TENTATIVE RULING

Defendant The Regents of the University of California’s Demurrer to Plaintiffs’ Complaint is SUSTAINED with thirty (30) days leave to amend.

Defendant The Regents of the University of California’s Motion to Strike Plaintiffs’ Notice of Errata re Paragraph 122 of the Complaint is GRANTED. The Notice of Errata filed on November 20, 2023, is hereby STRICKEN.The

Plaintiff Janis Hoffman may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant The Regents of the University of California to give notice. 

REASONING

Defendant The Regents of the University of California (“Defendant”) demurs to each claim alleged in Plaintiff Janis Hoffman (“Plaintiff”)’s complaint, and Defendant moves to strike Plaintiff’s notice of errata regarding paragraph 122 of the complaint.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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 the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Motion to Strike Notice of Errata re Paragraph 11 of the Complaint

Plaintiff filed her complaint in propria persona on July 11, 2023, and on November 20, 2023, Plaintiff filed a “Notice of Errata Paragraph 122,” which includes identical allegations as those of the complaint, but Plaintiff changed paragraph 122, which previously alleged that “Plaintiff JANIS HOFFMAN Was present at the time of the injury-producing events, as set forth above, and was aware that INJURED PLAINTIFF was being injured due to Defendants and DOES 1 through l00’s negligence” to state “Plaintiff JANIS HOFFMAN Was present at the time of the injury-producing events, as set forth above, and was ‘NOT’ (ERRATA) aware that INJURED PLAINTIFF was being injured due to Defendants and DOES 1 through l00’s negligence.” This change was a substantive change to the complaint, such that a notice of errata was improper, as a notice of errata is used to correct typographical or other minor errors (see, e.g., Flores v. Nature’s Best Distribution, LLC (2016) 7 Cal.App.5th 1, 6 [notice of errata filed as to a missing exhibit), not to make a substantive change to a pleading (see, e.g., Falahati v. Kondo (2005) 127 Cal.App.4th 823, 827, 834 [notice of errata used to add a name to caption of complaint was improper]). While Plaintiff was entitled to file an amended complaint before Defendant had filed its demurrer (Code Civ. Proc., § 472), Plaintiff did not file an amended pleading. Thus, any arguments to this effect are inapposite at this juncture. 

In relation to the motion to strike, Defendant provides meet and confer correspondence suggesting that Plaintiff revised this paragraph after receipt of this correspondence, and Plaintiff provides her declaration describing the reason for the revision, but both parties’ evidence is extrinsic evidence which cannot be considered in the context of a motion to strike. Thus, the Court is left only with the complaint itself to inform its analysis here. Reference to paragraph 122 and its surrounding paragraphs indicates that Plaintiff intended to allege that she was aware of her injuries at the time of the events at issue because this is a requirement of a negligent infliction of emotional distress claim. “The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, and brackets omitted.) “The bystander theory,” which it appears is the basis of Plaintiff’s claim here, “recognizes a duty in the limited class of cases where a plaintiff ‘(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.’” (Ibid.)

Nonetheless, the Court is not inclined to find that Plaintiff’s allegation in paragraph 122 in the initial complaint renders her entire action barred by the statute of limitations, thereby finding that an amended pleading stating that Plaintiff was not aware of the injuries at the time of the conduct is a sham pleading, because Plaintiff’s allegations are insufficient to support a conclusive finding that her claims are time barred. It appears that Plaintiff may have opted to include a claim for negligent infliction of emotional distress for the same reason many parties, including experienced attorneys, include such a claim, that is, a misplaced belief that this claim is the same as an intentional infliction of emotional distress claim but with a lower bar, i.e., the opposing party negligently caused the emotional distress rather than intentionally. There are no other allegations in the complaint relating to Plaintiff’s knowledge of her injuries, and Plaintiff provided no substantive allegations to support her allegation that she was aware of the injuries at the same time they occurred; in fact, the nature of the specific injuries or events is not clear as currently alleged. This must be clarified in an amended pleading, as discussed below, and Defendant may challenge this in a dispositive motion or at trial.

The Court finds it proper to GRANT Defendant’s motion to strike Plaintiff’s notice of errata. However, Plaintiff is permitted to amend her pleading to cure the deficiencies described below, and the Court will determine in a future ruling whether it is proper to conclude that the amended pleading is a sham pleading based solely on the inclusion of one word in paragraph 122.

Demurrer

Statute of Limitations

Defendant argues that Plaintiff’s entire complaint is barred by the statute of limitations set forth in Code of Civil Procedure section 340.5, which provides that “[i]n an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first” absent tolling due to fraud. The statute further provides that “[a]ctions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period,” and “[s]uch time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.” (Ibid.) A fraud claim is governed by a three-year statute of limitations. (Code Civ. Proc., § 338.)

Plaintiff alleges in the complaint that the minors were born on December 28, 2009, and the minors were transported, which allegedly caused the harm at issue here, when they were five days old, which would have been on January 2, 2010, or on January 5, 2010; it is not clear from the pleading. (Compl. ¶¶ 13-19.) As to Plaintiff’s injury, she had three years from the date of injury in 2010, or one year after she discovered the injury, to file this action, and as to the minors’ injury, they had until three years from the date of the wrongful act or until their eighth birthday on December 28, 2017, but the action was not filed until July 23, 2023.

Plaintiff alleges fraud, which tolled the statute of limitations, because she requested records on July 11, 2022, and the records did not include brain imaging. (Compl. ¶¶ 130-137.) Plaintiff alleges she was not able to discover the harm until September 15, 2022. (Compl. ¶ 138.) However, Plaintiff omits information and asks the Court to conclude, based on the omitted information, that she was unaware of the harm she suffered until approximately 13 years after the conduct at issue. She fails to describe how she became aware of the injury on September 15, 2022, and more importantly, she alleges that the minors arrived to the second hospital in severe distress (Compl. ¶ 20), the minors required continued care for 13 months (Compl. ¶ 34), and Plaintiff has expended 12 years of time caring for the minors (Compl. ¶ 139), such that she could have been aware of the harm before September 15, 2022. Additionally, Plaintiff alleges that she requested records on January 26, 2015 (Compl. ¶ 127), suggesting she was aware of the harm on that date, and she fails to describe how the omitted records made her aware of the nature of the injury she alleges here such that she could not have known when she requested the records in 2015. Further, the minors’ claims were only extended beyond the three-year deadline where the parent or guardian and defendant’s insurer or health care provider committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence (Code Civ. Proc., § 340.5), and there are no allegations to this effect.

Put simply, the Court lacks a basis to conclude that Plaintiff’s claims are not barred by the applicable statute of limitations. While Plaintiff has alleged fraud claims, those claims, as described below, appear to be no more than claims for medical malpractice, as they are currently stated, such that Plaintiff is bound by the statute of limitations set forth in Code of Civil Procedure section 340.5. Accordingly, Defendant’s demurrer is SUSTAINED with thirty (30) days leave to amend. Upon amending the complaint, Plaintiff shall allege specific facts showing tolling of the statute of limitations; omissions of facts to avoid the statute of limitations or use of conclusory statements will not suffice.

Second, Third, Fourth, and Sixth Causes of Action: Intentional Misrepresentation, Negligent Misrepresentation, Concealment, and Fraud

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) “The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) The elements of a cause of action for negligent misrepresentation include “[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, quotation marks omitted.)

The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiff has failed to allege the four fraud claims with the required specificity. Plaintiff alleges that “doctors and nurses” told Plaintiff it was safe to transport the minors, but it was not safe, and Defendant concealed the risk from Plaintiff. Plaintiff provides no specific allegations about what was said to her, their authority to speak, what they said, and when it was said. Further, Plaintiff alleges that the fraud induced her to care for the minors (Compl. ¶¶ 92, 110, 139), but this does not describe an injury that occurred due to the fraud, as it appears this injury occurred due to the purported medical malpractice, if any. Accordingly, Defendant’s demurrer is SUSTAINED with thirty (30) days leave to amend as to Plaintiff’s fraud claim.