Judge: Joel L. Lofton, Case: 21STCV41460, Date: 2023-05-10 Tentative Ruling

Case Number: 21STCV41460    Hearing Date: May 10, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     May 11, 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

MOTION FOR SANCTIONS

MOVING PARTY:               Defendants the Northeast Community Clinic and Emma Blandina Trejo

RESPONDING PARTY:      Plaintiff Florence M. Sanchez

SERVICE:                             Demurrer with motion to strike filed March 3, 2023

                                                Motion for sanctions filed April 6, 2023

OPPOSITION:                     Oppositions filed April 27, 2023

REPLY:                                 Reply to motion for sanctions filed May 4, 2023

RELIEF REQUESTED

            Dr. Trejo demurrers to Plaintiff’s second and third causes of action, moves to strike Plaintiff’s prayer for expert fees, and moves for sanctions.

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

            Dr. Trejo’s demurrer to Plaintiff’s second and third causes of action is SUSTAINED.

            Dr. Trejo’s motion to strike Plaintiff’s prayer for expert fees is GRANTED.

            Dr. Trejo’s motion for sanctions is DENIED.

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.)

            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

            Demurrer and Motion to Strike

            Dr. Trejo demurrers to Plaintiff’s second and third causes of action for negligent misrepresentation and risks of nontreatment, respectively. On January 19, 2023, this court granted the Clinic’s demurrer on the grounds that Plaintiff’s second and third causes of action failed to allege facts sufficient to state a claim. Dr. Trejo objects to Plaintiff’s second and third causes of action on the same grounds. This court also granted the Clinic’s motion to strike Plaintiff’s prayer for expert costs because Plaintiff’s requests was not allowable under Code of Civil Procedure section 1033.5, subdivision (b)(1). Dr. Trejo moves to strike Plaintiff’s prayer for expert costs on the same grounds.

            In response, Plaintiff filed a notice of non-opposition. Plaintiff concedes that her allegations are subject to a demurrer and a motion to strike. Thus, Dr. Trejo’s demurrer is sustained. Dr. Trejo’s motion to strike is granted.

            Motion for Sanctions  

            Dr. Trejo also moves for sanctions based on the circumstances leading up to the present demurrer.

            “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. section 128.5, subd. (a).)

            Dr. Trejo argues that Plaintiff’s counsel had initially agreed to stipulating to striking Plaintiff’s second and third causes of action and Plaintiff’s prayer for expert costs based on this court’s ruling on the Clinic’s demurrer with motion to strike. (Vazquez Decl. ¶¶ 7-8.) Dr. Trejo argues that later reversed their decision and then failed to respond. (Id. ¶¶ 9-10.)

            The court does not find that Plaintiff’s conduct warrants an imposition of sanctions.

CONCLUSION

            Dr. Trejo’s demurrer to Plaintiff’s second and third causes of action is SUSTAINED without leave to amend absent a showing by Plaintiff how her complaint can be amended to cure the defects.

            Dr. Trejo’s motion to strike Plaintiff’s prayer for expert fees is GRANTED without leave to amend absent a showing by Plaintiff how her complaint can be amended to cure the defects.

            Dr. Trejo’s motion for sanctions is DENIED.

            Moving Party to give notice.

Dated:   May 11, 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