Judge: Margaret L. Oldendorf, Case: 21STCV35453, Date: 2023-01-31 Tentative Ruling

Case Number: 21STCV35453    Hearing Date: January 31, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            Plaintiff Yelena Nersesyan alleges medical malpractice against Defendant Nayiri Doudikian-Scaff, M.D. Before the Court is Doudikian-Scaff’s demurrer and motion to strike. For the reasons that follow, the demurrer is overruled and the motion to strike is granted in part and denied in part.

II.        SUMMARY OF FACTS ALLEGED

Nersesyan alleges that Defendants, medical doctors and nurses and others failed to properly and per the appropriate standard of care perform various procedures including surgeries on her. Complaint, ¶2. Specifically, Nersesyan alleges that on July 10, 2020, Doudikian-Scaff performed three surgeries on her: (1) reduction of the right breast; (2) reduction of the left breast; (3) a nose surgery to both correct the shape and to open nasal passages so that she may breathe properly. Id. at ¶12. After allowing a reasonable time for healing and following all post-surgery protocols, Nersesyan alleges it has become apparent that the surgeries were not performed with the required level of medical proficiency. Id. at ¶13. She specifics of why this is so are set forth in ¶¶14-17. Nersesyan alleges that in order to correct these issues she will have to undergo additional surgeries. Id. at ¶18.

Based on these facts, Nersesyan alleges four causes of action. Each of them is captioned as a claim for medical negligence, followed by the specific conduct alleged to have been negligent. The 1^st cause of action is for “Medical Negligence- Improper Bilateral Reduction Mammoplasty, Asymmetry In Size And Shape Of Left And Right Breasts.” The 2^nd is nearly the same but rather than asymmetry is for “Overlapping Excess Skin On Left And Right Breasts.” The 3^rd if for “Improper Rhinoplasty, Failure To Correct Deviation.” And the 4^th is for “Improper Turbinate Destruction With Cautery, Failure To Properly Open Nasal Passageway.”  

III.      DEMURRER

A. Legal Standard

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. 

Code Civ. Proc. §430.10(f) provides for a demurrer where a pleading is uncertain. Only where a pleading is so uncertain a defendant cannot determine what must be admitted or denied is a demurrer for uncertainty appropriate. Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.

            B. General Demurrer Is Overruled

            The argument raised by the demurrer is that Nersesyan has impermissibly split her medical malpractice cause of action into separate causes of action. This argument fails because the rule against splitting causes of action comes into play where a party is alleging the same cause of action in separate lawsuits, not in separate causes of action in the same lawsuit. See 4 Witkin, Cal. Procedure (2022) Pleading §45: “A single cause of action cannot be split, i.e., an entire claim cannot be divided and made the basis of several actions. If splitting is attempted and the first action is still pending, the defendant in the second action may plead the pendency of the first, in abatement. (See infra, §§ 970, 1179) If the first action has already been concluded and judgment has been rendered on the merits, the defendant in the second action may set up that judgment as a bar. (See 7 Cal. Proc. (6th), Judgment, § 436.) The rule against splitting is, therefore, in part a rule of abatement of actions and in part an application of the doctrine of res judicata. (See 7 Cal. Proc. (6th), Judgment, §§ 430, 436.)”

            None of the cases cited by Doudikian-Scaff holds that a demurrer is proper where a single cause of action has been separately pleaded in the same lawsuit.

            C. Special Demurrer Is Overruled

            Doudikian-Scaff’s other argument is that the pleading is uncertain, ambiguous, or unintelligible. That argument is fairly well undermined by the summary of factual allegations. This is not a situation where it can be said that the pleading is so uncertain Doudikian-Scaff cannot ascertain what must be admitted and what must be denied.

IV.      MOTION TO STRIKE

            A. Legal Standard

                        1. Motions to Strike

            Code Civ. Proc. §436: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out 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.”

B. Motion to Strike is Granted in Part and Denied in Part

Doudikian-Scaff seeks to strike the following: (1) the entire complaint; (2) each of the four causes of action; (3) all language alleging that “Defendants  . . . so negligently, carelessly, recklessly, wantonly, and unlawfully treated…” and “As a direct and proximate result of the negligence, carelessness, recklessness, wantonness, and unlawfulness of defendants…”

 The argument raised in support of (1) and (2) is the same as that raised in the demurrer and on the same basis is denied.

One argument in support of (3) is that these words are not drawn in conformity with the law because they are conclusions rather than factual allegations. While it is true that fact pleading is required (Code Civ. Proc. §425.10(a)(1)), once the ultimate facts have been pleaded there is no rule requiring that all other words be stricken from the complaint. The words Doudikian-Scaff seeks to strike are pleaded in addition to the factual allegation that “Defendants failed to exercise the proper degree of knowledge and skill.” Complaint at ¶¶ 22 (1^st cause of action), 28 (2^nd cause of action), 34 (3^rd cause of action), and 40 (4^th cause of action). As such, they are not improper.

Another argument is that the words at issue are inflammatory and irrelevant. While perhaps not inflammatory, the words “wantonly,” “unlawfully,” “wantoness” and “unlawfulness” are unsupported by the facts alleged and as such are improper. As to these words alone the motion is granted. This order is without prejudice to any later motion for leave to amend should Nersesyan develop facts supporting these allegations.

V.        CONCLUSION AND ORDER

             The general and special demurrers are overruled.

            The motion to strike is granted as to the words “wantonly,” “wantonness,” “unlawfully,” and “unlawfulness” and is otherwise denied. This order is without prejudice to whatever later motion for leave to amend may be appropriate.

            Doudikian-Scaff is granted 10 days to answer.

            Plaintiff is ordered to give notice.

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT