Order After Hearing POSCal. Super. - 6th Dist.April 29, 2021OOOO'xJONU‘l-PUJN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA GUANGYUAN SU, Case No. 2 1 CV3 80898 Plaintiff, vs. ORDER RE: DEFENDANT’S DEMURRER T0 PLAINTIFF’S COMPLAINT; MOTION T0 STRIKE DR. BARRY FUNG MD, PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED Defendants. The Demurrer t0 the Complaint and Motion t0 Strike by Defendant Dr. Barry Fung, M.D., came 0n for hearing before the Honorable Christopher Rudy 0n November 4, 2021 at 9:00 a.m. in Department 7. The matter having been submitted, the court finds and orders as follows: I. Introduction Dr. Barry Fung, MD. (“Defendant”) demurs to the Complaint by Guangyuan Su (“Plaintiff”). Defendant also moves t0 strike the punitive damages portion of the Complaint. A. Factual Plaintiff contends that Defendant ignored the results of his eye checkup. He destroyed his good tissues which has caused him t0 be unable t0 wear anificial lenses. Other doctors gave him a checkup and Plaintiff contends that Defendant’s method was wrong. Before his surgery, 1 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED OKDOONONU‘u-P-L’JN 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 26 27 28 Plaintiff was able to read the neWSpaper and write normally. Now he cannot d0 those things which has made him unable t0 live and work as he did before. B. Procedural Based 0n the foregoing allegations, Plaintiff initiat'ed this action on April 29, 2021 with the filing 0fthe Complaint which assened negligence and medical malpractice. On June 4, 2021, Defendants filed this instant demurrer. Plaintiff did not file an opposition. 0n September l3, 2021 , the Court granted Plaintiff request for a continuance t0 November 4, 2021. II. Defendant’s Demurrer A. Preliminary Matters 1'1. Timeliness “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service 0fthe complaint or cross-complainl, demur to the complaint 0r cross- complaint.” (Code Civ. Proc., § 430.40, subd. (21).) 1 Even ifa demurrer is untimely filed, the Court has discretion t0 hear the demurrer so long as its action “. . . ‘does not affect the substantial rights of the parties.’ [Citations.]” (See McAllister v. County ofMomerey (2007) 147 Cal.App.4th 2S3, 281 ~282.) Here, the Complaint was filed on April 29, 2021. It appears that service occurred on May 6, 202]. The demurrer was filed 0n June 4, 2021. The demurrer is timely. Accordingly, the court will consider the merits 0fthe demurrer. ii. Meet and Confer “Before filing a demuner pursuant t0 this chapter, the demurring party shall meet and confer in person 0r by telephone with the party who filed the pleading that is subject to demurrer for the purpose ofdetermining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (§ 430.41, subd. (3).) “As part of the meet and confer process, the demurring party shall identify all 0fthe specific causes ofaction that it believes are subject to demurrer and identify with legal support the basis 0fthe deficiencies.” (§ 430.41, l All further undesignated statutory references are to the Code of Civil Procedure. 2 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLATNTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED ._.. OKDOOQONUI4>UJN mmmmmmmmmflflHHHH~.-HH ooflmM-PWNHOQOOxJONLh-thH subd. (a)(l).) “Any determination by the court that the meet and confer process was insufficient shall not be grounds t0 overrule or sustain a demurrer.” (§ 430.41, subd. (a)(4).) Herc, Defendant has provided a declaration evidencing sufficient meet and confer efforts. B. Legal Standard for Demurrer As relevant to the instant case, “[t]he party against whom a complaint 0r cross-complaint has been filed may object, by demurrer or answer as provided in [s]ection 430.30, t0 the pleading 0n any one 0r more 0fthe following grounds: . . . (e) The pleading does not state facts sufficient t0 constitute a cause ofaction. (f) The pleading is uncertain.” (§ 430.10, subds. (e) & (0.) A demuwer may be utilized by “[t]he party against whom a complaint [ ] has been filed” to object to the legal sufficiency 0fthe pleading as a whole, 0r t0 any “cause 0f action” stated therein, on one or more ofthe grounds enumerated by statute. (§§ 430. l 0, 430.50, subd. (3).) The court in ruling 0n a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccim'ni v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 31 1, 318.) “A demurrer tests only the legal sufficiency ofthe pleading. It admits the truth ofall material Factual allegations in the complaint; the question ofplaintiff‘s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee 0n Children ’s Television, Inc. v. General Foods Corp. (1 983) 35 Cal.3d 197, 213-214.) In ruling 0n a demurrer, courts may consider matters subject to judicial notice. (Scott v. JPJ’vforgan Chase Bank, NA. (2013) 214 Cal.App.4th 743, 751.) Evidentiary facts found in exhibits attached t0 a complaint can be considered 0n demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) C. Merits 0f the Demurrer Defendant demurs t0 the Complaint 0n the grounds that (1) it does not state facts sufficient to constitute a cause 0f action, (2) it does not contain a cause of action whatsoever, and (3) it is uncertain. // // 3 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED oxooouoxm-n-ww._ NNMNNNNNNH#H#H_.-.HHH OO\JO\Lh-P-UJNHO\OOO\JO\LA-hU-)MH i. Defendant’s Argument that the Complaint Does Not State Facts Sufficient t0 Constitute a Cause 0f Action. Defendant argues that Plaintiff’s complaint is “devoid 0f any facts which would acquaint these moving defendants with the nature, source, and extend ofhis claims.” (Defendant’s Memorandum of Points and Authorities (“Defendant’s MPA”) p. 2, 1n. 22-23.) Defendant further argues “that Plaintiff‘s allegations of ‘abuse, cheating, discrimination, and defamation’ without more, are conclusory statements only, and his complaint is therefore subject to demurrer for failure to state a cause of action.” (Defendant’s MPA, p. 2, 1n. 25-27.) In general, “a complaint must contain ‘a statement 0fthe facts constituting the cause 0f action, in ordinary and concise language.” (Davaloo v. State Farm Insurance C0. (2005) 135 Cal.App.4th 409, 415, quoting section 425.10, subdivision (a)(l).) “This fact-pleading requirement obligates the plaintiffto allege ultimate facts that as a whole apprise [] the adversary 0f the factual basis 0fthe claim. (Ibid) A defendant may demur t0 a pleading 0n the ground that it fails t0 state facts sufficient to constitute a cause of action. (§ 430. 1 0, subd. (6).) A demurrer on that statutory ground tests whether the plaintiff alleges each ultimate fact essential t0 the cause 0f action asserted. (CA. v, William S. Hart Um‘on High School Dist. (2012) 53 Cal.4th 861 , 873.) Plaintiff did not file an opposition with the court. In his form Complaint, Plaintiff checked general negligence as his cause 0f action. (Complaint, p. 3.) Plaintiffincluded “Attachment A”, which states that his “checking results” were ignored by Defendant. (Complaint, Attachment A.) Plaintiff states that his “good tissues were destroyed” and as a result, he is not able to use artificial lenses. (Ibid) He went to other doctors whom he contends informed him that Defendant’s used the wrong methods. (Ibid) Plaintiff states that he can n0 longer live and work as he once did. (Ibid) The elements ofa cause of action for negligence are (l) a legal duty to use reasonable care, (2) breach 0ftl1at duty, (3) proximate cause between the breach and (4) the plaintiff‘s injury. (Trfbeca Companies, LLC v. FirstAmerican Title Ins. C0. (2015) 239 Cal.App.4th 1088, 11 l4.) 4 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED \OOOflQm-P- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff did not provide any more details. Plaintiff has not alleged each ultimate fact essential to the cause 0f action asserted. Therefore, Plaintiff has not stated facts sufficient to constitute a cause of action. Accordingly, the demurrer is SUSTAINED with 10 days’ leave t0 amend. fii. Defendant’s Argument that the Complaint Does Not Contain a Cause 0f Action Whatsoever Defendant argues that the Complaint does not contain a cause of action whatsoever. Plaintiff checked off “general negligence” in the cause of action portion of the Complaint. (Complaint, p. 3.) As such, a cause 0f action is included in the Complaint. Accordingly, the demurrer is OVERRULED on this ground. iii. Defendant’s Argument that the Complaint is Uncertain. Defendant argues that Plaintiff s complaint is uncertain because “defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.” (Defendant’s MPA, p. 3, In. 3-4.) Defendant further argues that ”Plaintiff has alleged claims in such a way as to prevent identifying the nature 0fthe claims so defendant cannot tell what he or she is supposed t0 rCSpond to.” (Id. at ln. 5-7.) ‘ Demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he 0r she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's ofCalif, Inc. (1993) 14 Cal.App.4th 612, 616 (Khowy).) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modem discovery procedures. (Khoury, supra, 14 Cal.App.4th at p. 616.) As noted above, Plaintiff did not file an opposition t0 the demurrer. Plaintiff has brought forth a cause of action for negligence stemming from some unspecified type 0f eye treatment he received from Defendant. (Complaint, Attachment A.) Defendant can reasonably determine what issues must be admitted or denied through discovery procedures. Moreover, Defendant can determine what claims are direct against him. Although the Complaint did not include many 5 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED oxoooaqcxmpwm_ NNNNNNNNNHH_H__._.__._. OO\!C\M#~DJN'-‘O\OOO\JO\kh-FWN-‘ details, there arc sufficient details for Defendant t0 ascertain what he is being alleged against him and what he is supposed to respond t0. Accordingly, the demurrer is OVERRULED. D. Conclusion The demurrer on the grounds offailure to state sufficient facts is SUSTAINED with 10 days’ leave t0 amend. The demurrer on the grounds of n0 causes 0f action being alleged whatsoever and uncertainty is OVERRULED. Plaintiff is reminded that when a demurrer is sustained with leave t0 amend, the leave must be construed as pennission to the pleader to amend the causes ofaction t0 which the demurrer has been sustained, not add entirely new causes ofaction. (See Patrick v. Alacer Corp. (2008) 167 Ca1.App.4th 995, 101 5.) III. Defendant’s Motion t0 Strike A. Timeliness “Any party, within the time allowed t0 respond t0 a pleading may serve and file a notice ofmotion t0 strike the whole or any part thereof.” (§ 435, subd. (b)(l); see also Cal. Rules of Court, rule 3.1322, subd. (b).) “The term ‘pleading’ means a demurrer, answer, complaint, or cross-complaint.” (§ 435, subd. (a)(2).) Unless extended by stipulation 0r coufi order, a defendant’s answer is due within 30 days after service ofthe complaint. (See § 412.20, subd. (20(3)) Here, the Complaint was filed on April 29, 2021. It appears that service 0f the Complaint Occurred 0n May 6, 2021. The motion t0 strike was filed 0n June 4, 2021. Thus, it appears that the motion to strike is timely and Plaintiff does not contend otherwise. B. Meet and Confer The moving party is required to engage in meet and confer efforts prior to the filing 0f a motion to strike. (§ 435.5, subd. (a).) But, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds t0 grant 0r deny the motion to strike.” (§ 435.5, subd. (a)(4).) Here, Defendant has provided a declaration evidencing sufficient meet and confer efforts. 6 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED KOOOQQUILDJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Legal Standard for a Motion t0 Strike Under section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading 0r strike out all or part of any pleading not drawn or filed in conformity with the laws ofthis state, a court rule, or an order of the court. (§ 436.) The grounds for a motion to strike must appear 0n the face 0f the challenged pleading or from matters 0f which the court may takejudicial notice. (§ 437, subd. (a); see also City and County ofSan Francisco v. Sn'ahlena'orf(1992) 7 Cal.App.4th 191 1, 1913.) In ruling on a motion t0 strike, the court reads the complaint as a whole, all pans in their context, and assuming the truth of all well- pleaded allegations. (See Turman v. Turning Point ofCenrral California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) “Thus, for example, defendant cannot base a motion to strike the complaint 0n affidavits or declarations containing extrinsic evidence showing that the allegations are ‘falsc’ 0r ‘sham.’ ” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) 7.169.) A motion t0 strike portions of a complaint or petition may be brought 0n the ground that the allegations at issue are “irrelevant” 0r “improper.” (§ 436, subd. (21).) Irrelevant matter includes (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim 0r defense, and (3) a demand forjudgment requesting reliefnot supported by the allegations of the complaint 0r cross-complaint. (See § 431.10, subds. (b), (0).) Generally speaking, motions to strike are disfavored and cannot be used as a vehicle t0 accomplish a “line item veto” of allegations in a pleading. (PHII, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) However, where irrelevant allegations are “scandalous, abusive, disrespectful and contemptuous,” they should be stricken from the pleading. (1n re Estate ofRandall (l 924) 194 Cal. 725, 731.) “While under section 436, a court at any time may, in its discretion, strike portions 0f a complaint that are irrelevant, improper, 0r not drawn in conformity with the law, matter that is essential to a cause of action should not be struck and it is error t0 do so. [Citati0n.] Where a whole cause 0f action is the proper subj ect ofa pleading challenge, the court should sustain a 7 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION T0 STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED koooxlmmgmw_ NNNNNNNNN-A-I-u-n-IH-AHHH ooflmm-PUJN'-‘OKDOO\JO\m-wa’-‘O demun‘er t0 the cause 0f action rather than grant a motion t0 strike. [Citati0n.]” (Quiroz v. SeventhAve. Center (2006) 140 Cal.App.4th 1256, 1281.) D. Merits 0f the Motion Defendant moves to strike Plainitff’s requests for punitive damages in the Complaint and the request for $20,000,000 0n the grounds that Defendant is a healthcare provider and section 425.13 prohibits a claim for punitive damages against a healthcare provider without prior court order and that section 425.10, subdivision (b) prohibits stating sum for damages, and Civil Code section 3295, subdivision (e) provides that no claim for exemplary damages shall state an amount. i. Section 425.13 Prohibits of Punitive Damages Against a Healthcare Provider Without Prior Court Order An action for damages “arises out ofthe professional negligence ofa healthcare provider if the injury for which damages are sought is directly related t0 the professional services provided by the healthcare provider.” (Central Pathology Service Medical Center, Inc. v. Super. Ct (1992) 3 Cal.4th 181, 191.) Section 425.13 requires “a plaintiffto obtain leave of court before including a claim for punitive damages in any action for damages arising out 0fthe professional negligence ofa healthcare provider.” (§ 425.13, subd. (a).)2 “The motion must be decided “0n the basis 0fthe supporting and opposing affidavits presented.”” (Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 749.) “The court must find “that the plaintiffhas established that 2 Section 425.13, subdivision (a) provides in full, “In any action for damages arising out ofthe professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint 01‘ other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages t0 be filed. The court may allow the filing 0f an amended pleading claiming punitive damages 0n a motion by the party seeking the amended pleading and on the basis ofthe supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiffwill prevail 0n the claim pursuant t0 Section 3294 0fthe Civil Code. The court shail not grant a motion allowing the filing 0f an amended pleading that includes a claim for punitive damages ifthe motion for such an order is not filed within two years after the complaint 0r initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” 8 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED OKCOOQGNLA$UJN- NMNNNNNNNHHH~H~H_‘HH OONQM4>WN#O\DOO\IO\LA¥-UJN-‘ there is a substantial probability that the plaintiffwill prevail” 0n the punitive claim before leave is granted t0 file an amended pleading containing the punitive claim.” (Ibid) Plaintiff has not provided any additional details regarding the cause ofaction beyond the information contained in the form Complaint. But, based 0n the sparse allegations in the Complaint, it appears that Defendant is a doctor who perfmmed an eye treatment on Plaintiff. Plaintiffdid not obtain leave of court prior to including a claim for punitive damages in the Complaint. Plaintiffdid not file an Opposition t0 the motion t0 strike. Therefore, Plaintif‘fhas provided no basis t0 deny the motion to strike. ii. Section 425.10, subdivision (b) Prohibits Stating Sum for Damages Section 425.1 0 (b) states, “Nom'ithstanding subdivision (a), where an action is brought t0 recover actual 0r punitive damages for personal injury or wrongful death, the amount demanded shall not be stated, but complaint shall comply with Section 422.30 and, in a limited civil case, with subdivision (b) of section 70613 0f the Government Code. (§ 425. I 0, subd. (b).) The Complaint indicates that Plaintiff is seeking compensatory damages and punitive damages in the amount oftwenty million dollars ($20,000,000.00). Plaintiffdid not file an Opposition t0 the motion to strike. Therefore, Plaintiffhas provided n0 basis to deny the motion t0 strike. iii. Civil Code Section 3295, subdivision (e) Provides that No Claim for Exemplary Damages Shall State an Amount 0r Amounts. Civil Code section 3295, subdivision (c) states that, “no claim for exemplary damages shall state an amount or amounts.” The Complaint indicates that Plaintiff seeks punitive damages (in addition to compensatory damages) in the amount 0f twenty million dollars ($20,000,000.00). E. Conclusion Accordingly, the motion t0 strikc is GRANTED. The punitive damages requests in Plaintiff‘s civil case cover sheet, Complaint, and in plaintiff’s request for $20,000,000.00 in damages as set forth on page 3 in his Judicial Council Foxm complaint are ordered stricken because Plaintiffdid not obtain leave Ofcourt before including the punitive damages in the 9 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED 42-935.) O\DOO\JO\LA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint and because they state an amount damages and, therefore, they are not in conformity with sections 425.10, subdivision (b), and Civil Code section 3295, subdivision (e). Plaintiff shall have 10 days’ leave to amend. IV. Conclusion The demurrer is SUSTAINED 0n the ground that the Complaint does not allege sufficient facts to constitute a cause 0f action. (§ 430.10, subd. (6).) The demurrer is OVERRULED as_to all other grounds. The motion t0 strike is GRANTED in its entirety. Plaintiff shall have 10 days’ leave to amend. It is so ordered. ,flfl fl/{W s’iijljy z/ Hon. Christopher Rudy Judge of the Superior Court Dated : NOV 17 2021 10 ORDER RE: DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION T0 STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA " 2h DOWNTOWN COURTHOUSE ,I . 5m E 191 NORTH FIRSTSTREET SANJOSE, CALIFORNIA 95113 CIVIL DIVISION RE: Guangyuan Su vs Barry Fung Case Number: 21 CV380898 PROOF 0F SERVICE ORDER RE: DEFENDANT'S DEMURRER T0 PLAINTIFF'S COMPLAINT; MOTION T0 STRIKE PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES AND DAMAGES STATED was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you. a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator’s office at (408) 832-2700. or use the Court’s TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION 0F SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy In a sealed envetope. addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid, In the United States Mail at San Jose. CA on November 17. 2021. CLERK OF THE COURT, by Richelle Belligan, Deputy. cc: Guangyuan Su 3608 SWEET BROOK CT SAN JOSE CA 95111 Barry C Marsh Hinshaw Marsh Still & Hinshaw LLP 12901 Saratoga Avenue Saratoga CA 95070 CW-9027 REV 12/08l16 PROOF 0F SERVICE