Judge: Mark H. Epstein, Case: 24SMCV02786, Date: 2025-03-26 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 24SMCV02786    Hearing Date: March 26, 2025    Dept: I

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.  This is a case in which the plaintiff claims that after a surgical procedure, plaintiff was injured.  Plaintiff asserts malpractice and negligence.  Defendant demurs because they are the same thing.  Or at least that is how it initially appeared.  It now seems like defendant might be demurring not to the general negligence cause of action but rather to the battery cause of action.  To figure out which it is, the court looks to the demurrer itself.  The demurrer is only to the general negligence cause of action.  The court agrees that general negligence and medical malpractice are essentially the same thing and are therefore duplicative.  The proper cause of action is medical malpractice.  (Flowers v. Torrance Memorial Hospital (1995) 8 Cal.4th 992.)  To the extent that defendant meant to attack the battery cause of action, it was not done properly and therefore is not before the court at this time.

Defendant has 30 days leave to answer.