Judge: Cherol J. Nellon, Case: 21STCV37567, Date: 2023-04-06 Tentative Ruling

Case Number: 21STCV37567    Hearing Date: April 6, 2023    Dept: 28

Defendant Jeannette Hershey Weber’s Demurrer with Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On October 12, 2021, Plaintiff Pericles Chamis (“Plaintiff”) filed this action against Defendants Dale Prokupek, M.D., (“Prokupek”), Dale Prokupek, M.D. Inc., a California corporation (“Prokupek Inc.”), Michelle Dinh, M.D. (“Dinh”), and Soma Surgery Center (“SSC”) for professional negligence – medical malpractice, breach of fiduciary duty, and intentional misrepresentation. Pursuant to a sustained demurrer, Plaintiff filed the First Amended Complaint on January 20, 2022, and then the Second Amended Complaint on April 11, 2022.

On September 1, 2022, Plaintiff filed the Third Amended Complaint. Plaintiff later amended the complaint to include Defendants Jeannette Hershey Weber (“Weber”), Melanie Kerr (“Kerr”), Andrew Gelis (“Gelis”) and Millennium Medical Associates, Inc. (“MMA”).

On December 15, 2022, Prokupek and Prokupek Inc. Filed an answer. On January 11, 2023, Kerr and Ravaei filed an answer. On January 12, 2023, MMA filed an answer. On February 16, 2023, Dinh filed an answer.

On February 24, 2023, Weber filed a Demurrer with Motion to Strike to be heard March 28, 2023. On March 15, 2023, Plaintiff filed an opposition to the demurrer, and a non-opposition to the motion to strike. On March 21, 2023, Weber filed a reply. The Court continued the hearing on this motion to April 6, 2023.

Trial is scheduled for January 19, 2024.

PARTY’S REQUESTS

Weber requests the Court sustain its demurrer to the second cause of second cause of action for breach of fiduciary duty and third cause of action for intentional misrepresentation. The request is made on the grounds that these causes of action fail to set forth facts and are uncertain.

Weber also requests the Court strike Pg. 9, Lines 5-6, Pg. 11, Lines 16-19, Pg. 13, Lines 9-10, Pg. 14, Lines 4-6, and Pg. 14, Line 7.

Plaintiff requests the Court overrule the demurrer. Plaintiff does not oppose the motion to strike.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  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.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

A cause of action premised on a physician's breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent. (See, e.g., Moore v. Regents of University of California (1990) 51 Cal.3d 120, 12) p. 133, 271 [“the allegations state a cause of action for breach of fiduciary duty or lack of informed consent”].) The elements of informed consent are: (1) A patient gives an “informed consent” only after the doctor has adequately explained the proposed treatment or procedure. (2) A doctor must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. (3) A doctor must give the patient as much information as he needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. (4) The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. (5) Lastly, a doctor is not required explain minor risks that are not likely to occur. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343).

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

In order for an organization to be found liable for medical negligence under a theory of ostensible agency, Plaintiff must prove two elements: “(1) conduct by the [organization] that would cause a reasonable person to believe that the physician was an agent of the [organization], and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal App. 4th 1448, 1454.)

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency. [Citation.] Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . .[Citation.] While the existence of an agency relationship is ‘typically a question of fact, when ‘“the evidence is susceptible of but a single inference,”’ summary judgment may be appropriate.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 85.)

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b).) The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

DISCUSSION

Demurrer

Weber was not originally included as a named defendant in the TAC, but instead was amended in later as a DOE Defendant.

Plaintiff’s TAC alleges that Plaintiff’s cause of action for breach of fiduciary duty arises from Prokupek’s instructions to Plaintiff to stop taking a blood thinner. Prokupek is identified as holding himself out as an agent or employee of SSC. The only references made to Weber (via inclusion as more general “Defendants”) is limited to conclusory statements such as “as a direct and proximate result of Defendants’ breach, Plaintiff suffered injuries...” There is also a general allegation of malice. There are no facts articulated that would justify a cause of action for breach of fiduciary duty against Weber.

Similarly, Plaintiff’s cause of action for intentional misrepresentation discusses in depth Prokupek and SSC. The only statement made that would include Weber is the allegation that “it was clear at this time that Defendants were acting in concert to obscure the cause of Plaintiff’s stroke....[and] falsified medical records...” This is insufficient to meet the fact-based pleading standard of California. Plaintiff has made general conclusory allegations that are not supported by facts. Even when reviewing the “Statement of Facts,” the Court does not find sufficient factual allegations to support these causes of action against Weber. All facts specifically identify Prokupek, SSC, or Dinh as the relevant parties—there are only more general conclusory statements made to incorporate Defendants generally.

Plaintiff wrongfully asserts that the Court has already found the TAC sufficient based on previous demurrers. This is incorrect. The Court has found the TAC sufficient as to the allegations against the previously demurring parties, SSC and Prokupek. The TAC has clear allegations made against SSC and Prokupek. It does not have the same, clear allegations presented against Weber.

The Court sustains the demurrer.

Motion to Strike

Weber requests the Court strike conclusory language and improper damages. The Court grants the motion. Conclusory statements that boil down to asserting that parties acted in a manner giving way to punitive damages are not only conclusory, but also irrelevant as Plaintiff is unable to bring a claim for punitive damages at this time. There are no applicable statutes that would give rise to civil penalties, restitution, injunctive relief, or attorney’s fees, and thus the Court strikes said requests.

Plaintiff does not oppose the motion to strike, only noting that there is an upcoming motion for leave to include punitive damages. The Court will not grant leave to amend regarding the motion to strike, at this time. Should the Court grant the motion for leave, the Court will then grant leave to amend.

CONCLUSION

Defendant Jeannette Hershey Weber’s Demurrer with Motion to Strike is SUSTAINED and GRANTED. Plaintiff has 30 days leave to amend regarding the demurrer; leave to amend is DENIED regarding the motion to strike, at this time.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.