Case Name: Lawrence Hasha, et al. v. Arash Radidar, et al.
Case No.: 18CV328673

I. Background

This action brought by plaintiffs Lawrence Hasha (“Lawrence”) and his wife, Elena Hasha, (collectively “Plaintiffs”) arises from medical services provided to Lawrence by physician Paul Cipriano (“Cipriano”), among other defendants.

According to the allegations of the operative first amended complaint (“FAC”), Cipriano and other doctors performed medical procedures on Lawrence that contributed to him suffering post-surgical complications and losing his right leg to amputation. They falsely promised Plaintiffs that a board certified vascular surgeon would be on standby during the procedure should any complications arise, when in fact one was not. Additionally, they failed to advise Plaintiffs of the true nature of the procedures he performed, failed to fully advise Plaintiffs of the risks and alternatives to the procedures, and misrepresented the expected benefits of the procedures. The physicians exceeded the scope of consent given by Elena Hasha, thereby causing Lawrence’s physical ailments and Plaintiffs’ severe emotional suffering.

Plaintiffs assert six causes of action against Cipriano for fraud, violation of the California Consumer Legal Remedies Act, medical battery, breach of fiduciary duty, elder abuse, and negligence.

Cipriano presently demurs to the FAC and moves to strike portions of the pleading. Plaintiffs oppose both.

II. Demurrer

As a preliminary matter, Defendant’s demurrer is imprecise and inconsistent both in terms of identifying the target of the demurrer and the grounds relied upon.

For context, a demurrer may be directed to either a pleading as a whole or individual causes of action. (Code Civ. Proc., § 430.50, subd. (a).) The distinction can be significant because “a demurrer which attacks an entire pleading should be overruled if one of the counts therein is not vulnerable to the objection.” (Lord v. Garland (1946) 27 Cal.2d 840, 850.) As such, the demurrer must specify whether it applies to the entire pleading or to particular causes of action. (Cal. Rules of Court, rule 3.1320(a).) The grounds for demurrer must also be distinctly stated. (Ibid.; see also Code Civ. Proc., § 430.60.)

Here, the demurrer itself states Defendant is demurring to the Complaint on the grounds of failure to state sufficient facts to constitute a cause of action and uncertainty. But the Complaint is not the operative pleading, the FAC is. Next, in his supporting memorandum of points and authorities, Defendant only addresses four of the six causes of action asserted against him in the FAC – particularly the first, second, seventh and eighth causes of action – and asserts in the conclusion section that the demurrer should be sustained as to those claims. In this regard, the demurrer itself and the supporting memorandum are incompatible. To be clear, the demurrer signals that Defendant is demurring to the pleading as a whole while the supporting memorandum reflects he is only challenging four causes of action. Finally, Defendant also inconsistently states the grounds for the demurrer to the seventh cause of action within his memorandum. Introductorily, he indicates that all of the challenged causes of action are uncertain, and specifies that only the first and second causes of action additionally fail to state sufficient facts. But he later asserts in the header addressing the seventh cause of action that the claim is both uncertain and fails to state a claim; yet he ultimately only discusses uncertainty relative to this claim.

Defendant is admonished for the lack of care and attention to detail in the presentation of his demurrer. With that said, the Court will treat the demurrer as directed to the first, second, seventh and eighth causes of action since it is apparent from Defendant’s supporting memorandum that he intended to object only to those causes of action individually. As for the grounds, the Court construes the demurrer as brought on the ground of uncertainty as to all of the challenged causes of action and the ground of failure to state sufficient facts as to the first and second causes of action only.

In opposition, Plaintiff merely argues the demurrer is moot because he filed a Second Amended Complaint (“SAC”). But the SAC he submitted for filing was rejected by the clerk’s office since he did not have leave of court to file an amended pleading. (See Code Civ. Proc., § 472, subd. (a).) Thus, the demurrer is not moot. Since Plaintiff does not otherwise address the merits of the demurrer, the Court treats the absence of any substantive opposition as a tacit concession that the demurrer is meritorious.

Accordingly, the demurrer to the first, second, seventh and eighth causes of action is SUSTAINED with 10 days leave to amend.

III. Motion to Strike

Cipriano moves to strike the prayer for punitive damages found in the checked box in paragraph 14a(2) on page 3 of the FAC, as well as the Exemplary Damages Attachment. He also moves to strike the third paragraph of Plaintiff’s second cause of action.

Cipriano’s motion is brought on the grounds that the challenged allegations are improperly asserted in the FAC and not drawn in conformity with the laws of this state. A court may strike out any improper matter inserted in a pleading or any part not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subds. (a) and (b).)

A. Punitive Damages

Cipriano moves to strike Plaintiffs’ prayer for punitive damages and the Exemplary Damages Attachment on the basis that Plaintiffs did not seek prior leave of court to claim punitive damages as required by Code of Civil Procedure section 425.13 (“Section 425.13”).

Section 425.13 “imposes procedural requirements on a party claiming punitive damages in a medical malpractice action.” (Johnson v. Super. Ct. (2002) 101 Cal.App.4th 869, 878.) The statute prohibits a plaintiff from asserting a claim for punitive damages against a healthcare provider without first obtaining leave of court to do so. (Ibid., citing Code Civ. Proc., § 425.13, subd. (a).) If a plaintiff wants to recover punitive damages from a healthcare provider, such as a physician or surgeon, he or she must bring a motion for leave to allow the filing of an amended pleading including a claim for punitive damages. (Code Civ. Proc., § 425.13, subd. (a).)

Cipriano contends Section 425.13 is implicated here because Plaintiffs allege he is a healthcare provider and they are therefore required to obtain leave of court to claim punitive damages. Since Plaintiffs did not do so, Cipriano concludes their claim for punitive damages should be stricken.

But as correctly articulated by Plaintiffs, they are not required to comply with Section 425.13 when asserting a claim for elder abuse. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785-786 [explaining that section 425.13 does not apply to health care providers acting in their capacity as elder custodians, such that punitive damages in elder abuse lawsuits brought under Welfare and Institutions Code section 15600, et seq. may be sought without complying with section 425.13].) Plaintiffs’ seventh cause of action is for elder abuse and neglect in violation of Welfare and Institutions Code section 15600, et seq. As such, Section 425.13 does not apply to that claim.

In reply, Cipriano concedes this point by virtue of stating, “If plaintiff’s claim for punitive damages is limited to his Cause of Action for Dependent Adult Abuse, as he contends in his opposition, then defendant will withdraw his motion to strike plaintiff’s request for punitive damages.” (Reply, p. 2:7-9.) Although Cipriano suggests Plaintiffs’ punitive damages must be limited to Plaintiffs’ elder abuse claim, he nevertheless acknowledges that punitive damages can be alleged for such a claim without first obtaining leave of court. Thus, a claim for punitive damages is appropriately included in the FAC. Cipriano cites no legal authority that would require Plaintiffs to amend the pleading to specifically limit the punitive damages claim to the seventh cause of action.

Thus, Cipriano’s motion to strike to Plaintiffs’ prayer for punitive damages and the Exemplary Damages Attachment is DENIED.

B. Third Paragraph of Second Cause of Action

In light of the Court’s order sustaining the demurrer to the second cause of action, Cipriano’s motion to strike the third paragraph from the second cause of action is MOOT.