Judge: Anne Richardson, Case: 23STCV05139, Date: 2024-03-25 Tentative Ruling

Case Number: 23STCV05139    Hearing Date: March 25, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiffs Mark Marras and Shelby Marras—husband and wife—sue Defendant Justin Houman, M.D. and Does 1 through 100 pursuant to a November 22, 2023, First Amended Complaint (FAC) alleging claims of (1) Medical Negligence and Detrimental Reliance by Mark Marras against all Defendants and (2) Medical Negligence by Shelby Marras against all Defendants.

The claims arise from allegations that Defendants’ conduct fell below the standard of care for medical professionals when treating Plaintiff Mark Marras, which led to harm to both Plaintiffs when Defendants failed to but should have diagnosed a condition in Mark Marras, with Plaintiffs relying on Defendants’ medical advice to proceed with In Vitro Fertilization (IVF) and Intrauterine Insemination (IUI) procedures, which were unsuccessful and caused physical and emotional harm to Shelby Marras.

B. Motion Before the Court

On February 29, 2024, Defendant Houman, M.D. filed a demurrer to the FAC’s two causes of action on sufficiency of pleading, uncertainty in pleading, and duplicativeness grounds.

That same day, Dr. Houman filed a motion to strike challenging the FAC’s two causes of action on the same grounds as the demurrer, as well as the prejudgment interest prayer in the FAC.

On March 11, 2024, Plaintiffs filed a combined opposition to the demurrer.

On March 18, 2024, Dr. Houman filed a combined reply to the opposition.

Dr. Houman’s demurrer is now before the Court.

II. Demurrer

A. Legal Standard

1. Sufficiency

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Thus, “[t]o survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

2. Uncertainty

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825, disapproved on other grounds in Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 719-720 [statute of limitations question].) Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

B. Analysis

1. Demurrer, FAC, First Cause of Action, Medical Negligence [Malpractice] and Detrimental Reliance: OVERRULED.

a. Local Standard

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702, citations omitted.) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) the reliance must be both reasonable and foreseeable, and (4) the party asserting the estoppel must be injured by his or her reliance. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416 (Granadino).) “‘Although a promise made enforceable by a promissory estoppel is similar to a binding contractual promise, a promissory estoppel claim does not arise out of a contract.’ [Citation.]” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 244 (Barnhart).)

b. FAC’s Allegations

The FAC’s first cause of action alleges as follows. In the course of providing consultation services to Plaintiff Mark Marras for symptoms, diagnoses, and medical care for the purpose of subsequently undergoing IVF and IUI procedures, Defendants’ conduct fell below the standard of care for medical professionals because Defendants failed to properly diagnose, care, and treat Plaintiffs. More specifically, Defendants allege that Defendants’ failure to diagnose Plaintiff Mark Harass with varicocele caused plaintiffs to undertake an unsuccessful course of IVF and IUI that was not only unsuccessful, costly, and time consumptive, but also caused Plaintiff Shelby Marras to suffer Ovarian Hyperstimulation Syndrome (OHSS), as well as physical, emotional, and financial harm. (FAC, ¶¶ 7-14.)

The Court notes that Defendants here are only alleged to have undertaken an antecedent consultation of Plaintiff Mark Marras’s symptoms, diagnoses, and medical care for the purposes of subsequently undergoing IVF and IUI procedures with unnamed medical professionals. (See, e.g., FAC, ¶ 7.)

Plaintiffs pray for general damages for each plaintiff, medical and related expenses, damages due to inability to attend to usual duties, and/or loss of earnings and earning capacity according to proof, loss of consortium, pre-judgment interest, costs of suit, and such other and further relief as to the court may deem just and proper. (FAC, Prayer, ¶¶ 1-7.)

c. Parties’ Arguments

In his demurrer, Dr. Houman argues that in relevant part: “Here, [Mark Marras] purports to have detrimentally relied upon a promise by Dr. Houman for certain health outcomes or results. However, he does not state what the promise was that was made by Dr. Houman that he relied upon, nor does he plead or attach an express contract to the FAC. As discussed above, absent an express contract and a guarantee of a specific result by Dr. Houman, Mr. Marras cannot possibly sustain a cause of action in contract or obtain equitable relief for any alleged detrimental reliance. Therefore, the demurrer to the First Cause of Action for Detrimental Reliance must be sustained without leave to amend.” (Demurrer, p. 5.)

In opposition, Plaintiffs argue in full, with no elaboration: “Clearly, the [FAC] sets forth commonly used language sufficient to meet the notice requirements for each of the above elements required to state a cause of action for Negligence. Medical Negligence requires no special pleading beyond that needed for a Negligence cause of action.” (Opp’n, p. 3.)

In reply, Dr. Houman argues that “Plaintiff Mark Marras has failed to raise any facts to support the elements of a cause of action for Detrimental Reliance in the Opposition, nor show how the FAC can be amended to include such facts. As such the Demurrer should be sustained.” (Reply, p. 3.)

d. Court’s Determination

The Court finds in favor of Plaintiffs.

“A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047; see Code Civ. Proc., § 430.50, subd. (a) [A demurrer can be made to an entire complaint or individual causes of action therein].)

A motion to strike is generally used to reach defects in a pleading that are not subject to demurrer. (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.)

Here, the demurrer and the reply do not address the medical malpractice component of the first cause of action. When read liberally, as the Court must, that component of the first cause of action, among other things, includes allegations of damages to Mark Marras as a result of Dr. Houman’s failure to diagnose Mark Harras’s varicocele during Dr. Houman’s treatment of Mark, which the FAC frames as being the reason that the subsequent IVF and IUI procedures were not successful, and as conduct that falls below the relevant standard of care—allegations facially pleading medical malpractice. (Demurrer, pp. FAC, ¶¶ 7-14.)

Dr. Houman’s demurrer to the FAC’s first cause of action is thus OVERRULED, but the Court notes that the motion to strike before the Court also challenges the first cause of action insofar as it arises from promissory estoppel.

2. Demurrer, FAC, Second Cause of Action, Medical Negligence [Malpractice]: OVERRULED.

a. Local Standard

See Section II.B.1.a. above.

b. FAC’s Allegations

The FAC’s second cause of action alleges medical malpractice against Defendants based on the same allegations supporting the first cause of action. (Compare FAC, ¶¶ 15-20, with FAC, ¶¶ 7-14.)

c. Parties’ Arguments

In his demurrer, Dr. Houman argues that the FAC fails to allege medical malpractice as it relates to Plaintiff Shelby Marras because the FAC is specific in alleging that Defendants were only hired to provide medical services for Mark Marras, for which reason even if Shelby Marras suffered subsequent harm as a result of the unsuccessful IVF and IUI procedures, Defendants lacked a physician-patient duty relationship with Shelby Marras. Dr. Houman cites Rainer v. Grossman (1973) 31 Cal.App.3d 539, 542 in support, where the court of appeal held that a physician who gave an opinion as to medical images (X-rays) belonging to the plaintiff was not liable for harm arising from the recommendation because the physician did not at any time meet, see, or treat the plaintiff for any condition, and had not been consulted by any doctor concerning the plaintiff’s treatment specifically. Dr. Houman argues that as with Rainer, here the FAC clearly pleads that he did not meet, see, or treat Shelby Marras, and that he was not consulted regarding her health conditions, for which reason no physician-patient relationship is sufficiently alleged in the FAC. (Demurrer, pp. 5-8.)

In opposition, Plaintiffs argue in full, with no elaboration: “Clearly, the [FAC] sets forth commonly used language sufficient to meet the notice requirements for each of the above elements required to state a cause of action for Negligence. Medical Negligence requires no special pleading beyond that needed for a Negligence cause of action.” (Opp’n, p. 3.)

In reply, Dr. Houman reiterates the lack of allegations of a physician-patient relationship between himself and Shelby Marras. (Reply, pp. 3-4.)

d. Court’s Determination

The Court finds in favor of Plaintiff Shelby Marras.

“‘Where, as here, there is no privity of contract between the parties, our Supreme Court has “employed a checklist of factors to consider in assessing legal duty ….’ ([(Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,] 397, 11 Cal.Rptr.2d 51, 834 P.2d 745.) In Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16 [Biakanja], the court ‘outlined the factors to be considered in making such a decision: “The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.”’ (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 397, 11 Cal.Rptr.2d 51, 834 P.2d 745, quoting from Biakanja v. Irving, supra, 49 Cal.2d at p. 650, 320 P.2d 16.)” (Calderon v. Glick (2005) 131 Cal.App.4th 224, 233 (Calderon).)

In Calderon, a psychotherapist (Glick) was sued by a former girlfriend (Calderon) of one of the psychotherapist’s patients (Rodriguez) for medical malpractice and failure to warn in connection with Rodriguez’s shooting of various of Calderon’s family members, with three dying from their wounds, two sustaining injuries, and a sixth sustaining non-shooting injuries after jumping out of a second-story window. (Id. at pp. 227-229.) The lawsuit was premised on a failure to warn Calderon and her family of the delusional thoughts harbored by Rodriguez, which related to Rodriguez’s belief that Calderon had given Rodriguez human T-cell lymphotropic virus under circumstances where Rodriguez had not communicated any threats of physical violence against Calderon or members of her family and had explicitly expressed no intent to harm Calderon after being prompted for a response from Glick. (Ibid.) The trial court granted summary adjudication on both claims, and as to the medical malpractice claim, determined that Calderon’s claim failed for failure to present evidence of a physician-patient relationship. (Id. at pp. 229-230.) The court of appeal affirmed based on an application of the Biakanja factors, holding that no legal duty arose from Glick to Calderon because “[t]he transaction between respondents [Glick, et al.] and [the patient,] Rodriguez[,] was not intended to affect or benefit [Calderon, et al.] in any way,” but rather “was intended to benefit Rodriguez by providing him with therapy for his mental problems.” (Ibid.) “It was not reasonably foreseeable that Rodriguez would harm members of [Calderon’s] family. They had nothing to do with the blood virus in Rodriguez. Respondents had no information indicating that Rodriguez had been violent in the past. Lacking clairvoyant powers, they could not predict future dangerousness. Rodriguez always insisted that he did not intend to harm [Calderon] or anyone else.”

Here, the circumstances alleged in the FAC are distinguishable from Calderon and merit a positive application of the Biakanja factors in favor of Plaintiff Shelby Marras.

The FAC alleges the extent to which the transaction was intended to affect Shelby Marras: the failure to accurately diagnose Mark Marras by Dr. Houman was relied on by Plaintiffs in order to decide whether to proceed with IVF and IUI procedures, which the FAC alleges as having failed and caused Shelby physical and emotional harm. (FAC, ¶¶ 17-20; see FAC, ¶¶ 7-10, 15.)

The FAC alleges sufficient grounds for the foreseeability of harm to Shelby Marras: Dr. Houman’s non-diagnosis as to Mark Marras’s varicocele condition resulted in conditions in which it was reasonably foreseeable that Plaintiffs could undergo procedures for Shelby Marras to become pregnant and that harm could result from unsuccessful IVF and IUI procedures, where a lack of success in the IVF and IUI procedures and harm to Shelby Marras could be foreseen from the FAC’s causal link between the varicocele’s complications and Plaintiffs’ reliance on the diagnosis to proceed with IVF and IUI procedures, and where the FAC alleges such conduct as falling below the relevant standard of care. (FAC, ¶ 17; see FAC, ¶¶ 7-10, 15; Varicocele (2024) Johns Hopkins Medicine <https://www.hopkinsmedicine.org/health/conditions-and-diseases/varicocele> [as of. Mar. 25, 2024].) The Court notes that evidentiary allegations explaining exactly how Mark Marras’s varicocele led to the unsuccessful IVF and IUI procedures are not included in the FAC but need not be included in the FAC insofar as only ultimate facts need be alleged. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5, citation omitted.) The ultimate facts here are that Dr. Houman’s non-diagnosis of the varicocele led to the unsuccessful IVF and IUI procedures and had a result of harming Shelby Marras physically and emotionally. (FAC, ¶¶ 7-10, 17.) The supporting evidentiary facts can be established in discovery. (See Dahlquist v. State (1966) 243 Cal.App.2d 208, 212-213 [Because discovery through “depositions, interrogatories, requests for admission, etc.” is the “modern method of” “ascertain[ing] every fact known to plaintiffs and their witnesses,” “reason [exists] for some relaxation of rigidity in application of the rules relating to the sufficiency of complaints,” citations omitted].)

The FAC alleges the degree of certainty that Shelby Marras suffered injury: Ovarian Hyperstimulation Syndrome (OHSS), as well as physical, emotional, and financial harm. (FAC, ¶¶ 17-20; see FAC, ¶¶ 10, 15.)

And the FAC alleges sufficient grounds for a determination of closeness between Dr. Houman’s non-diagnosis of Mark Marras’ varicocele and the injury suffered by Shelby Marras (discussed in the paragraph before last), the moral blame attached to Dr. Houman’s conduct (falling below the relevant standard of care with Mark Marras), and the policy of preventing future harm (e.g., imposition of liability can also serve as deterrent against future wrongdoing, if it exists). (FAC, ¶¶ 17-20; see FAC, ¶¶ 7-10, 15.)

Dr. Houman’s demurrer to the FAC’s second cause of action is thus OVERRULED.

III. Motion to Strike

A. Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).

B. Analysis

In his motion to strike, Dr. Houman challenges the propriety of (1) the FAC’s first cause of action insofar it is premised on promissory estoppel, (2) the FAC’s second cause of action based on the lack of an alleged physician-patient relationship between Dr. Houman and Shelby Marras, and (3) the FAC’s prayer for prejudgment interest, which is not for a calculable sum certain—i.e., is not liquidated—and thus not proper. (Mot., pp. 2-4.)

1. Motion to Strike, FAC, First Cause of Action, Medical Negligence [Malpractice] and Detrimental Reliance: GRANTED, with leave to amend.

a. Local Standard

The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) the reliance must be both reasonable and foreseeable, and (4) the party asserting the estoppel must be injured by his or her reliance. (Granadino, supra, 236 Cal.App.4th at p. 416.) “‘Although a promise made enforceable by a promissory estoppel is similar to a binding contractual promise, a promissory estoppel claim does not arise out of a contract.’ [Citation.]” (Barnhart, supra, 211 Cal.App.4th at p. 244.)

b. FAC’s Allegations

The FAC’s first cause of action alleges as follows. In the course of providing consultation services to Plaintiff Mark Marras for symptoms, diagnoses, and medical care for the purpose of subsequently undergoing IVF and IUI procedures, Defendants’ conduct fell below the standard of care for medical professionals because Defendants failed to properly diagnose, care, and treat Plaintiffs. More specifically, Defendants allege that Defendants’ failure to diagnose Plaintiff Mark Harass with varicocele caused plaintiffs to undertake an unsuccessful course of IVF and IUI that was not only unsuccessful, costly, and time consumptive, but also caused Plaintiff Shelby Marras to suffer Ovarian Hyperstimulation Syndrome (OHSS), as well as physical, emotional, and financial harm. (FAC, ¶¶ 7-14.)

c. Parties’ Arguments

In his motion, Dr. Houman argues that in relevant part: “[Mark Marras] does not state what promise was made to him by Dr. Houman nor does he allege a reasonable reliance on any such promise. More specifically[—and without citing authority other than to referencing the arguments made on demurrer—]in an action against a healthcare provider, such as Dr. Houman, absent an express contract and a guarantee of a specific result by the physician, Mr. Marras cannot possibly sustain a cause of action in contract or obtain equitable relief for any alleged detrimental reliance. As such, the Demurrer to the cause of action for Detrimental Reliance should be sustained without leave to amend and the said causes of action be struck from the FAC.” (Mot., p. 6.)

The authority cited in the demurrer other than the general legal standard for promissory estoppel claims is McKinney v. Nash (1981) 120 Cal.App.3d 428, 442 (McKinney), cited for the proposition that claims arising from a breach of warranty or contract in a medical malpractice case require proof of an express contract with a physician clearly promising a particular result and that the patient consent to treatment in reliance on that promise. (Demurrer, p. 4.)

In opposition, Plaintiffs argue in full, with no elaboration: “Clearly, the [FAC] sets forth commonly used language sufficient to meet the notice requirements for each of the above elements required to state a cause of action for Negligence. Medical Negligence requires no special pleading beyond that needed for a Negligence cause of action.” (Opp’n, p. 3.)

In reply, Dr. Houman argues that “Plaintiff Mark Marras has failed to raise any facts to support the elements of a cause of action for Detrimental Reliance in the Opposition, nor show how the FAC can be amended to include such facts.” (Reply, p. 3.)

d. Court’s Determination

The Court finds in favor of Dr. Houman.

The Court first notes that McKinney appears distinguishable. McKinney states a rule for, as quoted by the demurrer, claims “for breach of warranty or contract in a medical malpractice case.” (Demurrer, p. 4, quotations omitted.) However, as stated above, “[a]lthough a promise made enforceable by a promissory estoppel is similar to a binding contractual promise, a promissory estoppel claim does not arise out of a contract.’ [Citation.]” (Barnhart, supra, 211 Cal.App.4th at p. 244.)

However, the Court determines that the first cause of action does not sufficiently allege a promise clear and unambiguous in its terms, without which there can be no determination as to the sufficiency of the allegations of subsequent reliance by Plaintiffs, whether that reliance was reasonable and foreseeable, and whether Plaintiffs were injured by their reliance. (Granadino, supra, 236 Cal.App.4th at p. 416.) Instead, the first cause of action alleges a failure to adhere to the relevant standard of care by failing to diagnose varicocele. (FAC, ¶¶ 7-10.) No express promises—or even implied promises—are alleged in the first cause of action and even the FAC generally. (See, e.g., FAC, ¶ 8 [“Plaintiff Mark Marras consulted with [D]efendants, … for the purpose of obtaining [D]efendants’ professional advice regarding [Mark Marras’s] symptoms, diagnosis[,] and medical care,” and “Defendants recommended and carried out treatment and diagnosis,” with no specific promise as to treatment results alleged]; see FAC, ¶¶ 1-20 generally.)

The first element of a promissory estoppel claim is thus lacking from the body of the FAC. This renders the promissory estoppel component of the first cause of action defective insofar as, as alleged, that component does not sufficiently allege the first element of a promissory estoppel claim. This in turn results in the promissory estoppel component of the first cause of action not being drawn in conformity with California law, lending merit to Dr. Houman’s motion to strike.

Dr. Houman’s motion to strike is thus GRANTED as to the promissory estoppel component of the first cause of action.

The Court notes that it does not strike any specific paragraphs from the FAC as the allegations therein contain background facts relevant to this action. The Court instead STRIKES the promissory estoppel component of liability for the first cause of action, leaving the medical malpractice component of the cause of action—more accurately a count—as the sole operative component of Mark Harras’s claim.

However, given the potential that Plaintiffs may be able remedy to this defect, and given that Dr. Houman’s challenge here involved challenges to the initial pleading in this action, the Court determines that leave to amend is proper. (See Code Civ. Proc., § 435.45, subd. (e)(1).)

2. Motion to Strike, FAC, Second Cause of Action, Medical Negligence [Malpractice]: DENIED.

a. Court’s Determination

Because Dr. Houman’s grounds for an order striking the second cause of action are identical to those raised in Dr. Houman’s demurrer (compare Mot., pp. 3-4, with Demurrer, pp. 5-8), the Court adopts its discussion at Section II.B.2.d. to determine that because the second cause of action was determined by the Court to be sufficiently alleged, the claim cannot be irrelevant, improper, or not drawn in conformity with California law as based on the same arguments raised in the demurrer.

Dr. Houman’s motion to strike is thus DENIED as to striking the second cause of action from the FAC.

3. Motion to Strike, Prejudgment Interest: DENIED.

a. Local Standard

Prejudgment interest compensates a plaintiff for the loss of the use of property or money during the period before a judgment is entered. (Segura v. McBride (1992) 5 Cal.App.4th 1028, 1041 (Segura).) “[P]rejudgment interest is not a cost, but an element of damages.” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830 (North Oakland).) Prejudgment interest may be awarded even if it is not specifically authorized by the statute underlying the claims. (County of Solano v. Lionsgate Corp. (2005) 126 Cal.App.4th 741, 752.)

An award of prejudgment interest may be made where the claim is liquidated within the meaning of the statute, i.e., when the underlying damages are “certain” or “capable of being made certain by calculation” and the right to recover such damages is vested in the plaintiff on a particular day. (Civ. Code § 3287, subd. (a); Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 728, citing Fireman’s Fund Ins. Co. v. Allstate Ins. Co. (1991) 234 Cal.App.3d 1154, 1172.) A right to recover damages becomes vested at the time the damages at issue are sustained. (See, e.g., Williams v. Graham (1948) 83 Cal.App.2d 649, 653 [Where purchaser relying on fraudulent representations of vendor’s ability to convey, incurred rental liability for six months and made down payment upon the property, the right to recoup became vested on the day on which each separate amount was expended].)

An award of prejudgment interest may also be made as to unliquidated amounts after judgment, beginning on a date prior to judgment, provided that such awards are discretionary and, in deciding whether to exercise its discretion, the court “consider[s] the circumstances, realizing a party cannot pay the amount due until it is determined what that amount was.” (Civ. Code § 3287, subd. (b); Union Pacific Railroad Company v. Santa Fe Pacific Pipelines, Inc. (2014) 231 Cal.App.4th 134, 203 [quoted language].)

b. FAC’s Allegations

Here, the FAC prays for “pre-judgment interest, according to law.” (FAC, Prayer, ¶ 5.)

c. Parties’ Arguments

In his motion, Dr. Houman essentially argues that prejudgment interest is only proper in pleadings where it is liquidated, and that here, because damages are not for a calculable sum certain, the prayer for prejudgment interest is improper and not drawn in conformity with California law. In support, Dr. Houman cites Civil Code section 3287, subdivision (a), Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 911 (Chesapeake), and Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 798 (Levy-Zentner). (See Mot., pp. 6-7.)

Plaintiffs’ opposition fails to address this argument. (Opp’n, p. 1-3 [failing to mention interest].)

Dr. Houman’s reply reiterates his position in the moving papers. (Reply, p. 4.)

d. Court’s Determination

The Court finds in favor of Plaintiffs.

First, the Court notes that prejudgment interest based on unliquidated damages are available pursuant to Civil Code section 3287, subdivision (b), not subdivision (a). (See Code Civ. Proc., § 3287, subds. (a), (b).) Here, however, the authorities cited in the motion to strike relate to subdivision (a). (Mot., p. 7 [“The certainty requirement of Civil Code § 3287(a) has been reduced to two tests: …”].) This difference makes Dr. Houman’s authorities further distinguishable.

Second, the Court notes that prejudgment interest must be placed at issue in the pleadings. “A general prayer in the complaint is adequate to support an award of prejudgment interest. ‘No specific request for interest need be included in the complaint; a prayer seeking “such other and further relief as may be proper” is sufficient for the court to invoke its power to award prejudgment interest. [Citations.]’” (North Oakland, supra, 65 Cal.App.4th at p. 829, citing Wegner, Fairbank & Epstein, California Practice Guide: Civil Trials and Evidence (TRG 1997) § 17:194.1, p. 17.40.26, Segura, supra, 5 Cal.App.4th at p. 1041, and Newby v. Vroman (1992) 11 Cal.App.4th 283, 286.) If judgment is entered in favor of the plaintiff, a judge then determines whether unliquidated prejudgment interest—i.e., interest not calculable for a sum certain—should be awarded on a discretionary basis. (North Oakland, supra, 65 Cal.App.4th at p. 829.)

Here, a general prayer for prejudgment interest appears in the FAC and is thus proper under North Oakland. (FAC, Prayer, ¶ 5; North Oakland, supra, 65 Cal.App.4th at p. 829.)

Last, the Court notes that Dr. Houman’s cited authorities—Chesapeake and Levy-Zentner—are otherwise distinguishable. Chesapeake involved a determination on whether prejudgment interest was proper after a jury trial in an action involving accounting, not whether prejudgment interest may not be alleged in a pleading at all or prior to judgment or some other similar legal concept. (Chesapeake, supra, 149 Cal.App.3d at p. 909.) In contrast, here, the claims at issue are medical malpractice. As for Levy-Zentner, that case merely explained and applied the rule that, in a case involving a jury trial award, prejudgment interest could be awarded “where the value of the property destroyed can readily be calculated by reference to market value or expert testimony,” i.e., did not involve medical malpractice and did not hold that prejudgment interest may not be alleged in a pleading at all or prior to judgment or some other similar legal concept. (Levy-Zentner, supra, 74 Cal.App.3d at p. 798.)

Dr. Houman’s motion to strike is thus DENIED as to striking prejudgment interest from the FAC.

IV. Conclusion

A. Demurrer

Defendant Justin Houman, M.D.’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED.

B. Motion to Strike

Defendant Justin Houman, M.D.’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is GRANTED in part and DENIED in part as follows:

(1) GRANTED as to STRIKING the promissory estoppel component of liability for the First Amended Complaint’s first cause of action; and

(2) DENIED as to striking the First Amended Complaint’s second cause of action and prejudgment interest prayer.