Superior Court of California

County of Los Angeles

Department 50

MISS JENNIFER L. JACKSON, Plaintiff, vs. DR. KYEONG-HEE ALEX KIM, Defendant.	Case No.:	22STCV07028
	Hearing Date:	April 7, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANT KYEONG-HEE ALEXANDER KIM, M.D.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

Background

Plaintiff Miss Jennifer L. Jackson, in pro per (“Plaintiff”) filed this action on February 25, 2022 against Defendant Dr. Kyeong-Hee Alex Kim. Plaintiff’s original Complaint alleges one cause of action for medical malpractice.

Defendant Kyeong-Hee Alexander Kim, M.D., erroneously sued and served as Dr. Kyeong-Hee Alex Kim (“Defendant”) demurred to the cause of action for medical malpractice alleged in the Complaint. On May 24, 2022, the Honorable Serena R. Murillo of Department 29 issued an Order sustaining Defendant’s demurrer with sixty days leave to amend. (See May 24, 2022 Minute Order.)

On July 13, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) asserting one cause of action for medical malpractice.

On November 3, 2022, Department 29 issued a minute order providing, inter alia, that “[a]t the direction of Department 1, this case is hereby ordered reassigned and transferred to the Central District, the Honorable JUDGE TERESA BEAUDET presiding in Department 50 of the Stanley Mosk Courthouse, for all purposes except trial.”

Defendant now demurs to the sole cause of action for medical malpractice alleged in the FAC. Plaintiff filed a document titled “Objection to Dr. Kyeong-Hee Alex Kim, Second Demurrer.”

Discussion

A. Legal Standard

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.)¿

B. Allegations of the FAC

In the FAC, Plaintiff asserts one cause of action for “medical malpractice.” Plaintiff alleges that “[p]rior to the medically necessary breast reduction surgery Dr. Kim did on me, 10/8/2021, right before taking me into surgery he explained” that a letter from Medical Director “Richard Sohn” stated that “he did not get the authorization to cut the…excess skin/fat on either side of [Plaintiff’s] breast...” (FAC, ¶¶ 11(g), 12(b).) Plaintiff alleges that “Dr Kim went against the Medical Directors advice and cut the excess fat/skin on both sides of [Plaintiff’s] breast anyway. He cut the excess skin leaving long scars…” (FAC, ¶ 12(b).) Plaintiff alleges that “[b]ecause he did not follow procedure Im scared [sic] for life.” (Ibid.) Plaintiff also alleges that the breast size is wrong, and that the pain in her shoulder is worse. (Ibid.)

C. Cause of Action for Medical Malpractice

As noted in the May 24, 2022 Order on Defendant’s demurrer to the original Complaint,

“[t]he 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.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2 [internal quotations omitted].)

Defendant asserts that Plaintiff does not allege the foregoing elements. The Court agrees that Plaintiff has still not sufficiently laid out all of the elements of a medical malpractice cause of action. As set forth above, Plaintiff alleges that “Dr Kim went against the Medical Directors advice and cut the excess fat/skin on both sides of [Plaintiff’s] breast anyway. He cut the excess skin leaving long scars…” (FAC, ¶ 12(b).) However, Plaintiff still fails to specify Defendant’s duty and allege that Defendant breached such duty. As Defendant notes, nowhere in the FAC does Plaintiff allege that Defendant breached the standard or care with respect to the surgery.

Plaintiff filed an “objection” to the demurrer. However, no proof of service was filed with the objection. Defendant’s counsel indicates that she was not served with Plaintiff’s objection, and that “[o]n October 26, 2022, the due date for Dr. Kim’s Reply, [she] caused to be checked the Court website and was informed that Plaintiff filed her Opposition with the Court on October 19, 2022. The Opposition was downloaded from the Court website.” (Hughes Decl., ¶ 3.) Defendant thus requests that the Court disregard Plaintiff’s objection.

The Court notes that on October 31, 2022, Plaintiff filed a proof of service which appears to reference “Response to Second Demurrer.” It is unclear whether this pertains to Plaintiff’s objection to the instant demurrer. Because Defendant was able to obtain a copy of the objection and filed a substantive reply in support of the demurrer,¿the Court elects to exercise its discretion ¿to consider the “objection.” (Cal. Rules of Court, rule 3.1300,¿subd. (d).)

As Defendant notes, Plaintiff’s objection does not address the issues raised in Defendant’s demurrer.

Conclusion

For the foregoing reasons, the Court sustains Defendant’s demurrer to the sole cause of action for medical malpractice in the FAC.

As set forth above, Department 29 sustained Defendant’s demurrer as to the medical malpractice cause of action in the original Complaint (as set forth in the May 24, 2022 Order). Plaintiff has again failed to state facts sufficient to constitute a cause of action for medical malpractice in the FAC. In addition, Plaintiff has not demonstrated any way that she could amend this cause of action to alleviate the problems discussed above. Accordingly, the Court finds that it is appropriate to sustain the instant demurrer without leave to amend.

The Court orders Defendant to file and serve a proposed judgment of dismissal within 30 days of the date of this order. (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 186 [“An order sustaining a demurrer without leave to amend is not a final judgment; a judgment of dismissal follows such an order as a matter of course.”].)

Defendant is ordered to give notice of this Order.¿

DATED: April 7, 2023 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court