Judge: David A. Hoffer, Case: 30-21-01229801, Date: 2022-08-01 Tentative Ruling

The motion by defendants Duke H. Nguyen, M.D. (“Nguyen”) and Orange County Digestive Care, Inc. (“OCDC”) (together “defendants”) to strike portions of the complaint by plaintiff Hunkar Aslan (“plaintiff”) pursuant to CCP §435 is DENIED. However, the court in its discretion GRANTS THE MOTION IN PART AND DENIES THE MOTION IN PART pursuant to CCP §436.

Defendants’ motion is denied as procedurally defective because it was filed on 4/15/2022 -- after their answer was filed on 4/5/2022. A motion to strike under CCP §435 is not available when filed after an answer has been filed. (City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913. See also Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 371)

However, the court in its discretion under CCP §436(b) strikes from the complaint the following items as not drawn in conformity with the laws of this state:

1. Page 6, Paragraph 27, Lines 26-28 and Page 7, Lines 4-5: “Defendants engaged in wrongful, despicable, and unlawful conduct by recklessly abandoning Plaintiff as a patient, with a willful and conscious disregard for Plaintiff’s rights...cruel and unjust hardship.”

2. Page 7, Paragraph 28, Lines 9-11: Defendants “personally guilty of oppression, fraud, or malice, and had advanced knowledge of, authorized, and or ratified the wrongful conduct perpetrated by DEFENDANTS...for which punitive damages should be awarded to Plaintiff.”

3. Page 7, Paragraph 29, Lines 13-14: “malicious, oppressive, fraudulent and unlawful.”

4. Page 9, Paragraph 40, Lines 22-23: “DEFENDANTS acted despicably and with recklessness, oppression, malice, and punitive damages should be asserted for that reason.”

5. Page 12, Paragraph 51, Lines 2-3: “DEFENDANTS acted despicably and with recklessness, oppression, malice, and punitive damages should be asserted for that reason.”

6. Page 13, Paragraph 61, Lines 21-22: “DEFENDANTS acted despicably and with recklessness, oppression, malice, and punitive damages should be asserted for that reason.”

7. Page 15, Paragraph 72, Lines 25-26: “DEFENDANTS acted despicably and with recklessness, oppression, malice, and punitive damages should be asserted for that reason.”

8. Page 16, Prayer, Line 3: “For punitive damages according to proof.”

9. Page 16, Prayer, Line 4: “For attorneys’ fees.”

Items 1-8 are improperly included in plaintiff’s complaint arising out of professional negligence of a healthcare provider in violation of CCP §425.13(a). All causes of action allege defendants negligently caused delay in surgery, treatment, care and/or diagnosis of rectal cancer.

Item 9 is improperly included in plaintiff’s complaint in violation of CCP §1033.5(a)(10). None of the pleaded causes of action are based on contract, statute or other law which provide for recovery of attorney’s fees.

The motion is denied as to Item 10.

10. Page 16, Prayer, Lines 6-7: “For prejudgment interest at the legal rate of 10% per annum as is provided for in California Civil Code section 3291.”

Defendants are ordered to give notice of this ruling.