Judge: Melvin D. Sandvig, Case: 23CHCV01602, Date: 2023-12-06 Tentative Ruling

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Case Number: 23CHCV01602    Hearing Date: December 6, 2023    Dept: F47

Dept. F47

Date: 12/6/23

Case #23CHCV01602

DEMURRER TO THE ORIGINAL COMPLAINT

Demurrer filed on 7/24/23.

MOVING PARTY: Defendant Janet Schori, M.D.

RESPONDING PARTY: Plaintiffs William Angulo, a minor through his Guardian ad Litem, Joseph Angulo; Michellyn Russel and Joseph Angulo

NOTICE: ok

Demurrer is to the entire complaint:

            1.  Professional/Medical Negligence

            2.  Negligent Infliction of Emotional Distress

RULING: The demurrer is overruled as to the 1^st cause of action and sustained with 30 days leave to amend as to the 2^nd cause of action. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

Plaintiffs Michellyn Russel (Michellyn) and Joseph Angulo (Joseph) filed this action on behalf of themselves and their son Plaintiff William Angulo (William) (collectively, Plaintiffs) against several medical providers, including Defendant Janet Schori, M.D. (Dr. Schori), for professional/medical negligence (alleged on behalf of Michellyn and William) and negligent infliction of emotional distress (alleged on behalf of Michellyn and Joseph) arising out of the care and treatment provided to Michellyn and William during the course of the pregnancy and the birth of William.  (Complaint ¶¶3, 8).  Plaintiffs allege that all of the defendants acted below the standard of care by improperly and negligently providing continuing prenatal care and care associated with the birth of William which resulted in injuries.  (Complaint ¶¶8-9).    

After meet and confer efforts failed to resolve the issues Dr. Schori had with Plaintiffs’ complaint, on 7/24/23, Dr. Schori filed and served the instant demurrer to the entire complaint on the grounds that it fails to allege sufficient facts to constitute a cause of action and/or is uncertain.  (Hughes Decl.); CCP 430.10(e), (f).  Plaintiffs have opposed the demurrer and Dr. Schori has filed a reply to the opposition. 

In the reply, Dr. Schori withdraws her demurrer to the medical negligence cause of action.  (See Reply, p.2:3-7).  Therefore, this ruling does not specifically address the 1^st cause of action for professional/medical negligence except to overrule the demurrer to that cause of action.    

ANALYSIS

The charging allegations in the 2^nd cause of action for negligent infliction of emotional distress are:

“The Plaintiffs Michellyn Russell and Joseph Angulo were the biological parents of Plaintiff William Angulo. They are [as?] parents were direct victims and also had direct sensory view of the negligent acts that were perpetrated on Plaintiff William Angulo at the time of and during the course of his birth. Plaintiffs suffered great emotional distress in that it was foreseeable that these Plaintiffs as parents would suffer great emotional distress by virtue of being in close proximity when the negligent acts of defendants occurred and resulted in injuries to the minor Plaintiff, William Angulo.” (Complaint ¶13). 

Based on the allegations in the complaint and argument in the opposition, it appears that Michellyn’s negligent infliction of emotional distress claim is based on a direct and, possibly, an indirect theory of liability and Joseph’s claim is based on an indirect theory of liability.

To the extent Michellyn claims she is a direct victim, the negligent infliction of emotional distress claim is duplicative of the professional/medical negligence claim alleged on her behalf.  (Complaint ¶11); See Marlene F. (1989) 48 C3d 583, 588; Banerian (1974) 42 CA3d 604, 611; Flowers (1994) 8 C4th 992, 998, 1000.

To state a claim for negligent infliction of emotional distress as a bystander, a plaintiff must allege facts showing plaintiff: (1) is closely related to the injury victim; (2) was present at the scene of the injury-producing event at the time it occurred and was then aware that it was causing injury to the victim; and (3) as a result suffered serious emotional distress.  See Thing (1989) 48 C3d 644, 667-668.

The complaint fails to state what negligent act committed by Dr. Schori Michellyn and Joseph viewed at the time of and during the course of William’s birth and/or how they knew, at the time, that it was causing injury to William.  As such, the complaint fails to allege sufficient facts to state a claim under a bystander theory of liability and/or is uncertain in that regard. 

CONCLUSION

The demurrer is overruled as to the 1^st cause of action and sustained with 30 days leave to amend as to the 2^nd cause of action.  Due to the liberal policy of allowing leave to amend and because this is only the original complaint, Plaintiffs are given the opportunity to try to cure the defects in their 2^nd cause of action.