Judge: David A. Hoffer, Case: 30-2022-1266875, Date: 2022-11-28 Tentative Ruling

The unopposed Demurrer to the Complaint of Plaintiff Kelly Rueda (“Plaintiff”) filed by Defendant Blythe Redman (“PA Redman”) is SUSTAINED with 30 days leave to amend.

Although no causes of action are specifically asserted, based on the Complaint’s allegations, it appears that Plaintiff is alleging a professional negligence/medical malpractice claim against PA Redman.

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.”  (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) 

Here, the Complaint fails to state a cause of action for medical malpractice, or any other cause of action, against PA Redman.  (See Complaint 2:3-4.)  The Complaint fails to allege any causal connection between any actions taken by PA Redman and Plaintiff’s injury and any damages resulting from such actions.

PA Redman’s argument that the demurrer should be sustained because Plaintiff’s Complaint fails to comply with the requirements of C.C.P. § 364 is not well-taken.  “The Supreme Court recently reiterated the rule that failure to comply with the 90–day notice provision does not invalidate court proceedings and is not jurisdictional, although it may subject the plaintiff's attorney to State Bar discipline.”  (Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180; see also Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 269 [90 days’ notice prior to commencing the action was not jurisdictional and afforded no basis for striking the complaint.]; Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 481-482; Preferred Risk Mutual Ins. Co. v. Reiswig, (1999) 21 Cal.4th 208, 213–214; Code Civ. Proc. §§ 364, 365.)

Accordingly, the demurrer is SUSTAINED with 30-days leave to amend.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Moving party is ordered to give notice of this ruling.