Judge: Joel L. Lofton, Case: 20STCV39524, Date: 2023-02-23 Tentative Ruling
Case Number: 20STCV39524 Hearing Date: February 23, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE: February 23, 2023 TRIAL DATE: No date set.
CASE: RATAVOUS SHAHVERDI, an individual; NORA SHAHVERDI, an individual, v. NARBEH TOVMASSIAN, M.D., an individual; ELEVATE HEALTH GROUP, a medical corporation; MONTROSE HEALTHCARE CENTER, business form unknown; and DOES 1 through 50, inclusive.
CASE NO.: 20STCV39524
DEMURRER
DEMURRING PARTY: Defendants Narbeh Tovmassian, M.D., and Elevate Health Group
RESPONDING PARTY: Plaintiffs Ratavous Shahverdi and Nora Shahverdi
SERVICE: Filed July 11, 2022
OPPOSITION: Filed August 1, 2022
REPLY: Filed August 9, 2022
RELIEF REQUESTED
Demurring Parties object to Plaintiff’s first, second, third, and fifth causes of action.
BACKGROUND
This case arises out of Plaintiffs Ratavous Shaverdi (“Ratavous”) and Nora Shahverdi (“Nora”) (collectively “Plaintiffs”) claim that Defendants Narbeh Tovmassian, M.D. (“Dr. Tovmassian”), Elevate Health Group (“Elevate”), and Montrose Healthcare Center (“MHC”) (collectively “Defendants”) negligent provide medical services. Specifically, Plaintiffs allege that Defendants prescribed and force-fed Ratavous a regimen of unneeded medication. Plaintiffs allege the medication caused adverse chemical reactions, such as producing a high level of insulin in Ratavous, causing him to be bedridden. Plaintiffs allege that the adverse reactions caused Ratavous to be unable to communicate and lose his independence.
Plaintiffs filed this complaint on October 14, 2020, alleging five causes of action for (1) medical malpractice, (2) lack of informed consent, (3) failure to screen, (4) loss of consortium, and (5) general negligence.
TENTATIVE RULING
Demurring Parties’ demurrer to Plaintiffs’ first and second cause of action is OVERRULED.
Dr. Tovmassian’s demurrer to Plaintiffs’ third cause of action is SUSTAINED without leave to amend.
Elevate’s demurrer to Plaintiffs’ third cause of action is OVERRULED.
Demurring Parties’ demurrer to Plaintiffs’ fifth cause of action is SUSTAINED with leave to amend.
LEGAL STANDARD
A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. section 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (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 v. Mirda, supra, 147 Cal.App.4th 740, 747.)
Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)
DISCUSSION
Demurring Parties first argue that Plaintiff’s first, second, third, and fifth causes of action are subject to demurrer because they are duplicative.
In Palm Springs Villas II Homeowners Assn., Inc v. Parth (2016) 248 Cal.App.4th 268, 290, the Court, citing Rodriguez v. Campbell Industries (1978) 87 Cal.App.3d 494, 501, stated that duplicative causes of action were grounds for sustaining a demurrer. In Rodriguez, supra, the Court sustained a demurrer for a cause of action that “combine[d] all the preceding causes, alleging they are joint and concurrent causes of plaintiffs' damages.” (877 Cal.App.3d at p. 498.) The Rodriguez Court held that the deficient cause of action “contain[ed], by necessary implication, all of the allegations of each of the preceding four alleged causes and thus adds nothing to the complaint by way of fact or theory of recovery.” (Id. at p. 501.)
Demurring Parties argue that the second, third, and fifth causes of action are duplicative of Plaintiffs’ first cause of action for medical malpractice. Demurring Parties essentially argue that because Plaintiffs’ cause of action rely on the same nexus of fact involved in Plaintiffs’ claim for medical malpractice, they are duplicative. The court disagrees.
Plaintiffs’ second cause of action alleges Defendants failed to obtain Ratavous’s informed consent. “[A] doctor's failure to obtain the patient's informed consent can give rise to two different causes of action: negligence, and battery. If the patient consents to a procedure without being informed of all the known risks, the doctor's failure to disclose those risks is negligence. . . . However, ‘[w]here a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.’ ” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1267.)
Plaintiffs’ second cause of action invokes both a variance of fact and theory of recovery to allege a distinct cause of action from their claim for medical malpractice.
Additionally, Plaintiff’s third cause of action involves the hiring of staff, which Plaintiffs allege lead to harm. Whether the third cause of action alleges facts sufficient to state a claim will be discussed further below. However, this cause of action is based on different facts and a theory of recovery and is not duplicative.
Plaintiff’s fifth cause of action for negligence, however, is duplicative. Plaintiffs allege that Defendants provided medical services. (Complaint ¶¶ 35-36.) Plaintiffs allege that Defendants breached their duty while Ratavous was in their care. (Id. ¶ 37.) Plaintiffs allege that Defendants violated “the medical standard of care . . . and/or provided medical treatment” for Ratavous. (Id. ¶ 38.) This cause of action essentially repeats the allegations contained in Plaintiffs’ first cause of action and relies on the same conduct and standard of care applicable to a medical malpractice claim. Thus, this cause of action is duplicative.
Whether Plaintiffs’ Third Cause of Action States a Claim
Demurring Parties assert that Plaintiff’s third cause of action for failure to screen because they cannot be categorized as a hospital necessary to bring a claim.
“[W]e hold a hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility.” (Elam v. College Park Hospital (1982)
Here, Demurring Parties’ argument is that they are not hospitals and thus cannot be held liable for negligent screening. Clearly, Dr. Tovmassian is not a hospital but is rather alleged to be a practicing physician. (Id. ¶ 8.) However, Elevate, which may or may not be a hospital, is alleged to be “in the business and/or management of health care facilities.” (Id. ¶ 12.) While Elevate may be able to refute that claim with facts, at the pleading stage, Plaintiffs’ allegations are sufficient.
CONCLUSION
Demurring Parties’ demurrer to Plaintiffs’ first and second cause of action is OVERRULED.
Dr. Tovmassian’s demurrer to Plaintiffs’ third cause of action is SUSTAINED without leave to amend.
Elevate’s demurrer to Plaintiffs’ third cause of action is OVERRULED.
Demurring Parties’ demurrer to Plaintiffs’ fifth cause of action is SUSTAINED with 20 days leave to amend.
Moving Party to give notice.
Judge Joel L. Lofton,
Department X
HEARING DATE: February
23, 2023 TRIAL DATE: No date set.
CASE: RATAVOUS
SHAHVERDI, an individual; NORA SHAHVERDI, an individual, v. NARBEH TOVMASSIAN,
M.D., an individual; ELEVATE HEALTH GROUP, a medical corporation; MONTROSE
HEALTHCARE CENTER, business form unknown; and DOES 1 through 50, inclusive.
CASE NO.: 20STCV39524
MOTION
TO COMPEL DISCOVERY RESPONSES
MOVING PARTY: Defendants Narbeh Tovmassian, M.D.,
and Elevate Health Group (“Moving Parties”)
RESPONDING PARTY: No
response filed.
SERVICE: Dr. Tovmassian’s motions filed December
13, 2022
Elevate Health Group’s motions filed
December 9, 2022.
RELIEF
REQUESTED
Moving Parties move to compel Plaintiffs to produce
responses to Moving Parties’ form interrogatories, special interrogatories, and
the requests for the production of documents.
BACKGROUND
This case arises out of Plaintiffs
Ratavous Shaverdi (“Ratavous”) and Nora Shahverdi (“Nora”) (collectively
“Plaintiffs”) claim that Defendants Narbeh Tovmassian, M.D. (“Dr. Tovmassian”),
Elevate Health Group (“Elevate”), and Montrose Healthcare Center (“MHC”)
(collectively “Defendants”) negligent provide medical services. Specifically,
Plaintiffs allege that Defendants prescribed and force-fed Ratavous a regimen
of unneeded medication. Plaintiffs allege the medication caused adverse
chemical reactions, such as producing a high level of insulin in Ratavous,
causing him to be bedridden. Plaintiffs allege that the adverse reactions
caused Ratavous to be unable to communicate and lose his independence.
Plaintiffs filed this complaint on
October 14, 2020, alleging five causes of action for (1) medical malpractice,
(2) lack of informed consent, (3) failure to screen, (4) loss of consortium,
and (5) general negligence.
TENTATIVE RULING
Moving Parties’
motion for an order compelling Plaintiffs to provide discovery responses is
GRANTED.
Plaintiffs are
ordered to provide discovery responses to Moving Parties’ special
interrogatories, form interrogatories, and requests for the production of
documents within 10 days of notice of this ruling.
LEGAL STANDARD
If a party to whom interrogatories are directed fails to serve a timely
response, the party propounding the interrogatories may move for an order
compelling a response to the interrogatories. (Code Civ. Proc. section
2030.290, subd. (b).) The same applies to a party that fails to respond to a
request for document production. (Code Civ. Proc. section 2031.300, subd. (b).)
DISCUSSION
Dr. Tovmassian and Elevate separately move to
compel discovery responses from Plaintiffs. On September 2, 2022, Dr.
Tovmassian and Elevate separately served their requests for the production of
documents, form interrogatories, and special interrogatories on Ratavous and
Nora. (Schuler Decl. ¶ 4.) On October 6, 2022,
counsel for Dr. Tovmassian and Elevate informed Plaintiffs’ counsel via email
that Plaintiffs’ discovery responses were overdue. (Id. ¶ 5.) Moving
Parties’ counsel followed up via email on October 10, 2022, and October 19,
2022. (Id. ¶¶ 6-7.) As of the date of filing this motion, Moving Parties
have not received Plaintiffs’ discovery responses. (Id. ¶ 8.)
Dr. Tovmassian and Elevate have demonstrated that they
served Plaintiffs with discovery requests but have not received a timely
response.
CONCLUSION
Moving Parties’ motion for an order
compelling Plaintiffs to provide discovery responses is GRANTED.
Plaintiffs are
ordered to provide code compliant discovery responses without objections to
Moving Parties’ special interrogatories, form interrogatories, and requests for
the production of documents within 10 days of notice of this ruling.
Moving
Party to give notice.
Dated: February 23,
2023 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org