On 02/27/2020 CARRIE KEYS filed a Personal Injury - Medical Malpractice lawsuit against MOSES JOSEPH FALLAS, M D . This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and EDWARD B. MORETON. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
LAURA A. SEIGLE
EDWARD B. MORETON
MOSES JOSEPH FALLAS A MEDICAL CORPORATION
FALLAS MOSES JOSEPH M.D.
MISSION COMMUNITY HOSPITAL
ROBBINS DOE 2 TIFFANY
SHUBEN RICHARD WARREN
KIM ESTHER WONSINAE
3/5/2021: Notice - NOTICE OF CONTINUED HEARING
1/20/2021: Minute Order - MINUTE ORDER (COURT ORDER RE: ORDER TRANSFERRING PERSONAL INJURY (PI) CASE ...)
1/20/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ORDER TRANSFERRING PERSONAL INJURY (PI) CASE ...) OF 01/20/2021
12/9/2020: Reply - REPLY IN SUPPORT OF DEMURRER TO FIRST AMENDED COMPLAINT
12/11/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: RESCHEDULED HEARING ON DEMURRER - WITH MOTIO...) OF 12/11/2020
10/23/2020: Proof of Service (not Summons and Complaint)
10/19/2020: Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND PLAINTIFF CARRIE KEYS'S NOTICE OF MOTION AND MOTION FOR ORDER GRANTING PLAINTIFF LEAVE TO AMEND COMPLAINT TO CLAIM PUNITIVE DAMAGES AGAINST DEFEND
10/19/2020: Amendment to Complaint (Fictitious/Incorrect Name)
9/2/2020: Proof of Service by Substituted Service
8/6/2020: Reply - REPLY DEFENDANTS' REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S COMPLAINT
4/10/2020: Declaration - DECLARATION RE TRIAL ATTORNEY
4/10/2020: Notice of Motion
4/21/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: DEFENDANT MOSES JOSEPH FALLAS, M.D., AND MOSE...) OF 04/21/2020
4/28/2020: Notice - NOTICE OF HEARING OF DEFENDANTS' DEMURRER & MOTION TO STRIKE PLAINTIFF'S COMPLAINT
3/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES
3/10/2020: PI General Order
2/27/2020: Civil Case Cover Sheet
2/27/2020: Notice of Case Assignment - Unlimited Civil Case
Hearing07/21/2021 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Hearing on Motion to Strike Second Amended ComplaintRead MoreRead Less
Hearing07/21/2021 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Hearing on Demurrer - with Motion to Strike (CCP 430.10)Read MoreRead Less
Hearing05/25/2021 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Case Management ConferenceRead MoreRead Less
DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Carrie Keys (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 27, Edward B. Moreton, Presiding; Hearing on Motion for Leave to Amend (Complaint to Allow Plaintiff to Plead Punitive Damages under CCP 425.13(a) and C.C. 3294) - Not Held - Vacated by CourtRead MoreRead Less
DocketNotice (of Continued Hearing); Filed by Moses Joseph Fallas, M.D. (Defendant); Moses Joseph Fallas, a Medical Corporation (Defendant)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
Docketat 1:30 PM in Department 27, Edward B. Moreton, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Vacated by CourtRead MoreRead Less
Docketat 1:30 PM in Department 27, Edward B. Moreton, Presiding; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer - Not Held - Vacated by CourtRead MoreRead Less
Docketat 08:30 AM in Department 27, Edward B. Moreton, Presiding; Court OrderRead MoreRead Less
DocketNotice of Posting of Jury Fees; Filed by Moses Joseph Fallas, M.D. (Defendant); Moses Joseph Fallas, a Medical Corporation (Defendant)Read MoreRead Less
DocketDeclaration (re Trial Attorney); Filed by Moses Joseph Fallas, M.D. (Defendant); Moses Joseph Fallas, a Medical Corporation (Defendant)Read MoreRead Less
DocketDemand for Jury Trial; Filed by Moses Joseph Fallas, M.D. (Defendant); Moses Joseph Fallas, a Medical Corporation (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by Carrie Keys (Plaintiff)Read MoreRead Less
DocketPI General Order; Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by ClerkRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by Carrie Keys (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Carrie Keys (Plaintiff)Read MoreRead Less
DocketSummons (on Complaint); Filed by Carrie Keys (Plaintiff)Read MoreRead Less
Case Number: 20STCV08018 Hearing Date: August 13, 2020 Dept: 27
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
MOSES JOSEPH FALLAS, M.D., et al.,
[TENTATIVE] ORDER RE: DEFENDANT MOSES JOSEPH FALLAS, M.D. AND MOSES J. FALLAS, A MEDICAL CORPORATION’S DEMURRER TO PLAINTIFF’S COMPLAINT
August 13, 2020
On February 27, 2020, plaintiff Carrie Keys filed this action against defendants Moses Joseph Fallas, M.D. (“Dr. Fallas”) and Moses J. Fallas, a Medical Corporation (collectively, “Defendants”) arising from medical treatment provided on September 22, 2018. Plaintiff asserts causes of action for medical malpractice, negligent infliction of emotional distress (“NIED”), assault, and medical battery. Plaintiff alleges Dr. Fallas caused her to suffer major physical injuries to her gastrointestinal area and to become life-dependent on total parenteral nutrition or (“TPN”) administered intravenously. Plaintiff also allege that during her hospital stay, Dr. Fallas entered her hospital room and requested a staple removal kit without explaining to her why the staples needed to be removed. Dr. Falla then refused to administer additional pain medication and did not use sterile gloves when reaching into Plaintiff’s abdominal opening. Plaintiff alleges she screamed in pain while Dr. Fallas pulled the incision apart and Dr. Fallas instructed her to “hold on”, at which point she grabbed Dr. Fallas’s wrist to indicate to stop the procedure immediately.
Defendants demur to Plaintiff’s causes of action for NIED, assault, and medical battery on the grounds that they fail to state facts sufficient to constitute causes of action.
Defendants also move to strike portions of Plaintiff’s complaint, including allegations that Defendants acted “carelessly, recklessly, wantonly, and unlawfully,” “negligently inflicting emotional distress upon Plaintiff, in assaulting and committing a battery upon Plaintiff.” Defendants also move to strike Plaintiff’s request for attorneys fees and costs.
A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)
Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) The party filing the demurrer must include a supporting memorandum of points and authorities. (Cal. Rules of Court, rule 3.1113(a).) is satisfied.
Defendant argues the cause of action for negligent infliction of emotional distress (“NIED”) is duplicative of the first cause of action. Notably, there is no independent tort of¿negligent¿infliction¿of¿emotional¿distress; rather, “[t]he tort is¿negligence, a cause of action in which a duty to the plaintiff is an essential element.”¿ (Potter v. Firestone Tire & Rubber Co.,¿6 Cal.4th 965, 984.)¿¿The doctrine of “negligent infliction of emotional distress” is not a separate cause of action.¿ It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed.¿ (See¿Molien v. Kaiser Foundation Hospitals¿(1980) 27 Cal.3d 916, 928.)¿¿Furthermore, Plaintiff cannot bifurcate Defendants’ duty into two separate obligations. A defendant has only one duty, measured by one standard of care, under any given circumstances. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 998, 1000.)
In opposition, Plaintiff argues the NIED claim is appropriate but does not address the fundamental issue that there is no independent tort of NIED.
Therefore, the demurrer to the¿second¿cause of action for NIED is SUSTAINED without leave to amend.¿ Since NIED is not a separate cause of action,¿but rather the tort of negligence,¿which is already alleged in the first cause of action,¿no leave to amend is granted.¿¿If Plaintiff wants to allege Defendants’ breached their duty in several ways leading to emotional distress, Plaintiff may seek leave to amend her Complaint’s negligence claim to do so.
“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013)212 Cal.App.4th 652, 668-669 [citing CACI NO. 1301].)
Defendant argues Plaintiff did not allege facts showing conduct that could constitute a physical touching and/or apprehension of physical touching that was carried out with the intent to commit harm. But, as alleged in the Complaint, the offensive contact or touching is Dr. Fallas’s reaching into Plaintiff’s abdomen when she screamed in pain. Plaintiff alleged that Dr. Fallas pulled the incision apart when Plaintiff screamed in pain indicating to stop the procedure. (Compl., ¶ 56.) Hearing Plaintiff scream, Dr. Fallas responded by stating to Plaintiff to “hold on,” implying that he knew his actions were causing Plaintiff pain, failed to stop the offensive contact, and made Plaintiff believe that the offensive contact would be continued. (Compl., ¶ 57.) Plaintiff further alleges after Dr. Fallas told her to “hold on,” she then had to grab Dr. Fallas’ wrist to indicate to stop the procedure immediately and instruct Dr. Fallas to take his hand out of her abdomen. The Court finds Plaintiff sufficiently alleged a cause of action for assault. Defendant’s Demurrer to the Third Cause of Action for Assault is OVERRULED.
In order to prevail on a cause of action for medical battery, a plaintiff must show that the defendant performed a medical procedure without a patient’s consent or where the patient consented to one medical procedure, but a substantially different medical procedure was performed, which was a substantial factor in causing harm.¿ (Cobbs v. Grant¿(1972) 8 Cal.3d 229, 239; CACI 530.)¿¿¿
Plaintiff did not allege sufficient facts to show that she did not consent to the staple removal, only that Dr. Fallas did not inform her why he was doing it and refused the offer to administer additional pain medication. Plaintiff does not allege she did not consent to the staple removal procedure until the procedure began and she was in pain. Accordingly, Defendant’s demurrer to the Fourth Cause of Action for Medical Battery is SUSTAINED with 20 days’ leave to amend.
Assault Claim as Duplicative of Medical Malpractice Cause of Action
Defendants argue Plaintiffs’ causes of action for assault and medical battery are insufficiently pled and duplicative of her medical malpractice. Plaintiff’s cause of action for medical battery is insufficiently pled, thus whether it is considered duplicative is moot at this point.
However, as stated above, Plaintiff sufficiently alleges intent for assault, which is an element missing from the cause of action for medical malpractice, which sounds in negligence.
Motion to Strike
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.)¿
¿Meet and Confer
“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).)¿
Defense counsel does not show the parties met and conferred about the motion to strike. The Court proceeds to analyze the Motion on its merits but cautions the parties that any failure to meet and confer regarding future challenges to the pleadings will result in the Motion being taken off calendar.
Second, Third, Fourth Causes of Action
Entire causes of action are improper matters to be decided on a motion to strike and on that basis, the Motion to strike these causes of action is DENIED. The proper basis for challenging an entire cause of action is a demurrer.
Defendant does not substantiate its Motion to strike Paragraphs 26 or 84 and show how these paragraphs are irrelevant, false, or improper. The Motion to strike these paragraphs is DENIED.
Attorneys’ Fees and Costs
Defendants move to strike the prayer for attorney’s fees and costs on grounds that Plaintiff has not pled a basis for such a request.
California Code of Civil Procedure section 1021 provides for attorney’s fees specifically provided by statute or by agreement between the parties. (Code Civ. Proc. § 1021.) Defendant correctly notes that Plaintiff has failed to plead a statute or agreement entitling her to attorney’s fees in the complaint. Therefore, the motion to strike attorney’s fees is granted without leave to amend.
Costs are recoverable by the prevailing party in any action or proceeding unless as otherwise expressly provided by statute. (Code Civ. Proc. § 1032.) Defendants’ Motion to strike Plaintiff’s request for costs is DENIED.
Defendants’ Demurrer to the Second Cause of Action for NIED is SUSTAINED without leave to amend.
Defendants’ Demurrer to the Third Cause of Action for Assault is OVERRULED.
Defendants’ Demurrer to the Fourth Cause of Action for Medical Battery is SUSTAINED with 20 days’ leave to amend.
Defendants’ Motion to strike is GRANTED as to Plaintiff’s request for attorneys fees and DENIED as to all other matters identified in the Notice of Motion.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.
Dated this 13th day of August 2020
Hon. Edward B. Moreton, Jr.
Judge of the Superior Court
Get Deeper Insights on Court Cases