Judge: Carolyn M. Caietti, Case: 37-2022-00011616-CU-MM-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2022-00011616-CU-MM-CTL EASTER VS KHANDAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/10/2023

Defendant Carla Stayboldt's Demurrer to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Eugene Pocock's Demurrer to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants Surgery Center of California, LLC, California Retina Associates, LP, Carol Parra, Mikala Zuber & Ronda Rodriguez's Demurrer to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

A demurrer 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; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) The Second Amended Complaint (SAC) alleges: (1) negligence; (2) 'Donda's Law'; (3) negligent entrustment; (4) breach of trust; (5) breach of duty; and (6) 'whitewashing.' The SAC appears to be missing pages and is largely unintelligible. Presumably, Plaintiff alleges Defendants did not provide basic and reasonable care to Ola Mae Jackson.

As background, at a Case Management Conference on September 7, 2023, the Court granted leave to file a third amended complaint by September 15. The minute order states: 'If the TAC is timely filed, the Demurrer / Motions to Strike will be to the TAC. If not timely filed, the Demurrer / Motions to Strike will be to the Second Amended Complaint and any further request to amend[] will need leave of Court.' (ROA 106.) The record does not reflect the filing of a third amended complaint.

Defendants duly-served the demurrers on Plaintiff. The demurrers are unopposed; thus, Plaintiff impliedly concedes on the merits. (San Diego Local Rule 2.1.19(B).) In addition, the SAC fails to state Calendar No.: Event ID:  TENTATIVE RULINGS

2994236  39 CASE NUMBER: CASE TITLE:  EASTER VS KHANDAN [IMAGED]  37-2022-00011616-CU-MM-CTL sufficient facts. (C.C.P., § 430.10(e).) The SAC is void of any comprehensible factual allegations against Defendants for all listed causes of action. This also makes the SAC uncertain. (C.C.P., § 430.10(f).) Plaintiff did not request leave to amend, nor identify any facts to cure the defects raised in the demurrer.

(Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 (explaining the plaintiff has the burden of proving an amendment would cure the legal defect.) Plaintiff also had an opportunity to amend at the Case Management Conference and did not do so. Thus, the demurrers are SUSTAINED WITHOUT LEAVE TO AMEND.

This ruling is dispositive of the SAC against Defendants Carla Stayboldt, Eugene Pocock, Surgery Center of California, LLC, California Retina Associates, LP, Carol Parra, Mikala Zuber and Ronda Rodriguez.

Defendants are ordered to: (i) submit a proposed judgment of dismissal in accordance with any applicable laws and rules of court; and (ii) serve written notice of this ruling on all appearing parties by January 9, 2024, if the tentative ruling is confirmed without modification.

Calendar No.: Event ID:  TENTATIVE RULINGS

2994236  39