Judge: Deborah C. Servino, Case: 30-2021-01226524, Date: 2022-10-21 Tentative Ruling

DEMURRER

Defendants Abraham Dong Kim, M.D. and South County Orthopedic Specialists’ demurrer to Plaintiff Shirin Niksaz’s First Amended Complaint (“FAC”) is sustained with 15 days leave to amend. 

Plaintiff did not timely oppose the demurrer.  Failure to oppose the demurrer may be construed as having abandoned the claims.  (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue.”].)  As a result, the demurrer is sustained with 15 days leave to amend.

MOTION TO STRIKE

The arguments in Defendants’ motion to strike portions of the FAC also have merit.  However, the ruling on the demurrer renders moot most of the motion, except for the following.

Gross Negligence and Intentional Conduct

In the background section of the FAC, Defendants ask the court to strike the following language: “. . .gross negligence, . . . intentional misconduct . . .” (FAC, at ¶ 1, 1:23-24.)

A motion to strike can be used to attack legal conclusions in a pleading. For example, in a straight promissory note action, allegations that defendant's failure to pay was “wrongful, malicious and illegal.” Such allegations are conclusions of the pleader and “irrelevant matter,” subject to motion to strike. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:179.)  Here, the only remaining cause of action is for negligence. These background allegations are conclusory and not supported by a reading of the pleading as a whole. Accordingly, the language is stricken from the FAC, with 15 days leave to amend.

Loss of Consortium

In the first cause of action for negligence in the FAC, Defendants ask the court to strike the following language: “Plaintiff is informed and believes that such injuries have resulted in loss of consortium to her husband as she was not able to provide companion, intimacy, moral support and household services during the period which she was unnecessary under pain and suffering.” (FAC, at ¶ 16, 6:1-4.)

Plaintiff lacks standing to claim damages on someone else’s behalf. “[L]oss of consortium is not a derivative cause of action. While the cause of action is triggered by the spouse's injury, ‘a loss of consortium claim is separate and distinct. . . . [Citations.]’ [Citation.]” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1089.) “[T]he injury incurred can neither be said to have been ‘parasitic’ upon the husband's cause of action nor can it be properly characterized as an injury to the marital unit as a whole. Rather, it is comprised of [the spouse's] own physical, psychological and emotional pain and anguish which results when [the injured spouse] is negligently injured to the extent that he [or she] is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. [Citation.]” (Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1279 [citing Lantis v. Condon (1979) 95 Cal.App.3d 152, 157].)  Accordingly, the language is stricken from the FAC, with 15 days leave to amend.

Defendants shall give notice of the rulings. 

CASE MANAGEMENT CONFERENCE