Judge: Blaine K. Bowman, Case: 37-2023-00019465-CU-PO-NC, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 04, 2024

01/05/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00019465-CU-PO-NC KEE JR. VS. KOLB [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/27/2023

The Demurrer brought by defendant Fredrick Kolb M.D. (Doctor Kolb) is SUSTAINED without leave to amend as to the Second Cause of Action for Fraud, but only as to the cause of action not as to fraud as a theory upon which to toll the statute of limitations applicable to medical malpractice. Doctor Kolb's time to answer or otherwise plead shall be as set forth in California Rules of Court, rule 3.1320.

This is a medical malpractice case. Plaintiff Thomas Kee (Plaintiff) is a cancer patient who has been undergoing radiation therapy. One of his doctors, Doctor Kolb, allegedly warned that radiation (i.e.

Proton Therapy) would cause the tissues in his nose to become raw such that they might grow together if he did not use 'nostril trumpets.' According to the allegations, a custom trumpet had already been ordered for Plaintiff's right nostril, but after his surgery there was some risk to his left side nostril such that a left-side trumpet needed to be ordered.

Allegedly, there was some delay in the order for the left-side trumpet and Plaintiff had plans to travel to France. Plaintiff expressly alleges that Doctor Kolb: 'had a duty to make sure KEE was protected even if he [Doctor Kolb] was in France, and KEE believes he failed to uphold his duty...' Plaintiff further alleges: 'KEE believes... he did not supply the left side trumpet to protect KEE, and therefore that he had not been actively paying attention to his obligations, not making sure his patient was being taken care of, or making sure his instructions were followed, while he was in France, which is his professional duty.' Plaintiff, representing himself in pro per, acknowledges that he may have a statute of limitations problem with his medical malpractice claim, as follows: 'Kee recognizes the statute of limitations associated with Professional/medical negligence and intends to argue that purposed associated fraud properly tolls the statute of limitations so the case can be heard.' Though somewhat confusing and difficult to read, it appears that Plaintiff's claim comes down to the following assertion: 'Point of liability: ... if [Doctor Kolb] ordered a left side trumpet and it did not come in time he would have caused damage to [Plaintiff]...' (emphasis added) because a left side trumpet is what Plaintiff actually needed. Thus, if that is true, Plaintiff's position is that Doctor Kolb sought to avoid liability by confusing Plaintiff about ordering a left side trumpet that came late.

Instead, Plaintiff takes the position that Doctor Kolb lied and told Plaintiff that he never ordered a left-side trumpet in the first place. That allegation reads as follows: '[Doctor Kolb] said he had never ordered a new left side trumpet, but instead his order was for a second right side trumpet, and not a left side trumpet.' (Emphasis added.) According to Plaintiff, this would exculpate Doctor Kolb from liability: 'Point of liability: If [Doctor Kolb] indeed ordered a second right hand trumpet and it did not Calendar No.: Event ID:  TENTATIVE RULINGS

3057998 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC come in time there would be no liability, because the right side nostril was fine (there was already a right side trumpet and it was used to protect the right side)...' (Emphasis added.) This legal theory is not entirely sound. It would seem to be a matter of medical negligence whether Doctor Kolb properly ordered trumpets for both sides and one simply did not come in time such that Plaintiff had to undergo surgery without, or whether Doctor Kolb mistakenly ordered two trumpets for the same side such that, again, Plaintiff had to undergo surgery without.

Plaintiff's claim seems to suggest that the act of ordering the left-side trumpet acts as a sort of admission that it was medically necessary such that the failure to have it by the time the procedure was administered amounts to damages caused by medical negligence. But, Plaintiff's allegations also seem to take the position that the failure to order a left-side trumpet might absolve Doctor Kolb of liability. That seems strange. On the contrary, it would seem that it was Doctor Kolb's responsibility to diagnose what was necessary for the procedure, such that if he failed to diagnose the need for a left-side trumpet he could be liable for the improper diagnosis, whereas if he did properly diagnosed it and failed to timely order it he could be liable for failing to take the necessary actions to ensure the success of the procedure. As such, the Court is not entirely clear on what the purpose would be in the alleged fraudulent misrepresentation.

At any rate, from the allegations it appears that a left-side trumpet arrived later, but when it arrived Doctor Kolb allegedly represented that it was another right-side trumpet. Strangely, it seems from the allegations that Doctor Kolb encouraged Plaintiff to go ahead and use this new trumpet (which was actually fitted for Plaintiff's left-side and thus proper to use on his left side) but under the guise that it was an improper right-side trumpet that probably would not fit too well.

The bottom line of these allegations seems to be that Plaintiff had to 'do without' a left-side trumpet for some time and it caused him damages. Whether that damage was due to Doctor Kolb either improperly diagnosing the need for a left-side trumpet, or failing to timely follow-up on ordering the left-side trumpet such that it would be available in time for Plaintiff's procedure is not particularly determinative at this juncture – it is sufficient that Plaintiff suffered damages as a result of some failure of judgment (either medical or clerical follow-up to order the left-side trumpet).

But, as Plaintiff himself seems to admit, much of this took place on or around May of 2021 and Plaintiff did not file the instant case for medical malpractice until May of 2023 and thus is at risk of being barred by the statute of limitations. Under the allegations as written, tolling the statute of limitations appears to be the purpose of Plaintiff's fraud allegation – to wit, '[Plaintiff] recognizes the statute of limitations associated with Professional/medical negligence and intends to argue that purported associated fraud properly tolls the statute of limitation so the case can be heard.' (Emphasis added.) Indeed, Plaintiff does not appear to be alleging that he was independently damaged by the fraud itself – only that the fraud delayed his ability to seek recovery on the underlying medical malpractice: 5. Resulting Damage: The fraud covered up medical malpractice/negligence that would have resulted in [Plaintiff]'s ability to seek restitution for the damages associated with that malpractice/negligence, which include Medical Expenses, and an inability to breathe out of his nose for 13 months. (Emphasis added.) Based on this allegation, a proper reading of the operative complaint, in context, comes to the conclusion that there in fact is no cause of action for fraud alleged within the four corners of the pleading.

Instead, rather than alleging a cause of action for fraud, Plaintiff is making allegations that support a theory for tolling the statute of limitations as to medical malpractice.

The Court notes that Plaintiff's allegations are not a model of clarity. The Court also admonishes Plaintiff for failing to comply with numerous procedural formatting requirements such as proper captioning (see Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 6:21, et seq.), numbering pages, reciting the location of the hearing, using line numbers, etc. (See Weil and Calendar No.: Event ID:  TENTATIVE RULINGS

3057998 CASE NUMBER: CASE TITLE:  KEE JR. VS. KOLB [IMAGED]  37-2023-00019465-CU-PO-NC Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 9:20-9:22.2, citing California Rules of Court, rule 2.108, 2,110, and 3.1110(b).) While the Court exercises discretion to overlook these numerous deficiencies, such discretion should not be interpreted as license or permission to continue violating procedural and/or formatting rules, and, should the formatting failures continue, the Court will be less inclined to overlook repeated deficiencies and may implement sanctions to curb the practice.

Ultimately, on the present Demurrer, the Court can address the merits despite the formatting deficiencies. Reaching those merits, the Court concludes that the Demurrer to the fraud cause of action should be sustained without leave to amend, but expressly reserves the issue that to the extent that fraudulent conduct is being alleged as a basis to toll the statute of limitations the allegations themselves remain within the four corners of the complaint – only the cause of action for fraud is being impacted by the sustaining of the demurrer. Because of this, and because saving or tolling the statute of limitations appears to be the only purpose for the fraud allegation in the first place, the Court declines to grant leave to amend as it appears to be unnecessary to achieve the stated goal for which the allegation is being made.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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