GRIMES, J.
Plaintiff Chasity Branner sued her dentist, Igal Leizerovich, and his professional corporation (collectively defendant) for negligence, "intentional tort," and violation of the Consumers Legal Remedies Act (CLRA). (Civ. Code, § 1750 et seq.) The trial court granted defendant's motions for judgment on the pleadings on the intentional tort claim and summary adjudication of the CLRA claim, after which a jury found defendant was not negligent. On appeal, plaintiff challenges both of the court's rulings and contends the trial court erred in instructing the jury on professional negligence with BAJI No. 6.00.1 instead of CACI No. 501. Plaintiff also complains that defendant's offer of compromise under Code of Civil Procedure section 998 was illusory, so that defendant should not have been awarded his expert witness fees. We affirm the judgment.
In March 2007, defendant placed six veneers on plaintiff's top front teeth. The veneers were replaced twice in the ensuing few months. After the second replacement in May 2007, plaintiff's gums were swollen, bleeding and painful, and remained so. When she complained at a postoperative visit in August 2007, defendant told her that healing takes time. In January 2008, plaintiff's gums had not healed and she sought a second opinion (Dr. Bonilla). She was told the veneers had to be removed because defendant had invaded the gum above the threshold, periodontal surgery was necessary to correct the gum disease caused by the invasion, and plaintiff would need crowns on all her front teeth. Plaintiff reported this diagnosis to defendant, who told her to disregard it, as dentists "may say anything to get your money"; defendant told her to continue with a mouthwash, flossing and brushing regimen and that her gums would heal.
In March 2008, plaintiff sought a third opinion, which was to the same general effect as the second. When she reported this to defendant, he still maintained that her gums would heal. Plaintiff then went to a fourth dentist (Dr. Weissman) who, after treating plaintiff for six months to try to heal the swollen and bleeding gums, in December 2008 recommended a treatment plan similar to Dr. Bonilla's. A fifth dentist concurred in the treatment plan.
On January 7, 2009, plaintiff served defendant with notice that she intended to file an action for professional negligence (Code Civ. Proc., § 364, subd. (a)) and notice that defendant's conduct may have violated the CLRA. (Civ. Code, § 1782, subd. (a)(1).) Five days later, plaintiff filed this lawsuit.
Defendant moved for judgment on the pleadings on the intentional tort cause of action and for summary adjudication of the CLRA claim. Plaintiff filed opposition to the motion for judgment on the pleadings, asserting she had alleged all the elements of fraud by concealment, but filed no opposition to the summary adjudication motion. Both motions were granted.
Defendant offered to compromise by payment of $25,001, with each side to bear its own costs of suit. Plaintiff did not accept the offer. After a jury trial on the professional negligence claim that included conflicting expert testimony, the jury, in a special verdict, found no negligence. The trial court awarded defendant costs, including expert witness fees of $2,850.
Judgment was entered and this appeal followed.
Plaintiff first contends the trial court erred in using BAJI No. 6.00.1 instead of CACI No. 501 when it instructed the jury on defendant's duty of care. The jury was instructed:
The CACI instruction on the standard of care, in the case of a dentist, would simply state that a dentist is negligent "if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [dentists] would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as `the standard of care.'" (CACI No. 501.)
Plaintiff contends the inclusion of the third element of the BAJI instruction—the duty to use reasonable diligence and best judgment—"misled the Jury into considering Defendant['s] `state of mind,' rather than his actions." Plaintiff further claims that jury confusion is evidenced by the jury's question, during deliberations: "If we find the defendant to be non-negligible [sic] can we still award monetary compensation to the plaintiff?" (The court answered by telling the jurors to follow the jury instructions and the special verdict form as it was written.)
Plaintiff's claim has no merit. While the CACI instructions are "the official instructions for use in the state of California" and their use is "strongly encouraged" (Cal. Rules of Court, rule 2.1050(a) & (e)), no authority supports the contention that use of a BAJI instruction is reversible error. Counsel commonly stipulate to the use of BAJI instructions even when there are CACI instructions available for use. Instructional error in a civil case is reversible "only if it is reasonably probable the appellant would have received a more favorable result in the absence of the error." (Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1248-1249.)
Here, there was nothing wrong with the BAJI instruction, which merely added a third way the jury might find defendant was negligent if they found he failed to use reasonable diligence and his best judgment. The BAJI instruction told the jury they might find defendant negligent if his education and training were below the standard of care, or if he used his education and training in a way that fell below the standard of care, or if the diligence and judgment he demonstrated in performing the procedures he recommended to plaintiff fell below the standard of care. No prejudice could have occurred from the use of the BAJI instruction, because the jury was instructed that "failure to perform any of these duties is negligence." (Italics added.) That is, in order to find defendant was not negligent, the jury necessarily found defendant possessed and used the skill "ordinarily exercised in like cases by reputable members of the profession practicing under similar circumstances"—essentially the same formulation as the CACI instruction.
Plaintiff contends the trial court erred in granting defendant's motion for judgment on the pleadings on her intentional tort claim. She says her complaint contained all required elements of a claim for fraud by concealment, and any defect could be cured by amendment. Plaintiff is mistaken.
The elements of fraud are a false representation (or concealment or nondisclosure), knowledge of falsity (scienter), intent to defraud ("i.e, to induce reliance"), justifiable reliance, and resulting damage. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 772, p. 1121.) Fraud, including fraud by concealment, must be pled with specificity. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.)
The complaint nowhere alleges the elements of a claim for fraud by concealment — indeed, the complaint never mentions either fraud or concealment. Plaintiff contends her claim of fraud by concealment is shown by the allegations that she notified defendant her gums were painful, and defendant refused to acknowledge her injury, refused to provide appropriate care, told her to disregard the other dentists, "and continued to refuse to inform Plaintiff that her problems would not resolve by themselves." But these are not the elements of a fraud claim. No facts are alleged to show scienter, intent to defraud, or justifiable reliance. Plaintiff claims on appeal that her allegations "could have, and would have, been re-alleged with more specifics" if the trial court had granted leave to amend. But plaintiff fails to suggest any "specifics" she could allege to turn her dental malpractice claim into a fraud claim. Consequently, there was no error in the trial court's grant of judgment on the pleadings on plaintiff's intentional tort claim.
In her complaint, plaintiff alleged violation of several provisions of the CLRA. The provisions plaintiff cited make it unlawful to "[m]isrepresent[] the source, sponsorship, approval, or certification of goods or services," to "[r]epresent[] that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have," to "[r]epresent[] that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another," and to "[a]dvertis[e] goods or services with intent not to sell them as advertised." (Civ. Code, § 1770, subd. (a)(2), (5), (7) & (9).)
Defendant sought summary adjudication, presenting evidence that plaintiff came to defendant wanting veneers; defendant advised her of her treatment options, warning her there was no guarantee the veneer treatment would be successful; plaintiff remembered no other statements from defendant during her initial consultation; and plaintiff signed an informed consent form confirming that she understood the risks and limitations of the procedures. Defendant argued that plaintiff failed to provide timely notice of her CLRA action and to otherwise comply with statutory requirements, that defendant made no misrepresentations and concealed no facts about the veneer treatments that would give rise to an action under the CLRA, and that plaintiff's discovery responses were devoid of any facts supporting the CLRA cause of action.
Plaintiff filed no opposition to defendant's motion for summary adjudication. The trial court granted defendant's motion, finding both that plaintiff failed to give the notice required by statute and failed to present any evidence rebutting defendant's claim that no misrepresentations were made to her. On appeal, plaintiff argues that defendant did not make the necessary showing that one or more elements of her CLRA cause of action could not be established, so that the burden of showing a triable issue of material fact never shifted to her. Again, she is wrong.
Under the CLRA, "[t]hirty days or more prior to the commencement of an action for damages . . . the consumer shall . . .: [¶] (1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770," and "(2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770." (Civ. Code, § 1782, subd. (a)(1) & (2).) Here, plaintiff complied with neither of these requirements, which are to be construed literally. (See Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 40-41 [§ 1782, subd. (a) is "clear and unambiguous" and "liberal construction does not permit us to disregard or enlarge the plain provisions of the statute"; the "clear intent of the act is to provide and facilitate precomplaint settlements of consumer actions wherever possible and to establish a limited period during which such settlement may be accomplished. This clear purpose may only be accomplished by a literal application of the notice provisions."].)
Plaintiff sent her CLRA notice only five days, not 30 days, before she filed this lawsuit. She points out that she did not serve the complaint on defendant until February 6, 2009, 30 days after she served the notice. But under the Code of Civil Procedure, "[a]n action is commenced, within the meaning of this title, when the complaint is filed." (Code Civ. Proc., § 350.) Moreover, plaintiff's notice did not demand that defendant "correct, repair, replace, or otherwise rectify" the services he provided, as required by the statute. (Civ. Code, § 1782, subd. (a)(2).)
Even if these failures could be viewed as insufficient to prevent summary adjudication, plaintiff failed to offer any evidence to rebut defendant's evidence that he made no misrepresentations that could give rise to a claim under the CLRA. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [if defendant carries his burden of producing evidence of the nonexistence of any triable issue of material fact, "the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact"].) Plaintiff says her complaint "clearly alleged Defendants' material misrepresentations and concealment," but it did not—and even if her complaint had alleged a misrepresentation within the meaning of the CLRA, allegations are not evidence and do not create a triable issue of material fact. Defendant produced evidence describing the information he gave plaintiff before proceeding with treatment, and plaintiff produced no evidence that any misrepresentation was made. Summary adjudication was proper.
Finally, plaintiff contends defendant was not entitled to expert witness fees because his offer to compromise under Code of Civil Procedure section 998 (hereafter section 998) was unreasonable. This contention has no merit.
Under section 998, if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment, the plaintiff must pay the defendant's costs from the time of the offer, and the court may require the plaintiff to pay a reasonable sum to cover the services of expert witnesses. (§ 998, subd. (c)(1).) Section 998's purpose is to encourage settlement without trial, and to effectuate that purpose a section 998 offer must be made in good faith. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) Good faith requires an offer to be "`realistically reasonable under the circumstances of the particular case.'" (Ibid.; id. at pp. 1262-1263 ["One having no expectation that his or her offer will be accepted will not be allowed to benefit from a no-risk offer made for the sole purpose of later recovering large expert witness fees."].)
Here, defendant offered to compromise by paying plaintiff $25,001, with each side to bear their own costs of suit. Plaintiff asserts this offer was illusory "based on its failure to include attorney's fees" and "de minimis" given that her medical costs alone totaled almost $40,000. But settlement offers need not include attorney's fees, and the offer can hardly be viewed as de minimis in light of the jury's finding that defendant was not negligent and owed plaintiff nothing. In short, plaintiff offers no authority or reasoned basis for finding defendant's section 998 offer was defective, and we know of none.
The judgment is affirmed. Respondents are to recover their costs on appeal.
RUBIN, Acting P. J. and FLIER, J., concurs.
