Case Number: MC024435 Hearing Date: July 01, 2014 Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

FRANKLIN “JIM” ROSA and )
NICHOLE ROSA, ) Case Number MC024435
)
Plaintiffs, ) ORDER AFTER HEARING
)
v. ) Date of Hearing:
) July 1, 2014
ALON ANTEBI, M.D., et al., ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

The demurrer of Defendant David Golden to the Complaint came on for hearing on July 1, 2014. Plaintiffs Franklin “Jim” Rosa and Nichole Rosa appeared through their counsel of record, ________________. Defendant David Golden appeared through his counsel of record, ___________________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

Defendant David Golden’s demurrer to the Complaint is OVERRULED. Defendant shall file it’s Answer on or before July 25, 2014.

SO ORDERED this the _____ day of July, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

FRANKLIN “JIM” ROSA and )
NICHOLE ROSA, ) Case Number MC024435
)
Plaintiffs, ) STATEMENT OF DECISION
)
v. ) Date of Hearing:
) July 1, 2014
ALON ANTEBI, M.D., et al., ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case is an alleged medical malpractice case in which Plaintiff Franklin “Jim” Rosa (“Plaintiff”) sustained injuries from a motorcycle accident in March of 2013. He presented to Defendants Alon Antebi (“Antebi”), David Golden (“Defendant”), and Avors medical Group, Inc. (“Avors”) for consultation and treatment; was operated on; and apparently suffered some injury therefrom.

2. Plaintiff brought suit on March 17, 2014, alleging causes of action for professional negligence, lack of informed consent, and negligent failure to screen. Co-plaintiff Nichole Rosa brought the fourth cause of action, for loss of consortium.

3. Antebi and Avors filed their answer to the Complaint on May 2, 2014. On May 21, 2014, Defendant filed his demur, demurring to the second and third causes of action. Plaintiff filed his Opposition on June 18, 2014.

4. Standard for ruling on demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

5. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

6. Pursuant to Cal. Code Civ. Proc. §§ 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

7. Second Cause of Action (Informed Consent) – The elements of failure to obtain informed consent are: (1) defendant performed a medical procedure on plaintiff; (2) plaintiff did not give informed consent for the procedure; (3) a reasonable person in plaintiff’s position would not have consented to the procedure, after being fully informed of the results, risks and alternatives to the procedure; and (4) plaintiff was harmed by a risk or result that the defendant had a duty to explain before the procedure, or that involved a breach of the standard of care. See Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1133-39.

8. Defendant contends that the second cause of action is duplicative of the first cause of action, and therefore is subject to demurrer. However, even if this were true, “redundancy is not a cause for demurrer.” McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 303 (reversing a demurrer sustained on causes of action claimed to be duplicative).

9. Accordingly, the demurrer to the second cause of action is OVERRULED.

10. Third Cause of Action (Negligent Screening) – The Court of Appeals in Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, found that “a hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility.” Id. at 346. The liability is corporate in nature. See Elam, supra, at 347 (“imposing hospital-corporate liability does not interfere with the Legislature’s comprehensive efforts to ameliorate the integrity and quality of the health care system”); Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 616 (“we would not extend this corporate hospital liability for negligent acts to a suit for retaliation”).

11. Defendant argues that the Complaint “seeks to improperly extend this theory of corporate negligence to Dr. Golden, an individual.” Demurrer at 6:7-8. In addition, Defendant contends that Plaintiff’s “sweeping and conclusory allegations have no factual support at all and they do not delineate how this cause of action specifically applies to each defendant. . . . nor does [Plaintiff] offer any factual support as to how, in what way, or even when Dr. Golden negligently screened, selected, and or/reviewed (sic) his staff, if any.” Id. at 6:13-15.

12. However, “[n]egligence may be alleged in general terms. It is sufficient if the complaint discloses a duty on the part of the defendant to reasonably protect the plaintiff against the danger and injury complained of, his failure to do so and that the injuries were sustained as a result of that omission.” Miller v. Pacific Constructors (1945) 68 Cal.App.2d 529, 539. See also Crouse v. Brobeck (1998) 67 Cal.App.4th 1509, 1532 (to allege negligence, complaint “need not state the specific acts or omission constituting negligent conduct”). This is particularly true “with respect to facts peculiarly within the knowledge of the defendant.” Miller, supra, 68 Cal.App.2d at 540. See also Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50 (“[l]ess particularity [in pleading] is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense”).

13. As to the issue of corporate liability, the Complaint notes plainly that “David Golden, M.D., . . . [is a] corporation duly organized and existing and doing business in the State of California and elsewhere.” Accepting this factual allegation as true, regardless of the difficulties of proving this contention at trial, the Complaint has not alleged a cause of action inapplicable to Defendant.

14. In addition, the hiring process employed by Defendant, the personnel involved with Plaintiff’s diagnosis, treatment, and surgery, and the background of such persons are all well within the bounds of knowledge held by Defendant, the specific facts to which Plaintiff is, at best, at a significantly inferior position to know or divine. As such, less particularity is required in Plaintiff’s pleading.

15. As pled, Defendant is on notice that Plaintiff was treated by Defendant on March 30, 2013, including being operated upon, and from this treatment Plaintiff’s negligence claim arises. Who of Defendant’s staff treated Plaintiff, what treatments were given, and whether those treating Plaintiff under Defendant’s employ were qualified are all facts exclusively within the knowledge of Defendant. As such, the Complaint has pled such facts as to “give notice of the issues sufficient to enable preparation of a defense.”

16. Accordingly, the demurrer to the third cause of action is OVERRULED.

SO ORDERED AND ADJUDGED this the ______ day of June, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE