Judge: Joel L. Lofton, Case: 21STCV41460, Date: 2023-01-19 Tentative Ruling
Case Number: 21STCV41460 Hearing Date: January 19, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: January
19, 2023 TRIAL DATE: No date set.
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
DEMURRING PARTY: Defendant the Northeast Community
Clinic (“Defendant”)
RESPONDING PARTY: Plaintiff
Florence M. Sanchez (“Plaintiff”)
SERVICE: Filed December 8, 2022
OPPOSITION: Filed January 4, 2023
REPLY: Filed January 11, 2023
RELIEF
REQUESTED
Defendant demurrers to Plaintiff’s second and third causes of action.
BACKGROUND
This case arises out of Plaintiff Florence M.
Sanchez’s (“Plaintiff”) claim that Defendants Emma Blandina Trejo, M.D. (“Dr.
Trejo”), Sanda Chu Damiani (“Dr. Damiani”), M.D., and the Northeast Community
Clinic (“the Clinic” or “Defendant”) failed to properly evaluate and treat
Plaintiff, resulting in her kidney failure going undetected.
Plaintiff filed a first amended
complaint (“FAC”) on November 7, 2022, 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 cause of action is SUSTAINED.
Defendant’s
motion to strike Plaintiff’s prayer for expert fees is GRANTED.
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
Second Cause of Action for Negligent
Misrepresentation
Defendant objects to Plaintiff’s second cause of action on the grounds
that Plaintiff has failed to allege facts sufficient to state a claim 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.)
Plaintiff’s FAC suffers from the same defects
as her original complaint. First, Plaintiff fails to allege a misrepresentation
with the required particularity. Plaintiff merely alleges that between 2007 and
September 18, 2019, a twelve-year span, all Defendants represented to Plaintiff
there were no issues with her kidney health. (FAC ¶ 46.) Second, Plaintiff fails to allege Defendant intended to
induce Plaintiff’s reliance on the misrepresentation. Plaintiff even alleges
that Defendants “may have honestly believed that their representations to
Plaintiff were true.” (Id. ¶ 48.) Plaintiff’s complaint fails to sufficiently
plead facts supporting a claim for negligent misrepresentation.
In opposition, Plaintiff cites a single authority to
support her position that she has sufficiently alleged a claim for negligent
misrepresentation. Plaintiff cites Hahn v. Mirda (2007) 147 Cal.App.4th
740, 748, where the Court held that “[t]he doctor-patient relationship is
a fiduciary one and as a consequence of the physician's ‘fiducial’ obligations,
the physician is prohibited from misrepresenting the nature of the patient's
medical condition.” However, in Hahn, the facts alleged are
distinguishable from the present case. The plaintiff in Hahn had alleged
that she had been diagnosed with cancer and undergone treatment. (Id. at
p. 743.) However, Plaintiff did not have cancer, but her doctors failed to tell
her the truth. (Ibid.)
Here,
Plaintiff’s allegations amount to a claim that Defendants misdiagnosed
Plaintiff. Defendant fails to allege a misrepresentation with the required
particularly to state a claim for negligent misrepresentation.
Defendant’s demurrer
to Plaintiff’s second cause of action is sustained.
Third
Cause of Action for Risk of Nontreatment
Defendant demurrers to Plaintiff’s third cause
of action on the ground that Plaintiff fails to demonstrate what a claim for
risk of nontreatment is and fails to allege facts to support a cause of action.
Once again, Plaintiff partly adopts Defendant’s position that the third cause
of action relates to a lack of 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.)
Plaintiff contends that Defendant had a duty to inform
Plaintiff of the risks of not conducting tests on her kidney health. However,
Plaintiff’s allegations are premised on Defendant’s failure to recommend any
treatment related to her kidney. (FAC ¶ 59.) Plaintiff contends that Defendants
were required to inform her of the risks of not receiving treatment that was
never recommended. Plaintiff’s claim here is a duplicate of her first cause of
action for medical negligence and fails to state a claim for a distinct cause
of action.
Defendant’s demurrer to Plaintiff’s third cause of action
is sustained.
Motion to Strike
Defendant moves to strike Plaintiff’s
prayer for the recovery of expert costs.
Code of Civil Procedure section 1033.5, subdivision
(b)(1), expressly provides that fees of experts not ordered by the court are
not allowable costs unless expressly authorized by law.
In opposition, Plaintiff asserts that a variety of
circumstances enable the recovery of expert fees, but she fails to provide that
any of the circumstances are applicable here. First, Plaintiff argues that fees
are allowable under a Code of Civil Procedure section 998 offer. However,
Plaintiff has not shown such an offer was made here. Further, Plaintiff argues
that expert fees are allowable under the Fair Employment and Housing Act
(“FEHA”). However, this case is not a FEHA action. Lastly, Plaintiff cites Code
of Civil Procedure section 1021.5, which relates to an award of attorney’s fees,
not expert’s costs.
Plaintiff’s prayer for the recovery of expert costs is
inappropriate here. Defendant’s motion to strike Plaintiff’s prayer is granted.
CONCLUSION
Similarly, Defendant’s motion to
strike Plaintiff’s prayer for expert fees is GRANTED without leave to amend
absent an affirmative showing from Plaintiff of how an amendment would change
the results of this ruling.
Dated: January 19,
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