Judge Jill Feeney, Case 22STCV15942 2022-08-19 Tentative Ruling

Judge: Jill Feeney, Case: 22STCV15942, Date: 2022-08-19 Tentative Ruling

Case Number: 22STCV15942 Hearing Date: August 19, 2022 Dept: 30

Department 30, Spring Street Courthouse

August 19, 2022

22STCV15942

Demurrer filed by Defendant University of Southern California

DECISION

The demurrer is sustained without leave to amend.

The moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

Moving party is also ordered to served and electronically file a proposed judgment of dismissal within 15-days.

Background

This is an action for medical malpractice. Plaintiff Alexandra Kebede filed her Complaint against Defendant University of Southern California (“USC”) on May 16, 2022 alleging Defendant’s negligence caused her to develop psychosis and schizophrenia.

On July 22, 2022, Defendant filed its demurrer.

Summary

Moving Arguments

Defendant argues that Plaintiff’s only cause of action for medical malpractice fails because (1) the matter is time barred, (2) the Complaint fails to state facts sufficient to raise a claim for medical malpractice, and (3) the Complaint is fatally uncertain.

Opposing Arguments

None.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Discussion

Defendant argues that Plaintiff’s cause of action for medical malpractice fails because it is time barred, the Complaint fails to state facts sufficient to raise a claim for medical malpractice, and the Complaint is fatally uncertain.

Statute of Limitations

Whether Plaintiff’s claim is barred by the statute of limitations turns on when she discovered her injury.

California Civil Code (“CCP”) section 340.5 provides that an action for “injury or death against a health care provider based on such person’s alleged professional negligence” must be brought “three years after the date of the injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” CCP section 364(d) provides that if a notice is served within 90 days of statute of limitation’s expiration, the time for commencement of the action is extended 90 days from the service of the notice. The statute of limitations begins to run once the plaintiff has “‘presumptive’ as well as ‘actual’ knowledge” of the injury, or “when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation.” (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101.)

Here, Plaintiff’s Complaint states she began treatment for Attention Deficit Hyper Disorder (“ADHD”) at USC Student counseling Services. (Compl. p. 55.) Plaintiff met with Dr. Kelley Grecco and Dr. Stanley Harris twice a month for six years. (Id.) Plaintiff was prescribed Adderall. (Id.) In 2013, Plaintiff was rushed to the ER to treat life threatening heart problems. (Id.) Doctors advised that she stop taking the Adderall. (Id.) Plaintiff took her medication as prescribed and was not warned of the possible outcome of taking the medication. (Id.) Plaintiff was later hospitalized in a mental facility and diagnosed with amphetamine psychosis. (Id.)

Plaintiff’s Complaint shows that she should have known of her injury in 2013 when she alleges she was treated for amphetamine psychosis. Regardless of when she discovered her injury, the Complaint alleges she was overprescribed Adderall sometime between 2008 and 2013. It has been well over three years since Plaintiff’s alleged injury occurred. Thus, her claim for medical malpractice is time-barred. Plaintiff alleges in her Complaint that she was disabled at the time of her injury. It has been more than three years since she was injured, and the circumstances of her case do not fall under the exceptions to California Code of Civil Procedure section 340.5.

Failure to State Sufficient Facts

Because Plaintiff’s claim for medical malpractice is time-barred, there is no reason to touch on this issue.

Uncertainty

Defendant also argues that Plaintiff’s complaint is fatally uncertain.

CCP section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “A 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.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Plaintiff’s Complaint does allege facts that would put Defendant on notice of the causes of action and issues being raised against it. Plaintiff’s complaint alleges that she was overprescribed medication by her doctors, which caused her to be hospitalized. However, as discussed above, Plaintiff’s claim for medical malpractice is time-barred.

Leave to Amend

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

Here, Plaintiff’s claim for medical malpractice is time-barred. No amendment will cure this deficiency. Moreover, Plaintiff has not opposed the motion or asked for leave to amend.