D.B. vs. Doe Medical Center

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to First Amended Complaint in Department 53

Tentative Ruling

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TENTATIVE RULING: Defendant John Kwock’s demurrer to the First Amended Complaint (“1AC”) filed by plaintiff D.B. is ruled upon as follows.

The Court notes that the caption page of the moving papers indicates that defendant Kwock is “specially appearing” for purposes of presenting this demurrer. However, California law has long held that the filing of a demurrer constitutes a “general appearance” of that party and a waiver of not only any defect in the service of summons & complaint but also any other challenge to the Court’s personal jurisdiction over the demurring party. (See, e.g., Humphrey v. Bewley (2021) 69 Cal.App.5th 571, 581-581; Rhyne v. Muncipal Court (1980) 113 Cal.App.3d 807, 815-816; see also, Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, Ch. 7:65.)

The Court also notes that the Pfaff Declaration filed in support of this demurrer does not comply

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to First Amended Complaint in Department 53

with the requirements of Code of Civil Procedure §430.41(a), which requires the demurring party to meet-and-confer “in person or by telephone” with the party filing the pleading that is the subject of the demurrer. Here, the Pfaff Declaration indicates that there was a telephonic meet-and-confer conducted prior to defendant Kwock’s filing of a demurrer to the original complaint but does not affirm any actual meet-and-confer “in person or by telephone” in connection with Kwock’s demurrer to the 1AC.

Notably, the final sentence of §430.41(a) expressly requires a new round of meet-and-confer efforts “in person or by telephone” prior to each successive demurrer. Ordinarily, the failure to submit a code-compliant meet-and-confer declaration would result in a continuance of the demurrer in order to have the parties fulfill their mandatory meet-and-confer requirements but since the grounds for this demurrer overlap with the concurrent demurrer by Sutter Health, the Court reluctantly rules on this demurrer despite the non-compliant Pfaff Declaration.

A number of the moving papers’ citations to the provisions of Code of Civil Procedure §340.1 are inaccurate and appear to relate to a prior version of this statute, without any clarification. (See, e.g., Dem, p.3:4-15 [citing §340.1(g)(1), (2) and/or (3), when §340.1(g) includes no additional subparts and no (1), (2) or (3); see also, p.7 generally].) Moving counsel is advised to be more clear in the future in order to avoid the unnecessary consumption of finite judicial resources.

Factual Background

This case arises from a childhood sexual assault against plaintiff while hospitalized decades ago. Plaintiff has sued the nurse, defendant Kwock, who is alleged to have committed the assault as well as others include defendant Sutter Health. The original complaint was filed on 12/8/2022 and plaintiff then lodged Certificates of Merit (“COM”) on 2/2/2023 but these were rejected on 3/2/2023. Plaintiff lodged additional COM on 5/9/2023 and on 5/26/2023, the Court found the COM to be sufficient. On 7/12/2023, plaintiff submitted his Certificate of Corroborative Fact (“CCF”) but it was rejected by the Court on 7/24/2023. Plaintiff submitted another CCF on 12/5/2023 and it was approved on 12/29/2023, with the 1AC being filed on 1/10/2024. The present demurrer by defendant Kwock was filed on 5/9/2024.

Moving Papers. Defendant Kwock contends the 1AC is subject to demurrer because plaintiff failed to do the following:

(1) “Submit a [COM] pursuant to Code of Civil Procedure section 340.1(g)(3) [sic] “explaining that the [COM] required under section 340.1(g)(1)(2) [sic] could not be obtained before the impairment [sic] of the action;” (2) “Submit a [COM] explaining his inability to obtain a consultation with a licensed mental health practitioner before the impairment [sic] of the action in accordance with Code of Civil Procedure section 340.1(g)(3) [sic];” and (3) “Submit a [COM] by a mental health practitioner in accordance with pursuant to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to First Amended Complaint in Department 53

Code of Civil Procedure section 340.1(g)(1) [sic] within sixty (60) days of the filing of his Complaint for Damages as required by section 340.1(g)(3) [sic].”

According to the moving papers, plaintiff filed his complaint on 12/8/2022 but did not attach any COM pertaining to defendant Kwock or asserting any inability to consult with a licensed mental health practitioner before filing this action. (Mov. P&A, p.3:22-p.4:3; p.8:3-6.) Plaintiff did submit COM on 2/2/2023 and within 60 days of the filing of the complaint, but the Court found them insufficient on 3/2/2023. (Id., at p.8:7-14.) While plaintiff again submitted COM on 5/9/2023 which were later found sufficient, these COM were submitted more than 60-days after the 12/8/2022 complaint. (Id., at p.8:15-22.) Thus, defendant Kwock maintains this action is subject to demurrer pursuant to “Code of Civil Procedure section 340.1(k) [sic],” apparently a mistaken reference to §340.1(j).

Defendant Kwock further asserts that the Court’s 5/26/2023 order approving the COM submitted on 5/9/2023 and well beyond the 60-day window which closed on 2/6/2023 “should be vacated as void for lack of jurisdiction.” (Mov. P&A, p.12:12-p.13:6.)

Opposition. Plaintiff opposes and although this opposition for unknown reasons refers in places to arguments advanced in the separate demurrer by co-defendant Sutter Health (see, e.g., Oppos., p.1:17-28), plaintiff first argues that the statute of limitations on his claims did not actually expire on 1/1/2023, thereby obviating the need for filing an “excuse” explaining why the COM could not be filed within 60 days of the original 12/8/2022 complaint. More specifically, the opposition maintains that the statute of limitations originally set to expire on 1/1/2023 was by virtue of the Judicial Council’s Emergency Rule 9 automatically extended to 6/27/2023 (see, Roe v.

Doe (2023) 98 Cal.App.5th 965, 973 [Emergency Rule 9 tolled §340.1’s limitations period by 178 days]) and thus, the COM which PL submitted on 5/9/2023 and which were later approved by the Court on 5/26/2023 were completed more than one month prior to the expiration of limitations period. Since the COM were filed prior to the end of the statute of limitations, plaintiff was not obligated to utilize the “safe harbor” provision which entails the filing of an “excuse” explaining why the COM could not be filed within 60 days of the original complaint, citing McVeigh v.

Doe 1 (2006) 138 Cal.App.4th 898, 904.

Reply. The Court finds on file no reply papers from defendant Kwock.

Discussion

Defendant Kwock’s demurrer to the 1AC based on the plaintiff’s failure to attach codecompliant COM to the original complaint filed on 12/8/2022 or to submit them within 60 days thereafter shall be overruled. As pointed out by the opposition, the recent decision in Roe v. Doe unequivocally held that Code of Civil Procedure §340.1’s limitations period was extended by 178 days pursuant to the Judicial Council’s Emergency Rule 9 and thus, did not expire until 6/27/2023. (Roe v. Doe, 98 Cal.App.5th at 973.) Consequently, this Court holds that the COM

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to First Amended Complaint in Department 53

which PL submitted on 5/9/2023 and which were approved by the Court on 5/26/2023 were timely submitted prior to the expiration of the statute of limitations.

Coupled with the fact that defendant Kwock did not file any (timely) reply and did proffer any rebuttal to the plaintiff’s argument on this specific issue or otherwise address the Roe v. Doe decision on which the opposition primarily relies, the Court will OVERRULE the demurrer on this first ground.

Since this demurrer is overruled, the Court will also decline defendant Kwock’s invitation to vacate as “void” the 5/26/2023 order approving the COM which plaintiff had submitted on 5/9/2023.

Disposition

For the reasons explained above, defendant Kwock’s demurrer to the 1AC is OVERRULED.

Should plaintiff not file and serve a second amended complaint by 10/23/2024 pursuant to the Court’s ruling on defendant Sutter Health’s concurrent demurrer to the 1AC, defendant Kwock shall file and serve an answer to the 1AC no later than 11/6/2024.

In the event plaintiff timely files and serves a second amended complaint pursuant to the Court’s ruling on defendant Sutter Health’s concurrent demurrer to the 1AC, defendant Kwock shall respond to the second amended complaint within 30 days if personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)