Judge Matthew C. Braner, Case 37-2023-00033398-CU-MM-CTL 2024-03-29 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00033398-CU-MM-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Medical Malpractice Demurrer / Motion to Strike 37-2023-00033398-CU-MM-CTL GARCIA VS HORGAN MD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Santiago Horgan, M.D. and The Regents of the University of California's demurrer to the first amended complaint is SUSTAINED in part, and OVERRULED in part.

Defendants' motion to strike is GRANTED.

Plaintiff's request for judicial notice of the existence of 42 CFR 493.1291 is granted; the remaining requests, which Plaintiff contends are 'undeniable facts,' are denied.

A demurrer may be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) It is not necessary to 'plead evidentiary facts supporting [an] allegation of ultimate fact,' and a pleading 'is adequate so long as it apprises the defendant of the factual basis for the claim.' (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1549.) In considering whether the complaint adequately states a claim, the court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) As to the first cause of action for medical malpractice, Defendants contend it is barred by the three-year statute of limitations for professional negligence claims against medical providers, and is uncertain.

(Code Civ. Proc., § 340.5 ['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 . . .'].) Defendants argue Plaintiff's claim accrued no later than February 2019, when his 'health started deteriorating' and he 'developed pain and cramping in abdominal and pelvic areas, vomiting, violent diarrhea, incontinence, constipation, and other issues,' following gastric bypass surgery in October 2018. (FAC, ¶ 13.) Defendants further argue the cause of action is uncertain because they cannot discern the claim being made against them. The court disagrees.

First, the claim is not uncertain. Plaintiff has alleged a long and detailed history of the care he received from Defendants, from October 2018 through late 2021. Plaintiff alleges Defendants failed to fully inform him of all complications that may arise from gastric bypass surgery; in particular, that hypoglycemia is a potential complication. (FAC, ¶¶ 2-12.) Plaintiff alleges he in fact developed hypoglycemia as a result of the surgery, which Defendants failed to diagnose and properly treat Plaintiff had open-heart surgery on March 24, 2020. (FAC, ¶ 40.) Plaintiff alleges many of his health complications arose because Calendar No.: Event ID: TENTATIVE RULINGS

3070627 15 CASE NUMBER: CASE TITLE: GARCIA VS HORGAN MD [IMAGED] 37-2023-00033398-CU-MM-CTL Defendants failed to timely recommend and perform a reversal of the gastric bypass. (FAC, ¶ 79.) These facts are sufficient to place Defendants on notice of the nature of the claims being made against them.

Second, the claim is not untimely. Plaintiff alleges the 'injury' was not the gastric bypass surgery, nor the complications he developed in February 2019 (which he alleges are symptoms of 'dumping syndrome').

Rather, he alleges the first injury that manifested from the negligent conduct (failing to advise Plaintiff that hypoglycemia is a complication and thereby failing to obtain his informed consent for the surgery) on March 24, 2020, when he was diagnosed with hypoglycemia in connection with treating his endocarditis via open-heart surgery. (FAC, ¶¶ 36-40.) With the extra 180 days from Emergency Rule 9 tolling and an injury date of March 24, 2020, Plaintiff had until September 20, 2023 to file his complaint. Plaintiff filed before that date, on August 3, 2023. Plaintiff also alleges he did not 'discover' the injury until he received a complete copy of his medical records on July 9, 2023. (FAC, ¶ 60.) Thus, he also filed within the one-year from discovery portion of the statute. (Code Civ. Proc., § 340.5 ['. . ., or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.'].) Accordingly, the demurrer is overruled as to the first cause of action for medical malpractice.

However, Plaintiff's remaining causes of action, for fraud (second), breach of fiduciary duty (third), battery (fourth), intentional infliction of emotional distress (fifth), and negligent infliction of emotional distress (sixth) are duplicative of his cause of action for medical malpractice. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [duplicative cause of action may form the basis for sustaining a demurrer].) As pled, each of these claims not only sound in professional negligence, but are also founded on the same set of facts that form the basis of Plaintiff's medical malpractice claim. The battery claim is founded on the same lack of informed consent that forms the basis for his medical malpractice claim; Plaintiff does not allege Defendants performed a different surgery than the one stated (i.e., gastric bypass surgery). (See, e.g., Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347-51.) The breach of fiduciary duty claim is also a repackaged medical malpractice claim, as Plaintiff does not allege Defendants failed to disclose personal interests unrelated to Plaintiff's care. (See, e.g., Moore v. Regents of University of California (1990) 51 Cal.3d 120, 131-32.) Likewise with the fraud and intentional/negligent infliction of emotional distress claims, which are founded on Defendants alleged negligent conduct in rendering professional medical services to Plaintiff.

Accordingly, the demurrer is sustained as to the second, third, fourth, fifth, and sixth causes of action.

The court is inclined to sustain the demurrer as to these claims without leave to amend, but will hear from the parties on this issue.

As to the motion to strike, Plaintiff has effectively conceded his request for punitive damages is improper, as he filed a request for dismissal of his prayer for punitive damages in the FAC. (ROA #39.) In an abundance of caution, the court will nonetheless order the prayer for punitive damages stricken from the FAC.

Calendar No.: Event ID: TENTATIVE RULINGS

3070627 15