Case No. 18CV322240
Sydney Berard-Moore et al vs Dignity Health et al

I. Background

This is a medical malpractice action brought by plaintiff Sydney Berard-Moore (“Plaintiff”) against defendants Dignity Health dba Dominican Hospital (“Dignity Health”), Palo Alto Medical Foundation, Sutter Health (Sutter Health Medical Foundation), Physicians Medical Group of San Jose, Anesthesia Medical Group of Santa Cruz, John R. Saranto, M.D., and Lisa Ferguson, M.D. (collectively, “Defendants”).

According to the allegations in the second amended complaint (“SAC”), Plaintiff underwent an appendectomy on December 25, 2016. (SAC, ¶ 10.2.) On or about January 21, 2017, Plaintiff experienced symptoms of abdominal and pelvic pain, nausea, and vomiting. (SAC, ¶¶ 10.8-10.10.) The next day, she went to the emergency room on two separate occasions; during the second visit, she was diagnosed with “abdominal pain, bowel obstruction, urinary tract infection, gastroenteritis, colitis, [and] mesenteric adenitis.” (SAC, ¶¶ 10.13, 10.16.) Several days later, Plaintiff underwent surgery; the surgeon had to remove her small intestine and ten inches of her colon after finding a residual staple in her colon. (SAC, ¶¶ 10.17, 11.)

Based on the foregoing allegations, Plaintiff asserts a single cause of action for medical malpractice. (SAC, Cover Sheet.) Dignity Health filed an answer to the SAC, generally denying each and every allegation and asserting eighteen affirmative defenses.

Currently before the Court is Plaintiff’s demurrer to Dignity Health’s answer. Dignity Health opposes the demurrer.

II. Merits of Demurrer

Plaintiff demurs to the first through eighteenth affirmative defenses on the ground of failure to state facts sufficient to constitute a defense. (See Code Civ. Proc., § 430.20, subd. (a).) Plaintiff additionally demurs to the seventeenth affirmative defense on the ground of uncertainty. (See Code Civ. Proc., § 430.20, subd. (b).)

A. Uncertainty re: Seventeenth Affirmative Defense

The seventeenth affirmative defense alleges Plaintiff’s cause of action is barred by Civil Code section 1714.8 because “the damages and losses incurred by Plaintiffs and/or Plaintiffs’ decedent were the result of and/or caused by the natural course of a disease or condition of Plaintiff’s decedent….” (Answer, p. 6.) Plaintiff asserts the seventeenth affirmative defense is uncertain because “Plaintiff had no alleged decedent.” (Demurrer, ¶ 17.)

Demurrers for uncertainty are disfavored and will be sustained only where the allegations of the pleading are so unintelligible the opposing party cannot reasonably respond. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) While the reference to “Plaintiff’s decedent” in the seventeenth affirmative defense is anomalous, this apparent drafting error does not render the defense unintelligible on the whole.

Accordingly, the demurrer to the seventeenth affirmative defense on the ground of uncertainty is OVERRULED.

B. Failure to State Sufficient Facts re: First through Eighteenth Affirmative Defenses

Plaintiff argues Dignity Health’s affirmative defenses are “boilerplate legal conclusions” and lack supporting facts to constitute affirmative defenses. (Memo. of Pts. & Auth ISO Dem., pp. 1-2.) In opposition, Dignity Health argues it “is not required to plead all facts in support of its affirmative defenses” and is only required to “apprise Plaintiff of the basis of the defense.” (Opp., at p. 4.)

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).)

An affirmative defense must include “a statement of any new matter constituting a defense.” (Code Civ. Proc., § 431.30, subd. (b)(2).) Generally, any issue where the defendant bears the burden of proof at trial is new matter and must be pleaded in the answer. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.) Affirmative defenses proffered “in the form of terse legal conclusions, rather than as facts averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint” are insufficient to survive a demurrer. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 internal quotes omitted.)

1. First Affirmative Defense

The first affirmative defense alleges that every cause of action in the SAC fails to state a claim. (Answer, p. 2.) Plaintiff argues in a conclusory manner in her supporting memorandum that the Court should sustain its demurrer to this defense because Dignity Health does not allege supporting facts. For the first time on reply, Plaintiff adds that the defense “does not indicate what elements –if any-are missing from the one cause of action for negligence[.]” (Reply, p. 3.)

The first affirmative defense is, in essence, a challenge to the legal sufficiency of the SAC. Code of Civil Procedure section 430.10, subdivision (e) specifically allows this objection to be raised in an answer as well as a demurrer. (Code Civ. Proc., § 430.10, subd. (e); see also Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 [a general demurrer tests legal sufficiency of pleading].) Given the objection of failure to state a claim is a legal challenge as opposed to a fact-based defense, there is no basis for concluding that any facts need to be pled in support. Furthermore, to the extent Plaintiff is suggesting that Dignity Health must allege arguments it might advance in the future to substantiate the objection, she cites no legal authority supporting the proposition that such arguments must be affirmatively alleged in an answer.

Thus, the demurrer to the first affirmative defense on the ground of failure to state facts sufficient to constitute a defense is OVERRULED.

2. Second Affirmative Defense

The second affirmative defense alleges Plaintiff’s claim is barred by various statutes of limitations. (Answer, p. 2.) Plaintiff’s conclusory argument that this defense fails to assert facts upon which it is based is fundamentally flawed. Code of Civil Procedure section 458 explicitly states that, “[i]n pleading the statute of limitations, it is not necessary to state the facts showing the defense[.]” Instead, “it may be stated generally that the cause of action is barred by the provisions of Section ___ (giving the number of the section and subdivision thereof, if it is so divided, relied upon).” (Code Civ. Proc., § 458; see also Brown v. World Church (1969) 272 Cal.App.2d 684, 691.) Since Plaintiff does not argue any failure to comply with section 458, her demurrer is unsubstantiated.

Therefore, the demurrer to the second affirmative defense on the ground of failure to allege facts sufficient to constitute a defense is OVERRULED.

3. Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Thirteenth, Fourteenth, and Sixteenth Affirmative Defenses

Plaintiff argues the fourth affirmative defense of comparative negligence, fifth affirmative defense of negligence of third parties, sixth affirmative defense of assumption of risk, seventh affirmative defense of consent/ratification, eighth affirmative defense of mitigation, ninth affirmative defense of justification, tenth affirmative defense of waiver, thirteenth affirmative defense of estoppel, fourteenth affirmative defense of unclean hands, and sixteenth affirmative defense of superseding/intervening cause fail to allege any supporting facts as required.

Plaintiff’s argument is well-taken. The subject defenses are each pled in conclusory terms with no supporting factual allegations.

For example, Dignity Health alleges in the thirteenth affirmative defense that Plaintiff is estopped from maintaining this action “because of their conduct.” (Answer, p. 5.) Dignity Health does not provide any facts supporting that legal conclusion, such as the particular conduct purportedly giving rise to estoppel. As another example, Dignity Health alleges in the sixteenth affirmative defense that it is entitled to a set-off. (Answer, p. 5.) The affirmative defense of set-off requires “cross-demands for money [to] have existed between persons at any point in time when neither demand was barred by the statute of limitations.” (Code Civ. Proc., § 431.70.) The sixteenth affirmative defense does not identify any cross-demands for money that existed between the parties at any point in time. Indeed, Dignity Health alleges this defense in a speculative manner, averring a set-off is warranted “to the extent that a certain sum has been or will be paid to Plaintiffs…” (Answer, p. 5.) As a final example, in its tenth affirmative defense, Dignity Health alleges Plaintiff “expressly or impliedly waived and abandoned any and all claims as alleged herein against this answering Defendant.” (Answer, p. 4.) “Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations.]” (Florence Western Medical Clinic v. Bonta (2000) 77 Cal.App.4th 493, 504.) Dignity Health alleges no facts demonstrating Plaintiff intentionally relinquished any known right.

The other affirmative defenses at issue suffer from similar deficiencies. As pleaded, the affirmative defenses at issue are mere legal conclusions and lack the factual basis required to state an affirmative defense.

Accordingly, the demurrer to the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, and sixteenth affirmative defenses on the ground of failure to allege facts sufficient to constitute a defense is SUSTAINED with 10 days’ leave to amend.

5. Third, Twelfth, Fifteenth, and Seventeenth Affirmative Defenses

Dignity Health’s third, twelfth, fifteenth, and seventeenth affirmative defenses are all predicated on statutory matters.

The third affirmative defense labeled “Proposition 51” asserts that Dignity Health “is entitled to the benefits, defenses, rights, immunities, protections and privileges provided under the Fair Responsibility Act of 1986, as set forth in California Civil Code [sections] 1431.1, 1431.2, et seq.” (Answer, p. 2.)

Next, in the twelfth affirmative defense, Dignity Health preliminarily alleges that Plaintiff’s rights are limited and it “will exercise its rights under and seek all benefits to, the provisions of Medical Injury Compensation Reform Act (MICRA)…” (Answer, p. 4.) Dignity Health goes on to allege that it therefore states defenses related to damages assessments; for example, Dignity Health pleads that if it is found liable, it may elect to have future damages in excess of the amount specified in Code of Civil Procedure section 667.7 paid in full or in part. (Answer, pp. 4-5.)

As for the fifteenth affirmative defense, Dignity Health alleges it “is entitled to the benefits, defenses, rights, immunities and provisions” set forth in various sections of the Business and Professions Code, the Code of Civil Procedure, the Labor Code and the Health and Safety Code. (Answer, p. 5.)

Finally, the seventeenth affirmative defense alleges that Plaintiff’s claim is barred by Civil Code section 1714.8 because the damages and losses incurred were the result of and/or caused by the natural course of a disease or condition or were the natural or expected result of reasonable treatment rendered to Plaintiff for that disease or condition. (Answer, p. 6.)

These affirmative defenses merely raise protections expressly provided by statute. Such matters may be generally pled so as to simply give notice of the statutory protections or immunities being invoked. (See Hata v. Los Angeles County Harbor/UCLA Med. Ctr. (1995) 31 Cal.App.4th 1791, 1806.)

Therefore, the demurrer to the third, twelfth, fifteenth, and seventeenth affirmative defenses on the ground of failure to allege facts sufficient to constitute a defense is OVERRULED.

6. Eighteenth Affirmative Defense

The eighteenth affirmative defense asserts Dignity Health has not completed its investigation and “reserves the right to amend this Answer to allege such further factual or legal defenses…” (Answer, p. 6.) Plaintiff argues Dignity Health does not allege new matter in the eighteenth affirmative defense or facts in support. The contention this defense does not constitute new matter is well-taken; a reservation of rights to amend the pleading at a later time simply is not a recognized affirmative defense.

Therefore, Plaintiff’s demurrer to the eighteenth affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND.

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