Judge: Alison Mackenzie, Case: 23STCV14051, Date: 2023-11-28 Tentative Ruling
Case Number: 23STCV14051 Hearing Date: November 28, 2023 Dept: 55
NATURE OF PROCEEDINGS: Demurrer by Defendant Southern California
Health System, Inc. dba Southern California Hospital at Hollywood to
Plaintiff's Complaint; Motion Thereof to
Strike Portions from Plaintiff's Complaint.
The demurrer is overruled.
The motion to strike is granted in part (as to
irrelevant allegations and punitive damages), and denied in part (as to
attorneys’ fees), with 20 days’ leave to amend.
Twenty days leave to amend.
On 6/20/23, FRANK LARA JR. (“Plaintiff”) filed a
Complaint against SOUTHERN CALIFORNIA HOSPITAL AT HOLLYWOOD (“Defendant”),
alleging that, on or about 10/29/22 to 11/1/22, Plaintiff was admitted to
Defendant’s medical center for a routine procedure, but Defendant’s nurse and
staff would not address his ongoing complaints about an IV inserted in his left
hand, even after he repeatedly complained of pain caused by leaking fluids, which
caused pain, suffering and nerve issues to his left hand. The causes of action are: 1) Negligence – Medical Malpractice; 2) Willful Misconduct and 3) Breach of
Fiduciary Duty.
Defendant filed a demurrer to the Second and Third
Causes of Action of the Complaint and a motion to strike (1) allegations
unrelated to this Complaint, (2) attorneys’ fees and (3) punitive damages (see Complaint,
p. 13, ¶ 1 (“and shall increase each month per the Agreement's late payment
terms”), p. 13, ¶ 7 (“attorney's fees”) and p. 13, ¶ 5 (regarding punitive
damages)). Plaintiff opposes the matters, advocating overruling and denying, or
leave to amend.
Demurrer
Second Cause of Action: Willful Misconduct
Defendant argues that willful misconduct is just
aggravated negligence, citing, for example, Berkley v. Dowds (2007) 152
Cal.App.4th 518, 526. (Mot. 5:12-15.) Plaintiff replies that it is a recognized
claim, citing New v. Consol. Rock Products Co. (1985) 171 Cal.App.3d
681, 688-690, which cites Morgan v. Southern Pacific Trans. Co. (1974)
37 Cal.App.3d 1006, 1012.
Actually, there is a split of authority as to whether the
claim for Willful Misconduct is a stand-alone cause of action, having the
elements:
a)
actual or constructive knowledge of
peril;
b)
actual or constructive knowledge that
injury is probable; and
c)
conscious failure to act to avoid the
peril;
Nazar v. Rodeffer (1996) 184 Cal.App.3d 546, 552, disapproved on other grounds by Ornelas v. Randolph (1993) 4
Cal.4th 1095, 1108; New v.
Consolidated Rock Products Co. (1985) 171 Cal. App. 3d 681, 689; Bastian v. County of San Luis Obispo
(1988) 199 Cal. App. 3d 520, 533; See also
Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 412 (“Willful
misconduct involves more than a failure to use ordinary care….”); Calvillo-Silva v. Home Grocery (1998)
19 Cal.4th 714, 730 (“willfulness generally is marked by three characteristics:
(1) actual or constructive knowledge of the peril to be apprehended; (2) actual
or constructive knowledge that injury is a probable, as opposed to a possible,
result of the danger; and (3) conscious failure to act to avoid the peril.”), disapproved on other grounds by Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 854 n. 19; Acosta
v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1293 (in accord
with Calvillo-Silva). But
see Berkley v. Dowds (2007)
152 Cal.App.4th 518, 526 (willful misconduct is aggravated form of
negligence).
Where there is a split of authority, trial courts have
discretion to choose between the decisions.
Auto Equity Sales, Inc.
v. Sup. Ct. (1962) 57 Cal.2d 450, 456. Where there is a split of authority, “[a]s a
practical matter, a superior court ordinarily will follow an appellate opinion
emanating from its own district even though it is not bound to do so.” McCallum v. McCallum (1987) 190 Cal.App.3d 308, 316 n.4.
Here, the Court elects to follow the line of authority
recognizing a separate claim for willful misconduct, and therefore overrules
the demurrer on that basis.
Third Cause of Action: Breach of Fiduciary Duty.
Defendant contends that the only fiduciary duty in a physician-patient
relationship is the duty to give informed consent, citing, for instance, Jameson
v. Desta (2013) 215 Cal.App.4th 1144.
(Mot., 7:11-21.) Plaintiff
counters that a hospital owes patients duties of a fiduciary to provide competent medical services.
“Respondent [hospital] owes a duty of a fiduciary
nature to its patients and the public to deliver safe and competent medical
services.” Weinberg v. Cedars-Sinai
Medical Center (2004) 119 Cal. App. 4th 1098, 1109. “[A] hospital has ‘a direct and independent responsibility
to its patients of insuring the competency of its medical staff and the quality
of medical care provided through the prudent selection, review and continuing
evaluation of the physicians granted staff privileges.’ " O'Byrne v. Santa Monica-UCLA Medical
Center (2001) 94 Cal. App. 4th 797, 811.
Because such case law does not expressly restrict
fiduciary duties to just informed consent, the Court overrules the demurrer as
to this claim. "A legal proposition
asserted without apposite authority necessarily fails." People v. Taylor (2004) 119
Cal.App.4th 628, 643.
Motion to Strike
Irrelevant Allegations
Defendant asserts that it is suspected that a portion
of plaintiff's complaint about contract damages is from a prior template, and
does not actually relate to this matter. (Mot., 6:6-8.)
The opposition does not address it.
The grounds for a motion to strike are that the
pleading has irrelevant, false or improper matter, or has not been drawn or
filed in conformity with laws. CCP
§436.
There appears to be an obvious complaint drafting
error-- i.e., the reference to
contract-based late payments, which has nothing to do with the alleged medical
malpractice.
Therefore, the motion is granted with leave to remove
an inadvertent allegation.
Attorneys’ Fees
Defendant argues that Plaintiff's complaint does not
allege he is entitled to recovery of attorney's fees under any supportive law
or statute. Plaintiff’s opposition fails
to address attorneys’ fees.
Therefore, the motion is denied as to attorneys’ fees.
Punitive Damages
Defendant contends that the factual allegations set
forth in plaintiff's complaint arise out of the professional negligence of a
health care provider as contemplated by California Code of Civil Procedure Section
425.13, requiring Plaintiff to obtain a court order before pleading punitive
damages. (Mot., pp. 4-5.)
In rebuttal, Plaintiff contends that a showing of
conscious disregard can support willful misconduct and punitive damages. See
Bigge Crane & Rigging Co. v. Workers' Comp. App. Bd. (2010) 188 Cal.
App. 4th 1330, 1349 (conscious disregard can support willful misconduct). The opposition contains no argument about the
issue raised under CCP Section 425.13.
“A court order is required prior to pleading punitive
damage claims against health care providers,… see § 6:327 ff.); or against
religious corporations (CCP § 425.14, see § 6:346 ff.). Without such an order,
the punitives claim is subject to a motion to strike.” Cal. Prac. Guide: Civ. Pro. Before Trial (The
Rutter Group 2023) §7:185.2 (citing CCP
§425.13, 425.14; United Western Med.
Ctrs. v. Sup.Ct. (1996) 42 Cal.App.4th 500).
Therefore, the motion is granted as to punitive
damages, with leave to take appropriate steps, if any.
Conclusion
The demurrer is overruled.
The motion to strike is granted in part (as to
irrelevant allegations and punitive damages), and denied in part (as to
attorneys’ fees), with 20 days’ leave to amend.