On 12/01/2017 ELAINE FERREIRA DE ARAUJO filed a Personal Injury - Medical Malpractice lawsuit against JAMES S ANDERSEN MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
DE ARAUJO ELAINE FERREIRA
ARAUJO ELAINE FERREIRA DE
STONE ROBERT C.E.O.
CITY OF HOPE INC
DOES 1 TO 20
ANDERSEN JAMES S. M.D.
CITY OF HOPE INC.
5/17/2019: Minute Order
12/1/2017: COMPLAINT FOR DAMAGES MEDICAL MALPRAC11CE: (1) BREACH OF STANDARD OF CARE; ETC
at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
COMPLAINT FOR DAMAGES MEDICAL MALPRAC11CE: (1) BREACH OF STANDARD OF CARE; ETCRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Complaint; Filed by Elaine Ferreira De Araujo (Plaintiff); ELAINE FERREIRA DE ARAUJO (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC685390 Hearing Date: November 14, 2019 Dept: 4A
Demurrer with Motion to Strike (x2)
Having considered the moving, demurring, and opposing papers, the Court rules as follows.
On December 1, 2017, Plaintiff Elaine Ferreira De Araujo (“Plaintiff”) filed a complaint against Defendants City of Hope National Medical Center (erroneously sued and served as City of Hope, Inc.), James S. Andersen, M.D., and Robert Stone, C.E.O. alleging breach of standard of care, medical malpractice, and punitive damages for a deficient reconstructive surgery that occurred on March 21, 2016.
On April 29, 2019, Plaintiff filed a first amended complaint (“FAC”) against Defendants City of Hope National Medical Center and James S. Andersen, M.D. alleging the same causes of action and similar facts as in the initial complaint.
On September 30, 2019, Defendant City of Hope National Medical Center filed a demurrer pursuant to California Code of Civil Procedure section 430.10 and motion to strike pursuant to California Code of Civil procedure section 435.
On October 7, 2019, Defendant James S. Andersen, M.D. filed a demurrer pursuant to California Code of Civil Procedure section 430.10 and motion to strike pursuant to California Code of Civil procedure section 435.
A trial setting conference is set for November 14, 2019.
Defendants City of Hope National Medical Center and James S. Andersen, M.D. (“Defendants”) ask the Court to sustain their demurrers to Plaintiff’s FAC because the breach of standard of care and medical malpractice causes of action are duplicative.
Defendants also ask the Court to strike punitive damages to the FAC because Plaintiff has not sought leave to file an amended complaint seeking punitive damages and insufficient facts have been alleged to support a request for punitive damages.
Meet and Confer
Before filing a demurrer or a motion to strike, the demurring and moving parties are required to meet and confer in person or by telephone with the party who filed the pleading sought to be stricken or demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike. (Code of Civ. Proc. §§ 430.41, subd. (a), 435.5, subd. (a).)
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at p. 747.)
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 complaint or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); 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”].) Conclusory allegations are subject to motions to strike. (Covenant Care, Inc. v. Superior Court (2001) 107 Cal.Rptr.2d 291, 303 (superseded on other grounds by Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771).)
A party must obtain leave of court to seek punitive damages in an action for damages arising out of the professional negligence of a health care provider. (Code Civ. Proc. § 425.13, subd. (a).
Meet and Confer
The Court finds that Defendants have fulfilled the meet and confer requirement prior to filing these demurrers and motions to strike. (See Both Declarations of Patrick J. Goethals, Esq., ¶ 3; see also Both Declarations of Bryan C. Misshore, Esq., ¶ 3.)
Plaintiff writes in her opposition that she will stipulate to the Defendants’ proposed order on page two in Exhibit 1. (Opposition, p. 3:2-3:3.) That page of the proposed order has a part of the order circled and starred. That portion of the proposed order reads that the demurrer to the first cause of action for breach of standard of care and the second cause of action for professional negligence is sustained with leave to amend to allege a single cause of action for medical negligence. (Opposition, Exh. 1, p. 2:1-2:3.)
The second part of the proposed order that addresses the demurrer to the third cause of action for punitive and exemplary damages is not circled or starred. Plaintiff has not conveyed a desire to stipulate to striking these allegations. In fact, Plaintiff argues that Defendants fail to demonstrate that their motions to strike are meritorious. (Opposition, pp. 2:28-3:1.)
The Court finds that the above stated facts show Plaintiff wishes to stipulate only to the sustaining of the demurrers to the breach of standard of care cause of action as being duplicative of the professional negligence cause of action.
Motion to Strike
There has been no Court order allowing Plaintiff to file an amended complaint to seek punitive damages against any Defendant in this action. As such, Plaintiff has not complied with California Code of Civil Procedure section 425.13 so her request for punitive damages in the FAC is improper.
The Court SUSTAINS the demurrers to the breach of standard of care cause of action as being duplicative of the professional negligence cause of action.
The Court GRANTS the motions to strike punitive damages.
The Court strikes the language at page 6, lines 5-8 of the FAC, which states: “Third cause of action for punitive and exemplary damages against the Defendant individually; and . . . punitive and exemplary damages against the City of Hope to be determined at the time of trial.”
Plaintiff may file an amended complaint within 20 days of this ruling.
Defendants are ordered to give notice of this ruling.