Judge: Bruce G. Iwasaki, Case: 20STCV42493, Date: 2022-08-26 Tentative Ruling

Case Number: 20STCV42493    Hearing Date: August 26, 2022    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             August 26, 2022

Case Name:                Jessica Kaldem v. Children’s Hospital Los Angeles, et al.

Case No.:                   20STCV42493

Matter:                        Demurrer

Moving Party:             Plaintiff Jessica Kaldem

Responding Party:      Defendants Children’s Hospital Los Angeles and Rene De Jesus Orantes

Tentative Ruling:      The demurrer is overruled and the request for sanctions is denied.

Background and Procedural History

            On November 5, 2020, Plaintiff Jessica Kaldem sued Defendants Children’s Hospital Los Angeles and Rene De Jesus Orantes alleging medical malpractice, negligent hiring, and intentional infliction of emotional distress.

            Plaintiff alleged that Defendants were negligent when they withdrew her blood during a blood donation.  Orantes, who was a phlebotomist at Children’s Hospital, allegedly swept the needle back and forth to show Plaintiff her veins.  Orantes also reportedly forced Plaintiff to look at and hold her own drawn blood, despite Plaintiff informing Orantes that she was extremely afraid of blood, to the point of fainting.  Plaintiff alleges various injuries, including permanent nerve damage.

            Defendants demurred to the Complaint twice.  The Court overruled the second demurrer on January 20, 2022.  Defendants filed their Answer on February 2, 2022.  (This was Defendants’ Answer to Plaintiff’s Third Amended complaint; both parties erroneously refer to it as the Second Amended Answer.)

            On February 14, 2022, Plaintiff demurred to the Answer, arguing that the twenty affirmative defenses do not contain sufficient facts to constitute a defense.  Plaintiff also seeks sanctions in the amount of $945.00.  In opposition, Defendants contend that details to affirmative defenses may be obtained through Form Interrogatory 15.1 and that the demurrer is meritless.  Plaintiff reiterates her arguments on reply.  

            On May 10, 2022, the case was transferred from the Personal Injury Court to this Court.  

Legal Standard

            A demurrer to an answer may be appropriate if “[t]he answer does not state facts sufficient to constitute a defense [or] [t]he answer is uncertain.”  (Code Civ. Proc., § 430.20, subds. (a), (b).)

            An affirmative defense is considered “new matter” beyond a general denial. (§ 431.30, subd. (b)(2).) The defendant bears the burden of proof to establish any new matters. (Harris v City of Santa Monica (2013) 56 Cal.4th 203, 239.) The answer must allege the facts on which the defense is founded. (See California Trust Co. v. Gustason (1940) 15 Cal.2d 268, 273.)

            However, ultimate facts are generally sufficient, rather than evidentiary matters or legal conclusions.  (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  Even where a defense is defectively pled, it may be allowed if the Answer gives sufficient notice to enable the plaintiff to prepare to meet the defense, in part because un-pled defenses are waived. (See Harris v. City of Santa Monica, supra, 56 Cal.4th at p. 240.)

Discussion

            Plaintiff contends that all affirmative defenses are insufficiently pled.  Defendant has alleged the affirmative defenses of comparative negligence, statute of limitations, failure to state facts sufficient to constitute a cause of action, that the Complaint was limited by Civil Code section 3333.1 and 3333.2, contributory negligence, failure to mitigate damages, proportionate share of fault, immunity from professional negligence, assumption of the risk, Defendants’ acts were reasonable and constituted treatment, lack of capacity to sue, nonjoinder of parties, and there was no duty to disclose or inform Plaintiff of the risks.

            Plaintiff challenges the defenses as only alleging legal conclusions and conclusory statements that are devoid of factual specificity.  She also argues that Defense counsel’s refusal to review or consider the law in this matter prior to rejecting Plaintiff’s request to address the issues with the affirmative defense justifies sanctions. 

            While there are no evidentiary facts alleged in the Answer, the cardinal rule of pleading is that only the ultimate facts need be alleged.  (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)  Furthermore, the “ ‘distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. [Citations.] For example, the courts have permitted allegations which obviously included conclusions of law and have termed them “ultimate facts” or “conclusions of fact.” ’ ” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

            Moreover, “if one of the defenses or counterclaims is free from the objections urged by demurrer, then a demurrer to the entire answer must be overruled.”  (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 734.)  In this case, for example, Defendants asserts a statute of limitations defense, for which “it is not necessary to state the facts showing the defense.”  (Code Civ. Proc., § 458.)  Thus, the Court overrules the demurrer on this ground.

            The Court has also reviewed the other defenses and finds that they fairly apprise Plaintiff of the alleged affirmative defenses.  Plaintiff does not argue these defenses are irrelevant to the legal theories pled, or that it is not new matter constituting a defense.  Plaintiff simply contends that the defenses all fail to state facts sufficient to constitute a defense.  As pled, the defenses are sufficient to withstand demurrer.  (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616 [“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.”].)  Any uncertainty as to the facts underlying Defendants’ affirmative defenses can be clarified in discovery. 

            The Court agrees that this problem could have, and may already have been, resolved by Plaintiff propounding Form Interrogatory 15.1 upon Defendants.  Unverified affirmative defenses, by their nature, are necessarily asserted at the beginning of the case and out of an abundance of caution because the failure to assert an affirmative defense may constitute a waiver and cannot always be pled in detail.  (Vitkievicz v. Valverde (2012) 202 Cal.App.4th 1306, 1314; Code Civ. Proc., §430.80, subd. (a).)

            Accordingly, the Plaintiff’s demurrer to the Answer is overruled.  Plaintiff’s request for sanctions is unsupported by any statutory authority and is denied.