Judge: Mark A. Young, Case: 23SMCV03568, Date: 2024-03-13 Tentative Ruling
Case Number: 23SMCV03568 Hearing Date: March 13, 2024 Dept: M
CASE NAME: Nouri v. Dreamskin
Spa Beverly Hills, et al.
CASE NO.: 23SMCV03568
MOTION: Motion
for Judgment on the Pleadings
HEARING DATE: 3/13/2024
Legal
Standard
A
defendant’s motion for judgment on the pleadings may be made after the time to demur
has expired and an answer has been filed. (CCP § 438(f).) A motion by a
defendant may be made on the grounds that (1) the court “lacks jurisdiction of
the subject of one or more of the causes of action alleged” or (2) the
complaint or cross-complaint “does not state facts sufficient to constitute a
cause of action against that defendant.” (CCP § 438(c).)
A motion
for judgment on the pleadings has the same function as a general demurrer but
is made after the time for demurrer has expired. Except as provided by statute,
the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999.) “A motion for judgment on the pleadings is
akin to a general demurrer; it tests the sufficiency of the complaint to state
a cause of action. The court must assume the truth of all factual allegations
in the complaint, along with matters subject to judicial notice.” (Wise v.
Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738, citations
omitted.) Further, like a general demurrer, a motion for judgment on the
pleadings “does not lie as to a portion of a cause of action, and if any part
of a cause of action is properly pleaded, the [motion] will be overruled.” (Fire
Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)
MEET AND CONFER
Before filing a statutory motion for judgment
on the pleadings, a moving party's counsel must meet and confer, in person
or by telephone, with counsel for the party who filed the pleading subject
to the judgment on the pleadings motion “for the purpose of determining if an
agreement can be reached that resolves the claims to be raised in the motion for
judgment on the pleadings.” (CCP § 439(a).) Defendants submit the declaration
of counsel, which shows that counsel did not engage in code-compliant
meet and confer efforts. (Song Decl.) Counsel sent a single letter requesting
that the parties meet and confer further. Counsel does not state that the
parties met and conferred in person or by telephone. Despite the inadequacies
of the meet and confer effort, the Court will still consider the merits of this
motion. For any future motions which have a meet
and confer requirement, counsel must submit a code-compliant meet and confer declaration
showing that counsel discussed the issues in person or by telephone, or the
motion will not be considered and will be taken off calendar.
Defendants’ objections to the
declarations presented by Plaintiff are SUSTAINED. The Court cannot consider
this extrinsic evidence on the merits of the motion for judgment on the pleadings
(MJOP). However, the Court will consider these declarations as an offer of
proof for leave to amend.
Defendants, Dreamskin Spa Beverly
Hills and Michele Goralnick ("Defendants") move for judgment on the
pleadings against each cause of action on Plaintiff Tannaz Nouri’s Second
Amended Complaint (SAC), including (1) General Negligence; (2) Professional
Negligence; and (3) Products Liability. Defendants argue that each cause of
action fails under the one-year statute of limitations for actions sounding in
medical malpractice.
The statute of limitations for a
medical malpractice action is three years or one year “after the plaintiff
discovers, or through the use of reasonable diligence should have discovered,
the injury . . ..” (CCP § 340.5.) “[W]hen a plaintiff asserts a claim
against a health care provider on a legal theory other than professional
negligence, courts must determine whether the claim is nonetheless based on
the health care provider’s professional negligence, which would require
application of MICRA.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230
Cal.App.4th 336, 347.) Whether the limitations period pursuant to section 340.5
applies depends on the nature or gravamen of the claim, not the label or form
of action. (Id.)
Further, no action based upon the
health care provider's professional negligence may be commenced unless the
defendant has been given at least 90 days' prior notice of the intention to
commence the action. (CCP § 364(a).) “If [a] notice [of intention to sue] is
served within 90 days of the expiration of the applicable statute of
limitations, the time for the commencement of the action shall be extended 90
days from the service of the notice.” (CCP § 364(d).) CCP section 365 provides
that “Failure to comply with this chapter shall not invalidate any proceedings
of any court of this state, nor shall it affect the jurisdiction of the court
to render a judgment therein. However, failure to comply with such provisions
by any attorney at law shall be grounds for professional discipline and the
State Bar of California shall investigate and take appropriate action in any
such cases brought to its attention.”
Read together, CCP sections 364-365 do not prevent a plaintiff from
commencing a medical malpractice action during the mandatory 90-day waiting
period set forth in section 364(a). (Woods v. Young, (1991) 53 Cal. 3d
315, 324, citing Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 268-269.)
The legislative purpose of these sections is “best effectuated by construing
section 364(d) as tolling the one-year statute of limitations when section
364(a)'s ninety-day notice of intent to sue is served during, but not before,
the last ninety days of the one-year limitations period. Because the statute
of limitations is tolled for 90 days and not merely extended by 90 days from
the date of service of the notice, this construction results in a period of 1
year and 90 days in which to file the lawsuit.” (Id. at 325.)
Plaintiff allegedly sustained her
damages on July 21, 2022, the date of her treatment by Defendants. Plaintiff
brought this action more than one year later, on August 2, 2023. Thus,
Plaintiff must allege facts demonstrating the statute of limitations was tolled
through August 2, 2023. The SAC alleges that within 90 days of the expiration
of the statute of limitations, on April 25, 2023, Plaintiff served her Notice
of Intent to Sue against Defendant DreamSkin Spa Beverly Hills. CCP section
364(d) would therefore toll the statute of limitations as to that party for 90
days, until October 19, 2023. (Woods, supra, 53 Cal.3d at 325.) Thus,
considering the factual allegations that Plaintiff served her notice within 90
days of the expiration of the statute of limitations, Plaintiff timely filed
this action on August 2, 2023.
Defendants cite Woods and Russel
as supporting a dismissal in this case, asserting that there is only a one-year
and 40-day limitations period under sections 364 et seq., quoting extensively
from those cases. (Russel v. Stanford Univ. Hosp. (1997) 15 Cal. 4th
783, 787-788.) However, Defendants misread Woods and Russel, as the
California Supreme Court was expressly criticizing this analysis as
“incongruous” with the purpose of MICRA and that such a construction would
“accomplish nothing.” (Id.) The
Court concluded that the statute tolls the statute of limitations by 90 days
and does not merely extend it. (Id.)
Defendants also contend that if the
Court considers Plaintiff’s presented extrinsic evidence, then the action would
be unripe since Plaintiff did not wait the 90-day period to file suit. However,
section 365 makes clear that this would not be grounds for dismissal. At worst,
such conduct might subject counsel to discipline by the State Bar. It would not
otherwise affect the application of the statute of limitations.
Accordingly, the MJOP is DENIED.