Case Number: BC531977 Hearing Date: February 17, 2015 Dept: SEC
ADA ANGEL v. KINDRED HOSPITAL
CASE NO.: BC531977
HEARING: 02/17/15

#2
TENTATIVE ORDER

Defendant SOUTHERN CALIFORNIA SPECIALITY CARE, INC. dba Kindred Hospital’s demurrer to the first amended complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the first and third causes of action, and OVERRULED as to the second cause of action. C.C.P. § 430.10(e), (f).

This action arises out of the allegedly hazardous conditions Defendant created by failing to maintain its hospital premises. Plaintiff alleges she was injured due to the placement of an unstable mobile commode next to her hospital bed, which fell on her head. Defendant demurs to the FAC in its entirety or, alternatively, to the causes of action for general negligence (1st), premises liability (2nd), and intentional tort (3rd).

General Negligence

Plaintiff’s first cause of action is barred by the applicable statute of limitations. C.C.P. § 340.5 states that an action for injury against a health care provider based on professional negligence is 3 years after the date of injury or 1 year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury—whichever occurs first. See Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 665 (stating there is a broad interpretation to the phrase “in the rendering of professional services” for professional negligence claims). Here, Plaintiff alleges she was injured on January 7, 2012 during her hospitalization at Defendant hospital. Plaintiff did not file the initial complaint until January 2, 2014, which is 2 years after her injury. Furthermore, Plaintiff has not alleged facts that she provided Defendant with a 90 days’ prior notice before filing a professional negligence suit, pursuant to C.C.P. § 364.

Moreover, Plaintiff has not alleged the elements of a negligence cause of action, which are “duty, breach of duty, proximate cause, and damages.” Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892. Negligence may be alleged in general terms. Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101. The negligence cause of action states that a hazardous condition was created, reasonable care was not used to maintain the premises, there was an unstable mobile commode next to Plaintiff’s bed, and reasonable precautions were not taken to make a dangerous condition safe. FAC, p. 4. While Plaintiff describes the premise’s condition, Plaintiff fails to allege damages or that Defendant’s actions were a proximate cause to her “damages.” Id.

The demurrer as to the first cause of action is SUSTAINED with 20 days leave to amend.

Premises Liability

Defendant argues that the second cause of action is another attempt at alleging a cause of action for medical negligence and thus should be barred by the one-year statute of limitations under C.C.P. § 340.5 instead of the two-year statute of limitation under C.C.P. § 335.1. In asserting that this is the same cause of action as professional negligence, Defendant raises allegations in the Complaint for the first cause of action for negligence (which are not in the FAC) that Plaintiff is actually claiming that she was injured based on the medication she took that caused her to be prone to loss of balance.

The premises liability cause of action does not include allegations regarding Plaintiff’s medication—whether referring to the Complaint or FAC. Instead, this cause of action is based solely on the improper placement of the unstable commode near her bed, which injured Plaintiff, and where Plaintiff was refused adequate help to clean herself. FAC, p. 5. Thus, based on the arguments Defendant raises in its demurrer, this action is not time-barred by the one-year statute of limitations for professional negligence under C.C.P. § 340.5.

Plaintiff claims that on January 7, 2012, she suffered injuries based on the unstable commode. Plaintiff commenced this action on January 2, 2014. Thus, this claim is not time-barred as it is brought within the 2-year statute of limitations pursuant to C.C.P. § 335.1. As such, the demurrer as to the second cause of action is OVERRULED.

Intentional Tort

Pursuant to C.C.P. § 430.10(f), “uncertainty” is a proper demurrer ground where the pleading is ambiguous and unintelligible. Demurrers for uncertainty will only be sustained where the complaint is so bad that the defendant cannot reasonably respond—i.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her. Khoury v. Maly’s Cal., Inc. (1993) 14 Cal.App.4th 612, 616. The FAC alleges that Defendant created a hazardous condition by intentionally placing the unstable commode near Plaintiff’s bed, intentionally failed to use a stable commode or warn/instruct Plaintiff on the safe use of the commode. FAC, p. 6. As a result, Plaintiff fell when attempting to use the commode and was injured. Id. The third cause of action is uncertain as it does not state what tort is being alleged and fails to sufficiently apprise Defendant for what it is being sued. As such, the allegations are uncertain to the point where Defendant is unable to reasonably respond. The demurrer as to the third cause of action is SUSTAINED with 20 days leave to amend.