Case Number: BC677353 Hearing Date: May 30, 2018 Dept: O

Castro, et al. v. Dhaliwal, et al. (BC677353)

Defendants Dhaliwal, and Femcare Medical Associates of Inland Valley, Inc.’s DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

Respondent: Plaintiffs Kevin Castro Jr., Kevin Castro, and Arroyo

TENTATIVE RULING

Defendants Dhaliwal, and Femcare Medical Associates of Inland Valley, Inc.’s demurrer to plaintiff’s first amended complaint is OVERRULED. Defendants are ordered to file and serve their Answers within 10 days.

Defendants Dhaliwal and Femcare Medical Associates of Inland Valley, Inc. (“Femcare”) demur to all causes of action on the ground that they fail to state facts sufficient to constitute a cause of action.

FEMCARE

Defendant Femcare contends that the claims against it are defective because it is an artificial entity that is prohibited from practicing medicine.

However, a medical group employing doctors may be liable under vicarious liability. (Lathrop v. Healthcare Partners (2004) 114 Cal.App.4th 1412.)

Par. 11 specifically alleges that all Defendants are the “agents, ostensible agents, servants, employees, joint venturers and co-partners of their said co-Defendants.”

While Moore v. Regents of University of California (1990) 51 Cal.3d 120 criticized boilerplate allegations of agency in its footnote, it did not expressly address the issue of the corporation’s “secondary liability” under Plaintiff’s agency theory because the issue was remanded.

Demurrer is OVERRULED.

1st – 2nd CAUSES OF ACTION

UNCERTAINTY:

Demurrer on grounds of uncertainty will not be sustained unless the complaint is so bad that the defendant cannot reasonably respond. (Koury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

The court finds the complaint is not so uncertain that Defendants cannot reasonably respond. Defendants may conduct discovery to obtain specific facts regarding each Defendant’s omissions/Negligence. Demurrer on this ground is OVERRULED.

3rd
CAUSE OF ACTION

NIED
by the minor’s
mother, Arroyo:

While
it is true that NIED is not a cause of action, but the tort of Negligence,
Plaintiffs may allege NIED as a count under the 1st and 2nd
causes of action. As such, the Clerk is
ordered to strike lines 6:19-25 by interlineation. As amended, demurrer is OVERRULED.

4th
CAUSE OF ACTION

NIED by
the minor’s
father, Castro Sr.:

In the absence of physical injury or impact to the
Plaintiff himself, damages for emotional distress should be recoverable only if
the Plaintiff: 1) is closely related to the injury victim; 2) is present at the
scene of the injury-producing event at the time it occurs and is then aware
that it is causing injury to the victim; and 3) suffers emotional distress.
(Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) Someone who hears an accident
but does not then know it is causing injury to a relative does not have a
viable bystander claim for NIED, even if the missing knowledge is acquired
moments later. (Ra v. Superior Court (2007) 154 Cal.App.4th 142, 149.)

Par.
38 alleges that Castro Sr. was present before, during and following the birth
of minor Plaintiff, and observed and witnessed, through his own sensory
perceptions, the negligent conduct and omissions of Defendants, and perceived
that said negligence was causing damages to his wife and Castro Jr. The court finds that the allegations
sufficiently allege Castro Sr.’s contemporaneous awareness of the injury-producing
event. Demurrer is OVERRULED.