Case Number: 18STCV02801 Hearing Date: March 25, 2019 Dept: 4A

Demurrer and Motion to Strike of Defendant Sanjeev Seth, M.D.

The court considered the demurring and moving papers. No opposition was filed.

BACKGROUND

On October 30, 2018, plaintiff Alder Barbarossa (“Plaintiff”) filed a complaint against defendants St. John’s Health Center, Timothy G. Wilson, M.D., and Sanjeev K. Seth, M.D. (“Defendants”) alleging medical malpractice arising from a racical robotic prostactomy that was performed on July 21, 2017.

Trial is set for April 28, 2020.

PARTY’S REQUESTS

Defendant Sanjeev K. Seth, M.D. (“Moving Defendant”) requests this court to sustain its demurrer: (1) to Plaintiff’s complaint in its entirety on the ground that the complaint is uncertain, vague and fails to state facts sufficient to constitute a cause of action. Moving Defendant requests this court to grant its motion without leave to amend.

In the alternative, Moving Defendant requests this court to strike the following from the complaint: page 9, lines 9-11; page 9, lines 14-20; page 10, lines 7-9.

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.) 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, 147 Cal.App.4th at 747.)

“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (citation omitted).)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

California Code of Civil Procedure section 435.5 requires that, before filing a motion to strike, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5, subd. (a)(2).) The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 435.5, subd. (a)(3).)

DISCUSSION

Demurrer

A cause of action for medical malpractice requires a plaintiff to prove: “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) 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 negligence [citations].” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 611-612 (emphasis, quotations, and citations omitted.)

Plaintiff’s first cause of action is for negligence. Plaintiff’s second cause of action is unnamed. Plaintiff’s refers to medical malpractice throughout his complaint.

Plaintiff alleged that Moving Defendant owed a duty of care to Plaintiff because Plaintiff was Moving Defendant’s patient. (Compl., p. 4:8-4:10.)

Plaintiff alleges that “CATHERE REMOVED FROM PLAINTIFF’S BODY, PLAINTIFF COMPLAIND AGAING FOR SWOLLEN LOVER LEFT LEG AND ANKLE SWOHED TO TIMOTHY G. WILSON DREFENDANT DISMISSED PLAINTIFF’S COMPLAINT.” (Compl., p. 6:19-6:21.) Plaintiff also alleged that “DEFENDANT SANJEEV K SETH MD. PERFORMED ILLEGAL DRUG TEST WITHOUT PLAINTIFF’S PERMISSION.” (Compl., p. 6:25-6:26.) The court therefore finds Plaintiff sufficiently alleged breach.

Plaintiff stated “AS A FURTHER DIRECT AND LEGAL RESULT OF THE FORESAID NEGLIGENCECARLESSNESS AND LYING OF DEFENDANTS, AND EACH OF THEM, PLAINTIFF ADLER BARBAROSSA SUFFERED PHYSICAL INJURY, INCLUDING BUT NOT LIMITED TO SEVERE NEUROLOGICAL DAMAGE.” The court finds this allegation to be sufficient for causation and damages.

Accordingly, Moving Defendant’s demurrer is OVERRULED.

Motion to Strike

The court finds that Moving Defendant met and conferred with Plaintiff prior to filing this motion to strike. (See Okamura Decl., ¶ 2.)

The first set of verbiage sought to be stricken reads as follows: “AS A FURTHER, DIRECT AND LEGAL RESULT OF SAID NEGLIGENCE, CARELESSNESS AND UNSKILLFULL OF THE DEFENDANTS, AND EACH OF THEM, PLAINTIFF WOULD BE ENTITLED TO PREJUDMENT INTERES UNDER THE CODE OF CIVIL PROCEDURE&998 AND &3291.” (Compl., p. 9:6-9:8.)

An award of prejudgment interest is warranted only after a certainty of the amount can be proven when the defendant knows the amount owed or the defendant would be able to compute the damages. (See Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 911.) Plaintiff has not properly plead an amount of prejudgment interest to a certainty. Plaintiff does not state that he can plead such an amount to a certainty. Accordingly, this verbiage is stricken along with Plaintiff’s prayer for prejudgment interest.

The second set of verbiage sought to be stricken reads as follows: “INCLUDING PLINTIFF ADLER BARBAROSSA VS. DEFENDANTS AND EACH OF THEIR ACTIONS MALICIOUS, OPPRESSIVE AND/RECKLESS.

ACTIONA TAKEN BY DEFENDANTS; TIMOTHY G. WILSON, SANJEEV K. SETH AND ST. JOHN’S HOSPITAL, AND EACH OF THEM, AS SET FORTH HEREINABOVE, WERE IN ALL RESPECTS MALICIOUS, OPPRESSIVE, DISPICABLE, RECKLESS AND MANIFESTED A CONNSCIOUS DISREGAR OR CONTEMPT FOR THE LIFE AND RIGTHS OF PLAINTIFF ADLER BARBAROSSA.

PLAINTIFF IS THEREBY ENTITLED TO AND AWARD OF HEIGHTENED DAMAGES, INCLUDING ATTORNEY FEES, ACCORDING TO PROOF AT TRIAL.” (Compl., p. 9:11-9:17.)

Attorney’s fees are recoverable only when authorized by contract, statute, or law. (Code Civ. Proc. § 1033.5, subd. (a)(10).) Punitive damages can be awarded “. . . where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. . . .” (Civil Code § 3294, subd. (a).) Plaintiff only implies in a conclusory fashion that he is entitled to punitive damages. It follows that Plaintiff has not sufficiently plead for such damages. Accordingly, this language is stricken.

CONCLUSION

Moving Defendant’s demurrer is OVERRULED.

Moving Defendant’s motion to strike is GRANTED.

The following language is ordered as stricken:

“AS A FURTHER, DIRECT AND LEGAL RESULT OF SAID NEGLIGENCE, CARELESSNESS AND UNSKILLFULL OF THE DEFENDANTS, AND EACH OF THEM, PLAINTIFF WOULD BE ENTITLED TO PREJUDMENT INTERES UNDER THE CODE OF CIVIL PROCEDURE&998 AND &3291.” (Compl., p. 9:6-9:8.)

“LEGAL INTEREST ON JUDGMENT FROM THE DATE FILING OF THIS COMPLAINT TO THE DATE OF JUDGMENT” (Compl., p. 9:24-9:25.)

“INCLUDING PLINTIFF ADLER BARBAROSSA VS. DEFENDANTS AND EACH OF THEIR ACTIONS MALICIOUS, OPPRESSIVE AND/RECKLESS.

ACTIONA TAKEN BY DEFENDANTS; TIMOTHY G. WILSON, SANJEEV K. SETH AND ST. JOHN’S HOSPITAL, AND EACH OF THEM, AS SET FORTH HEREINABOVE, WERE IN ALL RESPECTS MALICIOUS, OPPRESSIVE, DISPICABLE, RECKLESS AND MANIFESTED A CONNSCIOUS DISREGAR OR CONTEMPT FOR THE LIFE AND RIGTHS OF PLAINTIFF ADLER BARBAROSSA.

PLAINTIFF IS THEREBY ENTITLED TO AND AWARD OF HEIGHTENED DAMAGES, INCLUDING ATTORNEY FEES, ACCORDING TO PROOF AT TRIAL.” (Compl., p. 9:11-9:17.)

“LEGAL INTEREST ON JUDMENT” (Compl., p. 10:4.)

“ATTORNEY S’FEES” (Compl., p 10:5.)

Moving Defendant is ordered to give notice.

Demurrer and Motion to Strike of Defendant Providence St. John’s Health Center

The court considered the demurring and moving papers. No opposition was filed.

BACKGROUND

On October 30, 2018, plaintiff Alder Barbarossa (“Plaintiff”) filed a complaint against defendants St. John’s Health Center, Timothy G. Wilson, M.D., and Sanjeev K. Seth, M.D. (“Defendants”) alleging medical malpractice arising from a racical robotic prostactomy that was performed on July 21, 2017.

Trial is set for April 28, 2020.

PARTY’S REQUESTS

Defendant Providence Saint John’s Health Center (“Moving Defendant”) requests this court to sustain its demurrer: (1) Plaintiff fails to state a cause of action against Moving Defendant, (2) Plaintiff’s complaint is barred by the statute of limitations, (3) Plaintiff’s complaint is uncertain, (4) Plaintiff failed to plead ratification as required by Welfare and Institutions Code section 15657 and Civil Code section 3294.

In the alternative, Moving Defendant requests this court to strike the following from the complaint: page 9, lines 9-11; page 9, lines 14-20; page 10, lines 7-9.

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.) 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, 147 Cal.App.4th at 747.)

“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (citation omitted).)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

California Code of Civil Procedure section 435.5 requires that, before filing a motion to strike, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5, subd. (a)(2).) The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 435.5, subd. (a)(3).)

DISCUSSION

Demurrer

A cause of action for medical malpractice requires a plaintiff to prove: “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) 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 negligence [citations].” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 611-612 (emphasis, quotations, and citations omitted.)

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Cal. Code Civ. Proc. § 340.5.)

Plaintiff stated he was unable to urinate and had swollen testicles as a result of the July 21, 2017 operation. (Compl., p. 5:22-5:23.) Plaintiff complained of excessive body fluid leakage from surgery wounds, swollen testicles, and a swollen lower left leg and ankle on July 26, 2017. (Compl., p. 6:1-6:5.)

These facts indicate Plaintiff knew of his injuries from the surgical operation as early as July 26, 2017. Even if Plaintiff did not know of these injuries at that time, through the use of reasonable diligence, Plaintiff would have discovered the injury. As such, Plaintiff’s complaint is barred by the statute of limitations.

Moving Defendant’s demurrer is GRANTED with 20 days’ leave to amend.

Motion to Strike

The court DENIES Moving Defendant’s motion to strike as it is MOOT.

CONCLUSION

Moving Defendant’s demurrer is SUSTAINED with 20 days’ leave to amend.

Moving Defendant’s motion to strike is DENIED as MOOT.

Moving Defendant is ordered to give notice

Demurrer and Motion to Strike of Defendant Providence St. John’s Health Center

The court considered the demurring and moving papers. No opposition was filed.

BACKGROUND

On October 30, 2018, plaintiff Alder Barbarossa (“Plaintiff”) filed a complaint against defendants St. John’s Health Center, Timothy G. Wilson, M.D., and Sanjeev K. Seth, M.D. (“Defendants”) alleging medical malpractice arising from a racical robotic prostactomy that was performed on July 21, 2017.

Trial is set for April 28, 2020.

PARTY’S REQUESTS

Defendant Providence Saint John’s Health Center (“Moving Defendant”) requests this court to sustain its demurrer: (1) Plaintiff fails to state a cause of action against Moving Defendant, (2) Plaintiff’s complaint is barred by the statute of limitations, (3) Plaintiff’s complaint is uncertain, (4) Plaintiff failed to plead ratification as required by Welfare and Institutions Code section 15657 and Civil Code section 3294.

In the alternative, Moving Defendant requests this court to strike the following from the complaint: page 9, lines 9-11; page 9, lines 14-20; page 10, lines 7-9.

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.) 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, 147 Cal.App.4th at 747.)

“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (citation omitted).)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

California Code of Civil Procedure section 435.5 requires that, before filing a motion to strike, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5, subd. (a)(2).) The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 435.5, subd. (a)(3).)

DISCUSSION

Demurrer

A cause of action for medical malpractice requires a plaintiff to prove: “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) 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 negligence [citations].” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 611-612 (emphasis, quotations, and citations omitted.)

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Cal. Code Civ. Proc. § 340.5.)

Plaintiff stated he was unable to urinate and had swollen testicles as a result of the July 21, 2017 operation. (Compl., p. 5:22-5:23.) Plaintiff complained of excessive body fluid leakage from surgery wounds, swollen testicles, and a swollen lower left leg and ankle on July 26, 2017. (Compl., p. 6:1-6:5.)

These facts indicate Plaintiff knew of his injuries from the surgical operation as early as July 26, 2017. Even if Plaintiff did not know of these injuries at that time, through the use of reasonable diligence, Plaintiff would have discovered the injury. As such, Plaintiff’s complaint appears to be barred by the statute of limitations, with no exception pled.

Moving Defendant’s demurrer is GRANTED with 20 days’ leave to amend.

Motion to Strike

The court DENIES Moving Defendant’s motion to strike as it is MOOT.

CONCLUSION

Moving Defendant’s demurrer is SUSTAINED with 20 days’ leave to amend.

Moving Defendant’s motion to strike is DENIED as MOOT.

Moving Defendant is ordered to give notice