Judge: James A. Mangione, Case: 37-2022-00048903-CU-MM-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2022-00048903-CU-MM-CTL NOMAN VS PHREANER MD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants' Demurrer is sustained without leave to amend as to the First Cause of Action and sustained with leave to amend as to the Second Cause of Action.

Negligence 'To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.' (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) Here, Plaintiff has not alleged any duty Defendants owed to him. Instead, this cause of action is premised on duties Defendants allegedly owed to Plaintiff's deceased father. Thus, the cause of action is for medical malpractice, even if it is labeled as negligence. (See Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc.

(2010) 181 Cal.App.4th 471, 482 (courts consider whether any cause of action has been alleged sufficiently, notwithstanding the cause of action's label).) 'It long has been held that an essential element of a cause of action for medical malpractice is a physician-patient relationship giving rise to a duty of care.' (Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1471.) Because Plaintiff was never in a physician-patient relationship, they never owed him any duty of care. As this cannot be fixed by amendment, the demurrer to this cause of action is sustained without leave to amend.

Intentional Tort Although identified as intentional tort, the Court understands the Complaint as attempting to assert a wrongful death cause of action. (See Arce, 181 Cal.App.4th at 482.) 'The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.' (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 (quotation marks omitted).) While Plaintiff cannot maintain a separate cause of action for general negligence, part of his wrongful death claim requires a showing of professional negligence, i.e., medical malpractice. '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.' (Id. (quotation marks omitted).) Here, Plaintiff has not alleged facts sufficient to show a breach of the standard of care. Therefore, the demurrer on this cause of action is sustained with leave to amend.

Defendants' unopposed Motion to Strike is granted. (See Cal. Rules of Court, Rule 8.54(c) (failure to file an opposition concedes the merits of the motion).) Plaintiff has thirty (30) days to file an amended complaint.

Calendar No.: Event ID:  TENTATIVE RULINGS

2999874  18 CASE NUMBER: CASE TITLE:  NOMAN VS PHREANER MD [IMAGED]  37-2022-00048903-CU-MM-CTL The minute order is the order of the Court.

Calendar No.: Event ID:  TENTATIVE RULINGS

2999874  18