Case Number: 18STCV09440 Hearing Date: June 12, 2019 Dept: 4A

Demurrer with Motion to Strike

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On December 21, 2018, Plaintiffs Nicole Stratman, Brayden Witt, and David Welker (“Plaintiffs”) filed a complaint against Defendants Ernest Ortiz, Venice Family Clinic, and Venice Family Clinic Foundation. The complaint alleges wrongful death, a survival action, and negligent infliction of emotional distress for improper medical care administered to Darrell Norried between July 25, 2017 and August 25, 2017.

On May 3, 2019, Defendants Venice Family Clinic and Ernest Ortiz filed a demurrer and motion to strike to Plaintiffs’ complaint due to insufficiently pled facts to allege negligent infliction of emotional distress and an improper prayer for pre-judgment interest.

On May 31, 2019, Plaintiffs filed an amended complaint alleging additional facts under the negligent infliction of emotional distress cause of action.

Trial is set for June 19, 2020.

PARTY’S REQUESTS

Defendants Venice Family Clinic and Ernest Ortiz (“Demurring Defendants”) request that the Court sustain their demurrer to Plaintiffs’ initial complaint as it fails to plead facts sufficient to constitute a cause of action for negligent infliction of emotional distress and that same cause of action is uncertain.

Demurring Defendants also request the Court to grant their motion to strike the prayer for pre-judgment interest from Plaintiffs’ initial complaint because the complaint does not allege a loss of a certain sum.

LEGAL STANDARD

Before filing a demurrer, the demurring party is required to meet and confer in person or by telephone with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc. §§ 430.41, subd. (a); 435.5, subd. (a)(3).)

Opposing papers must be filed and served at least nine court days, plus five days if served by mail, prior to the relevant hearing. (Code Civ. Proc. § 1005, subd. (b).)

A plaintiff may amend her complaint without leave of court after a demurrer or motion to strike is filed if the amended complaint is filed and served no later than the deadline to file and serve the opposition. (Code Civ. Proc. § 472.) A plaintiff may amend her complaint after the deadline to file the opposition to a demurrer or motion to strike upon stipulation of the parties. (Ibid.)

DISCUSSION

Meet and Confer

The Court finds that Demurring Defendants have fulfilled the meet and confer requirement prior to filing their demurrer and motion to strike. (See Both Wetkowski Decl., ¶ 2.)

Untimely Opposition and Amended Complaint

Plaintiffs filed and served a late opposition and amended complaint. Plaintiffs’ deadline to file and serve these documents was May 30, 2019 if served by personal service. However, Plaintiffs filed and served these documents on May 31, 2019 by U.S. mail. Plaintiffs did not seek leave of Court to file their amended complaint and the parties did not stipulate so. Accordingly, the Court agrees with Demurring Defendants that Plaintiffs’ untimely amended complaint does not moot the demurrer and motion to strike. If Plaintiffs seek to amend their complaint, they must seek leave of court or a stipulation to do so.

The Court finds it in the interest of justice to continue the hearings on the demurrer and motion to strike to ensure that Demurring Defendants have adequate time to prepare and file their replies to Plaintiffs’ opposing papers.

CONCLUSION

Therefore, the Court CONTINUES the hearings on the demurrer and motion to strike to July 2, 2019, at 1:30 p.m. in Department 4A at the Spring Street Courthouse, located at 312 North Spring Street, Los Angeles, California 90012.

The Court grants leave for Demurring Defendants to file and serve supplemental reply papers in accordance with California Code of Civil Procedure section 1005 in relation to the July 2, 2019 hearing date.

Demurring Defendants are ordered to give notice of this ruling.