Judge: Daniel S. Murphy, Case: 22STCV25633, Date: 2023-04-26 Tentative Ruling

Case Number: 22STCV25633    Hearing Date: April 26, 2023    Dept: 32

BACKGROUND

            Plaintiff Kenneth Purdom, M.D. commenced this action against Defendants Ying Hong Zhang, Ying Xu, Law Offices of Eric K. Chen, Eric K. Chen, Samantha Larsen, and Kaleigh Ragon on August 8, 2022. The Complaint alleges a single cause of action for malicious prosecution. The Complaint alleges that Defendants acted without probable cause in bringing to trial their underlying medical negligence and medical battery action in the case Ying Hong Zhang v. Kenneth Purdom, M.D. with case number 18STCV06553. Plaintiff argues that Defendants acted maliciously by intentionally proceeding to trial knowing that they did not have a qualified expert to opine on essential causes of action, causing Plaintiff to incur costs of defending the underlying action.

            On March 1, 2023, Defendant Zhang, the patient and plaintiff in the underlying action, filed the instant demurrer to the complaint, arguing that the complaint fails to allege facts establishing lack of probable cause and malice.

LEGAL STANDARD

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. (Code Civ. Proc., § 430.30, subd. (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. (Ibid.) 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 747.) A complaint will survive demurrer if it sufficiently apprises the defendant of the issues, and specificity is not required where discovery will clarify the ambiguities. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) All reasonable inferences are drawn in favor of the complaint. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike 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. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (Traver Decl. ¶¶ 2-4.)

DISCUSSION

I. Malicious Prosecution

To prevail on a claim of malicious prosecution, the plaintiff must show that the underlying action: (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice. (Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 153.)

a. Lack of Probable Cause

“An action is deemed to have been pursued without probable cause if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or while it was being prosecuted . . . Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit.” (Area 55, supra, 61 Cal.App.5th at p. 165.)

            The complaint alleges that Defendant lacked probable cause because she failed to designate a qualified expert to testify on liability and damages. (Compl. ¶ 27.) “Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts, expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305, internal citations omitted.)

            As the Court held previously, “no reasonable attorney would have thought the action tenable without a medical expert to testify concerning standard of care and causation.” (Feb. 10, 2023 Order re Special Mtn. to Strike 6:1-2.) A client “must be charged with knowledge of information in the hands of their own lawyers under principles of agency law.” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 796.) Therefore, the complaint adequately alleges lack of probable cause.

            b. Malice

Malice goes toward a plaintiff’s subjective intent in bringing and maintaining a lawsuit. (Area 55, supra, 61 Cal.App.5th at p. 169.) Improper motive can be drawn from circumstantial evidence, including the fact that a plaintiff maintains an action despite being on notice that it lacks merit. (Id. at p. 170.) However, “lack of probable cause alone is insufficient to show malice,” because probable cause is an objective standard, whereas malice is subjective. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1543.)    

Even if the complaint properly alleges that Defendant Zhang lacked probable cause to maintain the underlying lawsuit, that alone does not demonstrate that she did so maliciously. The complaint alleges that Plaintiff performed surgery on Defendant Zhang after diagnosing an ovarian cyst but that upon conducting the surgery, no cyst was found. (Compl. ¶¶ 11-12.) The complaint thus reveals on its face that Defendant Zhang had reason to believe Plaintiff improperly performed surgery on her. No facts are alleged suggesting that Defendant maintained the underlying lawsuit for any other reason, much less a malicious one.

As the Court held previously, “no reasonable attorney would have thought the action tenable without a medical expert to testify concerning standard of care and causation.” (Feb. 10, 2023 Order re Special Mtn. to Strike 6:1-2.)  However, the court finds that there is no evidence to support a finding that defendant Zhang acted with malice.

            Therefore, the complaint fails to allege all elements of malicious prosecution as to Defendant Zhang.

CONCLUSION

            Defendant Ying Hong Zhang’s demurrer is SUSTAINED without leave to amend.