Anatomy of Demurrer

The court decisions in Julie Santiveris vs. Apguard Medical, Inc., Case Number: BC518336, and in Kody Quinn vs. County of Los Angeles, Case Number:  BC534190, both in Los Angeles Superior Court of California, explained the workings of the Demurrer.

The hearing on August 8, 2014 for the Santiveris case involved a Demurrer and Motion to Strike the plaintiff’s First Amended Complaint.  According to the First Amended Complaint, as reported in Lawzilla, The plaintiff’s husband, Alberto Santiveris, was diagnosed with a medical condition requiring a respiratory machine in order to properly breathe. The plaintiff and Santiveris rented a respiratory machine from the Defendant Apguard Medical Inc.  After the machine developed a problem, Defendant replaced the machine. The replacement stopped working. Santiveris developed serious breathing problems. Santiveris was transported to the hospital by ambulance, and died.

In the Quinn case, plaintiff Kody Quinn sued Defendants, County of Los Angeles and Henry Mayo Newhall Memorial Hospital for negligence and medical malpractice, respectively. Plaintiff alleged he was injured in a motorcycle accident caused by the road condition, and the hospital’s care and treatment.

The First Amended Complaint for the Santiveris case pled these causes of action:  1) Wrongful Death – Medical Malpractice; 2) Wrongful Death – Negligence; 3) Strict Products Liability – Manufacturing or Design Defect; 4) Strict Products Liability – Failure to Warn; 5) Negligent Products Liability – Failure to Warn: 6) Breach of Implied Warranty of Fitness: 7) Breach of Implied Warranty of Merchantability.  The Defendant filed a Demurrer to the first cause of action, and Motion to Strike seven portions from the First Amended Complaint.

In California, the Demurrer standard is from California Code of Civil Procedure §430.10:  “The party against whom a complaint…has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds…(e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain.  As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.  (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct…”

Mere recitals, references to or allegations of material facts which are left to surmise are subject to a special demurrer for uncertainty.  (Bernstein v. Piller (1950) 98 Cal. App. 2d 441, 444.)  For purposes of a demurrer, all allegations of the complaint are deemed true.  (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.)  A demurrer makes no binding judicial admissions such that it does not admit contentions, deductions, or conclusions of fact or law alleged in the challenged pleading.  (Atascadero v. Merrill Lynch, Fenner & Smith, Inc. (1999) 68 Cal.App.4th 445, 460.)  Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physician’s Services (2000) 81 Cal.App.4th 39, 43.)  A demurrer should be sustained without leave to amend if the conduct complained of imposes no liability under substantive law.  (Droz v. Pacific National Insurance Co. (1982) 138 Cal.App.3d 181, 187.)

In the Santiveris case, the Defendant challenged the first cause of action for wrongful death based on medical malpractice lacked sufficient facts.  The plaintiff did not plead Defendant was a licensed health care provider and did not plead the plaintiff served a pre-filing notice of intention to sue.  According to the Defendant’s argument, a cause of action based on professional malpractice in California needed to contain the following elements:  1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; 2) a breach of that duty; 3) a proximate causal connection between the negligent conduct and the resulting injury; and 4) actual loss or damage resulting from the professional’s negligence.  Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077.

In the Quinn case, the County challenged the plaintiff on the complaint not being grounded on statute, and there not being sufficient facts.

California law permits parties to state a negligence claim in general terms, without stating the facts constituting such negligence. Smith v. Beauchamp (1945) 71 Cal. App. 2d 250, 254-255 (holding it is sufficient to plead that the thing done was negligently done).  However, this Smith decision is not applicable to government entities.

According to the court decision in Santiveris, a review of the first cause of action showed the plaintiff pled Defendant was a health care provider who rendered medical services to Alberto Santiveris. This was sufficient for the court on the Defendant being a health care provider with the duty of a professional when treating Alberto Santiveris.  The court determined there was no requirement for the plaintiff to allege complying with a requirement to serve a notice of intent to sue. The failure to comply with this requirement did not invalidate any court proceedings and did not affect the jurisdiction of the court. The court overruled the Demurrer.

In the Quinn case, because the plaintiff used a form and did not plead specific facts, the court sustained the Demurrer with leave to amend.

When a Demurrer is overruled, it does not mean the plaintiff will have a high chance of winning a case.  The chance of winning may stay the same.  The Demurrer tests the pleadings, not the facts.  The plaintiff still has to prove the facts in the case, and who each fact in the complaint is true.

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