Judge: Mark E. Windham, Case: 24STLC02994, Date: 2024-07-17 Tentative Ruling

Case Number: 24STLC02994    Hearing Date: July 17, 2024    Dept: 26

Contreras v. Malamud, MD, et al.

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendant Ariel Malamud, MD’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Ariel Malamud, MD’s Motion to Strike Portions of the Complaint is PLACED OFF CALENDAR AS MOOT

ANALYSIS:

On April 24, 2024, Plaintiff Adolfo W. Contreras (“Plaintiff”), in propria persona, filed the Complaint in this action against Defendants Ariel Malamud, MD (“Defendant Malamud”) and White Memorial H. (MRI Dept) (“Defendant White Memorial”). Defendant Malamud filed the instant Demurrer to, and Motion to Strike Portions of, the Complaint on June 6, 2024. No opposition has been filed to date.

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Hughes Decl., ¶¶2-5.) The Demurrer is brought on the grounds that the Complaint fails to allege facts sufficient to state a cause of action and is uncertain. (Demurrer, p. 2:2-12.) Special demurrers, however, are not permitted in the limited jurisdiction court. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not rule on the demurrer for uncertainty. The failure to allege sufficient facts argument is directed at the following causes of action: (1) negligence per se; (2) intentional tort; (3) age discrimination; and (4) social status. The Court notes that the causes of action listed on the face page of the Complaint do not match those set forth within the Complaint itself. Those causes of action are called: (1) civil penalties: negligence per se & discrimination; (2) discrimination based on age and the exercise of protected rights; (3) retaliation in violation of the California Civil Rights Act; and (4) failure to prevent discrimination and negligence per se.

Regarding negligence per se, Defendant points out that there is no such cause of action. Instead, negligence per se is a theory that creates a rebuttable presumption of negligence due to violation of a statute enacted to protect a class of persons, of which the plaintiff is a member, from the type of harm the plaintiff suffered. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) The Complaint is largely incomprehensible. It seems to allege that Defendant denied Plaintiff medical services but does not indicate how this amounts to negligence, i.e., the breach of a duty that caused Plaintiff damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

The causes of action pertaining to age discrimination appear to be based on the California Civil Rights Act, set forth at Civil Code section 51, et seq. Plaintiff must plead facts that demonstrate intentional discrimination in public accommodations in violation of the the Unruh Act. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 668 [citing Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172].) There are no specific allegations as to how Defendant Malamud violated Plaintiff’s civil rights or even what intentional conduct is attributed to Defendant Malamud. Instead, the Complaint broadly alleges that Defendants’ policies and practices denied Plaintiff equal medical treatment. (Compl., p. 6:19-21.) This is not sufficient to allege a statutory violation, which must be alleged with particularity as to each element of the cause of action. (Richardson-Tunnell v. Schools Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061.)

Based on the foregoing, Defendant Malamud’s Demurrer to the Complaint is sustained. Nor has Plaintiff filed any opposition demonstrating that the pleading can be amended to assert a viable cause of action, as is their burden. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Leave to amend is denied.

In light of the ruling on the Demurrer, Defendant Malamud’s Motion to Strike Portions of the Complaint is placed off calendar as moot.

Conclusion

Defendant Ariel Malamud, MD’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Ariel Malamud, MD’s Motion to Strike Portions of the Complaint is PLACED OFF CALENDAR AS MOOT.

Moving party to give notice.