Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

Plaintiff Ricky Cisneros’ complaint alleges as follows: Plaintiff was hospitalized at UCLA Ronald Reagan Medical Center for an upcoming heart procedure.  (Compl. ¶ 13.)  While Plaintiff was a patient at the hospital, all his meals were prepared and served by employees of Defendant the Regents of the University of California.  (Id. ¶ 14.)  Plaintiff underwent a heart transplant procedure at the hospital.  (Id. ¶ 15.)  On October 13, 2022, Defendant’s staff prepared and served Plaintiff a meal containing a rat.  (Id. ¶ 16.)  Plaintiff discovered the rat while eating his meal, causing Plaintiff to suffer physical and mental injuries.  (Id. ¶ 17.) 

The operative complaint alleges claims for (1) negligence, (2) negligent infliction of emotional distress, (3) strict liability – manufacturing defect, (4) strict liability – design defect, (5) breach of express warranty and (6) breach of implied warranty of merchantability.   

This hearing is on Defendant’s demurrer and motion to strike.  Defendant demurs to (1) the second cause of action for negligent infliction of emotional distress as duplicative of the first cause of action for negligence, (2) the third and fourth causes of action for strict liability because a hospital is not strictly liable for injuries caused by their use of a defective product, and (3) the fifth and sixth causes of action for breach of warranty because an action for breach of warranty will only lie as to the sale of goods, not the furnishing of services.   

Defendant also moves to strike Plaintiff’s punitive damages claim pursuant to Gov. Code § 818, on the ground that punitive damages cannot be recovered against a public entity such as Defendant, and any claim for punitive damages arising out of negligence against a health care provider requires a motion to amend the complaint to add the punitive damages claim which must show the facts are legally sufficient to support a punitive damages claim and supporting affidavits must reveal the actual existence of a triable claim.  Defendant also moves to strike Plaintiff’s claim for prejudgment interest because Plaintiff’s damages are not “certain” or “capable of being made certain by calculation.”  Last, Defendant moves to strike Plaintiff’s prayer for attorneys’ fees because there is no statute or contract providing for recovery of attorneys’ fees in this case.  An opposition was filed to the demurrer, but no opposition was filed to the motion to strike.             

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc. § 436, subd. (a).)  The court may also strike 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, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendant submits the Declaration of Daniel Farrugia, which avers counsel attempted to meet and confer by phone prior to bringing this demurrer and motion to strike but Plaintiff’s counsel did not respond.  This satisfies the requirements of §§430.41 and 435.5. 

DISCUSSION 

Negligent Infliction of Emotional Distress 

Defendant argues that Plaintiff’s claim for negligent infliction of emotional distress (“NIED”) is duplicative of his negligence claim.  The Court agrees.   

NIED is not an independent tort but rather an iteration of the tort of negligence where the plaintiff must establish the elements of duty, breach, causation, and damages. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)  While the law makes clear that a claim for negligent infliction of emotional distress can be asserted as a cause of action, it is a mere iteration of a claim for negligence and not a tort independent from a negligence claim. (See, e.g., Eriksson, 233 Cal.App.4th at 729; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 (“We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.’”).)  Emotional distress is an element of damages of a negligent cause of action.   

Here, Plaintiff’s NIED claim contains identical allegations as his negligence claim, and appears to add nothing to the complaint as to facts or theory of recovery.  A demurrer may be sustained to a cause of action on the ground it is¿duplicative if it “adds nothing to the complaint by way of¿fact or theory of recovery.” (Rodrigues v. Campbell Industries¿(1978) 87 Cal.App.3d 494, 501; see also¿Award Metals, Inc. v. Superior Court¿(1991) 228 Cal.App.3d 1128, 1135.)  Accordingly, the Court sustains the demurrer as to the NIED claim, without leave to amend.   

Strict Liability Claims 

Defendant argues that Plaintiff’s strict liability claims cannot survive because a hospital or medical provider cannot be liable for defects in the products they use.  The Court agrees. 

Doctors and hospitals are not in the business of selling products.  “The essence of the relationship between a hospital and its patients does not relate essentially to any product or piece of equipment it uses but to the professional services it provides.” (Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1027.)  “[T]hose who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.”  (Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 978; see also Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 677; Hector v. Cedars-Sinai Medical Center (1986) 180 Cal.App.3d at 493, 501-502; Silverhart v. Mount Zion Hospital, 20 Cal.App.3d at 1028.)   

In other words, hospitals and medical professionals are not strictly liable for injuries caused by their use of a defective product, although they may incur negligence liability.  (Bigler-Engler v. Breg Inc. (2017) 7 Cal.5th 276, 315-318 (physician group not strictly liable for injury caused by cold therapy treatment); San Diego Hosp. Ass’n v. Sup. Ct. (Coombe) (1994) 30 Cal.4th 8, 14-16 (hospital not strictly liable to doctor injured while performing surgery with defective laser); Pierson v. Sharp Memorial Hosp. Inc. (1989) 216 Cal.3d 340, 346-347 (hospital not strictly liable to visitor injured in fall due to defective carpet in patient’s room); Hector v. Cedars Sinai Med. Ctr., 180 Cal.App. at 505-506 (hospital not strictly liable for injuries caused by defective pacemaker).)   

Here, Plaintiff was provided services by Defendant related to his heart procedure.  Plaintiff was not sold the salad at issue in the lawsuit; it was prepared and served to him as part of the services Defendant provides to its patients.  This does not prevent Plaintiff from proceeding with a cause of action for negligence, but it does bar him from seeking strict liability against Defendant.  Accordingly, the Court sustains Defendant’s demurrer to Plaintiff’s third and fourth causes of action for strict liability, without leave to amend.   

Breach of Warranty Claims 

Defendant argues Plaintiff’s breach of warranty claims cannot survive because Defendant did not sell any goods to plaintiff, and an action for breach of warranty will not lie where there has been only the furnishing of services.  The Court agrees. 

A claim for breach of warranty (whether express or implied) must involve a sale of goods.  An action for breach of warranty will not lie whether there has been only the provision of services.  (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 306 (“It is now settled in California that an action for breach of implied warranty will not lie where there has not been a sale of chattels but only the furnishing of services.”); Gagne v. Bertran (1954) 43 Cal.2d 481, 487 (soil tester who sold services was not liable under breach of warranty claim; “the general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct”).) 

As discussed above, Defendant was not involved in the sale of goods.  As a hospital, it provides services, which included the preparation and service of meals to Plaintiff.  As a claim for breach of warranty must involve the sale of goods and as Defendant was not involved in the sale of goods, the Court sustains the demurrer to Plaintiff’s fifth and sixth causes of action for breach of warranty.   

Punitive Damages 

Defendant moves to strike Plaintiff’s punitive damages claim because punitive damages cannot be recovered against a public entity.  The Court agrees.   

Under Gov. Code §818, punitive damages are not recoverable against public entities, including Defendant.  Section 818 provides that “[n]otwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”  Defendant is a public entity.  (Austin v. Regents of the Univ. of Cal. (1979) 89 Cal.App.3d 354, 358 (order striking punitive damages claim against Regents was compelled by Gov. Code §818).)   The Court therefore strikes Plaintiff’s prayer for punitive damages against Defendant, without leave to amend. 

 

 

Prejudgment Interest 

Defendant moves to strike Plaintiff’s claim for prejudgment interest because such interest may not be awarded where, as here, the damages are not “certain” or “capable of being made certain by calculation.”  The Court agrees. 

Pursuant to Civ. Code §3287(a), a party may only recover prejudgment interest where the damages are “certain” or “capable of being made certain by calculation” from the time the right to recover arises.  The test for determining “certainty” is whether the defendant actually knows the amount owed or could have computed the amount from reasonably available information.  (Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 960.)   

However, where the amount is subject to dispute and cannot be resolved except by verdict or judgment, such as the present case where Plaintiff’s damages consist of pain and suffering, an award of prejudgment interest is not appropriate.  (Id.; Greater Westchester Homeowners Assn v. City of Los Angeles (1979) 26 Cal.3d 86, 103 (“[D]amages for the intangible, noneconomic aspects of mental and emotional injury … are inherently nonpecuniary, unliquidated and not readily subject to precise calculation. The amount of such damages is necessarily left to the subjective discretion of the trier of fact.  Retroactive interest on such damages adds uncertain conjecture to speculation.”).)   

As such, the Court grants the motion to strike Plaintiff’s prayer for prejudgment interest without leave to amend. 

Attorneys’ Fees 

Defendant argues that Plaintiff is not entitled to attorneys’ fees where there is no contract or statute authorizing such relief.  The Court agrees. 

Code Civ. Proc. §1021 provides that except as provided by statute, the payment of attorneys’ fees is left to the agreement of the parties.  Absent a contractual or statutory basis, the rule is that the parties are not entitled to recover attorneys’ fees. 

“Under the American Rule, as a general proposition each party must pay his own fees.  This concept is embodied in section 1021 of the Code of Civil Procedure, which provides that each party is to bear his own fees unless a statute or agreement of the parties provides otherwise.”  (Gray v. Donn Miller & Assocs. Inc. (1984) 35 Cal.3d 498, 504.) 

Here, Plaintiff has not alleged any statutory or contractual basis entitling him to attorneys’ fees.  As such, the Court grants the motion to strike Plaintiff’s prayer for attorneys’ fees. 

Sanctions 

Plaintiff seeks sanctions in the amount of $1,000 for an alleged improper meet and confer.  The request is denied. 

The Court concludes that the meet and confer was not inadequate.  Defendant reached out to Plaintiff to meet and confer, and Plaintiff never responded.  (Farrugia Decl. ¶¶ 3-5.) 

However, even if the meet and confer were inadequate, California Rule of Court 2.30(c) provides that sanctions may not be imposed except on a noticed motion by the party seeking sanctions or on the court’s motion after the court has provided notice and an opportunity to be heard.  Plaintiff sought sanctions in his opposition, not in a noticed motion.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer and GRANTS the motion to strike, without leave to amend.  Plaintiff has not met his burden to show he can successfully amend his complaint to cure the defects noted in the demurrer and motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: March 8, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court