Soon Won Man v. Xianglan Xu

based on the underlying negligence, breach of contract, fraud, or statutory violations, his UCL claim based on the same conduct must also fail. (See supra, Section I.G; see Nein, supra, 174 Cal.App.4th at p. 841.) Therefore, Chase's demurrer to the seventh cause of action in the Complaint is SUSTAINED with LEAVE TO AMEND. Defendant U.S. Bank, N.A. and JPMorgan Chase Bank, N.A. to serve notice of the respective rulings. This tentative ruling ("TR") shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel and posted to court website on 9/8/26 at 2 p.m.

[1] U.S. Bank did, however, acknowledge another fraudulent check in the amount of $125,510.00, originally made payable to the U.S. Treasury, which was reimbursed to Plaintiff in full by U.S. Bank. (Compl., P. 20.)

9:15 a.m., Wednesday, Sept. 9, 2026 SOON WON MAN v. XIANGLAN XU [26STCV13085] DEFENDANT XIANGLAN XU'S DEMURRER TO THE COMPLAINT MEET AND CONFER: DEFECTIVE Plaintiff's counsel was not responsive to Defendant's counsel's attempts to meet and confer telephonically in compliance with Code Civ. Proc. Sec. 430.41 (Watt Decl., P.P. 8-10.)

TIMELINE: Medical malpractice action 4/14/2025: Plaintiff Soon Won Man ("Plaintiff") presents to Defendant Xianglan Xu's ("Defendant") acupuncture clinic in Los Angeles for acupuncture and moxibustion therapy. During the treatment, Defendant applies moxa to Plaintiff's left ankle but fails to properly monitor the temperature, duration, placement, and proximity of the burning moxa on Plaintiff's skin. Defendant also fails to observe Plaintiff's reaction, to check Plaintiff's treatment site, and to remove the moxa in a timely manner.

The burning moxa ultimately causes a "slight burn" on Plaintiff's ankle. 5/23/2025: After the extent of the injury becomes more clear to Plaintiff, she seeks a medical evaluation, wound care, and follow-up treatment for a full thickness thermal burn to her ankle. 4/23/2026: Plaintiff files the Complaint, alleging causes of action for: 1. Professional Negligence 2. General Negligence 3. Failure to Obtain Informed Consent 8/7/2026: Defendant files this Demurrer, which is followed by Plaintiff's Opposition (8/27/2026) and Defendant's Reply (9/1/2026).

TENTATIVE RULING: DEFENDANT XIANGLAN XU'S DEMURRER TO THE COMPLAINT is SUSTAINED with LEAVE TO AMEND.

DEMURRER Defendant demurs to each cause of action in the Complaint pursuant to Code of Civil Procedure section 430.10, subdivision (e).

A. 1 st & 3 rd Causes of Action: Professional Negligence & Failure to Obtain Informed Consent - SUSTAINED with LEAVE TO AMEND Defendant argues that Plaintiff's claims for professional negligence and failure to obtain informed consent are time-barred. Code of Civil Procedure section 340.5 ("section 340.5") provides the relevant statute of limitations for professional negligence. (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1200-1201.) Plaintiff concedes that her failure to obtain informed consent claim sounds in professional negligence, and thus, section 340.5 also provides the applicable limitations framework for Plaintiff's third cause of action. (Id.; see Opp., at pp. 7-8.)

Section 340.5 states in relevant part, "[i]n an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or ¿ through the use of ¿ reasonable diligence should have discovered, the injury, whichever occurs first." (Code Civ. Proc., Sec. 340.5.) Thus, section 340.5 ¿ effectively creates two separate limitations periods, both of which must be satisfied if a plaintiff is to ¿ timely ¿ file a medical malpractice action. ¿ (Dolan v.

Borelli ¿ (1993) 13 Cal.App.4th 816, 824-825 (Dolan).) Defendant challenges Plaintiff's negligence claims based on the one-year limitations period under this framework. Under section 340.5, a plaintiff must file ¿ her claim ¿ within one year of first discovering the injury and the negligent cause of that injury. ¿ (Dolan, supra, 13 Cal.App.4th at p. 825.) In other words, the one-year statute of limitations under section 340.5 begins to run once the patient "has ¿ ' notice or information of circumstances to put a reasonable person on ¿ inquiry, ¿ or ¿ has the opportunity to obtain knowledge from sources open to his investigation..." (Gutierrez v.

Mofid (1985) 39 Cal.3d 892, 896-897 (Gutierrez).) "Thus, when the patient's 'reasonably founded suspicions [have been aroused],' and she has actually 'become alerted to the necessity for investigation and pursuit of her remedies,' the one-year period for suit begins." (Id. at p. 897.) For this ¿ one-year limitation period, "[d]iligence ¿ is only relevant to determine when ¿ [a plaintiff] ¿ should ¿ have suspected wrongdoing. Once a plaintiff actually has ¿ the requisite suspicion, the statute of limitations commences to run.

It is not tolled by efforts to learn more about the matter short of filing suit. " ¿ (Kleefeld ¿ v. Superior Court ¿ (1994) 25 Cal.App.4th 1680, 1684.)

Here, Plaintiff alleges that she sustained a "slight burn" to her ankle as a result of Defendant's moxa treatment on April 14, 2025. (Compl., P.P. 9, 12.) Plaintiff further alleges that the "severity and extent of the injury became clearer" on May 23, 2025, causing her to seek medical evaluation, wound care, and follow-up treatment for a "full thickness thermal burn to her left ankle." (Id. P. 13.) Defendant argues that the one-year limitations period under section 340.5 expired on April 14, 2026, based on the date that Plaintiff discovered her burn. (Id.

P.P. 9, 12.) Because Plaintiff did not file the instant lawsuit until April 23, 2026, one year and one week after sustaining her injury, Defendant argues that the professional negligence claims are time-barred. (See Id., generally.) For pleading purposes, the Court agrees that Plaintiff has not alleged sufficient factual details to confirm her delayed discovery of Defendant's negligence. The Complaint admits that Plaintiff sustained a burn on her ankle during the treatment by Defendant on April 14, 2025. (Compl., P.P. 9, 12.)

On this date, Plaintiff would have known both that she had been injured during the treatment and that Defendant's treatment was the cause of the burn. Thus, by April 14, 2025, Plaintiff would have been on inquiry notice that she needed to diligently investigate whether her symptoms were atypical of the moxa treatment and whether her injury was serious enough to warrant medical concern. Although Plaintiff alleges that the "severity and extent of the injury became clearer" over one month later on May 23, 2025, this allegation is too vague to conclude that Plaintiff could not have meaningfully concluded on the day of her injury that she had been injured or that she should diligently obtain information about whether her injury was typical of the treatment. (Id.

P. 13.) In her Opposition, Plaintiff identifies several relevant facts pertaining to her limited knowledge of the treatment on the day of her injury, Defendant's reassurances in response to the injury, and the delayed severity and progression of Plaintiff's injury, however, none of these facts are alleged on the face of the Complaint. (Opp., at pp. 2-3, 5-7.) Overall, more factual details clarifying the timeline of Plaintiff's knowledge (or presumptive knowledge) must be added to an amended pleading to show that Plaintiff truly lacked inquiry notice of her injury and its negligent cause until on or after April 23, 2025 to overcome Defendant's statute of limitations defense.

Therefore, Defendant's demurrer to Plaintiff's first and third causes of action is SUSTAINED with LEAVE TO AMEND.

B. 2 nd Cause of Action: General Negligence - SUSTAINED with LEAVE TO AMEND Plaintiff's claim for general negligence is insufficiently pled because it improperly duplicates her first cause of action for professional negligence. In distinguishing ordinary and professional negligence claims, the California Supreme Court has explained: "a defendant has only one duty, measured by one standard of care, under any given circumstances." (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000 (Flowers) [finding error in the Court of Appeal's decision that "plaintiff's pleadings were 'broad enough' to state a cause of action for ordinary as well as professional negligence."].)

In dealing with negligence claims against medical professionals, the Flowers court explained the standard for "duty" as follows: Since the standard of care remains constant in terms of "ordinary prudence," it is clear that denominating a cause of action as one for "professional negligence" does not transmute its underlying character. For substantive purposes, it merely serves to establish the basis by which "ordinary prudence" will be calculated and the defendant's conduct evaluated. Nor does it distinguish a claim separate and independent from some other form of negligence.

As to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability. (Id. at p. 998.) Thus, "whether the cause of action is denominated 'ordinary' or 'professional' negligence, or both, ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial." (Id. at p. 1000.)

Here, Plaintiff's claim for general negligence is based on the same alleged breach of duty and the same wrongful conduct underlying her professional negligence claim. Specifically, both claims allege that Defendant was negligent in performing the moxa treatment by failing to properly supervise and monitor the moxa and Plaintiff's condition and by failing to implement adequate safety protocols and safeguards. (Compare Compl., P. 17 to P. 21.) Because Plaintiff's injury arises from a breach of only one professional duty, Plaintiff's general negligence claim is superfluous of her professional negligence claim. (Flowers, supra, 8 Cal.4th at p. 1000.)

Plaintiff's attempt to differentiate Defendant's duty related to protocols, staffing, and equipment from the duty to supervise Plaintiff's treatment is unpersuasive, as Defendant's responsibility to properly supervise and ensure safety for all aspects of the patient's procedure falls within the reasonable standard of care for medical professionals. (Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88 [negligent conduct which is "integrally related to the medical treatment and diagnosis of the patient implicates a duty that the hospital owes to a patient by virtue of being a health care provider"].)

Thus, to the extent that Plaintiff seeks to amend her complaint to plead a general negligence claim based on "operational negligence by clinic personnel, inadequate monitoring, or staffing failures," such an amendment would fail to cure the defects identified in this cause of action. However, as this is Plaintiff's first attempt to plead a cause of action for general negligence, the Court will permit Plaintiff to amend her claim to the extent that she is able to narrow her claim to conduct that falls outside of the scope of Defendant's professional duty.

Therefore, Defendant's demurrer to Plaintiff's second cause of action is SUSTAINED with LEAVE TO AMEND. Defendant Xianglan Xu to serve notice of ruling. This tentative ruling ("TR") shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel and posted to court website on 9.8/26 at 2 p.m. | Home -->)" -->