Judge: Deborah C. Servino, Case: 30-2022-01258399, Date: 2023-08-25 Tentative Ruling
To the extent Plaintiff attempts to amend the SAC, without having first obtained leave of court (see ROA 98), it is improper. (Code Civ. Proc., § 472.) Plaintiff has been previously admonished that her failure to comply with the California Rules of Court or Code of Civil Procedure may result in the court exercising its discretion to not consider her briefing. (See 10/7/2022 Minute Order; 4/28/2023 Minute Order.) The court disregards this document.
DEMURRER
Defendant's demurrer the first and second causes of action of SAC is overruled.
Special Demurrer for Uncertainty
The first cause of action is labeled as "misdiagnosis by misrepresentation of facts." Defendant argues that this cause of action is uncertain. (Dem., at pp. 2 & 4.) Specifically, Defendant contends that he cannot determine whether an intentional or negligence claim has been alleged against him.
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 first cause of action is not so unintelligible that Defendant cannot reasonably respond. Any ambiguities can be clarified through discovery. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) Accordingly, the special demurrer for uncertainty is overruled.
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.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The test is whether the complaint states any valid claim entitling Plaintiff relief. A general demurrer may be upheld only if the complaint fails to state a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)
"Misdiagnosis by Misrepresentation of Facts" (First Cause of Action)
“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.)
"A physician's duty to disclose to a patient information material to the decision whether to undergo treatment is the central constituent of the legal doctrine known as 'informed consent.'" (Arato v. Avedon (1993) 5 Cal.4th 1172, 1175.) Much of the doctrine of informed consent is anchored in a theory of negligence liability. (Id. at pp. 1182-1183.) "A claim based on lack of informed consent - which sounds in negligence - arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives." (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324; see CACI no. 533.)
Although not the model of clarity, when read liberally, the first cause of action has sufficiently alleged medical malpractice and lack of informed consent. (SAC, at pp. 2-10.) Accordingly, the demurrer as to the first cause of action is overruled.
Gross Negligence (Second Cause of Action)
Defendant argues that gross negligence was insufficiently pled. (Dem., at pp. 4-5.) To set forth a claim for gross negligence, the plaintiff must allege extreme conduct on the part of the defendant. The conduct must rise to the level of either a want of even scant care or an extreme departure from the ordinary standard of care. (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.)
Here, the SAC has sufficiently alleged facts showing a deviation from the standard of care. (SAC, at pp. 10-11.) Whether that conduct constitutes ordinary negligence or gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence, that cannot be determined on demurrer. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555.) Accordingly, the demurrer as to the second cause of action is overruled.
MOTION TO STRIKE
Defendant moves to strike allegations that he describes as irrelevant conclusions regarding his character and intent that are unsupported by factual allegations. The court was unable to locate the first item that Defendant seeks to strike. However, the remaining items were located. (See SAC, at pp. 10:19-23, 11:12-15, 11:19-23, 12:5-7, 12:13-15, 13:4-9.)
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.)
The allegations at issue are relevant to Plaintiff's claim of medical negligence, lack of informed consent, and gross negligence. As one court explained: "We emphasize that such use of the motion to strike should be cautious and sparing. We have no intention of creating a procedural 'line item veto' for the civil defendant." (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) The motion to strike is denied.
No later than September 11, 2023, Defendant shall file his answer to the SAC. Defendant shall serve his answer pursuant to the Code of Civil Procedure.
Defendant shall give notice of the ruling.
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