Judge: Gary Y. Tanaka, Case: 21STCV04377, Date: 2023-02-14 Tentative Ruling
Case Number: 21STCV04377 Hearing Date: February 14, 2023 Dept: B
LOS
ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday,
February 14, 2023
Department B Calendar No. 3
PROCEEDINGS
Paula Gruttadauria v. Bradley Thomas, M.D., et
al.
21STCV04377
1.
Coast Surgery
Center’s Demurrer to Complaint
TENTATIVE
RULING
Coast
Surgery Center’s Demurrer to Complaint is overruled.
Background
Plaintiff filed the Complaint on February 4, 2021. Plaintiff alleges
the following facts. Plaintiff alleges injuries related to the care and
treatment provided by Defendants. Plaintiff alleges the following cause of action: 1. Medical
Negligence.
Meet and Confer
Defendant
set forth a meet and confer declaration in sufficient compliance with CCP §
430.41. (Decl., Danielle Mesrobian, ¶¶ 3-5.)
Demurrer
A demurrer tests the sufficiency of
a complaint as a matter of law and raises only questions of law. (Schmidt v.
Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint,
the court must assume the truth of (1) the properly pleaded factual
allegations; (2) facts that can be reasonably inferred from those expressly
pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) The Court may not
consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7
Cal.App.4th 634, 638.) Because a
demurrer tests the legal sufficiency of a complaint, the plaintiff must show
that the complaint alleges facts sufficient to establish every element of each
cause of action. (Rakestraw v.
California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts
sufficient to constitute a cause of action, courts should sustain the
demurrer. (C.C.P., § 430.10(e); Zelig
v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)
Sufficient
facts are the essential facts of the case "with reasonable precision and
with particularity sufficiently specific to acquaint the defendant with the
nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193
Cal.App.2d 636, 643-644.) "Whether
the plaintiff will be able to prove the pleaded facts is irrelevant to ruling
upon the demurrer." (Stevens v.
Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a
demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s
factual allegations are so confusing they do not sufficiently apprise a
defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 139, fn. 2.)
First Cause of Action for Medical Negligence
Defendant’s demurrer is overruled. Plaintiff
states facts sufficient to constitute a cause of action.
“The elements of a cause of action for
medical malpractice are: (1) a duty to use such skill, prudence, and diligence
as other members of the profession commonly possess and exercise; (2) a breach
of the duty; (3) a proximate causal connection between the negligent conduct
and the injury; and (4) resulting loss or damage.” Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.
Plaintiff alleges that Defendant was a
medical provider that had a duty to Plaintiff, the patient. (Complaint, ¶¶ 5-7.) Plaintiff alleges a breach of that duty. (Complaint, ¶ 8.) Plaintiff alleges a causal connection between
the breach and injury and resulting damages. (Complaint, ¶¶ 10-12.)
Defendant argues that the allegations are
conclusory and lacking in the detail required to determine in what manner the
breach occurred and the manner in which causation occurred. However, Defendant
attempts to impose a level of specificity that it is not required when pleading
this cause of action. Evidentiary and
factual details can be uncovered through discovery.
Defendant
also argues that the cause of action is barred by the statute of limitations. Code Civ. Proc., § 340.5 states, in relevant
part: “In an action for injury or death against a health care provider based
upon such person's alleged professional negligence, the time for the
commencement of action shall be three years after the date of injury or one
year after the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first.”
However,
Plaintiff has alleged that she has filed the Complaint within three years from
the date of injury. (Complaint, ¶ 9.) Defendant argues that Plaintiff discovered the
injury and/or should have discovered the injury prior to one year from the date
of the Complaint filing. Defendant relies on factual issues outside the scope
of the pleading. Defendant is correct
that had Plaintiff merely relied on delayed discovery, Plaintiff would have
been required to plead more specific facts because the factual allegations
revealed that the discovery should have occurred prior to three years from the
date of injury. Plaintiff would have
been required to plead facts such as “when the discovery was made, the
circumstances surrounding the discovery, and facts which show that the failure
to make an earlier discovery was reasonable, justifiable and not a result of
plaintiff's failure to investigate or to act.” Dujardin v. Ventura County Gen. Hosp. (1977)
69 Cal.App.3d 350, 356. Plaintiff merely
alleges in a conclusory manner that Plaintiff discovered the injury within one
year of the filing of the Complaint. (Complaint,
¶ 9.) Here, however, Plaintiff is not
merely relying on delayed discovery, but, instead, that the Complaint was filed
three years from the date of injury. Thus,
whether Plaintiff had a suspicion of wrongdoing more than one year from the
date of the filing of the Complaint is a factual issue that cannot be
adjudicated with this demurrer.
Therefore, Defendant’s demurrer is overruled.
Defendant is ordered to file and serve
an Answer within 10 days of this date.
Plaintiff is ordered to give notice of this
ruling.