Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSC08-00931.
Dondero, J.
Plaintiff Perri Mink appeals the orders of the trial court sustaining without leave to amend the demurrers of defendants Encina Veterinary Clinic, Inc., Roger Johnson, Peter Nurre, Kathy Shuttlesworth, and Angela Linvill (collectively referred to as Encina), and Kevin W. Bissonnette and Mobile Animal Surgery Services (collectively referred to as Bissonnette). The court sustained the demurrers on the grounds that her fourth amended complaint fails to adequately state a cause of action and includes claims that are barred by the statute of limitations. We affirm the court’s orders and the judgments of dismissal.
ALLEGATIONS OF THE COMPLAINT AND PROCEDURAL BACKGROUND
On April 4, 2008, plaintiff filed her initial complaint in this action.
Plaintiff erroneously states in her opening brief that she filed her complaint on April 4, 2006.
On April 14, 2008, plaintiff filed her first amended complaint (FAC).
Neither the initial complaint nor the FAC are contained in the record on appeal.
On July 8, 2008, Encina file a demurrer to the FAC, alleging that the complaint was ambiguous, lacked the specificity required for fraud causes of action, and was barred by the statute of limitations for veterinary malpractice under Code of Civil Procedure section 340, subdivision (c).
Code of Civil Procedure section 340, subdivision (c), provides for a one year statute of limitation on an action “against any person who boards or feeds an animal or fowl or who engages in the practice of veterinary medicine as defined in Section 4826 of the Business and Professions Code, for that person’s neglect resulting in injury or death to an animal or fowl in the course of boarding or feeding the animal or fowl or in the course of the practice of veterinary medicine on that animal or fowl.”
On July 23, 2008, Bissonnette filed a demurrer to the FAC on the grounds that the FAC was uncertain, failed to state facts sufficient to constitute a cause of action, and was barred by the statute of limitations.
On September 10, 2008, the trial court sustained the demurrers with leave to amend.
On October 3, 2008, plaintiff filed her second amended complaint (SAC). The SAC states causes of action for (1) conspiracy to commit fraud, (2) intentional misrepresentation to a third party for unjust enrichment, (3) deceit, (4) fraud and negligent misrepresentation, (5) fraud and intentional misrepresentation, (6) constructive fraud, (7) intentional infliction of emotional distress, (8) conversion, and (9) trespass to unique chattel. The SAC alleges plaintiff brought her dog Elvira to Encina for treatment on April 11, 2006. Defendants recommended surgery and Elvira was operated on to remove a lump from her intestine. Bissonnette performed the surgery. About a week later, a second surgery was done to repair a leak at the site of the first surgery. Various treatments and medications, including chemotherapy, were provided over the next several weeks, but the dog’s condition worsened. Elvira was euthanized on May 26, 2006. The gist of the complaint is that defendants wrongfully coerced plaintiff into agreeing to excessive treatments for Elvira, subjecting the dog to unnecessary pain and suffering and causing plaintiff to become liable for over $15,000 in veterinary services. The complaint includes a request to seek punitive damages.
On November 3, 2008, Encina filed a demurrer to the SAC. Encina argued that the SAC was uncertain, failed to state facts sufficient to constitute a cause of action, and was barred by the statute of limitations. Encina also argued that the request for punitive damages was barred under Code of Civil Procedure section 425.13.
Code of Civil Procedure section 425.13, subdivision (a), provides in part: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.”
On November 7, 2008, Bissonnette demurred on the grounds that plaintiff’s claims were barred by the statute of limitations, and that the SAC failed to allege facts sufficient to constitute fraud, intentional infliction of emotional distress, conversion, or trespass to chattels.
On February 4, 2009, the trial court sustained defendants’ demurrers as to six of the nine causes of action with leave to amend. The demurrer to the conversion cause of action was sustained without leave to amend on the ground that plaintiff failed to allege defendants had any intention or purpose to exercise ownership over the dog or to prevent plaintiff from taking possession of it. The demurrer to the intentional misrepresentation claim was also sustained without leave to amend. The demurrer to the ninth cause of action for trespass to unique chattel was overruled.
On November 25, 2009, plaintiff filed her third amended complaint (TAC). The complaint states four causes of action: (1) fraud, (2) constructive fraud/breach of fiduciary and confidential relationships, (3) intentional infliction of emotional distress, and (4) trespass to unique chattel. It also purports to seek a preliminary and a permanent injunction under the Unruh Civil Rights Act.
On December 28, 2009, Bissonnette filed a demurrer to the TAC, arguing that the complaint was uncertain, failed to state facts sufficient to constitute a cause of action, and was barred by the statute of limitations. On this same day, Encina also filed a demurrer to the TAC.
On March 4, 2010, the trial court sustained defendants’ demurrers with leave to amend. The court found the TAC to be both ambiguous and unintelligible.
On April 2, 2010, plaintiff filed her 69-page Fourth Amended Complaint (4AC). The 4AC contains multiple “First” causes of action against various defendants for fraud. The 4AC also contains a claim for “Constructive Fraud/Breach of Fiduciary and Confidential Relationships and Aiding and Abetting, ” multiple “Third” causes of action for intentional infliction of emotional distress, a claim for trespass to unique chattel, a new cause of action for violation of Business and Professions Code section 17200, and a new claim for sexual harassment. The 4AC also adds three new defendants: Patti Mayfield, Claire Stevens, and Blythe Jurewicz, all identified as veterinary interns.
On April 29, 2010, Bissonnette filed a demurrer to the 4AC, again arguing that the complaint is barred by the statute of limitations, and that its claims lack the requisite specificity, fail to state facts sufficient to constitute a cause of action, and are uncertain.
On May 3, 2010, Encina filed a demurrer to the 4AC. In addition to arguing that the complaint is barred by the statute of limitations and that its claims are improperly stated, Encina noted plaintiff had failed to move for leave to add the new claims and defendants.
On June 24, 2010, the trial court sustained each defendant’s general demurrer to the 4AC without leave to amend. As to the fraud claims, the court found plaintiff had failed to allege the elements with adequate particularity. Regarding the claims for intentional infliction of emotional distress, the court found plaintiff had failed to adequately allege the element requiring “outrageous conduct.” With respect to the claim for trespass to chattels, the court concluded plaintiff had failed to state a cause of action and, in any event, the claim was barred by the statute of limitations. The two newly added claims were struck, based on plaintiff’s failure to seek leave to amend. That same day, the court entered judgments of dismissal as to all defendants. This appeal followed.
DISCUSSION
I. Standard of Review
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the reviewing court assumes the truth of all facts properly pleaded by the plaintiff. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We also accept as true all facts that may be implied or reasonably inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) We do not assume the truth of “ ‘ “contentions, deductions or conclusions of fact or law....” [Citation.]...’ ” (Evans, supra, at p. 6, citing Blank v. Kirwan, supra, at p. 318.) We may also consider exhibits attached to the complaint. (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1101.) We review the trial court’s action de novo and exercise our own independent judgment as to whether a cause of action has been stated under any legal theory. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We review the court’s refusal to allow leave to amend under the abuse of discretion standard. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
II. The Complaint is Barred by the Statute of Limitations
Plaintiff asserts the trial court erred in ruling that the one-year statute of limitations for veterinary malpractice actions applies to her claims. Instead, she contends her complaint falls under the three-year statute of limitations provided for by Code of Civil Procedure section 338.
Code of Civil Procedure section 338, subdivision (d) provides a three-year statute of limitations for actions brought on the ground of fraud or mistake.
We agree with the trial court that the complaint amounts to an action for veterinary malpractice. “ ‘The gravamen of [a veterinary malpractice] action is that in providing veterinary care, the veterinarian failed to use such reasonable skill, diligence, and attention as might ordinarily have been expected of careful, skillful, and trustworthy persons in the profession. The courts have generally recognized that for the owner of an animal to prevail in such an action, he or she must prove the relevant recognized standard of care exercised by other veterinarians, the defendant veterinarian’s departure from that standard when treating the animal, and some injury to the owner proximately caused by that departure.’ [Citation.]” (Williamson v. Prida (1999) 75 Cal.App.4th 1417, 1425 (Williamson).)
Essentially, plaintiff claims defendants provided excessive and unnecessary treatments to her dying dog. Thus, the matter turns on whether defendants’ conduct fell below the standard of care. As noted above, per Code of Civil Procedure section 340, subdivision (c), the statute of limitations on actions for veterinary malpractice is one year. The initial complaint was filed almost two years after Elvira’s death. Accordingly, the complaint is barred by the statute of limitations. Plaintiff has endeavored to plead around this bar by attempting to state causes of action that have longer statutes of limitations. However, it is the “gravamen of a complaint and the nature of the right sued upon, rather than the form of the action or relief demanded, [that] determine which statute of limitations applies.” (Embarcadero Mun. Improvement Dist. v. County of Santa Barbara (2001) 88 Cal.App.4th 781, 789.) In any event, as we discuss below, none of her claims are properly pleaded.
Code of Civil Procedure section 340.5 provides that an action against a health care provider must be brought on or before three years from the date of injury, or one year from the date of discovery, whichever is earliest. A veterinarian is a health care provider within the meaning of this provision. (Williamson, supra, 75 Cal.App.4th 1417, 1425.) Here, plaintiff alleges she discovered the injury on May 26, 2006, the date Elvira was euthanized, or, alternatively, on March 9, 2007. The complaint was not filed until April 4, 2008. Thus, her claims are also untimely under this provision.
III. The Complaint Fails to State a Claim for Fraud
As noted above, plaintiff’s 4AC contains eight separately captioned causes of action for fraud, all labeled as the “First” cause of action. Each separately captioned cause of action is stated against a different defendant. In sustaining defendants’ demurrers, the trial court concluded plaintiff had failed to allege the elements of intentional fraud with adequate particularity.
“ ‘The essential allegations of an action for fraud are misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage. [Citation.] Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made. [Citation.]’ [Citations.]” (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 649.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)
Plaintiff’s complaint generally alleges that defendants recommended and administered various treatments for Elvira while concealing from her certain facts about the dog’s condition. She further alleges she relied on their advice and would not have agreed to the treatments if she had known all the facts. She thus appears to be attempting to state a claim for fraudulent concealment.
“[T]he elements of a cause of action for fraud based on concealment are: ‘ “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. [Citation.]” [Citation.]’ [Citation.]” (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.)
As best we understand the allegations, plaintiff claims defendants concealed the seriousness of the dog’s condition in order to coerce her into agreeing to unnecessary operations and treatments. Yet that assertion is directly contradicted by statements made in her TAC that defendant Johnson discussed her dog’s cancer with her during his initial consultation, including the option of providing hospice care. There are no allegations that defendants misrepresented the type of treatments they would be providing, or that they misled plaintiff as to the benefits and risks associated with these treatments. Thus, the complaint fails to adequately allege exactly what fact or facts were fraudulently concealed from her.
Courts may consider inconsistencies in allegations contained in prior versions of an amended complaint. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945–946.)
In her complaint, plaintiff alleges she was both informed and not informed of defendants’ plan to administer chemotherapy to Elvira.
Other allegations in the 4AC are also lacking in specificity. For example, at one point the complaint alleges Bissonnette and Johnson acted in furtherance of a scheme designed to exploit plaintiff by inducing her to agree to unnecessary services. These allegations amount to no more than a pleading of legal conclusions and disassociated facts. Plaintiff fails to plead specific facts to show that the defendants conspired to engage in deceit and that she suffered actual damages as a result of such a conspiracy.
In her opening brief, plaintiff cites to a law review article, California Cancer Quack Laws: The Best Is None Too Good (1967) 40 So.Cal. L.Rev. 384, along with People v. Frankfort (1952) 114 Cal.App.2d 680 and Otash v. Bureau of Private Investigators (1964) 230 Cal.App.2d 568, in support of her contention that she has stated facts sufficient to allege defendants’ fraudulent scheme to perform unnecessary veterinary services. Within her somewhat disjointed brief, she also cites to two out-of-state cases concerning “medical fraud.” The authorities simply are not relevant to the issue of whether plaintiff has properly stated the elements of her cause of action. We note that every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)
Cotgreave v. Public Administration of Imperial County (N.Y. Sup. 1981) 111 Misc.2d 274 [443 N.Y.S.2d 971], and Eastep v. Veterinary Medical Examining Board (Or.App. 1975) 22 Or.App. 457 [539 P.2d 1144].)
Plaintiff also cites to the depublished case of Krieger v. Superior Court for the proposition that Code of Civil Procedure section 425.13 does not apply to her complaint. Unpublished decisions are not citable as authority except in limited circumstances, none of which applies here. (Cal. Rules of Court, rule 8.1115(a).)
In sum, as discussed above, the claims for fraud in the 4AC are not properly alleged. The underlying difficulty with the fraud claim, and indeed with the entire complaint, is that plaintiff has distorted her allegations to plead around what is essentially a now time-barred action for veterinary malpractice. Regardless of how she characterizes her claims, the thrust of the complaint is that defendants mishandled the treatment of a dog under their care. We conclude the trial court did not err in sustaining the demurrer to the eight recitations of the fraud cause of action in the 4AC. As plaintiff has not demonstrated that she can further amend her complaint to allege additional facts in support of this claim, we also conclude the trial court did not abuse its discretion in denying leave to amend.
Plaintiff asserts that the trial court erred in failing to authorize an evidentiary hearing. She misunderstands the nature of a demurrer, which tests the viability of a complaint on its face without reference to any extraneous materials: “A demurrer tests the pleading alone, and not the evidence or the facts alleged.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)
IV. The Complaint Fails to State a Claim for Constructive Fraud
Plaintiff’s 4AC contains a cause of action against defendants for “Constructive Fraud/Breach of Fiduciary and Confidential Relationships and Aiding and Abetting.” In this claim, she alleges Encina had a fiduciary and confidential relationship with her as a result of having provided veterinary services to her since December 1998. We note that though Bissonnette is named in the caption to this claim, the allegations do not contain any mention of this defendant.
Constructive fraud is a “unique species” of fraud applicable only to fiduciary or confidential relationships. Under constructive fraud, a fiduciary is liable to the principal for breach of fiduciary duties, even if the fiduciary’s conduct is not actually fraudulent. (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562; Civ. Code, § 1573.) “[B]reach of a fiduciary duty usually constitutes constructive fraud.” (Salahutdin, supra, at p. 563.) The necessary elements of the claim include the existence of a fiduciary relationship, breach, and damages proximately caused by the breach. (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 960.)
Plaintiff’s claim for constructive fraud suffers from the same flaws as her fraud claims. While she cites to a case involving revocation of a veterinarian’s license for the proposition that veterinarians have a fiduciary relationship with pet owners (Thorpe v. Board of Examiners (1980) 104 Cal.App.3d 111), she does not cite to any case in holding that the relationship is one that can support an action for constructive fraud. Assuming she has sufficiently alleged the existence of a fiduciary or confidential relationship, claims for constructive fraud must be stated with the same specificity as claims for fraud. (Schauer v. Mandarin Gems of Cal., Inc., supra, 125 Cal.App.4th 949, 960–961.) As shown above, the claim for fraud lacks the required specificity. Accordingly, we conclude the claim for constructive fraud is not adequately stated and the trial court did not abuse its discretion in denying leave to amend.
V. The Complaint Fails to State a Claim for Intentional Infliction of Emotional Distress
Plaintiff’s third cause of action for intentional infliction of emotional distress is stated three separate times in the 4AC. The first claim alleges that defendant Nurre treated Elvira with chemotherapy against plaintiff’s wishes. In a separately designated claim, plaintiff appears to allege defendant Stevens told plaintiff she had caused Elvira to break into a fever when she visited the dog during her recovery from the first surgery. In the third claim, she alleges that several defendants charged her for unnecessary veterinary services and threatened to send her to collections if she did not pay the outstanding balance.
All three claims as to this cause of action fail to state a cause of action for intentional infliction of emotional distress because the complaint fails to adequately allege that defendants’ conduct was “extreme and outrageous.” “ ‘The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. [Citation.]... [¶] In order to meet the first requirement of the tort, the alleged conduct “ ‘... must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” ’ [Citation.]” [Citation.] That the defendant knew the plaintiff had a special susceptibility to emotional distress is a factor which may be considered in determining whether the alleged conduct was outrageous.’ [Citation.] However, ‘[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.’ [Citation.]” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1515–1516 (McMahon).)
In McMahon, the plaintiff alleged that her dog’s veterinarians, knowing of her close attachment to her pet, recklessly gave the dog food two hours after surgery, failed to provide the necessary postoperative care, and lied about the severity of the dog’s recovery complication and its cause. The appellate court held that the allegations did not support a claim for intentional infliction of emotional distress because the alleged acts were neither done in the plaintiff’s presence nor directed at her and none of the alleged conduct, including efforts to cover up malpractice, was sufficiently extreme or outrageous. (McMahon, supra, 176 Cal.App.4th 1502, 1515–1516.)
In the present case, plaintiff alleges that defendants administered chemotherapy treatments to the dog without her consent, indicated that plaintiff was responsible for causing the dog to develop a postoperative fever, and instituted a collections action against her. This conduct is no more egregious than the conduct at issue in McMahon. We conclude the trial court did not err in sustaining the demurrer to this cause of action as to all the defendants named. We also conclude the trial court did not abuse its discretion in denying leave to amend.
VI. The SAC Fails to State a Claim for Conversion
In its order sustaining defendants’ demurrer to the SAC, the trial court sustained the demurrer to the cause of action for conversion without leave to amend. Plaintiff now contends this ruling was in error. We disagree.
“Conversion has been defined as any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein. [Citations.] In order to establish a conversion, the plaintiff must show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of his property.” (Oakes v. Suelynn Corp. (1972) 24 Cal.App.3d 271, 278.)
While plaintiff alleges she handed over her dog to defendants in reliance on their representations that they would provide treatment, she fails to allege any intention on the part of defendants to exercise ownership over the dog or to prevent her from taking possession of it. Accordingly, the SAC fails to state a cause of action for conversion and the trial court did not abuse its discretion in denying leave to amend.
VII. The Complaint Fails to State a Claim for Trespass to Chattel
The fourth cause of action in the 4AC alleges that the defendants committed trespass to chattel by administering treatments to Elvira against plaintiff’s wishes.
The elements of a cause of action for trespass to chattel are (1) the plaintiff’s possession of the property, (2) the defendant’s intentional interference with the plaintiff’s use of the property, (3) without the plaintiff’s consent, and (4) damages. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566–1567.) “Trespass to chattel, although seldom employed as a tort theory in California..., lies where an intentional interference with the possession of personal property has proximately caused injury. [Citation.] Prosser notes trespass to chattel has evolved considerably from its original common law application—concerning the asportation of another’s tangible property—to include even the unauthorized use of personal property: ‘Its chief importance now, ’ according to Prosser, ‘is that there may be recovery... for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.’ [Citations.]” (Ibid., fns. omitted.)
In a recent California reported decision involving trespass to an animal as chattel, a race horse owner sued a racing steward, alleging that the steward was liable for trespass to chattels because he had prevented the owner from retrieving his horse from the grounds of a race track and required that the horse be raced against the owner’s wishes. (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1387 (Jamgotchian).) During the race, the horse was injured. (Id. at p. 1392.) On appeal from an order granting the defendant’s motion for summary judgment, the appellate court found that a triable issue of fact existed as to whether the defendant had intentionally interfered with the plaintiff’s right to possession of the horse. (Id. at pp. 1401–1402.)
In the present case, the trial court concluded this cause of action was barred by the one-year statute of limitations for veterinary malpractice. The court also observed that plaintiff cited to no cases in which a veterinarian had been held liable for trespass to chattels based on acts of veterinary malpractice. We agree with the court’s reasoning. Unlike the issue in Jamgotchian, the allegations of this claim arise solely out of defendant’s treatment of Elvira. The allegations state an action for veterinary malpractice and, as such, the claim is barred by the statute of limitations. (Code Civ. Proc., § 340, subd. (c).)
VIII. The Complaint Fails to State a Claim for Unfair Business Practice
Plaintiff’s fifth cause of action attempts to state a claim for an unfair business practice in violation of Business and Professions Code section 17200, et seq. (section 17200). The trial court struck this cause of action because plaintiff added it without first seeking leave to amend. Alternatively, the court found the action was dependent on defendants’ alleged acts of intentional fraud, which the court had already found to be insufficiently stated.
Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the trial court’s order. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785 [leave to amend complaint does not constitute leave to amend to add new defendant].) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015 [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court’s reason for sustaining the demurrer].)
Here, the new cause of action is not within the scope of the order granting leave to amend. In the order granting leave to amend the TAC, the trial court found (1) the complaint to be uncertain as to the theories of liability plaintiff was attempting to assert against each defendant, (2) that the contents of the complaint did not correspond to causes of action listed in the caption of the compliant, and (3) that the lengthy allegations made it impossible to identify the key ultimate facts on which plaintiff was attempting to state liability. The court provided clear guidance as to how plaintiff could properly amend her complaint. The order is devoid of any language suggesting that a new cause of action under section 17200 was called for. Accordingly, the new cause of action was validly struck by the court.
Regardless, the complaint does not state a valid cause of action against defendants for violation of section 17200. This statute prohibits unfair competition, defined as “any unlawful, unfair or fraudulent business act or practice....” (Bus. & Prof. Code, § 17200.) The statute is disjunctive and creates three separate varieties of unfair competition: acts or practices that are unlawful, or unfair, or fraudulent. (Shvarts v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, 1157.) “Unlawful” means forbidden by any law, federal, state, or local. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 717–718.) “Unfair” applies to any act or practice that offends an established public policy or is “ ‘ “immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” ’ ” (Id. at p. 719, citation omitted.) “Fraudulent” simply means likely to deceive members of the public. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1170.)
Plaintiff’s cause of action reiterates the allegations of defendants’ allegedly fraudulent conduct towards her, but does not contain any statement as to how this conduct would be likely to deceive members of the public. Accordingly, this claim fails to state a cause of action for violation of section 17200.
IX. The Complaint Fails to State a Claim for Sexual Harassment
The 4AC contains a newly stated cause of action under Civil Code section 51.9 for sexual harassment.
In 1994, the Legislature enacted Civil Code section 51.9 to address “relationships between providers of professional services and their clients.” (Stats. 1994, ch. 710, § 1, p. 3432.) The statute sets out a nonexclusive list of such providers, which includes physicians, psychiatrists, dentists, attorneys, real estate agents, accountants, bankers, building contractors, executors, trustees, landlords, and teachers; also falling within the statute’s reach is sexual harassment in any “relationship that is substantially similar to” those specifically listed. (Civ. Code, § 51.9, subd. (a)(1)(A)–(F).) In order to be liable, a qualified defendant must have “made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.” (Id., subd. (a)(2).)
Again, this cause of action was properly struck by the trial court because plaintiff added it to the 4AC without having first sought leave to amend. Further, we agree with the trial court that it also fails to state a valid cause of action. Plaintiff’s complaint alleges defendant Johnson hugged, kissed and touched her on the date that he recommended Elvira undergo surgery. She states that, at the time, she believed he had acted sincerely out of a genuine concern over her distress at the dog’s condition. She also alleges that he “made numerous eye contacts with plaintiff that were confusing in nature” and suggests that Johnson has a “secret illicit sex lifestyle.” These two allegations are somewhat bizarre and, in any event, do not amount to pervasive or severe sexual harassment.
Our assessment of plaintiff’s claim is in line with a number of cases finding alleged harassing conduct too trivial or sporadic to support a sexual harassment claim. In Hughes v. Pair (2009) 46 Cal.4th 1035, 1040, the defendant made several sexually suggestive comments during a single telephone conversation with the plaintiff. Later that night at a museum reception, the defendant told the plaintiff, “ ‘I’ll get you on your knees eventually. I’m going to fuck you one way or another.’ ” (Ibid.) The Supreme Court held that the conduct was not severe or pervasive. “To be pervasive, the sexually harassing conduct must consist of ‘more than a few isolated incidents.’ ” (Id. at p. 1048.) And, although “an isolated incident of harassing conduct may qualify as ‘severe’ when it consists of ‘a physical assault or the threat thereof, ’ ” the defendant’s remark, “made in the presence of other people attending a private showing at a museum, would not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff.” (Id. at p. 1049.) The conduct described in the 4AC is much less egregious than the conduct at issue in Hughes. In sum, the complaint fails to state a cause of action for sexual harassment in violation of Civil Code section 51.9.
DISPOSITION
The order sustaining defendants’ demurrers to the complaint without leave to amend and the judgments of dismissal are affirmed.
We concur: Marchiano, P.J., Banke, J.