Case Name: Matthew Gishie v. Daughters of Charity Health System, Inc., et al.

Case No.: 1-13-CV-258100

Defendants Daughters of Charity Health System, Inc. (“DCHS”), Septon Medical Center (“SMC”), and Anamika Gupta, M.D. (“Gupta”) (collectively, “Defendants”) each demur to the complaint of plaintiff Matthew Gishie, by and through his guardian ad litem, Roselyn Tso (“Gishie”). DCHS and SMC demur to the second and fourth causes of action asserted in the first amended complaint (“FAC”) on the ground that Gishie fails to allege facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Gupta demurs to the second cause of action on the grounds of failure to allege sufficient facts to constitute a cause of action and lack of capacity to sue, and the fifth cause of action in the FAC on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., §430.10, subds. (b), (e).)

The Second Cause of Action for False Imprisonment

In his opposition, Gishie appears to abandon his second cause of action for false imprisonment. In this regard, he provides no argument in support of this cause of action and submits a proposed second amended complaint (“SAC”), which does not include a claim for false imprisonment. Accordingly, the demurrers to the second cause of action are SUSTAINED WITHOUT LEAVE TO AMEND.

The Fourth Cause of Action for Premises Liability

DCHS and SMC contend that there is no evidence that an unbarred window is a dangerous condition and there is no evidence they had actual or constructive knowledge of the danger the windows posed.

DCHS’s and SMC’s arguments concerning the absence of evidence lack merit. To survive demurrer, the complaint only needs to allege facts sufficient to state a cause of action. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.App.4th 861, 872.) Each evidentiary fact that might eventually form part of the plaintiff’s proof does not need to be alleged. (Id.) Therefore, the purported absence of evidence is not a ground for sustaining a demurrer.

In opposition, Gishie argues that a cause of action for premises liability may be generally pleaded and DCHS’s and SMC’s arguments concern factual matters that go beyond the scope of the pleading.

A complaint for premises liability based upon negligence is not subject to strict pleading requirements and may be generally pleaded. (See Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1116-1117.) Here, Gishie alleges the essential elements of a cause of action for premises liability. (See FAC, ¶ 6 [DCHS and SMC own, occupy and control the property]; ¶ 33 [DCHS and SMC negligently permitted and maintained defective windows in patients’ rooms which exposed patients to the danger of falling out the window]; ¶¶ 27-30 [Gishie was harmed when his father, Brandon Manymule, fell to his death]; and ¶¶ 28-30 [DCHS and SMC’s negligence in permitting unbarred window a substantial factor in causing Gishie’s harm].)

Consequently, Gishie has alleged facts sufficient to state a cause of action, and the demurrer to the fourth cause of action is OVERRULED.

The Fifth Cause of Action for General Negligence

Gupta contends that Gishie’s fifth cause of action for general negligence is duplicative of his first cause of action for medical negligence, and therefore, Gishie fails to state a cause of action for general negligence. She argues that the same factual predicate cannot give rise to independent negligence causes of action based on two different standards of care. In opposition, Gishie asserts that he is entitled to assert alternative theories of liability at the pleading stage.

In support of her demurrer, Gupta principally relies upon Flowers v. Torrance Memorial Hospital Center (1994) 8 Cal.4th 992. In Flowers, the plaintiff, a patient at a hospital, sued the hospital and her physician for “general negligence” after she fell off a gurney. (Id. at p. 996.) The defendant moved for summary judgment, and the trial court granted the motion. (Id. at p. 996.) The Court of Appeal reversed, holding that though the defendants had negated any liability for “professional negligence,” the pleadings were broad enough to encompass a theory of liability for ordinary as well as professional negligence because the manner of the plaintiff’s injury did not involve a breach of duty of professional skill or care. (Id.) The Supreme Court reversed, holding that “whether the cause of action is denominated ‘ordinary’ or professional’ negligence, or both, ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial to resolving a motion for summary judgment.” (Id. at p. 1000.)

Gupta mischaracterizes the scope of Flowers. Flowers arose in the context of a motion for summary judgment, in which the court determines from the evidence presented whether there are no triable issues as to any material fact. (See Code Civ. Proc., § 437c, subd. (c).) The Flowers Court merely found that whether a cause of action is denominated ordinary or professional negligence, there is only one standard of care, and if there are no triable issues as to the defendant’s breach of that standard of care, summary judgment is warranted. (See Flowers, supra, 8 Cal.4th at p. 1001.) Thus, Flowers does not support the proposition that a plaintiff may not state a cause of action for both general negligence and medical negligence against the same defendant. Therefore, Gupta’s argument on this ground lacks merit.

Gupta does not otherwise contend that Gishie fails to allege sufficient facts to constitute a cause of action for general negligence. Consequently, Gupta’s demurrer to the fifth cause of action is OVERRULED.