Judge Lynette Gridiron Winston, Case Number: 23PSCV00730, Date: 2023-09-05 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00730, Date: 2023-09-05 Tentative Ruling

Case Number: 23PSCV00730 Hearing Date: September 5, 2023 Dept: 6

Demurrer of Defendant Emanate Health Medical Center dba Emanate Health Queen of the Valley Hospital to the First Amended Complaint

TENTATIVE RULING
The demurrer of Defendant Emanate Health Medical Center dba Emanate Health Queen of the Valley Hospital to the First Amended Complaint is OVERRULED in its entirety.

Defendant Queen of the Valley is ordered to file an answer to the First Amended Complaint within 10 days of the date of this order.

BACKGROUND
On March 13, 2023, Plaintiff Jennifer Avelar Perez (“Plaintiff”) filed this action against Defendants Emanate Health Medical Center dba Emanate Health Queen of the Valley Hospital (“Defendant” or “Queen of the Valley”), Emanate Health Foothill Presbyterian Hospital (“Foothill Presbyterian”), Rosemary Yi, M.D. (“Dr. Yi”), and Does 1 through 100, alleging one cause of action for medical negligence. On June 23, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against the same parties and alleging the same cause of action for medical negligence.

On July 6, 2023, Defendant Queen of the Valley filed a demurrer to the FAC. On August 21, 2023, Plaintiff opposed the demurrer. On August 23, 2023, Queen of the Valley replied.

MEET AND CONFER
Queen of the Valley adequately met and conferred before filing the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4); Ozeran Decl., ¶ 3.)

LEGAL STANDARD
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id., 116 Cal.App.4th at p. 994.)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

DISCUSSION
Sole Cause of Action – Medical Negligence

To plead a cause of action for medical negligence, Plaintiff must allege facts showing: “(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.” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238 fn.3; Turpin v. Sortini (1982) 31 Cal.3d 220, 229–230.)

Defendant Queen of the Valley contends the demurrer should be sustained as to Plaintiff’s medical negligence claim on the grounds that Defendant Dr. Yi was Plaintiff’s personal physician. Defendant cites Mejia v. Cmty. Hosp. of San Bernardino (2002) 99 Cal.App.4th 1448, in particular quoting the following:
[H]ospitals are generally deemed to have held themselves out as the provider of services unless they gave the patient contrary notice, and the patient is generally presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician. Thus, unless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred. (Id., at 1454-1455.) Plaintiff also addressed Mejia at length in the opposition.

Mejia involved a medical malpractice claim against the hospital, emergency room physician, radiologist, medical group which employed the physician, and medical group which employed the radiologist after the physician failed to diagnose the plaintiff’s broken neck. (Id., at pp. 1450-1451.) At trial, the defendant hospital successfully moved for nonsuit immediately after the close of the plaintiff’s case. (Id., at p. 1451.) The Court of Appeal reversed, finding that, “absent evidence that plaintiff should have known that the radiologist was not an agent of respondent hospital, plaintiff has alleged sufficient evidence to get to the jury merely by claiming that she sought treatment at the hospital.” (Id., at p. 1460.)

The Court of Appeal in Mejia discussed the issue of ostensible authority vis-à-vis hospitals and physicians at great length, and stated the proposition quoted above that ostensible authority is readily inferred in the context of hospitals because they are generally deemed to have held themselves out as the provider of services unless they gave the patient contrary notice of the true relationship between the hospital and physician, or the patient was treated by his or her personal physician. (Mejia, supra, 99 Cal.App.4th at pp. 1454-1455.) It is this latter exception upon which Defendant Queen of the Valley bases its demurrer. For the reasons set forth below, the Court finds the demurrer unpersuasive.

Defendant Queen of the Valley’s demurrer fails to cite to any legal authority that shows the facts as alleged in the FAC establish as a matter of law that Dr. Yi was Plaintiff’s personal physician during the procedures in question. None of the legal authorities Queen of the Valley cited hold that merely scheduling a surgery in a non-emergency context automatically renders that physician to be the patient’s personal physician for purposes of ostensible authority. The Court sees no allegations in the FAC that demonstrate that Dr. Yi was Plaintiff’s personal physician, and certainly not as a matter of law. Queen of the Valley’s citations to Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631 and Magallanes de Valle v. Doctors Medical Center of Modesto (2022) 80 Cal.App.5th 914 on this issue are additionally unavailing. Although not necessarily addressed in Plaintiff’s opposition, these cases simply do not stand for the propositions for which Queen of the Valley cited them. Moreover, both of those cases were decided on a motion for summary judgment, where evidence was presented; not a demurrer, which solely considers the sufficiency of the factual allegations in the complaint.

The issue in Whitlow involved the other exception in Mejia, i.e., the hospital giving the patient notice of the true relationship between the hospital and physician. More specifically, the issue was whether the boilerplate admissions form the plaintiff signed in an emergency situation constituted sufficient notice to the plaintiff of the true relationship between the hospital and physician. (Whitlow, supra, 237 Cal.App.4th at pp. 636-637.) The Court of Appeal in Whitlow never addressed the question of personal physician, which is the basis for this demurrer.

As for Magallanes de Valle, that case is distinguishable on its facts, as the undisputed facts in that case showed the plaintiff had a longstanding relationship with the physician. (80 Cal.App.5th at pp. 923-924.) Additionally, nothing in Magallanes de Valle states as a matter of law what constitutes a preexisting relationship or personal physician for purposes of ostensible authority here, and Queen of the Valley has not cited any such authority.

Also, to the extent Queen of the Valley complains of facts included in Plaintiff’s opposition that are not included in the FAC, the Court may not consider such purported facts because the Court is limited on a demurrer to reviewing the allegations of the pleading and matters subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.”] [internal citations omitted].)

Whether Dr, Yi is an ostensible agent of Queen of the Valley is a question of fact. “Agency is always a question of fact for the jury.” (Stanhope v. Los Angeles Coll. of Chiropractic (1942) 54 Cal.App.2d 141, 146; Mejia, supra, 99 Cal. App. 4th at 1457.)

Here, Plaintiff alleges that Defendant Queen of the Valley caused Plaintiff to reasonably believe that Defendant Dr. Yi was an actual or ostensible agent or employee of Queen of the Valley. (FAC, ¶ 4.a.) Plaintiff further alleges that there were no signs informing her that some persons working at the hospitals were independent contractors and not agents or employees of the hospitals, and that she does not recall receiving any written warnings of such. (Id., ¶¶ 4.c, 4.e.) Plaintiff also alleges that no one told her that some persons were not agents or employees. (Id., ¶ 4.e.) For purposes of the demurrer, these allegations are taken as true. The Court finds that Plaintiff has alleged sufficient facts to state a cause of action for medical negligence against Defendant Queen of the Valley on an ostensible agency theory.

Therefore, the Court OVERRULES the demurrer in its entirety.

CONCLUSION
The demurrer of Defendant Emanate Health Medical Center dba Emanate Health Queen of the Valley Hospital to the First Amended Complaint is OVERRULED in its entirety. Defendant Queen of the Valley is ordered to file an answer to the First Amended Complaint within 10 days of the date of this order.