Judge: Malcolm Mackey, Case: 21STCV24997, Date: 2022-07-26 Tentative Ruling

Case Number: 21STCV24997    Hearing Date: July 26, 2022    Dept: 55

HOWARD v. CLINICA MEDICA GENERAL                                        21STCV24997

Hearing Date:  7/26/22,  Dept. 55

#6:   DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT.

Notice:  Okay

No Opposition

MP:  Defendants CLINICA MEDICA GENERAL and PETER LUCERO, M.D.

RP:   

Summary

On 7/6/21, Plaintiff SONYA HOWARD, a self-represented litigant, filed a form Complaint,.

On 4/13/22, Plaintiff filed a First Amended Complaint, alleging that, an attorney and agency illegally obtained Plaintiff’s insurance without written consent, and violated confidentiality as to medical information.

The causes of action are:  VIOLATION OF FEDERAL HIPAA LAW;  INVASION OF PRIVACY;  IDENTITY THEFT;  ATTORNEY MISCONDUCT;  and  BREACH OF PRIVACY.

MP Positions

Moving parties request an order sustaining the demurrer to the First Amended Complaint, on grounds including the following:

·         The pleading fails to allege any facts at all, other than the vague allegation that an “Attorney and Agency” illegally obtained her insurance.

·         “When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations].” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.

Tentative Ruling

The unopposed demurrer is sustained, without leave to amend, based upon all of its page numbers.

The failure to file a proper and timely opposition in trial court creates a waiver of the issues on any appeal.  Bell v. Am. Title Ins. Co. (1991) 226 Cal. App. 3d 1589, 1602;  Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693.  A judge in a civil case is not "'obligated to seek out theories [a party] might have advanced, or to articulate … that which … [a party] has left unspoken.'"  Mesecher v. County of San Diego (1992) 9 Cal. App. 4th 1677, 1686.  In order to obtain leave to amend, complainants must state how the allegations would be amended in order to state a cause of action.  Drum v. San Fernando Valley Bar Ass'n  (2010) 182 Cal.App.4th 247, 253.

Like complaints generally, an official form complaint also must contain ultimate facts as to each element of the claim stated.  People ex rel. Dep't of Transportation v. Sup. Ct. (1992) 5 Cal. App. 4th 1480, 1484.  

As to demurrer rulings, statements of decision may consist of references to appropriate page numbers and paragraphs.  CCP §472d.