Judge: Martha K. Gooding, Case: 2020-01174475, Date: 2022-09-12 Tentative Ruling

Demurrer to Complaint

The Demurrer by Doe Defendant Robert L. Neilan, M.D. (“Defendant”) to the Complaint of Plaintiffs Deborah Quintero and Edward Quintero (collectively, “Plaintiffs”) for medical malpractice is SUSTAINED with 15 days leave to amend.

A complaint must contain a statement of facts constituting the cause of action in ordinary and concise language. (CCP § 425.10(a)(1).) Failure to plead ultimate facts subjects the complaint to a demurrer for failure to state facts constituting the cause of action. (CCP § 430.10(e).)

Ordinarily, negligence may be alleged in general terms, without stating the acts constituting negligence or detailing the particular manner in which plaintiff's injury occurred. 9Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (TRG 2021), § 6:129).

However, a bare allegation that “defendant's negligence caused plaintiff injury” is not sufficient. Plaintiff must allege the acts or omissions that are claimed to have constituted the negligence. (Berkley v. Dowds (2007) 152 CA4th 518, 527.)

Moreover, in a case alleging professional negligence by a healthcare provider, the facts alleged in the complaint must describe actions “necessary or otherwise integrally related to the medical treatment and diagnosis” to qualify as professional medical services. (Flores v. Presbyterian Intercommunity Hosp. (2016) 63 C4th 75, 88; Nava v. Saddleback Memorial Med. Ctr. (2016) 4 CA5th 285, 288.)

Here, the Complaint falls short. It alleges only that:

“Within the past year, defendants violated their duty of care to plaintiff DEBORAH QUINTERO by their negligent medical care which is the legal cause of economic and non-economic damages, as will be shown, according to proof, at trial.”

(Compl., ¶4.)

Accordingly, the Demurrer is SUSTAINED. Plaintiff shall have 15 days leave to amend.

Defendant is ordered to give notice.