This case was last updated from Los Angeles County Superior Courts on 01/30/2020 at 09:14:49 (UTC).

ROCKY'S FOOD DISTRIBUTORS, INC., A CALIFORNIA CORPORATION VS EL CHARRITO FOODS , INC. , A CALIFORNIA CORPORATION

Case Summary

On 08/19/2019 ROCKY'S FOOD DISTRIBUTORS, INC , A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against EL CHARRITO FOODS , INC , A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7690

  • Filing Date:

    08/19/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

ROCKY'S FOOD DISTRIBUTORS INC. A CALIFORNIA CORPORATION

Defendant

EL CHARRITO FOODS INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

CLARK EVAN A.

 

Court Documents

Request for Dismissal - Request for Dismissal

1/23/2020: Request for Dismissal - Request for Dismissal

Notice of Settlement - Notice of Settlement

11/7/2019: Notice of Settlement - Notice of Settlement

Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

11/7/2019: Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

Proof of Personal Service - Proof of Personal Service

9/27/2019: Proof of Personal Service - Proof of Personal Service

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

8/19/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

8/19/2019: First Amended Standing Order - First Amended Standing Order

Complaint - Complaint

8/19/2019: Complaint - Complaint

Summons - Summons on Complaint

8/19/2019: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

8/19/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

 

Docket Entries

  • 01/24/2020
  • DocketOrder to Show Cause - Hearing re: Dismissal Date scheduled for 03/09/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/24/2020

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  • 01/23/2020
  • DocketOn the Complaint filed by ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation on 08/19/2019, entered Request for Dismissal without prejudice filed by ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation as to the entire action

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  • 01/23/2020
  • DocketRequest for Dismissal; Filed by: ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation (Plaintiff); As to: EL CHARRITO FOODS , INC. , a California corporation (Defendant)

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  • 11/07/2019
  • DocketUpdated -- Notice of Settlement: Status Date changed from 11/07/2019 to 11/07/2019; As To Parties: removed

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  • 11/07/2019
  • DocketOrder to Show Cause - Hearing re: Dismissal Date scheduled for 03/09/2020 at 10:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/07/2019
  • DocketUpdated -- Order to Show Cause re: Dismissal (Settlement): Status Date changed from 11/07/2019 to 11/07/2019; As To Parties: removed

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  • 11/07/2019
  • DocketNotice of Settlement; Filed by: ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation (Plaintiff); Vacate Future Dates: No

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  • 11/07/2019
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: Clerk

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  • 11/07/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/22/2022 at 10:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 11/07/2019

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  • 11/07/2019
  • DocketNon-Jury Trial scheduled for 02/16/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 11/07/2019

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  • 09/27/2019
  • DocketProof of Personal Service; Filed by: ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation (Plaintiff); As to: EL CHARRITO FOODS , INC. , a California corporation (Defendant); Service Date: 09/10/2019; Service Cost: 57.01; Service Cost Waived: No

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  • 08/20/2019
  • DocketNon-Jury Trial scheduled for 02/16/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 08/20/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/22/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 08/20/2019
  • DocketCase assigned to Hon. Serena R. Murillo in Department 94 Stanley Mosk Courthouse

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  • 08/19/2019
  • DocketComplaint; Filed by: ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation (Plaintiff); As to: EL CHARRITO FOODS , INC. , a California corporation (Defendant)

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  • 08/19/2019
  • DocketSummons on Complaint; Issued and Filed by: ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation (Plaintiff); As to: EL CHARRITO FOODS , INC. , a California corporation (Defendant)

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  • 08/19/2019
  • DocketCivil Case Cover Sheet; Filed by: ROCKY'S FOOD DISTRIBUTORS, INC., a California corporation (Plaintiff); As to: EL CHARRITO FOODS , INC. , a California corporation (Defendant)

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  • 08/19/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/19/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC07690    Hearing Date: November 19, 2019    Dept: 94

DEMURRER TO COMPLAINT

(CCP § 430.10)

MOTION TO STRIKE COMPLAINT

(CCP §§ 435, 436)

TENTATIVE RULING:

Defendants’ Demurrer is SUSTAINED without leave to amend. Defendants’ Motion to Strike is MOOT.

ANALYSIS:

I. Background

On August 30, 2019, Plaintiff Mimi Liang (“Plaintiff”) brought this action for general negligence against defendants Kwame Adusei-Poku Donkor, M.D. (“Donkor”) and Kaiser Foundation Health Plan, Inc. (erroneously sued as Kaiser Permanente, Baldwin Park) (jointly “Defendants”). In response, Defendants filed a Demurrer and Motion to Strike the Complaint on October 17, 2019. No opposition or reply papers were filed.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) The legal standard for a demurrer and a motion to strike is the same. “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 437(a).) The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ivanoff, supra, 9 Cal.App.5th p. 725.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

III. Analysis

Plaintiff alleges she was a patient at Kaiser Permanente’s emergency room on May 26, 2018. (Compl., p. 5.) Plaintiff alleges she had a stomachache and defendant Donkor ordered an IV for Plaintiff. (Id.) Plaintiff alleges defendant Donkor did not inform her of what was in the IV before putting in the IV and did not obtain Plaintiff’s consent. (Id.) Plaintiff alleges she was rushed out of the emergency room afterwards. (Id.)

  1. Negligence

To establish a cause of action for negligence, the plaintiff must plead and prove: (1) a duty owed, (2) a breach of that duty, (3) causation, and (4) damages. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.)

Defendants contend Plaintiff’s Complaint fails to state sufficient facts to constitute a cause of action pursuant to CCP § 430.10(e) and the Complaint, on its face, violates the applicable statute of limitations. (Demmurrer pp. 1-2.)

  1. Statute of Limitations

As an initial matter, the court agrees with Defendants that Plaintiff’s negligence claim is not one of ordinary negligence, but rather professional negligence. “’The test reasonably must be whether the negligence occurred within the scope of the “skill, prudence, and diligence commonly exercised by practitioners of his profession.”…’ (Bellamy v. Appellate Dept. (1996) 50 Cal.App.4th 797, 801.) More so, Plaintiff’s cause of action falls underneath the Medical Injury Compensation Reform Act (MICRA) which defined professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Code Civ. Proc., § 340.5(2).) Plaintiff alleges Defendants negligently treated her when she was a patient in the emergency room, falling within CCP § 340.5(2)’s definition of professional negligence.

As a cause of action for professional negligence, Plaintiff’s cause of action must be commenced “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) Plaintiff alleges she was a patient on May 26, 2018. (Compl., p 5.) Plaintiff alleges she “got shocked then,” when the nurse told her after the IV she would need to be picked up as she might be dizzy. (Id.) Plaintiff alleges “maybe Kaiser stuff [sic] knew I shouldn’t be there so Nurse told me to discharged [sic] as soon as IV was done. Rushing me out so quickly. [sic]. Very dis-satisfying [sic] for E.R. on that day.” (Id.) “The limitations period begins when the plaintiff’s suspicions are aroused. The period is not affected by the plaintiff’s diligence in finding facts to support his lawsuit.” (Knowles v. Sup. Ct. (2004) 118 Cal.App.4th 1290, 1300.) Plaintiff alleges she was suspicious or at least had reason to be suspicious of the alleged negligence on the same day she received treatment, May 26, 2018. As such, the statute of limitations on Plaintiff’s cause of action began running on May 26, 2018, and ended one year later on May 26, 2019. Plaintiff filed this instant lawsuit on August 30, 2019, thus Plaintiff’s cause of action is barred by the applicable statute of limitations. The court declines to address Defendants’ other argument as to the sufficiency of the pleadings in light of this ruling.

Based on the foregoing, Defendants’ demurrer to the Complaint is SUSTAINED without leave to amend.

  1. Motion to Strike

Based on the court’s ruling above, Defendants’ motion to strike is MOOT.

IV. Conclusion & Order

In light of the foregoing, the Demurrer is SUSTAINED without leave to amend and Motion to Strike is MOOT.

Moving parties are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.