Case Name: Hunter, et al. v. Littlejohn, M.D., et al.

Case No.: 1-14-CV-262860

Defendant Sports Bracing USA, Inc. (“Sports Bracing”) demurs to the complaint (“Complaint”) filed by plaintiffs Lowell Hunter (“Mr. Hunter”) and Diane Hunter (collectively, “Plaintiffs”).

This is an action for professional negligence and products liability.  According to the allegations of the Complaint, on January 17, 2013, Mr. Hunter had surgery performed on his knee by defendant Edward Littlejohn, M.D. (“Dr. Littlejohn”) at Good Samaritan Hospital.  (Complaint at ¶ 6.)  As part of his post surgical care, Dr. Littlejohn proscribed a cold therapy unit to Mr. Hunter provided and/or placed by Sports Bracing, among others.  (Id.)  Mr. Hunter was advised to use the cold pack in place after the surgery and was not provided with any additional advice or warnings.  (Id. at ¶ 7.)  Mr. Hunter did not remove the cold pack or knee wrap until he was instructed to do so by Dr. Littlejohn.  (Id. at ¶ 8.)  In subsequent visits to the doctor, Mr. Hunter’s knee was swollen, discolored and he experienced increasing pain, the result of burns from the cold therapy unit.  (Id. at ¶¶ 9, 10.)

On March 26, 2014, Plaintiffs filed the Complaint asserting the following causes of action: (1) professional negligence; (2) products liability; (3) general negligence; (4) products liability- express and implied warranty; (5) products liability- failure to warn; and (6) loss of consortium.

On July 18, 2014, Sports Bracing filed the instant demurrer to the Complaint and each of the five causes of action asserted against them on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subds. (e) and (f).

Defendants’ demurrer to the Complaint and the second through sixth causes of action on the ground of uncertainty is OVERRULED.  A demurrer based on uncertainty is disfavored and will be sustained only where the allegations of the complaint are so unintelligible that they cannot reasonably be responded to.  (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4^th 612, 616.)  The allegations of the Complaint do not qualify as such.  Moreover, to the extent that there are any uncertainties or ambiguities, they can be addressed and clarified in the discovery process.  (Id.)

Sports Bracings’ demurrer to the second cause of action (products liability) on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.  It is clear from the allegations of the Complaint that this cause of action is based on a strict liability theory.

Sports Bracings’ demurrer to the third cause of action (general negligence) on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Sports Bracings’ demurrer to the fourth cause of action (products liability- express and implied warranty) on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.  “A sale is ordinarily an essential element of any warranty, express or implied.”  (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759.)  Here, there are no allegations in the Complaint of such a sale taking place.

Sports Bracings’ demurrer to the fifth cause of action (products liability- failure to warn) on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.  In alleging that the cold therapy machine provided by Sports Bracing lacked safety warnings, notices, or advice regarding its use so as to avoid the burns he suffered (see Complaint at ¶ 21), Mr. Hunter has sufficiently identified the defects upon which this cause of action is predicated.

Sports Bracings’ demurrer to the sixth cause of action (loss of consortium) on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.  In California, the right to recover for loss of consortium is founded on the relationship of marriage, and absent this relationship the right does not exist.  (See Elden v. Sheldon (1988) 46 Cal.3d 267; see also Vanhooser v. Superior Court (2012) 206 Cal.App.4^th 921, 927 [setting forth elements of claim for loss of consortium].)  Here, there are no allegations in the Complaint which demonstrate that Ms. Hunter was married to Mr. Hunter at the time of his alleged injury, only that the two are currently married.  (Complaint at ¶ 50.)