MARIA N. VAZQUEZ, ET AL. VS FARID YASHARPOUR, M.D., ET AL.

Tentative Rulings

Case Number: *******9193 Hearing Date: October 26, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs, Maria N. Vazquez (“Vasquez”) and Jose Contreras (collectively, “Plaintiffs”) filed this action against defendants, Farid Yasharpour, M.D., Providence Holy Cross Medical Center for damages relating to the death of Plaintiffs’ newborn daughter 48 minutes after birth. The operative First Amended Complaint alleges a cause of action for “Wrongful Death AND Negligent Infliction of Emotional Distress (Medical Malpractice).”

Defendant Farid Yasharpour, M.D. (“Defendant”) now moves to strike the words Negligent Infliction of Emotional (“NIED”) Distress from the FAC. Plaintiff opposes the motion.

Defendant asserts Defendant previously filed a demurrer to Plaintiff’s original complaint, which was sustained on August 4, 2021, as to the second cause of action for NIED. Defendant contends the FAC contradicts the court’s August 4, 2021, Order because the FAC states a claim for NIED, and so the FAC is not drawn in conformity with the court’s order.

In opposition, Plaintiffs argue that although the demurrer to the second cause of action for NIED in the complaint was sustained, the court order specified Plaintiffs could claim emotional distress damages and wrongful death damages under a cause of action for medical malpractice. Plaintiffs contends they have complied with the court’s order by alleging the wrongful death and emotional distress claims in a single cause of action for medical malpractice.

2. Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP ;; 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP ; 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP ; 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP ; 436.)

“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, 57 Cal.Rptr. 227 [leave to amend complaint does not constitute leave to amend to add new defendant].) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015, 84 Cal.Rptr.3d 642 [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court's reason for sustaining the demurrer].)”

Here, the court’s August 4, 2021, Order stated in pertinent part:

To the extent that Defendant’s alleged negligence caused harm to Vasquez, whether the harm was physical or emotional, Vasquez alleges a claim for professional negligence, not NIED. (See Johnson, 123 Cal.App.3d at 1007.) Accordingly, the allegations alleged under the second cause of action arise only form professional negligence.

Therefore, the demurrer to the second cause of action is sustained. Plaintiffs are given 20 days leave to amend to allege the emotional distress damages under the first cause of action for medical malpractice. Plaintiffs may claim emotional distress damages and wrongful death damages under a cause of action for medical malpractice.

(Min. Order, Aug. 4, 2021.)

Following the sustaining of the demurrer to the original complaint, Plaintiffs filed the FAC alleging a single cause of action for “Wrongful Death AND Negligent Infliction of Emotional Distress (Medical Malpractice).” Although labeled as such, the substance of the FAC’s allegations is based on Defendant’s alleged medical malpractice. (See Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1463 [“[T]he labeling of a pleading is not determinative, but rather the subject matter of the action is to be determined from its allegations, regardless of what they may be called.”].)

Plaintiffs are not actually alleging a separate cause of action for NIED. Rather, they have inartfully labelled their first claim. To avoid future confusion, the court will strike the phrase “WRONGFUL DEATH AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS” and the parentheses around “(Medical Malpractice)” in the first cause of action. The first cause of action will thus be entitled, “Medical Malpractice.” The allegations of that cause of action remain. As permitted by the court’s August 4, 2021, Order, Plaintiffs are otherwise alleging emotional distress damages and wrongful death damages under a cause of action for medical malpractice.

Therefore, Defendant’s motion to strike is granted in part. Defendants must serve and file a response to the FAC within 20 days,

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 26^th day of October, 2021

b"

Case Number: *******9193 Hearing Date: August 4, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs, Maria N. Vazquez (“Vasquez”) and Jose Contreras (collectively, “Plaintiffs”) filed this action against defendants, Farid Yasharpour, M.D., Providence Holy Cross Medical Center for damages relating to the death of Plaintiffs’ newborn daughter 48 minutes after birth. The complaint alleges causes of action for (1) wrongful death-medical malpractice, and (2) negligent infliction of emotional distress (“NIED”)- medical malpractice.

Defendant Farid Yasharpour, M.D. (“Defendant”) now demurs to the second cause of action for NIED-medical malpractice asserted by Vasquez arguing it fails to state sufficient facts to constitute a claim against Defendant. Plaintiffs oppose the motion, and Defendant filed a reply.

In addition, Defendant moves to strike allegations Defendant was reckless as legal conclusions with no factual support. Plaintiffs oppose the motion, and Defendant filed a reply.

2. Demurrer

a. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP ;; 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

b. Analysis

CCP ; 340.5 defines professional negligence as “a negligent action or omission … in the rendering of professional services.” “In this state negligence may be pleaded in general terms, and that is as true of malpractice cases as it is of other types of negligence cases. Moreover, in a malpractice case, it is sufficient, at least as far as a general demurrer is concerned, to aver that certain treatment was negligently administered by defendant to plaintiff's damage without alleging in what respects the treatment may have been deficient.” (Greninger v. Fischer (1947) 81 Cal.App.2d 549, 552.) Denominating a cause of action as one for “professional negligence” does not transmute its underlying character, it merely establishes the basis by which “ordinary prudence” will be calculated and defendant's conduct evaluated. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.)

“ ‘Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply…’ ” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130.) Accordingly, to establish a claim for negligent infliction of emotional distress as a direct victim, Plaintiff must show the traditional elements of negligence, namely duty, breach of duty, causation, and damages, as well as severe emotional disturbance or suffering by reason of Defendant's conduct. (Marlene F v. Psychiatric Med Clinic (1989) 48 Cal.3d 583, 588.) A defendant whose negligent conduct breaches some other legal duty to plaintiff is liable for proximately caused serious emotional distress. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.) Moreover, “A plaintiff in a case of medical malpractice may recover damages for emotional distress,” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.)

Here, Defendant contends that as a matter of law, Vasquez cannot state a discrete claim for NIED because any emotion distress Vasquez suffered is a damage component of her wrongful death-medical malpractice claim. Defendant requests the NIED claim be sustained without leave to amend and Plaintiff be allowed to amend her first cause of action to include a claim for damages for severe emotional distress. Further, Defendant argues Vasquez has a single primary right to be free from negligence in connection with her labor and delivery, and thus, a single cause of action for wrongful death-medical malpractice.

In opposition, Plaintiffs contend the demurrer misstates the damages recoverable for the distinct causes of action for wrongful death and NIED, as damages for Vasquez’s grief, sorrow or mental anguish are expressly excluded from recovery in a wrongful death action. Plaintiffs contend there Vasquez alleging two different types of injury- one for the wrongful death of her child, and the second NIED.

As to the second cause of action, the complaint alleges:

20. Plaintiff Maria N. Vazquez incorporates herein by reference, as though set forth in full, paragraphs 1 through 19 of this Complaint.

21. At all times mentioned herein Ms. Vazquez was a patient of defendants, and each of them.

22. At all times herein mentioned, defendants, and each of them, owed Ms. Vazquez a duty to provide her with a diagnosis, care and treatment in the delivery of her baby that was not negligent, that is, that complied with the applicable standard of care.

23. As a result of the negligence, carelessness and recklessness of defendants, and each of them, as herein alleged, Ms. Vazquez suffered serious emotional distress.

(Compl. ¶¶ 20-23.) The complaint’s allegations relate to the care and treatment of Vasquez during labor and delivery of her child. (Compl. ¶¶ 7-19.)

Although the complaint contains two causes of action labeled as wrongful death-medical malpractice and NIED-medical malpractice, the complaint’s allegations are based on Defendant’s alleged medical malpractice. (See Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1463 [“[T]he labeling of a pleading is not determinative, but rather the subject matter of the action is to be determined from its allegations, regardless of what they may be called.”].) As Plaintiffs admit in their opposition, the complaint alleges Defendant provided negligent care and treatment to Plaintiff during her labor and delivery resulting in the death of her daughter after birth.

The California Supreme Court has established that the negligent causation of emotional distress is not an independent tort; rather it is the tort of negligence. (See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072; see also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) The Supreme Court continues to adhere to the distinction between “direct victim” and “bystander” claims for emotional distress arising from negligence. (See Burgess, 2 Cal.4th 1072-74.) The major distinction between the two claims rests on the source of the duty owed to the plaintiff. (Id. at 1073.) In a “direct victim” claim, the duty arises directly from the relationship between the plaintiff and defendant, whereas a “bystander” claim arises where the defendant owes a no duty to plaintiff beyond the duty to the general public. (Id.) Since “bystander” claims could be limitless, the Supreme Court has set forth limits for a “bystander” claim. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 647 [stating that “bystander” liability arises where there is a close relationship between the victim and plaintiff, the plaintiff witnessed the injury to the victim, and it was foreseeable that as a result of the injury to the victim, the plaintiff would suffer emotional distress].)

In the context of the treatment of a pregnant woman by a physician, courts in California have consistently found that a mother may allege emotional distress damages arising from the negligent delivery of her child. (See Johnson v. Superior Court (1981) 123 Cal.App.3d 1002, 1007 [“emotional distress arising from the sensory impact of the death of the child is compensable as part of the mother's cause of action for malpractice to herself.”]; Zavala v. Arce (1997) 585 Cal.App.4th 915, 933; Burgess, supra, 2 Cal.4th at 1074-75.) Nevertheless, a cause of action for professional negligence arises where there are emotional distress damages regardless of whether the mother was also physically injured by the negligent conduct of the physician. (See Zavala, 58 Cal.4th at 920 [finding that a mother may state a cause of action for professional negligence arising from the in utero death of her child in the absence of physical injury to herself]; Burgess, 2 Cal.4th at 1085 [concluding that a mother does not have to satisfy the requirements for a “bystander” claim for emotional distress arising from the negligent delivery of her baby].) Thus, a mother's emotional distress arising from the negligent delivery of her child “are aspects of the mother's cause of action for personal injuries which enhance her measure of damages.” (Johnson, supra, 123 Cal.App.3d at 1007.)

Plaintiffs, in this case, are correct Vasquez is asserting a direct victim claim for NIED. However, Plaintiffs misinterpret Burgess to the extent Plaintiffs contend Burgess allows Vasquez to plead a separate cause of action for NIED independent of a claim for medical malpractice against Defendant. Burgess stands for the proposition that a mother may allege “direct victim” emotional distress damages' arising from the negligent delivery of her baby by her physician regardless of whether physical harm is also suffered by the mother. That is, defendants owed Plaintiff a professional duty to Plaintiff in connection with the delivery of her child.

To the extent that Defendant’s alleged negligence caused harm to Vasquez, whether the harm was physical or emotional, Vasquez alleges a claim for professional negligence, not NIED. (See Johnson, 123 Cal.App.3d at 1007.) Accordingly, the allegations alleged under the second cause of action arise only form professional negligence.

Therefore, the demurrer to the second cause of action is sustained. Plaintiffs are given 20 days leave to amend to allege the emotional distress damages under the first cause of action for medical malpractice. Plaintiffs may claim emotional distress damages and wrongful death damages under a cause of action for medical malpractice.

3. Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP ;; 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP ; 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP ; 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP ; 436.)

Here, Defendant contends the factual material allegations of the complaint at most show negligent or careless behavior but do not rise to the level of recklessness as Plaintiffs contend. In opposition, Plaintiffs argue Defendant has not state valid grounds for striking the words recklessly and recklessness from the complaint. Plaintiffs assert the argument the words are legal conclusions is not grounds for a motion to strike. Plaintiffs contend they allege multiple erroneous acts by Defendant in delivering Plaintiffs’ baby, and whether those acts rise to the level of recklessness should be determined by a trier of fact.

In order to plead a cause of action, the complaint must contain a “statement of the facts constituting the cause of action, in ordinary and concise language,” (Code Civ. Proc, ; 425.10, subd. (a).) While it is true that pleading conclusions of law does not fulfill this requirement, it has long been recognized that “[t]he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. [Citations.] For example, the courts have permitted allegations which obviously included conclusions of law and have termed them ‘ultimate facts' or ‘conclusions of fact.”’ (Burks v. Poppy-Construction Co. (1962) 57 Cal.2d 463, 473 [20 Cal.Rptr. 609, 370 P.2d 313].) What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240 [74 Cal.Rptr. 398, 449 P.2d 462]; Semole v. Sansoucie (1972) 28 Cal.App.3d 714 [104 Cal.Rptr. 897].) The stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner's complaint.

(Perkins v. Superior Court (1981 117 Cal.App.3d 1, 6.)

In this case, Plaintiffs allege sufficient facts to state a claim for medical malpractice. Conclusory allegations will not be stricken if they are supported by sufficient factual allegations. The words reckless and recklessness relate to the claim for medical malpractice, and the court cannot say as a matter of law Defendant’s actions were not reckless.

The motion to strike is denied.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 4^th day of August, 2021