Judge: Ronald F. Frank, Case: 24TRCV02308, Date: 2024-11-20 Tentative Ruling
Case Number: 24TRCV02308 Hearing Date: November 20, 2024 Dept: 8
Tentative Ruling¿
¿¿
HEARING DATE: November 20, 2024¿
¿¿
CASE NUMBER: 24TRCV02308
¿¿
CASE NAME: Sylvia
Lee Senegal King v. Torrance Memorial Hospital, et al.
¿¿
MOVING PARTY: Defendant, Torrance Memorial Medical
Center (erroneously sued as Torrance Memorial Hospital)
¿¿
RESPONDING PARTY: Plaintiff, Sylvia Lee Senegal King
¿¿
TRIAL DATE: None
set.
¿¿
MOTION:¿ (1) Defendant’s Demurrer¿
(2) Defendant’s Motion to Strike
¿
Tentative Rulings: (1) Defendant’s Demurrer¿to the second and third causes of action on
grounds of duplicate causes of action is sustained, with 20 days leave to
amend.
(2)
Defendant’s Motion to Strike the punitive damages allegations is granted
¿
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
¿
On
March 15, 2024, Plaintiff, Sylvia Lee Senegal King (“Plaintiff”) filed a
complaint against Defendants, Torrance Memorial Hospital, and DOES 1 through 25
in Riverside County Superior Court, where this action originated. On May 6,
2024, Plaintiff, in pro per, filed a First Amended Complaint (“FAC”), also in
Riverside County, alleging causes of action for: (1) Negligent Medical
Malpractice; (2) Medical Malpractice; and (3) Professional Negligence. On May
14, 2024, Judge Firetag in Department 3 of the Riverside County Superior Court
granted Defendant’s Motion to Transfer Venue, transferring this case to the Los
Angeles County Superior Court.
Defendant,
Torrance Memorial Medical Center (erroneously sued as Torrance Memorial
Hospital) (“Defendant”) filed a Demurrer and Motion to Strike portions of the
FAC.
B. Procedural¿¿
¿
On October 23, 2024,
Defendant filed its Demurrer and Motion to Strike portions of the FAC. On
November 6, 2024, Plaintiff filed an opposition brief. On November 14, 2024,
Defendant filed a reply brief.
II. ANALYSIS¿
¿
A. Demurrer
¿
A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack or from matters
outside the pleading that are judicially noticeable. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be alleged.” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
¿¿
A pleading is uncertain if it is
ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer
for uncertainty may lie if the failure to label the parties and claims renders
the complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[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.)¿¿
i.
Meet and Confer
Before filing a demurrer, the demurring
party is required to meet and confer “in person, by telephone, or by video
conference with the party who filed the pleading that is subject to the
demurrer for the purposes of determining whether an agreement can be reached
through a filing of an amended pleading that would resolve the objections to be
raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).)
Per the declaration of Jeannine V. Stepanian, Esq., (“Stepanian
Decl.”) counsel for Defendant, on October 22, 2024, she contacted Plaintiff via
email to inform her that it recently came to Stepanian’s attention that she
filed her FAC with the court, and that pleading was never served on their firm.
(Stepanian Decl., ¶ 4.) On October 23, 2024, Stepanian and Plaintiff conferred
telephonically and discussed the fact that the FAC was not served to Defendant
or their firm and Defendant’s position that the FAC is insufficiently pled and
subject to demurrer and a motion to strike. (Stepanian Decl., ¶ 5.) Defense
counsel and Plaintiff were unable to resolve the matter, thus, Defendant had
brought this demurrer and motion to strike. (Stepanian Decl., ¶ 5.)
ii.
Discussion
Defendant demurs to Plaintiff’s
FAC on the grounds that the first, second, and third causes of action fail to
set forth fact sufficient to constitute a cause of action against Defendant and
because they are uncertain, ambiguous, and unintelligible.
1.
Breach of Fiduciary Duty
In Defendant’s threadbare
demurrer, it first argues that all three of Plaintiff’s causes of action fail
because Plaintiff’s FAC did not sufficiently allege breach of fiduciary duty.
Although Plaintiff has alleged the words “fiduciary duty” in each of the three
causes of action (FAC, ¶¶ 24, 29, & 32), the court finds that she has not
stated nor purported to state a cause of action for Breach of Fiduciary Duty. The
demurrer on uncertainty grounds is thus overruled.
2.
Duplicative Causes of Action
Next, Defendant asserts that
Plaintiff’s first cause of action for negligent medical malpractice is
deficient and that Plaintiff’s second and third causes of action for medical
malpractice, and professional negligence are duplicative of the first. Preliminarily,
the court agrees with Defendant’s duplicate argument. The California Supreme Court has determined that with respect to
questions of substantive law, there is no distinction between ordinary
negligence and professional negligence (i.e. medical malpractice) because “a
defendant has only one duty, measured by one standard of care, under any given
circumstances.” (Flowers v. Torrance Memorial Hospital Medical Center
(1994) 8 Cal.4th 992, 1000.) “[A] plaintiff cannot, on the same facts,
state causes of action for ordinary negligence as well as professional
negligence, as a defendant has only one duty that can be measured by one
standard of care under any given circumstances.” (Bellamy v. Appellate
Department (1996) 50 Cal.App.4th 797, 804.)
The present case is similar to that of Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 (“Flowers”) in which the
California Supreme Court stated: "The Court of Appeal thus erred in
finding plaintiff's pleadings 'broad enough' to state a cause of action for
ordinary negligence as well as professional negligence.” (Id. at 996.)
This has been interpreted this to mean that Plaintiffs cannot use the same set
of facts to assert a claim for professional negligence and ordinary negligence
because a defendant has only one duty measured by one standard of care. (See Id.
at 1000.)¿In Flowers, the California Supreme Court stated:
With respect to professionals, their specialized
education and training do not serve to impose an increased duty of care but
rather are considered additional "circumstances" relevant to an
overall assessment of what constitutes "ordinary prudence" in a
particular situation. Thus, the standard for professionals is articulated in
terms of exercising "the knowledge, skill and care ordinarily possessed
and employed by members of the profession in good standing …." (Prosser &
Keeton, Torts (5th ed. 1984) The Reasonable Person, § 32, p. 187.) For example,
the law " 'demands only that a physician or surgeon have the degree of
learning and skill ordinarily possessed by practitioners of the medical
profession in the same locality and that he [or she] exercise ordinary care
in applying such learning and skill to the treatment of [the] patient.'
[Citation.]" (Huffman v. Lindquist (1951) 37 Cal.2d 465, 473 [234
P.2d 34, 29 A.L.R.2d 485], italics added.) Similarly, a hospital's
"business is caring for ill persons, and its conduct must be in accordance
with that of a person of ordinary prudence under the circumstances, a vital
part of those circumstances being the illness of the patient and incidents
thereof." (Rice v. California Lutheran Hospital (1945) 27 Cal.2d
296, 302 [163 P.2d 860], italics added; see also, e.g., Tarasoff v. Regents
of University of California (1976) 17 Cal.3d 425, 438 [131 Cal.Rptr. 14,
551 P.2d 334, 83 A.L.R.3d 1166] [psychotherapist "need only exercise 'that
reasonable degree of skill, knowledge, and care ordinarily possessed and
exercised by members of [that professional specialty] under similar
circumstances.' "]; Gambert v. Hart (1872) 44 Cal. 542, 552 [same;
attorneys]; Stuart v. Crestview Mut. Water Co. (1973) 34 Cal.App.3d 802,
811-812 [110 Cal.Rptr. 543] [same; engineers];
Montijo v. Swift (1963) 219 Cal.App.2d 351, 353 [33 Cal.Rptr. 133]
[same; architects]; Lindner v. Bartlow, Davis & Wood (1962) 210
Cal.App.2d 660, 665 [27 Cal.Rptr. 101] [same; accountants].)¿
¿
Since
the standard of care remains constant in terms of "ordinary
prudence," it is clear that denominating a cause of action as one for
"professional negligence" does not transmute its underlying
character. For substantive purposes, it merely serves to establish the basis by
which "ordinary prudence" will be calculated and the defendant's
conduct evaluated. Nor does it distinguish a claim separate and independent
from some other form of negligence. As to any given defendant, only one
standard of care obtains under a particular set of facts, even if the plaintiff
attempts to articulate multiple or alternate theories of liability. (Cf. Central
Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3
Cal.4th at p. 192; Rowland v. Christian, supra, 69 Cal.2d at pp.
119-120.)¿
¿
Any
distinction between "ordinary" and "professional"
negligence has relevance primarily when the Legislature has statutorily
modified, restricted, or otherwise conditioned some aspect of an action for
malpractice not directly related to the elements of negligence itself. For
example, the statute of limitations for professional negligence against a
health care provider can extend up to three years (Code Civ. Proc., § 340.5),
in contrast to the one year applicable to ordinary negligence (Code Civ. Proc.,
§ 340).¿ (See also Code Civ. Proc., § 340.6 [setting limitations period for
attorney malpractice at four years but shortening time if plaintiff discovers
cause of injury sooner].) The Medical Injury Compensation Reform Act (MICRA)
contains numerous provisions effecting substantial changes in negligence
actions against health care providers, including a limitation on noneconomic
damages (Civ. Code, § 3333.2), elimination of the collateral source rule as
well as preclusion of subrogation in most instances (Civ. Code, § 3333.1), and
authorization for periodic payments of future damages in excess of $ 50,000
(Code Civ. Proc., § 667.7). (See also Code Civ. Proc., § 425.13 [restricting
claims for punitive damages in actions for professional negligence against
health care providers].) While in each instance the statutory scheme has
altered a significant aspect of claims for medical malpractice, such as the
measure of the defendant's liability for damages or the admissibility of
evidence, the fundamental substance of such actions on the issues of duty,
standard of care, breach, and causation remains unaffected.¿
¿
(Flowers v. Torrance Memorial Hospital
Medical Center (1994) 8 Cal 4th 992, 997-999.)¿
Here, this court notes that the Flowers
case discusses the standard of care for professional and general negligence in
the context of motions for summary judgments. However, it is of note that in Flowers,
the circumstance at issue was a patient’s fall from a hospital bed/gurney and
the Supreme Court believed that the appellate court’s distinction between
“professional” and “ordinary” negligence was erroneous. (Id. at 1001.)¿ Although a plaintiff is allowed to allege
alternative theories in varied or inconsistent counts under certain
circumstances (see Rader Co. v. Stone (1986) 178 Cal. App. 3d 10, 29),
the issue presented before this court is that Plaintiff’s causes of action are
not truly alternative or inconsistent – Plaintiff has brought causes of action
for negligent medical malpractice, medical malpractice, and professional
negligence. The underlying facts surrounding each cause of action are
identical.
¿
Thus, the court will be
SUSTAINING demurrer as to the second and third causes of action based on the
duplication argument alone. The court’s analysis of the first cause of action
for Negligent Medical Malpractice continues below.
3.
Medical Malpractice
The elements of a professional negligence medical malpractice
cause of action are: “(1) the duty of the professional to use such skill,
prudence, and diligence as other members of his profession commonly possess and
exercise; (2) a breach of that duty; (3) a proximate causal connection between
the negligent conduct and the resulting injury; and (4) actual loss or damage
resulting from the professional’s negligence.” (Borrayo¿v. Avery¿(2016)
2 Cal.App.5th 304, 310 (quoting¿Hanson v.¿Grode¿(1999) 76 Cal.App.4th
601, 606.)¿¿Medical malpractice arises where there is a physician-patient
relationship between the plaintiff and defendant doctor.¿ (See¿Burgess v.
Superior Court¿(1992) 2 Cal.4th 1064, 1075.)¿ Further, in the context
of hospitals, this court emphasizes that “ ‘[p]resent-day hospitals, as
their manner of operation plainly demonstrates, do far more than furnish
facilities for treatment. They regularly employ on a salary basis a large staff
of physicians, nurses and internes [sic], as well as administrative and manual
workers, and they charge patients for medical care and treatment, collecting
for such services, if necessary, by legal action. Certainly, the person who
avails himself of ‘hospital facilities’ expects that the hospital will attempt
to cure him, not that its nurses or other employees will act on their own
responsibility.’ Although hospitals do not practice medicine in the same sense
as physicians, they do provide facilities and services in connection with the
practice of medicine, and if they are negligent in doing so they can be held
liable.” (Leung v. Verdugo Hills
Hospital (2012) 55 Cal.4th 291, 310 (“Leung”).) In Leung, the
California Supreme Court found that the evidence presented at trial was
sufficient to support the jury’s finding that defendant hospital’s acts or
omissions were a legal cause of the plaintiff’s injury after the trial court
gave the jury instruction: “A hospital must provide procedures, policies,
facilities, supplies, and qualified personnel reasonably necessary for the
treatment of its patients.” (Id. at 310.)
Here,
Plaintiff’s FAC alleges that: (1) Defendant Torrance and its staff had a duty
of medical care and to act in good faith and in the best interest of Plaintiff
(FAC, ¶ 20); (2) that Defendant breached the applicable standard of medical
care owed to Plaintiff (FAC, ¶¶ 21, 25, 28, 31); (3) that this breach was the
direct and proximate cause of the following harms: (i) suffering conscious pain
and suffering both in the past and future; (ii) incurring medical expenses in
the past and will incur future medical expenses; (iii) suffering mental and
emotional sorrow and anguish; (iv) suffering permanent physical injuries and
disfigurement; and (v) was required to undergo additional medical procedures
and has sustained other damages. (FAC, ¶ 21.) The Plaintiff’s detailed allegations
of her claimed injuries resulting in the alleged breach of the applicable
standard of care are quite specific. (FAC, ¶¶ 6-18.)
Because
this court is sustaining the demurrer on the grounds that the second and third
causes of action in Plaintiff’s FAC are duplicative, the court suggests
Plaintiff consolidate the allegations as to ordinary negligence and
professional negligence into a single medical malpractice cause of action in
accordance with the requirements above.
B. Motion to Strike
i.
Legal
Standard
Any party,
within the time allowed to respond to a pleading may serve and file a notice of
motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd.
(b)(1).) The court may, upon a motion, or at any time in its discretion, and
upon terms it deems proper, strike any irrelevant, false, or improper matter
inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v.
Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not
essential to the claim is surplusage; probative facts are surplusage and may be
stricken out or disregarded”].) The court may also strike all or any part of
any pleading not drawn or filed in conformity with California law, a court
rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An
immaterial or irrelevant allegation is one that is not essential to the
statement of a claim or defense; is neither pertinent to nor supported by an
otherwise sufficient claim or defense; or a demand for judgment requesting
relief not supported by the allegations of the complaint. (Code Civ. Proc., §
431.10, subd. (b).) The grounds for moving to strike must appear on the face of
the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿
ii.
Discussion
Code of Civil Procedure section 425.13 prohibits the inclusion of
punitive damages allegations in a medical malpractice suit until or unless the
plaintiff obtains an order permitting those allegations. The intention of the Legislature is to
require the plaintiff to make a motion, supported by admissible evidence after sufficient
discovery has been undertaken in the case so the Court can act as a gatekeeper
to screen garden variety medical malpractice clams from those suits where “there
is a substantial probability that plaintiff will prevail” on her or his claim of
malice, oppression, or fraud as required by Civil Code section 3294. It is premature for plaintiff here to include
punitive damages allegations or a prayer for such damage without plaintiff
having made a motion for leave to amend and for the Court to make the required
finding of substantial probability. The
motion to strike punitive damages is thus GRANTED and in plaintiff’s amended
pleading the allegations and prayer for recovery of punitive damages should be
excluded in order to avoid another round of pleading motions.
IV. CONCLUSION¿¿
For the foregoing reasons,
Defendant’s demurrer is SUSTAINED with twenty (20) days leave to amend.
Further, the Motion to Strike is GRANTED.
¿¿¿
Defendant is ordered to give
notice.¿¿¿¿
¿¿¿