Judge: Andrew E. Cooper, Case: 23CHCV00093, Date: 2023-05-08 Tentative Ruling

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Case Number: 23CHCV00093    Hearing Date: May 8, 2023    Dept: F51

Dept. F-51

Date: 5/8/23

Case #23CHCV00093

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

DEMURRER

Demurrer Filed: 2/3/23

MOVING PARTY: Defendants Jessica E. Murphy, M.D.; and Facey Medical Group (collectively, “Defendants”)

RESPONDING PARTY: Plaintiffs Karey Kibbe; and Brian Kibbe (collectively, “Plaintiffs”) 

NOTICE: OK

RELIEF REQUESTED: Defendants demur to the second cause of action in Plaintiff’s complaint.

TENTATIVE RULING: The demurrer is OVERRULED.

BACKGROUND¿ 

Plaintiffs allege that on 1/14/22, plaintiff Karey Kibbe (“Karey”) sustained injuries from a slip-and-fall while attending an annual gynecology examination at defendant Facey Medical Group’s (“Facey”) medical facility in Valencia, CA. (Compl. ¶¶ 14–15.) Plaintiffs allege that Karey’s injuries were caused by Defendants’ “failure to provide a step, step stool or similar equipment, device or mechanism, assistive devices and/or assistance to aid Plaintiff to safely get on and/or off of the exam table.” (Id. at ¶ 15.)

On 1/12/23, Plaintiffs filed their complaint against Defendants, and against nonmoving defendant Providence Health Services (“Providence”), alleging the following causes of action: (1) Medical Negligence (by Karey against all Defendants); (2) Premises Liability (by Karey against Facey and Providence); and (3) Loss of Consortium (by plaintiff Brian Kibbe against all Defendants).

On 2/16/23, Defendants filed the instant demurrer. On 4/25/23, Plaintiffs filed their opposition. On 5/1/23, Defendants filed their reply.

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DEMURRER

Meet-and-Confer 

Defendant’s counsel declares that on 1/24/23, he sent Plaintiff’s counsel an email to meet and confer regarding the issues raised in the instant demurrer. (Decl. of Yuk K. Law, ¶ 5.) On 1/30/23, Plaintiff’s counsel responded, but the parties were unable to come to an agreement. (Ibid.) Therefore, the Court finds that Defendant’s counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a). 

Legal Standard 

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Defendants demur to the second cause of action alleged in Plaintiffs’ complaint on the ground that Plaintiffs fail to allege facts sufficient to state a cause of action for premises liability against Facey, and the claim is instead more aptly characterized as a professional negligence cause of action.

A.    Premises Liability

Plaintiffs’ second cause of action alleges Premises Liability against Facey and Providence. “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “Consequently, landowners are liable for injuries caused by a lack of due care in the maintenance of their property.” (Jones, 39 Cal.App.5th at 1207.)

Here, Plaintiffs allege that Karey was injured by a dangerous condition on Facey’s property. (Compl. ¶ 22.) Specifically, Plaintiffs allege that Facey and Providence “owned, occupied, controlled, operated, managed and/or maintained certain real property located at 23803 McBean Parkway in Valencia, California as a medical center,” and therefore “owed a duty to Plaintiff to make the SUBJECT PREMISES safe for ordinary and foreseeable use.” (Id. at ¶¶ 21, 22.) Defendants allegedly breached their duty by failing “to use due care to provide a step, step stool, or similar equipment, device, mechanism, assistive devices and/or assistance to aid patients to step onto and/or off of the exam table, including Plaintiff.” (Id. at ¶ 23.) As a result of Defendants’ alleged breach, Karey “suffered several and permanent injuries” to her ankle, “including but not limited to a closed fracture of the right distal fibula and fractured medial malleolus and which caused unnecessary pain, disability, suffering, agony, emotional and mental stress and distress, anxiety, depression and fear, among other injuries and damages.” (Id. at ¶¶ 25, 15.) Accordingly, the Court preliminarily finds that Plaintiffs have alleged facts to support each element of a cause of action for premises liability.

Defendants argue on demurrer that Plaintiffs’ allegations amount to a professional negligence cause of action, and not a premises liability cause of action, because Karey’s injuries were allegedly sustained “in the rendering of professional services.” (Dem. 5:10–12, quoting Mitchell v. Los Robles Regional Medical Center (2021) 71 Cal.App.5th 291, 297.) “Given that plaintiff’s fall occurred while attempting to mount the examination table during a gynecological examination (and thus, the rendering of professional services), plaintiffs improperly plead a cause of action for professional negligence as premises liability.” (Id. at 6:6–8.)

In Mitchell, the Court of Appeal reviewed the distinction between “between the professional obligations of hospitals in the rendering of medical care to their patients and the obligations hospitals have, simply by virtue of operating facilities open to the public, to maintain their premises in a manner that preserves the well-being and safety of all users” for purposes of determining the applicable statute of limitations. (71 Cal.App.5th at 297.) In doing so, the Court of Appeal found that the hospital nursing staff's decision to not assist the plaintiff patient in walking to the restroom was integrally related to her medical care and treatment. (Id. at 297–299.) Therefore, the Court of Appeal found that the patient's action against the hospital to recover for injuries she sustained when she fell while walking to restroom while being treated in the emergency room was subject to one-year limitations period for medical professional negligence claims, despite patient's contention that helping someone walk to and from toilet was not professional medical service. (Id. at 299.)

In opposition, Plaintiffs argue that the instant action is distinguishable from Mitchell because here, unlike in Mitchell, Plaintiffs allege that Karey’s injuries were caused by a dangerous condition on the property, and not “negligence with respect to judgment made in the course of providing medical care.” (Pls.’ Opp. 8:17–19.) Indeed, in Mitchell, where the plaintiff was injured when her legs “gave out” on her way back from the restroom, the plaintiff “herself stated that the condition of the floor did not contribute to her fall.” (71 Cal.App.5th at 295–296.) Plaintiffs argue that here, “it is not alleged that the failure to properly maintain the exam table/provide steps, step stool or similar device to get on and off the table affected the quality of Karey’s gynecology treatment for menopausal symptoms which she sought on January 14, 2022.” (Pls.’ Opp. 4:2–4.)

Plaintiffs argue that this case is more analogous to Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153, where the Court of Appeal emphasized the need to “avoid a ruling which would make ordinary premises liability claims subject to the special, one-year statute of limitations by differentiating between the special duties that medical providers owe to patients, on one hand, and those they owe as property owners to all invitees on the other.” (15 Cal.App.5th at 160.) In Johnson, the plaintiff patient was injured after she tripped over a scale, which she had earlier been weighed on, while leaving the treatment room at the defendant’s medical facility. (Id. at 156.) The Court of Appeal found that the plaintiff’s premises liability claims were not subject to the one-year statute of limitations applied to professional negligence claims because “although she tripped on medical equipment coincidentally used as part of her earlier medical treatment, she does not allege that Open Door’s failure to properly maintain the scale affected the quality of her medical treatment … However, she alleges that Open Door’s placement of the scale posed a tripping hazard, implicating Open Door’s duty to all users of its facility, including patients, employees, and other invitees, to maintain safe premises.” (Id. at 160.)

However, Johnson may be distinguished from the instant case because the plaintiff in Johnson was injured “after her care was completed,” and therefore her allegations were completely unrelated to the medical care she received at the defendant’s medical facility. (Ibid.) Here, while Plaintiffs argue that they “are not alleging negligence with respect to judgment made in the course of providing medical care,” this contention is contradicted by their first cause of action for medical negligence, which alleges that all Defendants “so negligently and carelessly treated and cared for Plaintiff, Karey Kibbe relative to the care referenced above and/or relative to the condition of the exam room, including but not limited to the failure to provide a step, step stool or similar equipment, device or mechanism, assistive devices and/or assistance to aid Plaintiff to safely get on and/or off of the exam table.” (Pls.’ Opp. 8:17–19; Compl. ¶ 15.) Moreover, unlike in Johnson, Plaintiffs allege here that Karey was injured during her examination inside the examination room. (Compl. ¶ 15.)

It is anticipated these distinctions will be resolved at a certain point but not by way of a demurrer. 

Plaintiffs have alleged facts to support each element of a premises liability cause of action while concurrently alleged that Karey’s injuries were caused by Defendants’ medical negligence. (Compl. ¶¶ 13–19.)

CONCLUSION¿ 

The demurrer is OVERRULED.