2017-00222697-CU-MM

Casey Woodbury vs. Alan Gruenefeldt, M.D.

Nature of Proceeding: Motion to Strike Portions of the 1st Amended Complaint

Filed By: Pryor, Virgil F.

Defendants C. Kip Roebken, M.D. and Sarita Satpathy, M.D.’s unopposed motion to strike portions of self-represented Plaintiff Casey Woodbury’s first amended complaint is granted.

Defendants move to strike Plaintiff’s request for punitive damages.

Plaintiff has failed to comply with C.C.P., sec. 425.13(a) which provides, in pertinent part:

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” In short, this provision requires a plaintiff to obtain leave of court before including a claim for punitive damages in any complaint in an action for damages arising out of the professional negligence of a health care provider. (CCP §425.13.) Punitive damages may only be sought after prevailing on a motion to amend pursuant to CCP §425.13. ( Central Pathology Med. Clinic v. Superior Court (1992) 3 Cal.4th 181, 189.)

Here, plaintiff has made no such motion, nor been granted leave by the Court to allege punitive damages.

The motion to strike is granted, without leave to amend. However this ruling is without prejudice to plaintiff filing a motion to amend in the future pursuant to CCP 425.13.

Defendants’ request for judicial notice is granted.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 6 2017-00222697-CU-MM

Casey Woodbury vs. Alan Gruenefeldt, M.D.

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: Pryor, Virgil F.

Defendants C. Kip Roebken, M.D. and Sarita Satpathy, M.D.’s unopposed demurrer to self-represented Plaintiff Casey Woodbury’s first amended complaint is sustained with leave to amend.

In this action, Plaintiff alleges causes of action for willful misconduct (elder abuse), negligence, breach of fiduciary duty, wrongful death and negligent infliction of emotional distress in connection with the treatment and care of his mother Helen Woodbury (the “Decedent”) in April 2016. Defendant Roebken demurs to all five causes of action while Defendant Satpathy demurs to all causes of action except the second for negligence.

The demurrer is sustained for failure to state facts sufficient to constitute a cause of action. As to Defendant Roebken, there are no factual allegations setting forth any misconduct sufficient to support any cause of action. Rather, he alleges that Dr.

Roebken correctly diagnosed the Decedent’s condition and immediately administered medication which led to her responsiveness.

As to the first cause of action against Dr. Satpathy, there are no facts alleged to demonstrate that she intended to harm the Decedent or acted with disregard of the

consequences. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 412.) The third cause of action for breach of fiduciary duty is premised on the allegations of negligence in the second cause of action and is therefore duplicative. The fourth cause of action for wrongful death fails to allege any facts showing a causal connection between Dr, Satpathy’s care in April 2016, which was limited to administering morphine in connection with a case of pneumonia, and the Decedent’s death at a different facility four months later. The fifth cause of action for NIED is deficient as pled as Plaintiff has failed to allege facts demonstrating that he was contemporaneously aware that Dr. Satpathy’s care was causing the Decedent injury. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.)

The demurrer is sustained for the reasons stated in Defendant’s memorandum of points and authorities. The Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Nevertheless, as this is the first challenge to the pleading, leave to amend is granted.

Defendants’ request for judicial notice is granted.

Plaintiff may file and serve an amended complaint no later than November 16, 2018. Defendants shall file and serve their response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.