Judge Upinder S. Kalra, Case Number: 24STCV12707, Date: 2025-03-07 Tentative Ruling

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CASE NAME: Eli Edmond Berchan, et al. v. County of Los Angeles LAC + USC Medical Center, et al.

Plaintiffs Eli Edmond Berchan and Stephanie Barakeh Berchan (collectively, “Plaintiffs”) filed the complaint on May 20, 2024, against Defendants County of Los Angeles, LAC+USC Medical Center, Daniel Hyung Cho, M.D., Amy Mei-Chun Yeh, M.D., (collectively, “Defendants”) and Does 1 through 100 for injuries arising out of the delivery of Plaintiffs' late infant son, Gabriel Eli Berchan.

Plaintiffs' Complaint is founded on Negligence with three causes of action against all Defendants for: (1) Medical Malpractice on behalf of all Plaintiffs; (2) Negligent Infliction of Emotional Distress on behalf of all Plaintiffs; and (3) Wrongful Death on behalf of all Plaintiffs.

On December 9, 2024, Defendants Amy Mei-Chun Yeh, M.D. and Daniel Hyung Cho, M.D. (“Moving Party”) filed the instant demurrer for failure to state sufficient facts to support the first and second cause of action. Defendant also raise issues with other procedural defects to the pleading.

Code of Civil Procedure section 430.10 provides in part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: * * * “(e) The pleading does not state facts sufficient to constitute a cause of action. “(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. . . .” (Code Civ. Proc., § 430.10, subds. (e), (f).)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (See Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].)

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).” (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).) "A demurrer may be filed to one of several causes of action in the complaint, without answering the other causes of action." (Cal. Practice Guide, supra, ¶ 7:34.1, p. 7(l)-19.)

California Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).) . . . (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 430.41, subd. (a)(3).)

Moving Party’s Counsel filed a declaration stating that she met and conferred telephonically with each Plaintiff on October 18, 2024. (Cho Decl. ¶3.) Thus, the meet and confer requirements are satisfied.

The Court notes that on the first page of the complaint in the address line, Plaintiff Eli Edmond Berchan purports to be acting as an attorney for himself and co-Plaintiff Stephanie Barakeh Berchan’s. (“Attorney In Pro Per for Plaintiffs Eli Edmond Berchan and Stephanie Barakeh Berchan. (Complaint at p.1.).) “The State Bar Act . . . prohibits the practice of law by anyone who is not an active member of the State Bar. (Bus. & Prof. Code, § 6000- 6087.) Since the passage of this act, the general rule has been that “while any person may represent himself, and his own interests, at law and in legal proceedings: ‘No person shall practice law [for another] in this State unless he is an active member of the state bar.” (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965.) However, Plaintiff Stephanie Barakeh Berchan signed the complaint as a Plaintiff in pro per. Accordingly, the court will disregard the portion of the complaint in the heading where Plaintiff Eli Edmond Berchan purports to represent Plaintiff Stephanie Barakeh and proceed to analyze the merits of the Demurrer. To be clear, Plaintiff Eli Edmond Berchan may represent his own interests in pro per, but may not represent Plaintiff Stephanie Barakeh Berchan.[1]

Government Code sections 912.4 and 945.4 require “(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced:

(1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.”¿

(2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action. If the period within which the public entity is required to act is extended pursuant to subdivision (b) of Section 912.4, the period of such extension is not part of the time limited for the commencement of the action under this paragraph. … .”

(Gov. Code § 945.6.¿subd. (a).) Here, the Complaint fails to include any statement regarding Plaintiffs’ compliance with the Government Code as they are suing a public entity, Los Angeles County.

Accordingly, due to the Complaint’s defects, the Court will SUSTAIN WITH LEAVE TO AMEND the demurrer as to both Plaintiffs.

However, for the sake of completeness, the Court will also analyze the merits of the motion as to Eli Edmond Berchan.

The Court will SUSTAIN WITH LEAVE TO AMEND the demurrer. Plaintiffs are ordered to file an amended complaint within 30 days of this order.

[1]Additionally, Plaintiffs’ Complaint fails to comply with other statutory requirements such as California Rules of Court, Rule 2.111 and Government Code sections 912.4 and 945.4. California Rules of Court, Rule 2.111 states “(1) In the space commencing 1 inch from the top of the page with line 1, to the left of the center of the page, the name, office address or, if none, residence address or mailing address (if different), telephone number, fax number and e-mail address, and State Bar membership number of the attorney for the party in whose behalf the paper is presented, or of the party if he or she is appearing in person. . .” (Cal. Rule of Ct. Rule 2.111 (1).) Here, Plaintiff Stephanie Barakeh Berchan’s information is missing except for her name. (See Complaint at p.1.)