Judge Mark A. Young, Case Number: 23SMCV04143, Date: 2024-07-03 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV04143, Date: 2024-07-03 Tentative Ruling

Case Number: 23SMCV04143 Hearing Date: July 3, 2024 Dept: M

CASE NAME: Khodadadi v. Ramin, et al.

CASE NO.: 23SMCV04143

MOTION: Demurrer to the Complaint

HEARING DATE: 7/3/2024

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.)

ANALYSIS

Defendant Soroush Adam Ramin demurs Plaintiff Jamshid Khodadadi’s Complaint (General Negligence), and moves to strike the request for punitive damages.

The elements of medical malpractice are: “(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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02.)

The Complaint fails to allege that Defendant breached a professional duty to Plaintiff. The complaint alleges:

Jamshid Khodadadi presented with the problem of having difficulty in urination and also frequent nightly urination. Khodadadi was treated for these symptoms by Dr. Ramin. Dr. Ramin mentioned that cancer was a concern, and he needs to do some testing. The tests showed no evidence of cancer. A procedure was done under local anesthesia in Dr. Ramin's clinic, and apparently, biopsy of related tissues was performed. After the procedure, Mr. Khodadadi developed serious infection in his urinary tract. Dr. Ramin put the patient on twenty-seven days antibiotic regime, however, every day his symptoms were getting worse until he could not urinate at all. Later, without any testing, Dr. Ramin changed his antibiotic to a new one, again his condition got worsened to the point he could not stand up. Since the prescribed antibiotic and Dr. Ramin diagnosis did not work, Mr. Khodadadi was taken to the hospital. Mr. Khodadadi stayed six days in the hospital, blood and urine samples were taken and culture was performed to identify the type of infection. In this critical time, Dr. Ramin office was unresponsive to Mr. Khodadadi’s and his family’s requests. They were told by your office that the doctor is on vacation. [¶] As a direct and proximate cause of professional and general negligence of Dr. Ramin Plaintiff was seriously injured and suffered numerous days of pain. He was also abandoned by the Defendant as he was trying to reach the Defendant Dr.Ramin he was told by Dr.Ramin's staff that the doctor is not available .

(Compl., ¶ GN-1.)

Simply put, no breach of duty is alleged. To establish the existence of a duty as a matter of fact, Plaintiff must allege that Defendant’s conduct fell below the applicable standard of care. The complaint is silent on the standard of care. The complaint does not state whether Defendant’s prescription of antibiotics or failure to respond to Plaintiff’s requests at the hospital is a failure to use the same skill, prudence, and diligence as other members of Defendant’s profession commonly possess and exercise. Of course, there is a reasonable probability of successful amendment addressing this issue.

However, the action is time barred on its face. In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (CCP § 340.5.) Plaintiff plainly alleges that he was injured on June 5, 2022. (Compl., ¶ GN-1.) Plaintiff filed his Complaint more than a year later, on September 5, 2023. The complaint does not allege any facts supporting delayed discovery, or that the statute of limitations was otherwise tolled.

While unalleged, Plaintiff contends that on May 15, 2023, he caused a Notice of Intent to Sue to be served via US Mail and Certified US Mail on the Defendant’s office. (Asadi Decl., Ex. A.) Code of Civil Procedure section 364 provides additional time for filing actions “based upon the health care provider's professional negligence.” No such action “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 the notice 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).) The May 15, 2023, service was within 90 days of the expiration of the one-year limitations period (June 5, 2023). The operative statute of limitations was therefore extended 90 days from the service of that notice, until August 13, 2023. Therefore, even considering Plaintiff’s extrinsic evidence, the suit was untimely filed on September 5, 2023.

Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

Also, the motion to strike punitive damages is GRANTED without leave to amend. (CCP §425.13 [precluding claims of punitive damages against healthcare providers without first seeking leave of court].)