Judge: Nick A. Dourbetas, Case: 2021-01227473, Date: 2022-10-28 Tentative Ruling

1. Demurrer to Complaint
2. Motion to Strike Portions of Complaint

3. Case Management Conference

Motion No. 1:

Defendants The Regents of the University of California’s, Ariana Nelson, MD’s, and Christine Hollister, MD’s Demurrer to Plaintiff’s Complaint is SUSTAINED with leave to amend in part, and the court declines to rule in part. (See Code Civ. Proc. § 430.10, subd (e) & (f).)   

As the second cause of action is not asserted against defendants Ariana Nelson, MD and Christine Hollister, MD, the court declines to rule on the demurrer as to these defendants.

The demurrer on the grounds of uncertainty is overruled because the complaint is not so poorly drafted that defendants cannot reasonably respond. (See Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616.)

The general demurrer to the second cause of action is sustained with leave to amend.

In (Flowers v. Torrance Memorial Hospital Medical

Center (1994) 8 Cal. 4th 992, 998), the California Supreme Court held that same alleged breach of duty cannot give rise to distinct causes of action for both ordinary negligence and professional negligence. (Id.). In (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 338) the court of appeal recognized that a hospital had a duty to its patients for negligent conduct of independent physicians and surgeons who, as members of the hospital staff, avail themselves of the hospital facilities, but who are neither employees nor agents of the hospital.

Likewise, it is undisputed that a hospital has a duty to its patients to retain and supervise its employees to avoid harm to its patients.  As defendant Regents had the same duty to patients as to both admitted physicians and its employees, under the Flowers holding, there can be but a single cause of action for negligence. Thus, the demurrer is sustained as to the second cause of action.

Motion No. 2:

Based upon the court’s ruling on the demurrer, the motion to strike is DENIED AS MOOT.

Plaintiff to file an amended complaint, if any, within 15 days.

Defendants are ordered to give notice.