Judge: Robert C. Longstreth, Case: 37-2022-00017458-CU-PO-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00017458-CU-PO-CTL HYDE VS PALOMAR POMERADO HEALTH SYSTEMS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/15/2023

Defendant Saman Borghei, M.D.'s Demurrer to Plaintiff's Complaint (ROA 67) is OVERRULED.

Defendant asserts Plaintiff's claims against him are time-barred. (Code Civ. Proc. § 340.5.) Plaintiff asserts a wrongful death action against Defendants for the death of her husband, who died on May 1, 2021. (Compl. ¶ 14.) Plaintiff sent a Notice of Intent to Commence Action Against Health Care Provider pursuant to section 364 of the Code of Civil Procedure to Defendants PMCP and Palomar Pomerado Health Systems on March 29, 2022. (Id. at ¶ 16.) Plaintiff filed her Complaint on May 9, 2022. Plaintiff then filed an Amendment substituting Dr. Borghei for fictitiously named defendant Doe 2 on June 1, 2023.

Defendant asserts Plaintiff's claims against him are time-barred because Plaintiff was aware of Defendant's identity at the time of filing the Complaint. Defendant's argument relies on improper extrinsic evidence in the form of Plaintiff's husband's medical records. (Zaragoza Decl. at Exh. B.) In opposition, Plaintiff counters with improper extrinsic evidence in the form of her counsel's declaration stating Plaintiff was ignorant of the names of the physicians who treated Decedent prior to the filing of the Complaint. (Pasternack Decl. at ¶ 4.).

The court cannot consider extrinsic evidence on demurrer; a demurrer only lies as to defects that appear 'on the face' of the pleadings or 'from any matter of which the court is required to or may take judicial notice.' (Code Civ. Proc. § 430.30(a).) Dr. Borghei has not demonstrated a defect on the face of Plaintiff's Complaint or from any judicially noticeable matter.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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