Judge: Nathan Nhan Vu, Case: 30-2022-01276769, Date: 2023-08-28 Tentative Ruling

Demurrer to Complaint.

Defendants Daniel Hsu, D.D.S., M.D., Inc. dba Irvine Oral Surgery’s and Daniel Hsu’s Demurrer to Complaint is SUSTAINED as to the 1st, 2nd, 3rd, and 4th Causes of Action, with leave to amend within 21 days of service of the notice of ruling.

Defendants Daniel Hsu, D.D.S., M.D., Inc. dba Irvine Oral Surgery and Daniel Hsu (collectively, Hsu Defendants) demur to the Complaint filed by Plaintiff Eugene Worley.

Standard for Demurrer

”The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer . . . to the pleading on any one or more of the following grounds:

. . .

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

. . .”

(Code Civ. Proc., § 430.10.) A demurrer to a complaint or cross-complaint may be asserted against “the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50, subd. (a).)

A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.)

Because a demurrer tests only the sufficiency of the pleading, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . [and] consider[s] matters which may be judicially noticed.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591, citation omitted.)

Thus, in ruling on a demurrer to a complaint, a court must accept as true all allegations of fact contained in the complaint, (see Blank v. Kirwan (1985) 39 Cal.3d 311, 318), and will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice, (see Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn pleadings, (see Code Civ. Proc., § 452), it remains essential that a pleading set forth the actionable facts relied upon with sufficient precision to inform the responding party of the matters that the pleading party is alleging, and what remedies or relief is being sought, (see Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

Incomplete Complaint

Hsu Defendants argue that the Complaint is incomplete in that it is not signed and does not contain a prayer for relief.

A demurrer challenges the sufficiency of the allegations of the complaint and not whether the complaint abides by the procedural requirements of the Civil Procedure Code. Thus, a demurrer is not the appropriate vehicle to challenge an unsigned complaint.

Rather, a party may move to strike “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b); Code Civ. Proc., § 128.7 [“[e]very pleading . . . if the party is not represented by an attorney, shall be signed by the party”].) Hsu Defendants should have filed a motion to strike the unsigned Complaint.

In addition, the failure to include a prayer for relief also may be challenged by a motion to strike, since a prayer for relief is requirement of the Civil Procedure Code. (Code Civ. Proc., § 425.10, subd. (b) [complaint must include a “demand for judgment for the relief to which the pleader claims to be entitled”].)

However, the failure to include an allegation or prayer for relief may also be attacked by demurrer if it renders the complaint “uncertain”, “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal App.4th 612, 616.) Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) “[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

In this case, not only is there no prayer for relief, but the Complaint contains no specifics about the damages sustained by Plaintiff. Further, the information that is missing may not be clarified by discovery nor is it within the knowledge of the Defendants. Thus, it is not reasonably possible for Defendants to respond to the Complaint because they do not know the damages sustained by Plaintiff and what he is demanding. The demurrer must be sustained for uncertainty.

Duplicative Causes of Action

Hsu Defendants also assert that the 2nd, 3rd, and 4th Causes of Action of the Complaint are duplicative of the 1st Cause of Action.

The 1st Cause of Action alleges that Moving Defendants harmed Plaintiff through acts of medical negligence. (See Compl., ¶ 23.)

The 2nd Cause of Action is entitled “Breach of Duty to Refer to A Specialist” and pleads that Defendants failed to refer Plaintiff to a healthcare specialist capable of diagnosing TMD/TMJ disorder. (See Compl. at p. 1:13-14, ¶ 28.) (fn.1)

The 3rd Cause of Action asserts a claim for Negligence Res Ipsa Loquitur, and repeats the allegation that Defendants were negligent and that the Plaintiff’s injury ordinarily would not have occurred unless there was negligence. (See Compl., ¶¶ 34-35.)

The 4th Cause of Action is entitled “Failure to Obtain Informed Consent” and also “Medical Battery”, (see Compl., at pp. 1:15-16, 6:17), but only alleges that Defendants failed to take medically reasonable steps to rule out TMJ before performing surgery on [Plaintiff],” (see Compl. ¶¶ 40-41).

A demurrer may be sustained to a cause of action on the ground it is duplicative if it “adds nothing to the complaint by way of fact or theory of recovery.” (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135; see also Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 [“The fifth alleged cause of action contains, by necessary implication, all of the allegations of each of the preceding four alleged causes and thus adds nothing to the complaint by way of fact or theory of recovery. There is no authority for a pleading of this type and the demurrer was properly sustained without leave to amend as to that cause.”].)

The 1st Cause of Action sounds in negligence and one of the acts of negligence alleges that Defendants should have referred Plaintiff to “see a Board Certified Oral and Maxillofacial Surgeon for a consult on August 13, 2021.” (Compl., ¶15.) Thus, the 2nd Cause of Action’s pleading that Defendants failed refer Plaintiff to see a specialist capable of diagnosing TMD/TMJ” is duplicative of and adds nothing to the 1st Cause of Action.

In addition, the 2nd Cause of Action, as alleged against the Hsu Defendants is inconsistent with Plaintiffs’ allegation that “Dr. Hsu . . ., as a Board-Certified Oral & Maxillofacial Surgeon, should have easily made a correct diagnosis of TMJ.” (Compl., ¶ 20.) Hsu Defendants cannot be faulted for failing to refer Plaintiff to a specialist if Hsu Defendants included such a specialist.

Res Ipsa Loquitur is not a separate cause of action but rather, a theory upon negligence can be predicated. (See Scott v, Rayhrer (2010) 185 Cal.App.4th 1535, 1540; see also Evid. Code, § 646, subd. (b) [“The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.”].) Thus, the 3rd Cause of action also adds nothing to the Complaint and the demurrer should be sustained as to it.

The 4th Cause of Action contains no allegations that Defendants failed to obtain informed consent or committed acts of medical battery. The only separate allegation of the 4th Cause of Action is that “Defendants failed to take medically reasonable steps to rule out TMJ before performing surgery on [Plaintiff].” (See Compl. ¶¶ 40-41). This is another allegation of negligence that adds nothing to the 1st Cause of Action.

Non-Opposition

Plaintiff has not filed an opposition to the demurrer. The failure to address or oppose an issue in a motion constitutes a waiver on that issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see also Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].) The court must grant the demurrer for that reason as well as those stated above.

Leave to Amend

“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

“[F]or an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” (Eghtesad v. State Farm General Insurance. Co. (2020) 51 Cal.App.5th 406, 411, quoting King v. Mortimer (1948) 83 Cal.App.2d 153, 158; see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 [“Only rarely should a demurrer to an initial complaint be sustained without leave to amend.”].)

The Complaint is an original complaint and the court therefore will grant leave to amend.

However, when leave to amend is granted on demurrer, amendments are limited to the issues addressed in the court’s ruling and generally may not include a new cause of action. (See Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”].)

The amending party may add a new cause of action only by obtaining court approval through a noticed motion or stipulation of the parties, or where the new cause of action merely changes the legal theory and not the underlying obligation. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, 111 [”The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”]; Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 984 fn.19.)

In addition to amending the complaint to cure the above-noted deficiencies, Plaintiff should ensure that any amended complaint is signed.

(fn.1) The 2nd Cause of Action also is denominated as a claim for “UNPAID WAGES\WRITTEN CONTRACT,” (see Compl. at p. 5:15), although this appears to be a typographical error.

Hsu Defendants shall give notice of this ruling.