearly reflects that Dr. Palmer is a younger dentist who could not have been practicing since the 1980s.

Second, Defendants assert that Plaintiff was refunded her payment for the disputed Icon treatment and cannot prove economic damages which are necessary to demonstrate standing to pursue this claim. (Motion, pp. 7-8.) Defendants assert Plaintiff’s only damages are non-economic damages because she is unhappy with her smile and Plaintiff admits the alleged white spots were present for years before the treatment. (Id. at pp. 9-10.)

Plaintiff presents evidence that she would not have scheduled her appointments or obtained services from Defendants if she knew the patient testimonials on Defendants’ website were modified to refer to Dr. Palmer rather than Dr. Schaub (Plaintiff’s Add’l Fact 15; Plaintiff Decl., ¶¶ 3-11.) Plaintiff also presents evidence that although Defendants refunded the $600 for dental services, they did not refund the $40 she paid for whitening supplies. (Plaintiff’s Add’l Fact 38.)

Plaintiff further asserts, citing a federal district court decision, that a Defendant cannot defeat a false advertising claim by merely refunding the disputed payment, especially when Plaintiff seeks injunctive relief as a remedy, as Plaintiff does here. (Opp. at 22:9-18.) In the absence of California law on point, the Court declines to address this issue because Plaintiff has presented evidence that she paid at least $40 which was not refunded, and Plaintiff also seeks injunctive relief.

In reply, Defendants assert that it was not until the end of the appointment, when Plaintiff must have known Defendant Palmer’s age, that she purchased the $40 whitening supplies, and that Plaintiff was a sophisticated consumer who should not have believed the alleged false statements on Defendants’ website.

Materiality of false advertisements “is generally a question of fact.” (In re Tobacco II Cases, supra, 46 Cal.4th at 327.)

Here, Plaintiff has demonstrated a triable issue as to materiality and standing based on her own declaration that she would not have obtained Defendants’ dental services but for the false advertisements and that she paid an unrefunded $40 for dental services.

Tenth Cause of Action – Unfair Competition:

In this cause of action, Plaintiff alleges Defendant violated the Unfair Competition Law (UCL), Business & Professions Code § 17200 et seq., by (1) operating without a fictitious business name permit, and (2) engaging in unlawful behavior including the false advertising discussed above. (FAC, ¶¶ 135-136.)

“This court has recognized that any violation of the false advertising law necessarily violates the UCL. We have also recognized that these laws prohibit not only advertising which is false, but also advertising which

although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public. Thus, to state a claim under either the UCL or the false advertising law, based on false advertising or promotional practices, it is necessary only to show that 'members of the public are likely to be deceived.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 950–951 [cleaned up].) Therefore, because there is a triable issue as to Plaintiff’s false advertising claim as discussed above, there is necessarily a triable issue as to Plaintiff’s UCL claim and the Court need not address the fictitious business permit issue. 13 25-01457297 Motion to Lift Stay Pending Arbitration

Primex Clinical Plaintiff Primex Clinical Laboratories, Inc.’s Motion to Lift Stay Laboratories, Inc. vs. Pending Arbitration is GRANTED. Hughes Plaintiff moves to lift the stay pending arbitration due to the dismissal from this action, without prejudice, of defendants Michael Hughes, Rand Ajinah, and Trudy Rosen (collectively, “Former Employees”). Plaintiff brings this motion pursuant to Code of Civil Procedure sections 128, subdivision (a), and 1281.4.

Defendants David White, Rajit Malhotra, Alex Nguyen, Derek Nguyen, Varun Kapoor, MD Tox Laboratory, Inc. dba Innovative Health Diagnostics, LLC (“IHD”) and Nura Health, Inc. (“Nura Health”) (collectively, “IHD and Nura Defendants”) argue Plaintiff’s dismissal of the Former Employees is an improper attempt to evade this Court’s order to arbitrate. IHD and Nura Defendants also argue lifting the stay would interfere with Michael Hughes and Rand Ajinah’s rights to have the arbitrator decide their declaratory relief claim on Plaintiff’s alleged trade secrets.

Code of Civil Procedure section 128, subdivision (a)(2) and (5) provides: “Every court shall have the power to do all of the following: . . . [¶] (2) To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority . . . [and] [¶] (5) To control the furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”

Code of Civil Procedure section 1281.4 provides in relevant part, “If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (See also Cinel v. Christopher (2012) 203 Cal.App.4th 759, 769 [“Section 1281.4 provides a stay of pending litigation while a related arbitration is proceeding.”].)

In addition, a plaintiff may dismiss an action or any defendant, with or without prejudice, at any time before the actual commencement of trial.