Judge: Armen Tamzarian, Case: 23STCV28228, Date: 2024-04-03 Tentative Ruling

Case Number: 23STCV28228    Hearing Date: April 3, 2024    Dept: 52

Defendant Keck Medical Center of USC’s Demurrer and Motion to Strike Portions of Plaintiff’s First Amended Complaint

Demurrer

Defendant Keck Medical Center of USC demurs to both causes of action alleged by plaintiff Jennifer L. Cosper’s first amended complaint.

1. Medical Malpractice

Plaintiff does not allege sufficient facts to constitute medical malpractice.  “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.”  (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

Plaintiff filed the first amended complaint on Judicial Council of California form PLD-PI-001.  Paragraph 10 of the form states, “The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached).”  (FAC, p. 3, ¶ 10.)  Under it, plaintiff checked the box for “Other” causes of action and wrote “Medical Malpractice, Negligence.”  (Ibid.)  She did not attach any additional form for the causes of action.  The Judicial Council of California has issued form PLD-PI-001(2) as the attachment for “General Negligence.”

For paragraph 11, plaintiff checked the boxes stating she “has suffered … wage loss,” “hospital and medical expenses,” “general damage,” “loss of earning capacity” and “other damage” she described as “Severe Psychological trauma, Accumulation of additional NEW breathing issues, Pain, Disfigurement, Need for additional surgery, Abandonment of Care.”  (FAC, p. 3, ¶ 11.) 

At most, plaintiff alleges the loss or damage resulting from the purported medical malpractice.  The first amended complaint does not allege any facts establishing a duty to use professional care, a breach of the duty, or that the breach proximately caused those injuries.  She does not allege, for example, that she underwent certain treatment at Keck Medical Center for a specified condition at a specified time or that the treatment was inadequate.  She has not alleged sufficient facts apprising defendant of the basis for this claim against it.

2. Negligence

            Plaintiff does not allege sufficient facts to constitute negligence.  Negligence requires “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.”  (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)  For the same reasons as above, plaintiff has alleged at most the loss or damages resulting from the purported negligence.  The first amended complaint does not allege any facts establishing a duty to use care, a breach of such legal duty, or that the breach caused her injuries.  In other words, plaintiff’s first amended complaint does not explain what defendant did to her that constituted negligence. 

Motion to Strike

            Defendant Keck Medical Center of USC moves to strike the first amended complaint’s prayer for punitive damages.  Under Code of Civil Procedure section 425.13(a), “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” without a court order upon a motion by the plaintiff.  This is an action for damages arising out of the professional negligence of Keck Medical Center of USC, a health care provider.  The court must strike the prayer for punitive damages.  If plaintiff chooses to pursue punitive damages, she may file a motion for leave to amend the complaint under Code of Civil Procedure section 425.13.   

Disposition

            Defendant Keck Medical Center of USC’s demurrer to plaintiff Jennifer L. Cosper’s first amended complaint is sustained with 30 days’ leave to amend. 

Defendant’s motion to strike portions of plaintiff’s first amended complaint is granted.  The court hereby strikes the following portion of the first amended complaint: “punitive damages” (FAC, form PLD-PI-001, p. 3, ¶ 14.a(2).)  Plaintiff may not amend the complaint to pray for punitive damages without first filing a motion for leave to do so under Code of Civil Procedure section 425.13.