Case Name:   Adam Vasheresse v. Palo Alto Medical Foundation, et al.

Case No.:       1-14-CV-261455

Demurrer by Defendant Nicholas Monaco, M.D. to the Second Amended Complaint of Plaintiff Adam Vasheresse

Defendant Nicholas Monaco, M.D. (“Dr. Monaco”) demurs to the second amended complaint (“SAC”) of plaintiff Adam Vasheresse (“Plaintiff”) on the ground that it fails to allege sufficient facts to constitute a cause of action because the claim for medical malpractice asserted against him is time-barred by Code of Civil Procedure section 340.5.  (See Code Civ. Proc., § 430.10, subd. (e).)

On its own motion, the Court takes judicial notice of the complaint filed on February 28, 2014, the first amended complaint (“FAC”) filed on May 14, 2014, and the SAC filed on September 8, 2014.  (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules.  ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  We also consider matters which may be judicially noticed.’”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  “A demurrer tests only the legal sufficiency of the pleading.  It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.”  (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

While the SAC is deficient because it does not allege that Plaintiff was ignorant of Dr. Monaco’s identity and/or the facts rendering Dr. Monaco liable at the time the complaint was filed on February 28, 2014 (see Code Civ. Proc., § 474 [if “the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly”] [emphasis added]), Plaintiff’s assertion that he should be granted leave to amend the SAC in order to add allegations to that affect has merit.  (See Dieckmann v. Super. Ct., 175 Cal.App.3d 345, 349, 355-356, 358 [expressly holding that the failure to comply with the requirement of Code of Civil Procedure section 474, that a plaintiff must state in the complaint that the names of fictitiously named defendants are unknown to him, may be cured by amendment after a defendant’s true name is substituted in place of one of the fictitiously named defendants].)  The omission at issue is clearly an inadvertent, technical omission that can easily be amended.  (See id.)  The original complaint stated that Plaintiff was ignorant of the true identity and capacity of Doe 7, and did not contain any allegations demonstrating that Plaintiff was not ignorant of Dr. Monaco’s true identity.  (See id. at 359 [noting that the cases in which plaintiffs have not been allowed to amend their complaints to add allegations of their ignorance rested upon fact that the original complaints contained factual allegations demonstrating that the plaintiffs were not ignorant of the defendants’ true names]; see also Motor City Sales  v. Super. Ct. (1973) 31 Cal.App.3d 342, 346-347.)

Additionally, Dr. Monaco’s argument that Plaintiff cannot, in good faith, assert that he was ignorant of Dr. Monaco’s identity at the time the complaint was filed given the allegations in the SAC is without merit.  The allegations in the SAC that are highlighted by Dr. Monaco in his opposition papers do not establish that Plaintiff was aware of Dr. Monaco’s existence, identity, or the facts rendering Dr. Monaco liable as of the date that Plaintiff filed the original complaint. (See Gen. Motors Corp. v. Super. Ct. (1996) 48 Cal.App.4th 580, 594-596 [stating that the plaintiff is ignorant within the meaning of Code of Civil Procedure section 474 if he lacks knowledge of that person’s connection with the case or with his injuries and the fact that the plaintiff had the means to obtain knowledge is irrelevant]; see also Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170 [“Whether [plaintiff’s] ignorance is from misfortune or negligence, [plaintiff] is alike ignorant, and this is all the statute requires.”].)

Accordingly, Dr. Monaco’s demurrer to the SAC is SUSTAINED, with 10 days’ leave to amend.