Judge: Joel L. Lofton, Case: 22AHCV01113, Date: 2023-05-25 Tentative Ruling

Case Number: 22AHCV01113    Hearing Date: August 3, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      August 3, 2023                                                TRIAL DATE: No date set.

CASE:                         TEHLIN CHAO and SHU-JEN CHAO v. RAHUL JANDIAL, MD PhD; CITY OF HOPE; and DOES 1-100, inclusive.

CASE NO.:                 22AHCV01113

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendant Rahul Jandial, MD PhD (“Defendant”)

RESPONDING PARTY:      Plaintiffs Tehlin Chao and Shu-Jen Chao

SERVICE:                              Filed May 4, 2023

OPPOSITION:                       Filed July 21, 2023

REPLY:                                   Filed July 26, 2023

RELIEF REQUESTED

             Defendant demurrers to Plaintiffs’ first amended complaint. Defendant also moves to strike Plaintiffs’ prayer for punitive damages.

BACKGROUND

             This case arises out of Plaintiffs TehLin Chao (“TehLin”) and Shu-Jen Chao (collectively “Plaintiff”) claim that Defendenats Rahul Jandial, M.D. (“Dr. Jandial”) and City of Hope engaged in medical malpractice in their treatment of TehLin. Plaintiffs allege that prior to August of 2021, TehLin was suffering from lung cancer and spinal disease. Plaintiffs allege that TehLin’s primary orthopedist, Dr. Wayne Cheng, had advised against major surgery for TehLin. Plaintiffs allege that Dr. Cheng had recommended less intensive routes, such as a microdiscectomy. Plaintiffs allege that despite TehLin’s intent to schedule a microdiscectomy at City of Hope, Defendants scheduled a more intensive surgery.

            Plaintiff filed a first amended complaint (“FAC”) on March 27, 2023, alleging two causes of action for professional negligence: medical malpractice, including lack of informed consent, and (2) loss of consortium.

TENTATIVE RULING

            Defendant’s demurrer to Plaintiffs’ FAC is OVERRULED.

            Defendant’s motion to strike 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

            First Cause of Action for Medical Negligence

            Defendant demurrers to Plaintiffs’ first cause of action for medical negligence on the grounds that Plaintiff has failed to allege facts sufficient to state a claim.

            “ ‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” ’ ” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)

            Defendant argues that Plaintiffs’ allegations do not reach the standard of a medical battery claim. However, Defendant’s arguments rely on factual determinations, which is not appropriate at the pleading stage. Additionally, Plaintiffs do not plead a cause of action for medical battery but one for medical negligence. Plaintiffs allege that TehLin was Defendant’s patient, and Defendant owed a legal duty to comply with the applicable standards of care. (FAC ¶¶ 68-69.) Plaintiffs allege that Defendant breached that duty. (Id. ¶ 70.) Plaintiffs also allege causation and damages. (Id. ¶ 72.)

            Plaintiffs have sufficiently pled a cause of action for medical negligence. Defendant’s demurrer to Plaintiff’s first cause of action is overruled.

            Defendant also argue that Plaintiffs’ claim failed based on the doctrine of assumption of risk. However, Defendant’s arguments are again not based on the sufficiency of the pleadings but more akin to factual arguments. Defendant’s arguments are rejected.

            Second Cause of Action for Loss of Consortium

            Defendant demurrers to Plaintiffs’ second cause of action for loss of consortium on the grounds that Plaintiffs did not expressly allege they were married at the time of the incident.

            A claim for loss of consortium “has four elements: ‘(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff's spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant's act.’ ” (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284-85.)

            Plaintiffs allege that Shu-Jen has been married to TehLin “for many years.” (Complaint ¶ 75.) Plaintiffs allege the procedure giving rise to this case occurred around August of 2021. (Id. ¶ 29.) Plaintiff’s allegations are sufficient.

            Defendant’s demurrer to Plaintiffs’ second cause of action is overruled.

            Motion to Strike

            Defendant moves to strike Plaintiff’s prayer for punitive damages. However, the FAC does not seek a prayer for punitive damages. Defendant’s motion to strike is denied.

CONCLUSION

            Defendant’s demurrer to Plaintiffs’ FAC is OVERRULED.

            Defendant’s motion to strike is DENIED.

            Moving party to give notice.

Dated:   August 3, 2023                                              ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court