Judge: Daniel M. Crowley, Case: 20STCV05619, Date: 2023-01-19 Tentative Ruling
Case Number: 20STCV05619 Hearing Date: January 19, 2023 Dept: 28
Demurrer without Motion to Strike
Having considered all filings related to this demurrer, the Court rules as follows:
BACKGROUND
Sally Faal (Plaintiff) filed this suit on February 13, 2020 against Lawrence Dorr, MD (Dr. Dorr) and Does 1 through 50 asserting one cause of action of general negligence through medical malpractice. Dr. Dorr is now deceased. The defendants in this case are now the Estate of Lawrence Dorr, MD (Dorr Estate) and Keck Hospital of USC (Keck), who the court treats as Doe 1 and Doe 2 respectively.
Keck filed this demurrer on October 28, 2022 without a motion to strike. Plaintiff did not oppose the demurrer, and Keck subsequently filed a statement of Plaintiff’s non-opposition on November 18.
PARTY’S REQUEST
Keck argues the demurrer should be granted on three grounds. First, the complaint is barred by the statute of limitations. Second, Plaintiff failed to allege sufficient facts to support a claim of medical malpractice. Third, the complaint is ambiguous, unintelligible, and uncertain as to allegations against Keck.
LEGAL STANDARD
Meet and Confer
Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code Civ. Proc. § 430.41.)
Demurrer
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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) When a demurrer is sustained, it is the Court’s preference to grant leave to amend in furtherance of the policy of deciding cases on the merits.
DISCUSSION
Meet and Confer
The Court finds Keck submitted a code-compliant meet and confer declaration. (Demurrer, Villegas Decl., p. 13; Demurrer, Exh. C.)
Demurrer – Statute of Limitations
Code of Civil Procedure section 340.5 provides the statute of limitations for actions involving allegations of professional negligence against a healthcare provider as follows:
In any action for injury or death against a healthcare provider based upon such person’s alleged professional negligence, the time for the commencement of the action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud; (2) intentional concealment; (3) the presence of a foreign body . . .
The one-year period commences when the plaintiff is aware of the physical manifestation of the injury and its negligence. (Rose v. Fife (1989) 207 Cal.App.3d 760, 768.) The statute of limitations commences “[w]hen a plaintiff has information which would put a reasonable person on inquiry, when a plaintiff’s ‘reasonably founded suspicions [have been] aroused’ and the plaintiff has ‘become alerted to the necessity for investigation and pursuit of her remedies.’” (Ibid.)
Here, Plaintiff alleges Dr. Dorr negligently performed surgeries in or about December 2017 to January 2018. (Compl., p. 4.) Keck argues the statute of limitations began to toll in January 2018, but the complaint also specifies Dr. Dorr “defendant negligently caused damage to [Plaintiff] on (date) December 2018 through November 15, 2018[.]” (Compl., p. 4.) Reading the complaint liberally, the statute of limitations should begin to toll on November 15, 2018. If the date of injury is November 15, 2018, then Plaintiff had three years, until November 15, 2021, to file her complaint.
Moreover, Plaintiff does not state when she discovered her injury or assert any facts that suggest when she should have discovered her injury. Reading the complaint liberally, Plaintiff could have discovered her injury less than one year before she filed her complaint on February 13, 2020. There is no defect on the face of the complaint that establishes this action is time-barred.
Demurrer – Medical Malpractice
“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)
Here, Keck argues that that the only specific factual allegation described is that “[e]ach surgery failed with Plaintiff’s hip dislocating after each surgery.” (Demurrer, p. 9, citing Compl., p. 4.) Keck contends the remainder of the allegations are conclusory statements without specific acts or omissions attributable to Dr. Dorr. The Court makes its determination on an element-by-element basis.
The complaint states, “[Dr.] Dorr owed a duty of care to Plaintiff as his patient to render medical care in a manner that complied with the standard of care for an orthopaedic surgeon[].” (Compl., p. 4.) The complaint alleges sufficient facts to establish duty.
Plaintiff’s complaint also states that “the manner in which the surgeries were performed by [Dr.] Dorr fell below the standard of care. . . . [T]he devices selected and/or procedure performed were negligently executed [and] done so without the appropriate care, thought[,] and expertise . . . for her particular circumstance.” The complaint alleges sufficient facts to establish breach.
The complaint also states that “[a]s a direct and proximate cause of [Dr.] Dorr’s carelessness, recklessness, negligence, lack of care, prudent reasonable judgment and concern for the welfare of Plaintiff, she has suffered” injury. (Compl., p. 4.) On its own, this is a conclusory statement insufficient to establish direct or proximate cause. But on demurrer, allegations are read liberally and in context, and in doing so the statement establishes that Dr. Dorr’s surgeries and subsequent care directly and proximately caused Plaintiff’s injury.
Plaintiff alleges in the complaint that she suffers “severe pain, physical limitation, mental anguish, and other physical consequences. . . . Plaintiff has suffered and continues to suffer from severe and permanent disabling injuries and damages.” (Compl., p. 4.) The complaint alleges sufficient facts to establish resulting loss or damage.
On this argument, Keck asserts, “Plaintiff is required to plead the essential facts to put demurring Defendant on notice of the basis of their claim.” (Demurrer, p. 10.) The Court agrees and finds that it would have been insufficient to allege merely that “Dr. Dorr owed a duty, Dr. Dorr breached that duty, Dr. Dorr’s actions directly and proximately caused Plaintiff’s injury, and Plaintiff suffered damages.” But Plaintiff alleged more than that. Even though the facts Plaintiff alleges are scant, they are nevertheless sufficient to establish a cause of action for medical malpractice.
Demurrer – Ambiguous, Unintelligible, and Uncertain
“The party against whom a complaint . . . has been filed may object, by demurrer . . . to the pleading on . . . the following ground[]: The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” (Code of Civ. Proc., § 430.10(f).)
Here, Keck asserts, “it is uncertain on the face of the [c]omplaint as to Plaintiff’s theory of professional negligence against [Keck] or any other theory of liability. Plaintiff makes absolutely no allegations against [Keck]. The few allegations against Dr. Dorr . . . do not establish how any of the allegations pertain to any conduct of Keck Hospital of USC.” (Demurrer, p. 11.) The Court deems as true facts that can be implied or inferred from those facts expressly alleged, but no facts expressly alleged even allude to Keck. Even a liberal reading of the complaint does not establish Keck’s involvement in this cause of action. The fact that Keck was later substituted as Doe 2 leads the Court to presume Keck employed Dr. Dorr and that an employer-employee relationship gives rise to Keck’s liability in this case. But such a presumption exceeds the scope of the Court’s considerations on demurrer. Therefore, the demurrer is sustained with leave to amend.
CONCLUSION
The demurrer is SUSTAINED with 30 days LEAVE TO AMEND.
Moving Defendant Keck is ordered to give notice of this ruling.
Moving Defendant Keck 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.