Judge: Michael E. Whitaker, Case: 24SMCV05387, Date: 2025-04-03 Tentative Ruling

Case Number: 24SMCV05387    Hearing Date: April 3, 2025    Dept: 207

TENTATIVE RULING - NO. 1

MOTION

On November 4, 2024, Plaintiff Pinar Stewart (“Plaintiff”) brought suit against Defendants Samuel Golpanian, M.D. (“Golpanian”); Beverly Hills Aesthetic Corp.; Verona Plastic Surgery; William Rahal, M.D. (“Rahal”); Elise Vintigni (“Vintigni”); Bree Callahom (“Callahom”); Elite Advanced Imaging (“Elite”); Harold Frederick, M.D. (“Frederick”); Desert Valley Hospital (“Desert”); Prabhakar Tummala, M.D. (“Tummala”); and Cedars Sinai Medical Center (“Cedars”) alleging one cause of action for medical negligence.

Defendants Golpanian; Beverly Hills Aesthetic Corp dba Verona Plastic Surgery (erroneously sued as Beverly Hills Aesthetic) (“Verona”); Rahal; Vintigni; and Callahom (“Defendants”) move to strike the allegations of paragraph 35 pertaining to oppression, fraud, and/or malice.  Plaintiff opposes the motion and Defendants reply.

1.     MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

Moreover, “the imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

            Here, Defendants argue that allegations of oppression, fraud, or malice are irrelevant and immaterial to Plaintiff’s single cause of action for medical negligence, and should therefore be stricken.  Plaintiff opposes on the grounds that Plaintiff does not actually request punitive damages, and allegations that go above and beyond mere negligence, such as recklessness, oppression, fraud, and malice, can still be relevant to establishing negligence.

            Paragraph 35 alleges: “35. At all times herein mentioned, Defendants, and each of them, expressly directed, consented to, approved, affirmed, and ratified each and every action taken by the other Defendants, who knowingly and intentionally engaged in wrongful concealment of their misconduct and abandoned Plaintiff in reckless disregard for her safety. The Defendants' acts and omissions constitute malicious, oppressive, fraudulent, and/or reckless conduct.”

The elements necessary to state a claim for medical negligence are (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty.  (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.) 

Thus, the last sentence of paragraph 35, alleging recklessness, oppression, fraud, and/or malice are irrelevant and immaterial to the single cause of action alleged.  Moreover, as discussed above, allegations of oppression, fraud, or malice must generally be made with specificity.  As such, Plaintiff’s conclusory allegation that Defendants acted with oppression, fraud, malice, and/or recklessness in the last sentence of paragraph 35 are generally irrelevant and immaterial to the cause of action.

            However, the remainder of paragraph 35 also alleges that Defendants “directed, consented to, approved, affirmed, and ratified each and every action taken by the other Defendants, who knowingly and intentionally engaged in wrongful concealment of their misconduct and abandoned Plaintiff in reckless disregard for her safety.”  These allegations are relevant to whether Defendants breached their duty of care by directing, consenting to, approving, affirming and/or ratifying the other defendants’ concealment of their misconduct.

            Therefore, the Court strikes the last sentence of paragraph 35, “The Defendants’ acts and omissions constitute malicious, oppressive, fraudulent, and/or reckless conduct.” as irrelevant and immaterial, but declines to strike the remainder of paragraph 35. 

2.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff does not specify any facts she could add to the complaint to plead oppression, fraud, malice, and/or recklessness with specificity as to Defendants.  Rather, Plaintiff merely requests that if the motion to strike is granted, it be granted without prejudice to Plaintiff moving to amend the complaint to request punitive damages at a later time.  Therefore, the Court declines to grant Plaintiff leave to amend at this time, but should Plaintiff later discover evidence sufficient to allege a claim for punitive damages, Plaintiff may move for leave to amend the complaint at that time. 

CONCLUSION AND ORDER

For the reasons stated, the Court grants in part and denies in part Defendants’ motion to strike paragraph 35 from the Complaint.  The Court strikes the last sentence of paragraph 35 only, “The Defendants’ acts and omissions constitute malicious, oppressive, fraudulent, and/or reckless conduct.” as irrelevant and immaterial to Plaintiff’s medical negligence claim without leave to amend and without prejudice. 

The Court denies Defendants’ motion in all other respects and declines to strike the remainder of paragraph 35.    

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  April 3, 2025                                                          ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court

TENTATIVE RULING - NO. 2

MOTION

On November 4, 2024, Plaintiff Pinar Stewart (“Plaintiff”) brought
suit against Defendants Samuel Golpanian, M.D. (“Golpanian”); Beverly Hills
Aesthetic Corp. (“BHAC”); Verona Plastic Surgery (“Verona”); William Rahal,
M.D. (“Rahal”); Elise Vintigni (“Vintigni”); Bree Callahom (“Callahom”); Elite
Advanced Imaging (“Elite”); Harold Frederick, M.D. (“Frederick”); Desert Valley
Hospital (“Desert”); Prabhakar Tummala, M.D. (“Tummala”); and Cedars Sinai
Medical Center (“Cedars”) alleging one cause of action for medical
negligence. 

Cedars now demurs to the Complaint under Code of Civil Procedure
section 430.10, subdivisions (e) and (f) on the grounds that it fails to state
facts sufficient to constitute a cause of action and is uncertain,
respectively.

Plaintiff opposes the demurrer and Cedars replies.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of
the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015)
235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of
action, a court accepts “[a]s true all material facts properly pled and matters
which may be judicially noticed but disregard contentions, deductions or
conclusions of fact or law.  [A court
also gives] the complaint a reasonable interpretation, reading it as a whole
and its parts in their context.”  (290
Division (EAT), LLC v. City & County of San Francisco (2022) 86
Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc.
(2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer,
however, “the facts alleged in the pleading are deemed to be true, however
improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe”
the allegations of the complaint “with a view to substantial justice between
the parties.”  (See Code Civ. Proc., §
452.)  “This rule of liberal construction
means that the reviewing court draws inferences favorable to the plaintiff, not
the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209
Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as
against the demurrer on the ground that it does not state facts sufficient to
constitute a cause of action, the rule is that if on consideration of all the
facts stated it appears the plaintiff is entitled to any relief at the hands of
the court against the defendants the complaint will be held good although the
facts may not be clearly stated, or may be intermingled with a statement of
other facts irrelevant to the cause of action shown, or although the plaintiff
may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193
Cal.App.2d 636, 639.)

A.   
UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory
Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained
only where the pleading is so bad that the responding party cannot reasonably
respond - i.e., he or she cannot reasonably determine what issues must be
admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993)
14 Cal.App.4th 612, 616.)  Where a
demurrer is made upon the ground of uncertainty, the demurrer must distinctly
specify exactly how or why the pleading is uncertain, and where such
uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services
Dist. (1982) 135 Cal.App.3d 797, 809.) 

Cedars argues the Complaint is uncertain because commingles the defendants’
purported acts of negligence without clear distinctions between the defendants
and their respective acts.   

Here, Plaintiff alleges:

23. Defendant CEDARS SINAI MEDICAL CENTER, upon
information and belief is, and at all times relevant to this action was, a
business entity of unknown form, doing business in the State of California as
medical facility and hospital, with its principal place of business in Los
Angeles, California.

[…]

25. Defendants, CEDARS SINAI MEDICAL CENTER, and
each of them, at all times herein mentioned, owned, operated, managed,
controlled and administered a medical facility in Victorville, California, and
held itself out to the public at large, and to plaintiff in particular, as a
properly equipped, fully accredited, competently staffed medical facility with
qualified and prudent personnel, and operating in compliance with the standard
of care maintained in other properly and efficiently operated and administered,
accredited medical facilities in the Southern California medical community and
offering full, competent and efficient hospital, medical, surgical, laboratory,
x-ray, anesthesia, paramedical and other services to the general public and to
Plaintiff herein; and said Defendants, CEDARS SINAI MEDICAL CENTER,
administered, governed, controlled, managed and directed all the necessary
functions, activities and operations of said medical facility including its
nursing care, training of interns, residents and house staff, and the
activities of physicians and surgeons acting within said medical facility.

26. Prior to November 7, 2023, Plaintiff
consulted Defendants SAMUEL GOLPANIAN, M.D., WILLIAM RAHAL, M.D., VERONA
PLASTIC SURGERY, BEVERLY HILLS AESTHETIC CORP, ELISE VINTIGNI and BREE
CALLAHOM, for the purpose of a cosmetic procedure involving circumferential
liposuction, VASER liposuction, application of Renuvion/J-Plasma, and fat
transfer gluteoplasty. Following such consultation, said Defendants recommended
surgery and Plaintiff employed said Defendants to perform such surgery and said
Defendants for valuable consideration accepted said employment and undertook
and agreed to perform such surgery and otherwise to care for and treat
Plaintiff as reasonably required. Said Defendants arranged to have Plaintiff's
surgery performed by Defendant SAMUEL GOLPANIAN, M.D., at VERONA PLASTIC
SURGERY, located at 8929 Wilshire Blvd., Suite 400, Beverly Hills, California
90211.

27. On or about November 7, 2023, said Defendants
performed surgery on Plaintiff at said medical facility, but did so negligently
and carelessly in that, among other things, they allowed a 10 centimeter
plastic drain tube to remain in Plaintiffs abdomen after the surgery was completed,
which acts or omissions are below the degree of skill and competence commonly exercised
by medical practitioners in this community.

28. Defendants SAMUEL GOLPANIAN, M.D., WILLIAM
RAHAL, M.D., VERONA PLASTIC SURGERY, BEVERLY HILLS AESTHETIC CORP, ELISE
VINTIGNI and BREE CALLAHOM, negligently and carelessly failed to detect the
foreign surgical object and negligently and carelessly failed to account for
it, where it ultimately remained within Plaintiffs body for a period of
approximately seven (7) weeks. On or about December 7, 2023, said Defendants
issued Plaintiff a physician's order form for an abdominal x-ray. The x-ray order,
on a sheet of paper, bore a misspelled, and therefore incorrect, contact email
address of said Defendants. A previously issued referral form for Plaintiffs
pre-surgery clearance testing contained the same mistake.

29. On or about December 8, 2023, Plaintiff
presented to ELITE ADVANCED IMAGING, with the physician's order of the previous
paragraph, and underwent an x-ray performed by HAROLD FREDERICK, M.D., and
ELITE ADVANCED IMAGING. Thereafter, ELITE ADVANCED IMAGING negligently and
carelessly diagnosed, or failed to diagnose, Plaintiff and negligently and
carelessly communicated, or failed to communicate, the results and findings of
said x-ray to the Plaintiff and the Defendant ordering physicians.

30. Thereafter, having heard nothing further from
Defendants SAMUEL GOLPANIAN, M.D., WILLIAM RAHAL, M.D., VERONA PLASTIC SURGERY,
BEVERLY HILLS AESTHETIC CORP, ELISE VINTIGNI, BREE CALLAHOM, HAROLD FREDERICK,
M.D., and ELITE ADVANCED IMAGING, Plaintiff was not notified of the foreign
object, despite it having been visible on the x-ray of December 8, 2023.
Plaintiff developed severe life-threatening infection in late December 2023.

31. On or about December 30, 2023, while
Plaintiff was suffering from sepsis caused by the retained surgical object, she
was compelled to seek emergency medical treatment at Defendant DESERT VALLEY
HOSPITAL, located in Victorville, California. There, Defendants PRABHAKAR
TUMMALA, M.D., and DESERT VALLEY HOSPITAL negligently and carelessly treated
Plaintiff and discharged Plaintiff, despite clear indication of the foreign
object in radiological imaging conducted, several hours after her admission
with only instructions for cellulitis and negligently and carelessly failed to
address the foreign surgical object still embedded in her abdomen.

32. Thereafter, also on or about December 30,
2023, while Plaintiff was suffering from sepsis caused by the retained surgical
object, at the instruction of Defendants SAMUEL GOLPANIAN, M.D., WILLIAM RAHAL,
M.D., VERONA PLASTIC SURGERY, BEVERLY HILLS AESTHETIC CORP, ELISE VINTIGNI, and
BREE CALLAHOM, Plaintiff traveled from San Bernardino County to CEDARS SINAI
MEDICAL CENTER, located in Los Angeles, for emergency treatment. Plaintiff was
administered emergency treatment and arrangements were made for Defendant
SAMUEL GOLPANIAN, M.D., to perform additional surgery for removal of the
foreign surgical object on the following day at Defendant CEDARS SINAI MEDICAL
CENTER.

33. On or about December 31, 2023, Plaintiff
underwent surgery for removal of the foreign object performed by Defendants
SAMUEL GOLPANIAN, M.D., and CEDARS SINAI MEDICAL CENTER. Thereafter, Plaintiff
remained at CEDARS SINAI MEDICAL CENTER until her discharge on or about January
2, 2024. During her hospitalization at CEDARS SINAI MEDICAL CENTER, Plaintiff
requested to be given the removed specimen (the plastic drain tube) from
Defendants after its removal. The Defendants refused or failed to treat the
Plaintiffs request.

34. Among other things, Defendants SAMUEL
GOLPANIAN, M.D., WILLIAM RAHAL, M.D., VERONA PLASTIC SURGERY, BEVERLY HILLS
AESTHETIC CORP, ELISE VINTIGNI, and BREE CALLAHOM, made false statements in
Plaintiffs medical records. By way of example, Defendant SAMUEL GOLPANIAN,
M.D., reported conducting an examination of Plaintiff on the date of November
20, 2023. However, in a separate report of that appointment, he states that
Plaintiff failed to show up for the appointment.

35. At all times herein mentioned, Defendants,
and each of them, expressly directed consented to, approved, affirmed, and
ratified each and every action taken by the other Defendants, who knowingly and
intentionally engaged in wrongful concealment of their misconduct and abandoned
Plaintiff in reckless disregard for her safety. The Defendants' acts and
omissions constitute malicious, oppressive, fraudulent, and/or reckless
conduct.

[…]

39. At all times herein mentioned, Plaintiff was
in the exclusive control of the Defendants, and each of them, and at no time
prior to the events, conduct, activity, care and treatment as herein complained
of did the Defendants, or one or more of them, obtain Plaintiffs knowledgeable,
informed consent for the care, treatment or conduct as herein alleged, and that
prior to the initiation of or performance of said care, treatment, procedure or
conduct, no opportunity was afforded to the Plaintiff herein to exercise
voluntary, knowledgeable and informed consent to said care, treatment,
procedure or conduct.

40. That the treatment, medical care, and/or
surgery performed by Defendants, and each of them and by Defendants' employees,
and each of them, upon Plaintiff PINAR STEWART, negligently failed to conform
to the standard of care both with respect to the care and treatment rendered to
Plaintiff and with respect to providing to Plaintiff information about the
risks hazards, or other harmful consequences, that might follow from the
treatment, diagnosis or surgery the Defendants, and each of them, planned for
Plaintiff.

41. At all times herein mentioned, the Defendants
negligently and carelessly failed to properly ensure the character, quality,
ability and competence of individuals treating patients and as a proximate
result thereof, Plaintiff was caused to, and did, suffer injuries and damages
proximately thereby, as herein alleged. For a period before the events herein
set forth, Defendants, and each of them, undertook to, and did, treat Plaintiff
and agreed to diagnose such conditions as Plaintiff might have and to render
proper care in respect thereto, and to do all things necessary and proper in
connection therewith; and the Defendants, and each of them, thereafter entered
on such employment individually and by and through their employees, agents and
servants.

42. From and after said times, Defendants, and
each of them, so negligently examined Plaintiff and diagnosed and failed to
diagnose her condition and so negligently treated and performed surgery on her,
and so negligently cared for Plaintiff while she was in the exclusive control
of the Defendants, and each of them, and so negligently operated, managed,
maintained, selected, designed, controlled and conducted their services,
activities, personnel and equipment in connection with Plaintiffs care and treatment
that the same proximately caused the injuries, damages and detriment to
Plaintiff as herein alleged.

43. As a proximate result of the said conduct of
the Defendants, and each of them, Plaintiff was injured in her body and in her
health, strength and activities, and sustained injury to her mental health and
shock and injury to her nervous system, all of which have caused and continue
to cause, Plaintiff great mental, physical and nervous pain and suffering.
Plaintiff is informed and believes and thereon alleges that some or all of said
injuries will be of a permanent nature and will result in some permanent
disability to Plaintiff, all to her general damages in the sum within the
jurisdiction of this court.

44. As a further proximate result of the said
misconduct of the Defendants, and each of them, Plaintiff was required to, and
did, employ physicians, surgeons and hospitals to examine, treat, and care for
her, and did incur, and will in the future incur, medical and other related
expenses in connection herewith, the exact amount of which costs, fees and
expenses are unknown to Plaintiff at this time, but will be shown according to
the proof at the time of trial.

(Complaint
¶¶ 23-44.)

Specifically, Cedars argues that the Complaint confusingly alleges
that Cedars is both located in Victorville (Complaint ¶ 24) and Los Angeles
(Complaint ¶¶ 23, 32), and alleges all the various Defendants all negligently
performed surgery on or about November 7, 2023 at Verona Plastic Surgery in
Beverly Hills in some sort of joint enterprise (Complaint ¶¶ 27, 35.) 

Yet, from the specific facts alleged, it appears Plaintiff underwent
surgery at Verona Plastic Surgery on November 7, 2023 (Complaint ¶¶ 27, 35),
received an X-Ray on December 8, 2023 at Elite Advanced Imaging  (Complaint ¶ 29), on December 30, 2023
presented to Desert Valley Hospital in Victorville for emergency sepsis
treatment (Complaint ¶ 31), and then traveled to Cedars (Complaint ¶ 32), where
the object was removed the following day (Complaint ¶ 33.) 

In opposition, Plaintiff concedes that the allegation of paragraph 25
indicating that Cedars is located in Victorville is an error, but it is clear
from the remaining allegations that Cedars is indeed located in Los Angeles
(e.g., Complaint ¶¶ 23, 32.)  Plaintiff
further emphasizes the Complaint alleges that Cedars spoliated evidence by
refusing to preserve or provide Plaintiff with the plastic drain tube it
removed from her.  (Complaint ¶ 33.)  Plaintiff also points out allegations that Cedars
ratified Verona’s false statements in her medical records (Complaint ¶¶ 34-35)
and failed to obtain informed consent (Complaint ¶¶ 39-40.)

Ultimately, notwithstanding paragraph 25, the Court cannot say the
allegations of the Complaint are so bad that Cedars cannot reasonably determine
what issues must be admitted or denied, or what claims are directed against
them.  The Court thus declines to sustain
Cedars’ demurrer on the basis of uncertainty.

B.   
FAILURE TO STATE A CAUSE OF ACTION

                                                        
i.         
First Cause
of Action – Medical Negligence

“Civil Code section 1714,
subdivision (a) establishes the general duty of each person to exercise, in his
or her activities, reasonable care for the safety of others.  When applied to medical professionals, this
duty of care imposes a duty to use such skill, prudence and diligence as other
members of his profession commonly possess and exercise.”  (Flores
v. Liu (2021) 60 Cal.App.5th 278, 290 [cleaned up].)  To prevail on a claim for negligence against
a medical professional, a plaintiff must demonstrate that: (1) a medical
professional had a duty to use the skill, prudence and diligence that members
of the profession commonly possess and exercise; (2) breach of that duty; (3)
an injury that resulted from the breach of that duty; and (4) actual loss or
damage resulting from the breach of that duty. 
(Banerian v. O’Malley (1974)
42 Cal.App.3d 604, 612.) 

Here, as to Cedars, Plaintiff
alleges (1) Cedars is a medical facility where she received medical treatment
(Complaint ¶¶ 23, 33) and therefore Cedars owes her a general duty of care to
use such skill, prudence, and diligence as other members of the profession
commonly possess; (2) which it breached by spoliating evidence of its joint
venturers’ misconduct (Complaint ¶ 33), ratifying Verona’s false statements in
Plaintiff’s medical records (Complaint ¶¶ 34-35), and failing to obtain
Plaintiff’s informed consent for the removal surgery (Complaint ¶¶ 39-40); (3)
resulting in injury to Plaintiff (Complaint ¶ 43); (4) which caused Plaintiff’s
actual loss or damage (Complaint ¶ 44.)

These allegations suffice to
withstand a demurrer.  Whether Cedars actually
did any of these things are factual questions to be resolved at later
stages of the litigation.

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Cedars’ Demurrer to the Complaint
in its entirety. 

Further, the Court orders Cedars to file and serve an Answer to the
Complaint on or before April 24, 2025.

Cedars shall provide notice of the Court’s ruling and file the notice
with a proof of service forthwith. 

DATED:  April 3, 2025                                                          ___________________________

                                                                                          Michael
E. Whitaker

                                                                                          Judge
of the Superior Court