Judge: Peter A. Hernandez, Case: 22PSCV03044, Date: 2023-05-23 Tentative Ruling

Case Number: 22PSCV03044    Hearing Date: May 23, 2023    Dept: K

Defendant Emanate Health’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

Background   

Plaintiff Thomas Weeber (“Plaintiff”) alleges as follows:

On July 15, 2021, Plaintiff fell while attempting to get up from a wheelchair while leaving the hospital and sustained injury.

On March 15, 2023, Plaintiff filed a First Amended Complaint, asserting causes of action against Defendants Emanate Health Inter-Community Hospital, Emanate Health Medical Care Foundation and Does 1-100 for:

1.      Negligence—Medical Malpractice
2       General Negligence

A Case Management Conference and an Order to Show Cause Re: Failure to File Proof of Service are set for May 23, 2023.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Defendant Emanate Health (“Defendant”) demurs, pursuant to Code of Civil Procedure § 430.41, to the first and second causes of action in Plaintiff’s FAC, on the basis that they both fail to state facts sufficient to constitute causes of action.

Request for Judicial Notice

The court rules on Plaintiff’s Request for Judicial Notice as follows: Denied as to Exhibit A (i.e., “Declaration of Thomas Weeber in support of Plaintiff’s Motion for Leave to File a Second Amended Complaint”); Granted as to Exhibit B (i.e., Plaintiff’s 364 Notice of Intent to Commence Suit); Granted as to Exhibit C (i.e., Plaintiff’s complaint filed December 27, 2022) and Granted as to Exhibit D (i.e., FAC).

Evidentiary Objections

The court rules on Defendant’s evidentiary objections as follows: Denied as Moot.

Merits

First Cause of Action (i.e., Negligence—Medical Malpractice)

Defendant asserts that Plaintiff’s first cause of action is time-barred by Code of Civil Procedure § 340.5, which provides, in relevant part, as follows:

            In an action for injury or death against a health care provider based upon

such person's alleged professional negligence, the time for the

commencement of action shall be three years after the date of injury or one

year after the plaintiff discovers, or through the use of reasonable diligence

should have discovered, the injury, whichever occurs first . . .

Here, Plaintiff possessed knowledge of his injury on July 15, 2021. (FAC, ¶¶ 15-18). Plaintiff does not appear to dispute this, but claims that the statute was nevertheless tolled because he was mentally and physically incapacitated through the end of 2021 and through the early part of 2022. (Opp., 2:24-3:2 and 3:5-6). Plaintiff, however, does not allege that he was legally disabled and/or incapacitated anywhere in his FAC.

Plaintiff argues that the statute of limitations was tolled for three months based on Emergency Rule 9 and that, since Plaintiff sent his 364 Notice within the specified time period, it extended the statute of limitations another 90 days after the notice was sent. (Id., 3:7-10). Emergency Rule 9 provides as follows:

(a) Tolling statutes of limitations over 180 days

Notwithstanding any other law, the statutes of limitations and repose for civil

causes of action that exceed 180 days are tolled from April 6, 2020, until October

1, 2020.

(b) Tolling statutes of limitations of 180 days or less

Notwithstanding any other law, the statutes of limitations and repose for civil

causes of action that are 180 days or less are tolled from April 6, 2020, until

August 3, 2020.

(c) Sunset of rule

This rule will sunset on June 30, 2022, unless otherwise amended or repealed by

the Judicial Council. This sunset does not nullify the effect of the tolling of the

statutes of limitation and repose under the rule.

Emergency Rule 9 is not applicable in this instance, as the alleged injury occurred on July 15, 2021, over nine months after the tolling period (i.e., April 6, 2020-October 1, 2020) set forth therein ceased.

Further, Plaintiff has alleged that he sent his Code of Civil Procedure § 364 notice “on or about September 28, 2022.” (FAC, ¶ 13). Exhibit A attached to the FAC indicates that it was September 29, 2022. Section 364, subdivision (d) provides that “[i]f the notice [of the intention to commence the action] is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” Again, based on Plaintiff’s FAC, Plaintiff possessed knowledge of his injury on July 15, 2021. Again, there are no allegations in the FAC that Plaintiff was legally disabled and/or incapacitated. Plaintiff’s § 364 notice, however, was not sent until September 29, 2022, over 14 months after the date of Plaintiff’s alleged injury and 2 ½ months after the statute of limitations had already expired.

Defendant’s demurrer, then, is sustained.

Second Cause of Action (i.e., General Negligence)

Defendant next asserts that Plaintiff’s second cause of action fails because the underlying facts are rooted in professional negligence. The court agrees. Civil Code § 3333.2 defines professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, . . . for which the provider is licensed. . .”

Plaintiff has alleged that on July 15, 2021, he presented to the emergency room twice and was discharged twice after being treated. (FAC, ¶¶ 15 and 16); that, after his second discharge, “he was placed in a wheelchair by hospital personnel and wheeled outside to wait for a taxicab to transport him home” (Id., ¶ 17); that he was wheeled out to the curb and left in the wheelchair unsupervised (Id.); that hospital personnel failed to make sure that the wheelchair brakes were engaged (Id.); and that, “[w]hen the taxicab pulled up, [he] attempted to get up from the wheelchair, when it moved backwards, causing [him] to fall backwards, hitting his head and sustaining a T6 vertebral fracture and other serious injuries” (Id., ¶ 18). Plaintiff alleges that Defendant “was responsible for providing Plaintiff with treatment and care which will ensure that he is discharged from the hospital safely” (Id., ¶ 36; see also, ¶ 37). Here, any alleged negligent conduct must be pled as a medical negligence claim, not a general negligence claim.

Further, Plaintiff appears to concede that his second cause of action is duplicative of the first cause of action.

Defendant’s demurrer to the second cause of action is sustained.

Plaintiff’s Request for Leave

Plaintiff “requests that it be allowed to amend its FAC to . . . add a cause of action for elder abuse.” (Opp., 7:10-12). Plaintiff’s request, made in opposition to a demurrer, is improper and is declined. Plaintiff must seek leave to amend his pleading via a noticed motion.