Judge: John C. Gastelum, Case: 21-01192579, Date: 2022-12-06 Tentative Ruling

Motion to Strike Portions of Second Amended Complaint

Ruling: Off Calendar – no hearing will be held.  Defendants JENNIFER ARMSTRONG, M.D., ADVANCED SKINCARE MEDCENTER, INC. and SAL BELTRAN hereby move to strike the following portions from Plaintiff’s Second Amended Complaint:

1. Page 12, Paragraph 54, Line 15: “reckless”.

2. Plaintiff’s Prayer for interest provided by law including, but not limited to, California Civil Code §3287.

Unopposed Motion to Strike is GRANTED without leave to amend.

Prejudgment interest is authorized only if the damages are certain, or capable of being made certain by calculation. (Jamison v. Jamison (2008) 164 Cal. App. 4th 714.) Here, Plaintiff alleges in her Second Amended Complaint that she has sustained permanent damages to her facial area, pain and suffering, emotional and mental distress, and a loss of earning and future earning capacity. (See Second Amended Complaint¶42.) Based upon the foregoing, Plaintiff’s damages are not a sum certain or capable of being made certain by calculation.

As to the term “reckless”, although the points and authorities fall short in explaining why this term is irrelevant, false, or improper, there is no opposition to the motion—Plaintiff therefore abandoning the claim. (See See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue”].)

MPs to give notice.