Case Name: Dorothy Jacquet v. Kisuk Cho, M.D.
Case No.: 18CV327296

I. Background

This is a medical malpractice lawsuit brought by plaintiff Dorothy Jacquet (“Plaintiff”) against her physician, defendant Kisuk Cho, M.D. (“Defendant”). Plaintiff alleges Defendant improperly prescribed Metformin, a medicine used by diabetics to control their blood sugar, to help her lose weight. She claims she is not diabetic and experienced low blood sugar, dizziness, and faintness while driving her car as a result of taking this medicine. She alleges these side effects were particularly problematic because she has a heart murmur and seeks $350,000 in damages.

Currently before the Court is Defendant’s demurrer to the first amended complaint (“FAC”) on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action, which is accompanied by a request for judicial notice.

II. Request for Judicial Notice

Defendant requests judicial notice of the FAC. The Court may take judicial notice of the FAC because it is a court record. (Evid. Code, § 452, subd. (d).) With that said, it is unnecessary to do so because it is the pleading under review and, as such, must necessarily be considered by the Court. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Defendant’s request for judicial notice is therefore DENIED.

III. Demurrer

Defendant first demurs to the FAC on the ground of uncertainty. A demurrer on that ground tests whether the allegations in the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-46.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.)

Here, Defendant does not actually argue the FAC is so incomprehensible he cannot reasonably respond. Indeed, he appears to recognize Plaintiff is alleging medical negligence. Instead, he asserts Plaintiff does not allege specific facts to support her medical negligence claim, such as “when she stopped treating, what her treatment was, what injuries she incurred, [and] when she first incurred/suffered these injuries. . . .” (Mem. of Pts. & Auth. at p. 3:15-19.) This argument does not justify sustaining the demurrer on the ground of uncertainty because it concerns the failure to plead particular facts and not any uncertainty in the allegations actually pleaded. Consequently, the demurrer to the FAC on the ground of uncertainty is OVERRULED.

Defendant also demurs to the FAC on the ground of failure to state facts sufficient to constitute a cause of action. In support, he incorporates the argument advanced in support of his demurrer on the ground of uncertainty. Defendant’s argument is not persuasive for two reasons. First, he does not cite any legal authority to support the conclusion that the facts he identifies must be pleaded to state a negligence claim. Second, the list of facts he identifies as missing from the pleading is inaccurate. Contrary to Defendant’s assertion, Plaintiff does allege what treatment she received, when she suffered the dizzy spell, the follow-up care she received thereafter, and even the amount of damages she is claiming. (See FAC at pp. 1-2.) Accordingly, Defendant’s argument lacks merit.

In reaching this conclusion, the Court rejects Defendant’s suggestion, although not clearly articulated by him, that Plaintiff’s claim is defective because she does not use labels or legal terminology.

A complaint must simply “contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’” (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) “The existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom.” (Ibid. [internal quotation marks and citations omitted].)

As the California Supreme Court has explained “[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Thus, for purposes of a demurrer, a court does not focus on the labels or legal terminology used in the pleading, “but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.” (Id. at pp. 38-39, original italics.)

Here, the fact Plaintiff does not use legal jargon or label her claim is not material to the resolution of the demurrer. Rather, the issue properly before the Court is simply whether she pleads facts sufficient to state a claim. Defendant does not demonstrate Plaintiff fails to plead the essential elements of a claim for medical negligence (or any other claim), and so the demurrer is not sustainable on that basis.

Defendant also argues the “complaint may be time[-]barred.” (Mem. of Pts. & Auth. at p. 3:27.) Although not especially clear, it appears Defendant may be proceeding as though the expiration of the statute of limitations is a separate statutory ground for demurrer because he lists it separately in his notice and demurrer and treats it as though it is separate and distinct in his memorandum of points and authorities. The statutory grounds for demurrer are set forth in Code of Civil Procedure section 430.10 and “differ from the reasons for sustaining a demurrer on a particular ground.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) The expiration of the statute of limitations is not a ground for demurrer. (See Code Civ. Proc., § 430.10.) Rather, a party may demur on the ground of failure to state facts sufficient to constitute a cause of action if “‘the complaint shows on its face that the statute [of limitations] bars the action.’ [Citation.]” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)

Turning to the merits of Defendant’s argument, it suffers from a significant flaw. Defendant argues only that this action may be time-barred. But “‘it is not enough that the complaint shows merely that the action may be barred.’ [Citation.]” (E-Fab, Inc., supra, 153 Cal.App.4th at pp. 1315-16.) “‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint.’ [Citation.]” (Ibid.) Defendant does not argue the action is clearly and affirmatively time-barred based on the allegations on the face of the FAC. Instead, he asserts it is “impossible to ascertain” when Plaintiff’s claim accrued because she does not plead specific dates. (Mem. of Pts. & Auth. at p. 4:2-11.) “While a demurrer based on [the] statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no [basis] for [sustaining] a [ ] demurrer.” (United Western Medical Centers v. Super. Ct. (1996) 42 Cal.App.4th 500, 505.) Accordingly, Defendant’s argument lacks merit.

Defendant’s argument is also inaccurate. While he asserts no dates are pleaded, Plaintiff specifically alleges she had a dizzy spell on October 18, 2017 and attaches to the FAC medical records from her trip to the emergency room that same day.

For these reasons, Defendant’s statute of limitations argument does not justify sustaining the demurrer.

Finally, Defendant also argues there is evidence showing Plaintiff did not provide notice of her intent to sue in conformity with Code of Civil Procedure section 364, which states “[n]o action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” For purposes of a demurrer, the defect must be apparent from the face of the pleading or matters subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A court cannot consider evidence. (E-Fab, Inc., supra, 153 Cal.App.4th at p. 1315.) Thus, the Court cannot consider the statement by Defendant’s counsel that he never received notice. Otherwise, Defendant does not present authority to support the proposition that a plaintiff must plead compliance with the statute. And in any event, even if he had, he does not address the email attached to the FAC that appears, perhaps, to be a notice of the claim. The demurrer, thus, is not sustainable on this basis.

Based on the foregoing, the demurrer to the FAC on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.