Judge: Deborah C. Servino, Case: 30-2022-01258399, Date: 2022-10-07 Tentative Ruling
DEMURRER
Procedural Deficiencies
As an initial matter, Plaintiff’s opposition is 31 pages long. California Rules of Court, rule 3.1113(d) provides: “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.” (Emphasis added.)
A memorandum exceeding the permissible page limits “must be filed and considered in the same manner as a late-filed paper”; i.e., the court in its discretion may refuse to consider it in ruling on the motion (Cal. Rules of Court, rules 3.1113(g); 3.1300(d).)
In addition, Plaintiff failed to file proofs of service with the oppositions pursuant to California Rules of Court, rule 3.1300(c).
Litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. See Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 (self-represented litigants are entitled to same treatment as represented parties).
While the court has considered the merits of Plaintiff’s opposition briefs this time, it cautions Plaintiff that any future violations of the California Rules of Court or Code of Civil Procedure may result in the court exercising its discretion to not consider Plaintiff’s briefing.
Special Demurrer for Uncertainty
Defendant specially demurs to the Complaint. A special demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant’s knowledge. (Khoury v. Maly’s of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300.)
Here, the Complaint sets forth eight causes of action labeled as: (1) intention misdiagnosis; (2) pre-surgery intentional negligence; (3) post-surgery intentional negligence; (4) intentional infliction of a long term injury (physical); (5) intentional infliction of a long term psychological injury; (6) intentional physical exploitation; (7); intentional financial exploitation; and (8) pregnancy obstacle. Here, the Complaint is largely unintelligible, such that Defendant cannot reasonably respond. For instance, there are references to both intentional acts and negligence within the same causes of action. In general, intentional acts and negligent acts have been classified as different types of torts. (See 5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 5, p. 48 [The Restatement 2d classifies torts with respect to the conduct of the party committing the tort as: (1) intentional acts, (2) negligent acts, and (3) ultrahazardous or abnormally dangerous activities resulting in liability without fault].) There are also references to claims that do not appear to be cognizable claims in California as alleged (e.g., intentional physical exploitation, intentional financial exploitation, and pregnancy obstacle). Accordingly, the special demurrer for uncertainty is sustained with 15 days leave to amend.
General Demurrer
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)
Although unclear, particularly with the references of intent, it appears that the first four causes of action may be attempts to allege medical malpractice. (See Complaint, at pages 10 of 13 to 12 of 13.) “Generally, ‘negligence’ is the failure to exercise the care a reasonable person would exercise under the circumstances. [Citation.] Medical negligence is one type of negligence, to which general negligence principles apply.” (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 694.) The elements of a medical malpractice claim are (1) the duty of the professional to use such skill, prudence, and diligence as other members of his [or her] profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) loss or damage resulting from the professional’s negligence. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.) The Complaint fails to sufficiently allege facts to support a claim for medical negligence, as the Complaint fails to allege any duties, breaches, or causation.
Although uncertain, the fifth cause of action refers to intentional infliction of psychological injury, which sounds like intentional infliction of emotional distress. (See Complaint, at page 12 of 13.) “The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) Extreme or outrageous conduct is defined as beyond all bounds of decency. Ordinary rude or insulting behavior is not enough to justify an award of damages. (Cervantes v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593; Bogardy Employers Cas. Co. (1985) 164 Cal.App.3d 602, 616.) The Complaint does not allege any facts to support extreme or outrageous conduct. The Complaint also does not allege the requisite element of intent or reckless disregard.
Accordingly, the demurrer is sustained with 15 days leave to amend.
MOTION TO STRIKE
Defendant’s motion to strike Plaintiff’s Complaint is granted in part with 15 days leave to amend, as set forth below.
Plaintiff’s opposition suffers from the same procedural defects as her opposition to the demurrer. There is no proof of service and the opposition exceeds the allowable page limit. (See Cal. Rules of Court, rules 3.1300(c) and 3.1113(d).) Nonetheless, the Court has considered the merits of Plaintiff’s briefing.
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10, subd. (b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:179.) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)
Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. (Cal. Code Civ. Proc. § 452; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 7:197.) The allegations of the complaint are presumed true; they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
Defendant contends that the entire Complaint should be stricken because it fails to include a prayer for relief in violation of Code of Civil of Procedure section 425.10, subdivision (a)(2). The Complaint is thus not "drawn or filed in conformity with the laws of this state," and thus is subject to a motion to strike pursuant to Code of Civil Procedure section 436, subdivision (b). Moreover, Defendant argues that because there is no prayer for relief, Plaintiff fails to put Defendant on notice of what is actually being requested. (Mot., at p. 5.)
The failure to include a prayer for a particular relief fails to give notice to the Defendant as to the relief sought. However, Defendant has not provided authority to strike the entire Complaint because of a defective prayer for relief.
Here, the final sentence in the Complaint states: “The plaintiff wants ‘one million dollars’ for every “peaceful year she had with her feminin [sic] organs that she was born with before dr. Buchanan went inside her abdomen and disturbed them with his ‘surgeon’s knife’.” (Complaint, at page 13 of 13.) This statement is insufficient to constitute a prayer for relief. (See Code Civ. Proc., § 425.10.) Accordingly, that sentence is stricken with 15 days leave to amend for Plaintiff to allege a sufficient prayer for relief.
Defendant also moves to strike statements about Plaintiff’s feelings of being stupid and a minority. (Mot., at p. 6.) As to this portion of the motion, Defendant failed to comply with California Rule of Court 3.1322(a), which requires the notice for this motion to “quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” Accordingly,
the motion to strike statements about Plaintiff’s feelings of being stupid and a minority is denied.
A case management conference is set for January 20, 2023, at 9 am in Department C21
Defendant shall give notice of the ruling and of the January 20, 2023 case management conference.