Judge: Marcella O. Mclaughlin, Case: 37-2023-00030788-CU-MM-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2023-00030788-CU-MM-CTL JABO VS FRESENIUS MEDICAL CARE BALBOA LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/03/2024

A. The unopposed demurrer to the complaint is SUSTAINED without leave to amend.

A claim for professional negligence incorporates a specific standard of care into the elements of a negligence claim. Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077. However, 'a plaintiff cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances. Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 804.

Here, plaintiff alleges that defendant 'breached the applicable standard of medical care owed to the Plaintiff, which directly caused physical injury to Plaintiff and was a direct and proximate cause of all of Plaintiff's injuries and damages.' (Complaint at ¶ 23.) These allegations are substantively indistinguishable from those underlying the professional negligence cause of action. See Bellamy, 50 Cal.App.4th at 804; see also Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998. Accordingly, the demurrer to the duplicative negligence claim is sustained without leave to amend. See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.

B. The unopposed motion to strike portions of the complaint is DENIED.

'[T]here is no requirement that the ground for a fee award be specified in the pleadings.' Yassin v. Solis (2010) 184 Cal.App.4th 524, 533. Moreover, the court has discretion to grant or deny a motion to strike and, even where an allegation may be unwarranted, the court is not required to strike the allegation at the pleading stage and may instead simply deny the request on the merits at a later stage of the case or ignore the allegation. See Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 242. Such is the case here. The inclusion of attorney's fees, consequential damages, and incidental damages at the pleading stage has no meaningful impact and does not equate to a guarantee of any such award.

C. Defendant must file and serve an answer to the complaint, exclusive of the dismissed negligence claim, by May 6, 2024.

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