Judge: Michael T. Smyth, Case: 37-2024-00000544-CU-MM-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2024-00000544-CU-MM-CTL ABAWI VS SHARP MEMORIAL HOSPITAL [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs Homa Abawai by and through her Successor in Interest, Heeran Abawi, and Heeran Abawi's Demurrer to Defendant Dr. Morteza Mirkarimi's Answer is OVERRULED. The court strikes the twenty sixth affirmative defense without leave to amend.

A demurrer may be sustained upon defects that appear on the face of the pleading or any matter of which the court takes judicial notice. (Code Civ. Proc., § 430.30.) There are three grounds for demurrer to an answer: (1) failure to state facts sufficient to constitute a defense; (2) uncertainty; and (3) failure to state whether contract alleged in the answer is written or oral. (Code Civ. Proc. § 430.20.) Courts must liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc. § 452; Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1120.) The primary function of an answer is to give the other party notice so that it may prepare its case and defects in a defendant's pleading should be disregarded, as long as the pleading puts the plaintiff on notice that the defendant is asserting a particular defense. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240 [explaining that an answer 'that otherwise properly notifies a party cannot be said to affect substantial rights']; see also Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins.

Exchange (2005) 132 Cal.App.4th 1076, 1098-99.) The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. (Doheny Park, supra, 132 Cal.App.4th at 1099.) What is important is that an answer contains sufficient fair notice, with modern discovery procedures necessarily affecting the amount of detail that should be required or expected in an answer. (Ibid.) The court finds that Plaintiff is sufficiently on notice of Defendant's affirmative defenses and further facts maybe elicited through discovery. (E.g., Form Interrogatory No. 15.1; see also Weil, et al., Cal. Practice Guide: Civ. Proc. Before Trial, ¶ 7:35.1 (Rutter Guide 2020).) While some defenses go merely to argument or relief, those portions of the pleading are merely superfluous rather than subject to demurrer.

However, the court strikes the twenty sixth affirmative defense for loss of consortium. There is no surviving spouse here. Finally, with respect to the twenty seventh affirmative defense, despite the contents of the answer, any new affirmative defense would need to meet the standard for amendment.

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