Judge Salvatore Sirna, Case Number: 22PSCV03132, Date: 2023-05-22 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV03132, Date: 2023-05-22 Tentative Ruling

Case Number: 22PSCV03132 Hearing Date: July 20, 2023 Dept: G

Defendant Sapna Sangani Rasani, M.D.’s Demurrer to Plaintiff’s First Amended Complaint

Respondent: Plaintiff Susan Rivadeneira

Defendant Sapna Sangani Rasani, M.D.’s Motion to Strike Portions of Plaintiff’s First Amended Complaint

Respondent: Plaintiff Susan Rivadeneira

TENTATIVE RULING

Defendant Sapna Sangani Rasani, M.D.’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED. Defendant to answer within ten (10) days.

Defendant Sapna Sangani Rasani, M.D.’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED. The court will hear from Plaintiff as to whether the court should grant leave to amend.

BACKGROUND

This is a medical malpractice action. On October 4, 2021, Defendants Sapna Sangai Rasani, M.D. (Dr. Rasani); Allied Physicians of California (Allied Physicians); and Allied Physicians of California IPA (Allied Physicians IPA) began treating Plaintiff Susan Rivadeneira for rheumatoid arthritis. In March 2022, Dr. Rasani prescribed Plaintiff a drug for rheumatoid arthritis pain known as Methotrexate (MTX). Plaintiff alleges MTX caused Plaintiff to suffer renal failure and be placed on the kidney transplant list. Plaintiff further alleges that at least one study showed MTX caused reduced kidney function.

On December 30, 2022, Plaintiff filed a complaint against Defendants and Does 1-25 alleging the following causes of action: (1) medical malpractice, (2) professional negligence, (3) negligent infliction of emotional distress, and (4) vicarious liability. On February 28, 2023, Dr. Rasani demurred to Plaintiff’s Complaint.

On March 14, 2023, Plaintiff filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action.

On April 14, 2023, Dr. Rasani (Defendant) filed the present demurrer and motion to strike. On May 22, the court continued a hearing on Defendant’s motions due to Defendant’s failure to adequately meet and confer. On June 30, Defendant’s counsel met and conferred telephonically with Plaintiff’s counsel.

A hearing on the demurrer and motion to strike, case management conference, and OSC Re: Failure to File Proof of Service are set for July 20, 2023.

ANALYSIS

Demurrer

Defendant demurs to Plaintiff’s second cause of action (professional negligence) and third cause of action (negligent infliction of emotional distress). For the following reasons, the court OVERRULES Defendant’s demurrer in its entirety.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Discussion

Defendant argues Plaintiff’s second cause of action for professional negligence and third cause of action for negligent infliction of emotional distress (NIED) are duplicative of Plaintiff’s first cause of action for medical malpractice. The court disagrees.

The court acknowledges there is a split of authority on whether a demurrer can be sustained on grounds that a cause of action is duplicitous. In Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 (Blickman Turkus), the Sixth District Court of Appeal held a demurrer could not be sustained on grounds that it is duplicative pursuant to Code of Civil Procedure section 430.10. (Id., at p. 890.) In Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268 (Palm Springs Villas), the Fourth District Court of Appeal held the opposite, noting a duplicative cause of action is grounds upon which a demurrer may be sustained according to Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (Rodrigues). (Palm Springs Villas, supra, 248 Cal.App.4th at p. 290.)

Code of Civil Procedure section 430.10 authorizes a party to bring a demurrer on eight different grounds, none of which explicitly include grounds that a cause of action is duplicative or superfluous. In Rodrigues, the Fourth District Court of Appeal noted the cause of action at issue merely combined all the previous causes of action and did not add anything to the complaint by way or fact or theory of recovery. (Rodrigues, supra, 87 Cal.App.3d at p. 498, 501.) However, the court finds the reasoning of Blickman Turkus more persuasive. Noting the jurisprudential maxim that “superfluity does not vitiate” (Civ. Code, § 3537), the court held “[t]his is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman Turkus, supra, 162 Cal.App.4th at p. 890.)

Accordingly, because a duplicative cause of action is not grounds for demurrer, Defendant’s demurrer to Plaintiff’s second and third causes of action is OVERRULED.

Motion to Strike

Defendant moves to strike Plaintiff’s request for punitive damages from the FAC. For the following reasons, the court GRANTS Defendant’s motion.

Legal Standard

Upon a party’s motion or the court’s own motion, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also “[s]trike out 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).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

Discussion

Defendant argues Plaintiff cannot include a request for punitive damages pursuant to Code of Civil Procedure section 425.13, subdivision (a) which states the following:

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” (Code Civ. Proc., § 425.13, subd. (a).)

In this case, Plaintiff is seeking damages arising from the professional negligence of health care providers in prescribing Plaintiff MTX. While Plaintiff argues punitive damages are allowed for NIED claims, Plaintiff’s NIED claim is part of Plaintiff’s action for professional negligence as the negligent conduct that caused Plaintiff’s emotional distress was Defendants’ alleged breach of duty in prescribing MTX. Thus, Plaintiff must comply with the requirements of Code of Civil Procedure section 425.13.

Accordingly, because Plaintiff has not complied with Code of Civil Procedure section 425.13, Plaintiff’s request for punitive damages is improper and the court GRANTS Defendant’s motion to strike them.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s FAC is OVERRULED in its entirety. Defendant to answer within ten (10) days.

Furthermore, Defendant’s motion to strike portions of Plaintiff’s FAC is GRANTED. The court will hear from Plaintiff as to whether the court should grant leave to amend.