Judge: Joel L. Lofton, Case: 21STCV41460, Date: 2022-10-18 Tentative Ruling
Case Number: 21STCV41460 Hearing Date: October 18, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: October 5, 2022 TRIAL DATE: May 9, 2023
CASE: FLORENCE M.
SANCHEZ, an individual, v. THE NORTHEAST COMMUNITY CLINIC, a California
corporation, EMMA BLANDINA TREJO, M.D., an individual, SANDRA CHU DAMIANI,
M.D., an individual; and DOES 1 through 50, inclusive.
CASE NO.: 21STCV41460
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant The Northeast
Community Clinic
RESPONDING PARTY: Plaintiff Florence M. Sanchez
SERVICE: Filed
February 3, 2022
OPPOSITION: Untimely
filed August 22, 2022
REPLY: Filed August 24, 2022
RELIEF
REQUESTED
Defendant demurrers to
the second cause of action for negligent misrepresentation and the third cause
of action for risk of nontreatment.
Defendant moves to
strike portions of Plaintiff’s complaint.
BACKGROUND
This case arises out of Plaintiff
Florence M. Sanchez’s (“Plaintiff”) claim that Defendants Emma Blandina Trejo,
M.D. (“Dr. Trejo”), Sandra Chu Damiani (“Dr. Damiani”), M.D., and the Northeast
Community Clinic (“the Clinic”) failed to properly evaluate and treat
Plaintiff, resulting in Plaintiff’s kidney failure going undetected.
Plaintiff filed this complaint on
November 9, 2021, alleging three causes of action for (1) medical negligence,
(2) negligent misrepresentation, and (3) risks of nontreatment.
TENTATIVE RULING
Defendant’s
demurrer to Plaintiff’s second and third causes of action are sustained with
leave to amend.
Defendant’s
motion to strike Plaintiff’s prayer for punitive damages and attorney’s fees is
granted.
Defendant’s
motion to strike is denied on all other grounds.
Defendant’s
demurrer to Plaintiff’s second and third causes of action are sustained with
leave to amend.
LEGAL STANDARD
Demurrer
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.)
Motion to Strike
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part
thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The
court may, upon a motion, or at any time in its discretion, and upon terms
it deems proper, strike any irrelevant, false, or improper matter inserted in
any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may
also strike all or any part of any pleading not drawn or filed in conformity
with California law, a court rule, or an order of the court. (Code Civ.
Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one
that is not essential to the statement of a claim or defense; is neither
pertinent to nor supported by an otherwise sufficient claim or defense; or a
demand for judgment requesting relief not supported by the allegations of the
complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
Meet and Confer
Defendant provides that its counsel attempted to meet and confer with
Plaintiff on January 25, 2022, by telephone. (Hall Decl. ¶ 2.) Defendant’s counsel states that
Plaintiff did not respond by January 27, 2022, and that the parties were unable
to reach an agreement resolving the issues raised by this demurrer. (Id. ¶
3.)
Duplicative Cause of Action
Defendant objects to the second and third causes of
action on the grounds that they are duplicative of Plaintiffs’ first cause of
action for medical negligence.
Defendant primarily relies on Flowers v. Torrence
Memorial Hospital Medical Center (1994) 8 Cal.4th 992 (“Flowers”), to
support its argument that Plaintiffs’ second and third causes of action are
duplicative. Flowers, however, does not help Defendants. In Flowers,
the California Supreme Court reversed an appellate court’s ruling that a
defendant moving for summary judgment had negated a claim for professional
negligence but failed to do so for ordinary negligence. (Id. at p.
1001.) The Court held that the appellate court had erroneously bifurcated the
plaintiffs’ allegations for the purposes of applying the summary judgment
standard. (Ibid.)
Here, the issue is whether Plaintiffs’ complaint
sufficiently states facts to plead a cause of action. Flowers is
inapplicable because the current case is in a different procedural posture.
Further, Plaintiff’s complaint, on its face, is seeking to allege separate
torts based on the same or similar underlying conduct. Nothing in the cases
cited by Defendants prohibits Plaintiff from seeking to claim different causes
of action based on similar underlying factual allegations. Defendant’s argument
that Plaintiff’s causes of action are duplicative is rejected.
Second Cause of Action for Negligent
Misrepresentation
Defendant demurrers to Plaintiff’s
second cause of action for negligent misrepresentation.
The elements of negligent
misrepresentation are “[m]isrepresentation of a past or existing material fact,
without reasonable ground for believing it to be true, and with intent to
induce another's reliance on the fact misrepresented; ignorance of the truth
and justifiable reliance on the misrepresentation by the party to whom it was
directed; and resulting damage. (Hydro-Mill Co., Inc. v. Hayward, Tilton,
& Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154.) “For
policy reasons, some causes of action, such as fraud and negligent
misrepresentation, must be pleaded with particularity—that is, the pleading
must set forth how, when, where, to whom, and by what means the representations
were made.” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028.)
Defendant argues that Plaintiff
fails to allege a claim for negligent misrepresentation with required
particularity. Plaintiff alleges that Defendants, jointly and individually,
represented to Plaintiff between 2007 and September 18, 2019, that there were
no issues relating to Plaintiff’s kidney health. (Complaint ¶ 44.) Plaintiff alleges that Defendants had
no reasonable grounds for believing those representations to be true. (Id.
¶ 46.) Plaintiff alleges that Defendants intended for Plaintiff to reply on
their statements and that Plaintiff reasonably relied on Defendants’
statements. (Id. ¶ 47.)
Although Plaintiff’s complaint superficially lists the required
elements to plead a cause of action for negligent misrepresentation, it does
not do so with any level of particularity. Plaintiff broadly claims that
Defendants made misrepresentations without identifying who made what
representations or when the representations were made. Plaintiff simply alleges
that over a twelve-year span, Defendants made misrepresentations. Plaintiff’s
complaint fails to plead with the required particularity the misrepresentations
at issue.
In opposition, Plaintiff argues that paragraphs 20 through 22
allege specific instances of misrepresentation. Plaintiff’s argument is
unavailing. The cited paragraphs do not detail any misrepresentation at all,
but merely conclude that “[b]ased on DEFENDANTS' false
representations to PLAINTIFF on or about September 18, 2019, as well as on
numerous occasions before, DEFENDANTS caused PLAINTIFF to believe that there
were no issues with her kidney health at this time.” (Complaint ¶ 22.) However, Plaintiff’s complaint does not
allege that Dr. Trejo made any representations, but rather paragraphs 20 and 21
allege that Dr. Trejo and Dr. Damiani failed to properly follow up with
Plaintiff’s complaint of medical issues.
Defendant’s demurrer to Plaintiff’s second cause of action is
sustained with leave to amend.
Third Cause of Action for Risk of Nontreatment
Defendant demurrers to Plaintiff’s third cause of action. Although
Plaintiff’s third cause of action is facially titled “risk of nontreatment”, it
is unclear as to what specifically Plaintiff is alleging. Defendant argues, and
Plaintiff partially adopts Defendant’s position, that Plaintiff’s third cause
of action is seeking to allege a lack of informed consent.
“Under the doctrine
of informed consent, the patient must have the capacity to reason and make
judgments, the decision must be made voluntarily and without coercion, and the
patient must have a clear understanding of the risks and benefits of the
proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and
the prognosis.” (Ermoian v. Desert Hospital (2007) 152
Cal.App.4th 475, 515, internal quotation marks omitted.) “The manifest purpose
of the informed consent forms is to obtain the patient's informed consent.
Failure to obtain informed consent is a form of professional negligence.” (Davis
vv. Physician Assistant Bd. (2021) 66 Cal.App.5th 227, 276.)
Defendant’s
arguments that Plaintiff’s claims are duplicative have more weight when applied
to Plaintiff’s third cause of action. It appears that Plaintiff is seeking to
allege medical malpractice, which she alleges in her first cause of action,
based on Defendants’ failure to obtain her consent for tests that were not
recommended.
“[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.)
Here, Plaintiff’s allegations align
with neither of the fact patterns posited in Conte. Rather, Plaintiff
realleges her claim that Defendants engaged in medical negligence by failing to
conduct certain tests. In Scalere v. Stenson (1989) 211 Cal.App.3d 1446,
1450, the appellate court stated that “[i]n the instant case respondent
proposed no postsurgery therapy and therefore did not require appellant's
informed (or uninformed) consent to any such therapy. The predicate for
the Cobbs duty-to-disclose being absent, there was no
duty to disclose.” Similarly here, Plaintiff do not allege that Defendant
failed to properly inform her prior to a procedure, a necessary predicate to
make a claim for lack of informed consent.
In
opposition, Plaintiff cites language from Munro v. Regents of University of
California (1989) 215 Cal.App.3d 977, 990. However, Plaintiff cites
language found in the concurrence to the decision, which is not binding
authority.
Plaintiff’s
third cause of action for risk of nontreatment fails to state a claim.
Defendant’s demurrer is sustained with leave to amend.
Motion
to Strike
Defendant moves
to strike language in Plaintiff’s complaint on the grounds that the language
consists of mere conclusions. The Court recognizes that Plaintiff’s complaint
contains several legal phrases that amount to little more than jargon in the
context of the pleadings and do not advance the case. However, Defendant’s
motion to strike in this instance similarly does not meaningfully impact the
case as the pleadings are not evidence.
Defendant’s
motion to strike portions of Plaintiff’s complaint that amount to legal
conclusions is denied.
Punitive
Damages
Code of Civil
Procedure section 412.13, subdivision (a), provides in part: “In any action for damages arising out of the professional
negligence of a health care provider, no claim for punitive
damages shall be included in a complaint or other pleading unless the
court enters an order allowing an amended pleading that includes a claim for
punitive damages to be filed.”
Here, Plaintiff seeks a recovery of punitive damages
against health care providers but has failed to comply with Code of Civil
Procedure section 412.13. Defendant’s motion to strike Plaintiff’s prayer for
punitive damages is granted.
Prejudgment Interest
Defendant asserts that
Plaintiff’s prater for prejudgment interest is improper.
Defendant
seeks prejudgment interest based on Code of Civil Procedure section 3291, which
provides: “In any action brought to recover damages for personal injury
sustained by any person resulting from or occasioned by the tort of any other
person, corporation, association, or partnership, whether by negligence or by
willful intent of the other person, corporation, association, or partnership,
and whether the injury was fatal or otherwise, it is lawful for the plaintiff
in the complaint to claim interest on the damages alleged as provided in this
section. [¶] If the
plaintiff makes an offer pursuant to Section 998 of the Code of
Civil Procedure which the defendant does not accept prior to trial
or within 30 days, whichever occurs first, and the plaintiff obtains a more
favorable judgment, the judgment shall bear interest at the legal rate of 10
percent per annum calculated from the date of the plaintiff's first offer
pursuant to Section 998 of the Code of Civil Procedure which is
exceeded by the judgment, and interest shall accrue until the satisfaction of
judgment.”
The cases cited by Plaintiff relate to Code of Civil Procedure
section 3287, which is a separate statute than the one Plaintiff is seeking
interest under. Defendant has not established that Plaintiff is unable to seek
interest under Code of Civil Procedure section 3291. Thus, Defendant’s motion
to strike Plaintiff’s prayer for interest is denied.
Attorney’s Fees and Costs
Defendant also moves to strike
Plaintiff’s prayer for attorney’s fees and costs for bringing this suit.
“A party may not recover attorney fees unless
expressly authorized by statute or contract.” (Hom v. Petrou (2021) 67
Cal.App.5th 459, 464.)
“Except as
otherwise expressly provided by statute, a prevailing party is entitled as a
matter of right to recover costs in any action or proceeding.” (Code Civ. Proc.
section 1032, subd. (b).) “Recoverable costs generally do not include the fees
of expert witnesses not ordered by the court. [Citations.] Such expert witness
fees are recoverable in some circumstances, however, when a more favorable
judgment for the defendant follows a plaintiff's rejection of a pretrial section 998 settlement offer, thus triggering section 998's cost-shifting provisions.” (Kahn v. The
Dewey Group (2015) 240 Cal.App.4th 227, 237.)
Here,
Plaintiff has provided no basis to enable a prayer for attorney’s fees.
However, at this stage, it is too early to determine what costs will be
allowable.
Defendant’s
motion to strike Plaintiff’s prayer for attorney’s fees is granted.
Defendant’s
motion to strike Plaintiff’s prayer for costs is denied.
CONCLUSION
Defendant’s
demurrer to Plaintiff’s second and third causes of action are sustained with
leave to amend.
Defendant’s
motion to strike Plaintiff’s prayer for punitive damages and attorney’s fees is
granted.
Defendant’s
motion to strike is denied on all other grounds.
Moving
Party to give notice.
Dated: October 5,
2022 ___________________________________
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