Case Number: 18STCV06297 Hearing Date: April 24, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO STRIKE PORTIONS OF THE COMPLAINT

On November 27, 2018, Plaintiff filed this medical malpractice action. On February 27, 2019, Plaintiff filed a First Amended Complaint seeking damages in excess of $25,000.00. Defendants Smartclinic, Inc. dba Smartclinic Urgent Care, John Leung, M.D., and Zurama Espana, P.A. (collectively, “Defendants”) move to strike references to “in sums in excess of $25,000.00” as being improper and irrelevant.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 435.5, subd. (a)(3).) On March 12, 2019, defense counsel sent a letter to Plaintiff’s counsel regarding the grounds for this motion to strike and seeking a stipulation to strike the references to “sums in excess of $25,000.00.” (Declaration of Hany A. Nicola, ¶ 2.) Plaintiff’s counsel declined to stipulate. (Nicola Decl., ¶ 3.)

Defendant argues that in claims for personal injuries, the amount demanded may not be asserted in the complaint. Code of Civil Procedure section 425.10, subdivision (b) states, in part: “where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated . . .” (Code. Civ. Proc., § 425.10, subd. (b).) Defendant argues that stating “sums in excess of $25,000.00” in the complaint in a medical malpractice action violates this Section. Plaintiff argues these references to sums in excess of $25,000.00 are not the specific amounts demanded. Rather, they are show Plaintiff seeks damages in amounts in excess of the jurisdictional minimums for unlimited civil cases. In Reply, Defendant argues Plaintiff should have stated “sums in excess of the jurisdictional minimum.”

Plaintiff’s reference to sums in excess of $25,000.00 do not state the amounts demanded such that they violate Code of Civil Procedure section 425.10, subdivision (b) or its underlying purpose. “‘The purpose of section 425.10 is to protect defendants from adverse publicity resulting from inflated demands.’ [Citation.]” Even if Plaintiff amended the FAC to state “sums in excess of the jurisdictional minimum” rather than “sums in excess of $25,000.00,” the effect in terms of adverse publicity is not materially different.

Therefore, the Motion to strike is DENIED.

Moving party to give notice.