Case Number: BC518336    Hearing Date: August 08, 2014    Dept: A

Santiveris v Apguard Medical

DEMURRER & MOTION TO STRIKE

Calendar: 1
Case No: BC518336
Date: 8/8/14

MP: Defendant, Apguard Medical Inc.
RP: Plaintiff, Julie Santiveris

ALLEGATIONS IN FIRST AMENDED COMPLAINT:
The Plaintiff’s husband, Alberto Santiveris, was diagnosed with a medical condition for which he required a respiratory machine in order to breathe properly. The Plaintiff and her husband rented a respiratory machine from the Defendant, Apguard Medical Inc.
After the machine developed a problem, the Defendant installed a replacement machine. The replacement machine stopped working. Alberto Santiveris developed serious breathing problems and a call was made for an ambulance. Mr. Santiveris was transported to the hospital, but he passed away.

CAUSES OF ACTION IN FIRST AMENDED COMPLAINT:
1) Wrongful Death – Medical Malpractice
2) Wrongful Death – Negligence
3) Strict Products Liability – Manufacturing or Design Defect
4) Strict Products Liability – Failure to Warn
5) Negligent Products Liability – Failure to Warn
6) Breach of Implied Warranty of Fitness
7) Breach of Implied Warranty of Merchantability

RELIEF REQUESTED:
1. Demurrer to first cause of action.
2. Strike seven portions from the First Amended Complaint.

DISCUSSION:
This hearing concerns the Defendant’s demurrer and motion to strike directed at the First Amended Complaint.

1. Demurrer
The Defendant argues that the first cause of action for wrongful death based on medical malpractice lacks sufficient facts because it does not plead that the Defendant is a licensed health care provider and does not plead that the Plaintiff served a pre-filing notice of intention to sue.

A cause of action based on professional malpractice must contain the following four elements:

1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise;
2) a 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’s negligence.
Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077.

California law permits parties to state a negligence claim in general terms, without stating the facts constituting such negligence. Smith v. Beauchamp (1945) 71 Cal. App. 2d 250, 254-255 (holding it is sufficient to plead that the thing done was negligently done).
A review of the first cause of action reveals that it pleads in paragraph 16 that the Defendant is a health care provider who rendered medical services to the decedent, Alberto Santiveris. This is sufficient to plead that the Defendant was a health care provider with the duty of a professional when treating Alberto Santiveris.

Further, there is no requirement that the Plaintiff allege that she complied with the requirement to serve a notice of intent to sue. Under section 364, no 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. However, CCP section 365 states that the failure to comply with this requirement does not invalidate any proceedings and does not affect the jurisdiction of the Court. Since the failure to serve the notice of intent to sue does not invalidate any proceedings and does not affect the jurisdiction of the Court, it is not an essential element of the cause of action and there is no need to plead this in the Complaint.
Accordingly, the lack of any allegation that the Plaintiff served a notice of intent to sue is not a basis to sustain a demurrer.

Therefore, the Court will overrule the demurrer to the first cause of action because the Plaintiff has alleged that the Defendant is a health care provider and there is need to plead that the Plaintiff complied with CCP section 364 by serving a notice of intent to sue on the Defendant.

2. Motion to Strike
The Defendant requests that the Court strike the following seven portions of the First Amended Complaint:

1) paragraph 39 (allegations seeking punitive damages in the third cause of action);
2) paragraph 47 (allegations seeking punitive damages in the fourth cause of action);
3) the request for damages in a sum not exceeding $250,000 per limit as established by law;
4) the request for attorney’s fees in the second cause of action;
5) the request for punitive damages;
6) the request to rescind the rental contract; and
7) the request for attorney’s fees in the prayer for the sixth and seventh causes of action.

CCP section 436 permits the Court to strike any portions of a pleading that are improper. A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects. PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683. A party cannot use a motion to strike as a “line item veto.” Id.

a. Request for Punitive Damages (requests 1, 2, and 5)
The Defendant requests that the Court strike out allegations supporting a claim for punitive damages in paragraphs 39 and 47 and the claim for punitive damages in the prayer for relief.
A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. Under Civil Code section 3294, a plaintiff may recover an award of punitive damages on a showing that the defendant acted with malice, oppression, or fraud.
Under Civil Code section 3294, a plaintiff may recover an award of punitive damages on a showing that the defendant acted with malice, oppression, or fraud. Civil Code section 3294 defines these terms in the following manner. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.

The Plaintiff seeks punitive damages in the third and fourth causes of action based on strict liability. The Plaintiff alleges in paragraphs 34 to 37 of the third cause of action and in paragraphs 41 to 45 of the fourth cause of action that the Defendant manufactured and designed the respiratory machine used by Alberto Santiveris, that the machine was defective or lacked proper warnings, and that this resulting in the death of Alberto Santiveris. In paragraphs 39 and 47, the Plaintiff alleges that the Defendant acted with oppression, malice, and fraud.
There are no supporting allegations that identify the Defendant’s conduct that was intended to cause injury, the Defendant’s despicable conduct, or of the Defendant’s fraud and deceit. This is insufficient because there are no facts identifying the manner in which the Defendant acted with malice, oppression, or fraud.
Therefore, the Court will grant the request to strike paragraphs 39 and 41 and the claim for punitive damages in the prayer for relief and grant leave to amend to add facts supporting the request

b. Request for “Sum not to exceed $250,000”(request 3)
The Defendant argues that the request for damages in a sum not exceeding $250,000 per limit as established by law in the prayer for relief violates CCP section 425.10. Section 425.10(b) states that in an action to recover damages for personal injury or wrongful death, the amount demanded shall not be stated.
The Plaintiff’s pleadings do not demand an amount. Instead, it merely recognizes the $250,000 limit on non-economic damages enacted in MICRA. The Plaintiff’s request is similar to the requests in some pleadings that seek an amount in excess of the jurisdictional amount of $25,000. It does not violate CCP section 425.10(b).
Accordingly, the Court will deny the request to strike the request for damages in a sum not exceeding $250,000 per limit as established by law.

c. Attorney’s fees (requests 4 and 7)
The Defendant argues that the requests for attorney’s fees in the second, sixth, and seventh causes of action are improper because are no pleadings that identify a basis for awarding attorney’s fees. CCP section 1033.5 permits the recovery of attorney’s fees only when authorized by law, statute, or contract.
There are no allegations that identify a law, statute, or contract that authorizes the recovery of attorney’s fees. In her opposition, the Plaintiff does not identify any allegations that authorize the recovery of attorney’s fees. Instead, the Plaintiff requests leave to amend.
Therefore, the Court will grant the request to strike the claim for attorney’s fees and grant leave to amend to add facts supporting the request.

d. Rescind Contract (request 6)
The Defendant requests that the Court strike the request to rescind the contract in the prayer for relief to the sixth cause of action for breach of implied warranty and the seventh cause of action for breach of implied warranty of merchantability.
A review of the sixth and seventh causes of action reveal that they do not plead that there was a contract between the Plaintiff and the Defendant. Instead, the Plaintiff pleads that the Defendant was acting as a retailer, distributor, and manufacturer at the time of purchase or sale of the machine. This general allegation does not identify any contract between the parties that could be rescinded.
The Plaintiff’s opposition does not include any argument to address this defect.
Therefore, the Court will grant the request to strike the claim for rescission and grant leave to amend to add facts supporting the request.

RULING:
OVERRULE demurrer to the first cause of action.

STRIKE the following portions:
1) paragraph 39 (allegations seeking punitive damages in the third cause of action);
2) paragraph 47 (allegations seeking punitive damages in the fourth cause of action);
3) the request for attorney’s fees in the prayer for the second cause of action;
4) the request for punitive damages in the prayer for relief;
5) the request to rescind the rental contract in the prayer for the sixth and seventh causes of action; and
6) the request for attorney’s fees in the prayer for the sixth and seventh causes of action.

DENY request to strike the request for damages in a sum not exceeding $250,000 per limit as established by law