Judge: Cynthia A Freeland, Case: 37-2023-00000433-CU-MM-NC, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 11, 2024

01/12/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2023-00000433-CU-MM-NC MARKARIAN VS. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice of Hearing, 11/06/2023

Defendant The Regents of The University of California ('Defendant')'s motion to strike negligence per se claims in Plaintiff Sarkis Markarian ('Plaintiff')'s Second Amended Complaint (the 'SAC') is denied.

Defendant's request for judicial notice is granted.

Initially, Defendant essentially concedes that its motion is a renewed motion to be analyzed against the prescriptions of California Code of Civil Procedure ('CCP') § 1008(b). See Motion, p. 3, ll. 5-7 ('Regents therefore renews the Motion to Strike and seeks the relief that was initially requested in the original papers but was not ruled on but for the fact of the noted procedural error.'). Toward that end, CCP § 1008(b) provides, in pertinent part: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

Cal. Code Civ. P. § 1008(b).

In this case, the motion does not include an affidavit/declaration setting forth any new or different facts, circumstances, or law. Instead, Defendant asserts that the motion is appropriate because the court, in issuing its October 25, 2023 Minute Order (see ROA No. 44), did not address the substance of Defendant's argument that, excluding any alleged violation of 22 C.C.R. § 70217, none of the nineteen (19) other regulations and statutes identified in Plaintiff's operative pleading can form the basis of a negligence per se claim. Defendant's assertion, however, is not sufficient to justify a renewed motion.

The court, in its October 25, 2023 Minute Order, explained its reasoning for denying the first motion to strike, and Defendant presents no justifiable reason for the court to revisit that ruling.

Furthermore, and regardless of the motion's title, the court notes that Defendant's motion to strike, whether in the first instance or pursued as a 'renewed motion,' is procedurally deficient. A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken, except if the motion seeks to strike an entire paragraph, cause of action, count, or defense. See Cal. R. Ct. 3.1322(a).

The motion does not comply with the foregoing.

Even if the court were to consider the motion's merits, Defendant has failed to meet its burden of Calendar No.: Event ID:  TENTATIVE RULINGS

3048365 CASE NUMBER: CASE TITLE:  MARKARIAN VS. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA  37-2023-00000433-CU-MM-NC demonstrating that there is a basis for its renewed motion to strike. As this court has explained previously, CCP § 436 provides that '[t]he 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 inserted 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.' Cal. Code Civ. P. §§ 436(a)-(b). In ruling on a motion to strike, courts do not read allegations in isolation. See Perkins v. Sup.

Ct. (1981) 117 Cal. App. 3d 1, 6. 'In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.' Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. The grounds for a motion to strike must appear on the face of the challenged pleading or any matter of which the court is required to take judicial notice. See Cal. Code Civ. P. § 437(a). Such motions are not meant to argue the merits of the action.

In this case, the pending motion is focused on the action's merits and on Defendant's ability to pursue a dispositive motion. Moreover, there is nothing in the motion that identifies any 'irrelevant, false, or improper matter inserted in any pleading.' To the extent that the motion is premised on the argument that 'more specificity is needed for the disputed allegations to survive,' the court finds this argument unavailing as a lack of specificity is not a ground for a motion to strike given that Defendant has not justified its position that the operative pleading is not drawn in conformity with existing laws. Additionally, Defendant will suffer no prejudice from a denial of its motion since discovery can be propounded to address any concerns that Defendant has about the specific contours of Plaintiff's negligence per se theory.

In light of the foregoing, the court denies Defendant's motion to strike the negligence per se claims in the SAC. As Defendant already filed its Answer on November 6, 2023 (see ROA No. 49), the matter as to Defendant is at issue.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 12, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 12, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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