Judge: Elaine W. Mandel, Case: 24SMCV00098, Date: 2024-05-30 Tentative Ruling

Case Number: 24SMCV00098    Hearing Date: May 30, 2024    Dept: P

Tentative Ruling

Kamfiroozie, et al. v. Sands Case No. 24SMCV00098

Hearing Date: May 30, 2024

Defendant’s Demurrer to Plaintiffs’ First Amended Complaint and Motion to Strike

Plaintiffs Caroline and Majid Kamfiroozie sued defendant dentist Sands for medical malpractice arising out of cosmetic dental work and veneers on Caroline Kamfiroozie. Dr. Sands demurrers to the first amended complaint (FAC), contending that the lawsuit is time-barred under CCP § 340.5.

Sands demurrers contending the FAC is time-barred under the three-year statute of limitations prescribed under the Code of Civil Procedure § 340.5. Sands argues plaintiffs changed the date in the FAC to plead around the statute of limitations. However, this is an improper basis for a demurrer, as it presents the court with factual issues not appropriate for a demurrer. Demurrers test the legal sufficiency of the pleadings; thus the court must treat the facts pled in the FAC as true and cannot make factual findings beyond the four corners of the FAC. Code Civ. Proc. § 430.10. The more proper vehicle for factual determinations regarding the statute of limitations would be through a motion for summary judgment. OVERRULED.

Sands additionally moves to strike paragraphs 36 and 37 of the FAC under Code of Civil Procedure §§ 435 and 436 as well as Evidence Code §§ 1152 and 1154, arguing Plaintiffs inappropriately reference settlement communications to delay the date of notice of potential claims against Sands. Sands further argues the settlement negotiations are irrelevant and exceed the permissible scope of discovery, citing Covell v. Superior Court, (1984) 159 Cal. App. 3d 39, 42.

The Court finds the paragraphs cited do not violate the prohibition on mentioning settlement discussions because they do not constitute a settlement discussion or offer. The cited paragraphs discuss a conversation regarding the final phase of work on an unfinished dental crown placement. FAC ¶¶ 36-37. There is no indication the communication was in connection with settling the case. Sands's reliance on Covell is mistaken as Covell considered whether evidence of a settlement offer or discussions can be subject to discovery. Here, the paragraphs in question were not in connection with a settlement but rather confirmation that Sands had not completed his work. DENIED. Defendant must file an answer within 10 court days