Judge: Jon R. Takasugi, Case: 22STCV19201, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV19201    Hearing Date: October 6, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND. Accordingly, the motion to strike is MOOT.

On 6/13/2022, Plaintiff Mahmud Reza Siamizade (Plaintiff) filed suit against Steven Meier, LA Peer Surgery Center, Gholamreza Siamizade, and Masoumeh Siamizade. On 6/20/023, Plaintiff filed a third amended complaint (TAC) alleging: (1) professional negligence—wrongful death; and (2) fraud.

Now, Defendant LA Peer Surgery Center (Defendant) demurs to Plaintiff’s TAC.

Discussion

Defendant argues that Plaintiff has not alleged sufficient facts to state a claim for either cause of action.

            After review, the Court agrees.

            As for the first cause of action, Plaintiff’s claim is not procedurally or substantively well-pled.

As for procedure, CCP section 377.32 requires the person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest to execute and file an affidavit or declaration under penalty of perjury which sets forth specific information. Plaintiff submitted a declaration that states “The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.” This does not comply with the specific requirements of CCP section 377.32.

As for the substance of the claim, a plaintiff “must set forth factual allegations that sufficiently state all required elements that cause of action. Allegations must be factual and specific, not vague or conclusory.” (Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.)

Here, there is uncertainty as to what acts by Defendant that Plaintiff alleges were negligent and/or caused his mother’s death. Plaintiff alleges that Defendant Meier performed a “therapy or procedure” that would help his mother’s “knee and lower back pain,” and that Defendant Meier misled him about his mother’s need to go under general anesthesia for the procedure. However, beyond LA Peer Surgery Center being the location at which the surgery was performed, Plaintiff does not allege any additional facts against Defendant. Moreover, Plaintiff does not allege that there were any complications from anesthesia or during her stay at Defendant’s center. (See Complaint.) Rather, Plaintiff alleges that “…16 months later in January 2021, she felt abdominal pain. Her blood work and lab results pointed at some positive tumor markers. I suspected Dr. Meier’s therapy and started my own research.” (See Complaint). Plaintiff does not allege any facts which could show a causal connection between the knee therapy Plaintiff’s mother received at Defendant’s location, and the appearance of tumor markers 16 months later. Plaintiff must allege facts which could show that Defendant was negligent, that Plaintiff was armed by this negligence, and that Defendant’s negligence was a substantial factor in causing that harm. (CACI No.400.)

As for fraud, “[f]raud is never presumed – facts constituting fraud must be specially pleaded. The court must be able to determine from the Complaint that a prima facie case is alleged.” (Cooper v. Leslie Salt Company (1969) 70 Cal.2d 627, 641.) Here, Plaintiff bases his claims on information and belief to allege that “I believe, Dr. Steven Meier and his staff at Meier Orthopedic Sports Medicine and the staff at La Peer Surgery Center, knowingly misrepresented a therapy deemed dangerous by the FDA and used deceptive marketing strategies to influence our judgement in choosing his therapy and allured us to pay for their service. I believe they were fully aware of the dangerous nature of this therapy which jeopardized my elderly mother’s life, and they used her as a clinical subject for clinical trials and monetary gain. On information and belief, Defendants’ treatment of my mother fell below the applicable standard care and constituted fraud, deceptive marketing strategies and elderly abuse. They also committed fraud in getting us to go forward with the surgery/procedure by concealing that they were not going to require general anesthesia to be conducted and representing that the procedure was approved by the FDA, completely safe and 100% effective.” (See TAC.) However, Plaintiff himself concedes that he was advised by an anesthesiologist that general anesthesia was going to be used for the procedure before it began and decedent still  underwent the surgery. Moreover, Plaintiff’s Complaint does not allege facts which could show a causal connection between the use of anesthesia and/or the therapy and the appearance of cancer markers 16 months later.

Given that this is Plaintiff’s third amended complaint, the Court has no reason to believe that these deficiencies could be resolved through further amendment. Indeed, during oral argument of co-Defendants’ demurrers, Plaintiff could not identify any additional facts which he could allege to resolve these deficiencies.

Based on the foregoing, Defendants’ demurrer is sustained, without leave to amend. Accordingly, the motion to strike is moot.

It is so ordered.

Dated:  October    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.