Judge Serena R. Murillo, Case 22STCV10357 2022-09-27 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV10357, Date: 2022-09-27 Tentative Ruling

Case Number: 22STCV10357 Hearing Date: September 27, 2022 Dept: 29

Jason V. Janbahan, Sr. v. County of Los Angeles, DCFS

Tuesday, September 27, 2022

Demurrer to Complaint filed by Defendant County of Los Angeles

TENTATIVE

Defendant County of Los Angeles’ demurrer to the complaint is SUSTAINED with 30 days leave to amend.

Legal Standard

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, 147 Cal.App.4th at 747.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Jennifer Gysler which does not satisfy the meet and confer requirements. Counsel has only sent an email to Plaintiff. Code of Civil Procedure section 430.41(a) requires the demurring party to meet and confer in person or by telephone with the party who filed the pleading. Nevertheless, the Court will consider the demurrer, as an insufficient meet and confer process is not a ground to overrule the demurrer.

Discussion

Uncertainty

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.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

“The elements of a medical malpractice claim 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.’ [Citation.]”’[Citation.].” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.) “’Professional negligence’ means 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, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (CCP § 340.5(2).)

The complaint is entitled “Complaint for Civil Penalty and Injunctive Relief.” In the “Statement of the Case” plaintiff states he “seeks to remedy the failure of Defendants, for Medical Professional negligence.” (Complaint, ¶ 1.) Plaintiff alleges that “Defendants failed to provide the correct F-3 training required by law.” (Id., ¶ 5.) Plaintiff states “Medical Handicap child placement for health and safety reasons leading to Homicide. Misplacement of sister with great loss of family member.” (Id., ¶ 7.) The rest of the complaint includes citations from legal sources including statutes and regulations.

The Court finds that the entire complaint is incomprehensible and unclear as to whether Plaintiff is alleging a medical malpractice cause of action and that the complaint does not contain any facts underlying the cause of action. Thus, the complaint fails to state a cause of action, is uncertain, and subject to demurrer.

Conclusion

Accordingly, Defendant’s demurrer is SUSTAINED with 30 days leave to amend.

Moving party is ordered to give notice.