Welch, et al v. Kurani, M.D., et al

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Meet and Confer Defense counsel filed a declaration which establishes that a meet and confer conference was held with Plaintiff’s counsel that satisfies the meet and confer requirements under the Code Civ. Proc., § 430.41 (a)(3). The court will find that Defendant has met their meet and confer requirement and will thus rule on the merits of the demurrer.

General Demurrer A general demurrer challenges a complaint for failure to state a cause of action under Code of Civil Procedure section 430.10, subdivision (e). It is granted only where the facts alleged on the fact of the complaint fail to state a valid claim under any possible legal theory entitling the plaintiff to relief against the demurring defendant. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) The plaintiff may be mistaken as to the nature of the case or the legal theory on which he or she can prevail, but if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. (Weil & Brown, Cal.

Prac. Guide: Civ. Proc. Before Trial § 7:41 (hereafter Weil & Brown), citing Quelimane Co. v. Stewart Tile Guaranty Co. (1989) 19 Cal.4th 26, 38-39.) All that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief. In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955; Michaelian v.

State Compensation Insurance Fund (1996) 50 Cal.App.4th 1093, 1104-1105.) The complaint includes matters shown in attached exhibits and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) No other extrinsic evidence can be considered. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer predicated on a complaint’s failure to state facts sufficient to constitute a cause of action (Code of Civ. Proc. §430.10, subd. (e)) should be granted only when the facts alleged on the face of the complaint fail to state any valid claim entitled to the plaintiff or disclose a complete defense to relief.

Even if a plaintiff is mistaken as to the nature of the case or the legal theory on which he/she could prevail, the complaint is good against a general demurrer if the essential facts allege some valid cause of action. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) /// ///

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Leave to Amend Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Bounds v.

Superior Court (2014) 229 Cal.App.4th 468, 484 [court should grant leave to amend if in all probability plaintiff will cure defect].) However, no abuse of discretion will be found unless a potentially effective amendment is “both apparent and consistent with the plaintiff’s theory of the case.” (Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v.

Bank of America (1985) 163 Cal.App.3d 431, 436 (emphasis added); Schonfeldt v. State of Calif. (1998) 61 Cal.App.4th 1462, 1465 [if no liability as a matter of law, leave to amend should not be granted].)

NIED is a negligence claim. (Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1064, 1072l; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 796, fn. 4.) To establish a bystander NIED claim, a plaintiff must plead that they are (1) closely related to the injury victim; (2) are present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. (Downey v.

City of Riverside, 16 Cal. 5th 539, 550, citing to Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668) Concerning the second element, the Supreme Court held that “Neither our precedent nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant's conduct and the victim's injuries.” (Downey at 560) A plaintiff is not required to be aware that the injuryproducing event was caused by the defendant. (Id. at p. 560.)

The SAC alleges that Kennon was present at most, if not all, times Cameo administered or consumed Vancomycin following her discharge from Dignity. He was with her before, during, and after each dose. He observed her symptoms after each administration, i.e., Cameo onset of

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dizziness, vomiting, shaking, elevated blood pressure, confusion, and/or episodes of near loss of consciousness. On November 28, 2023, shortly after her dose of Vancomycin, he observed Cameo collapse, suffer seizures, lose consciousness, and require emergency hospitalization. Kennon contemporaneously understood that following each dose that the medication was causing Cameo harm. Due to these observations, Kennon suffered shock, terror, helplessness, anxiety, mental anguish, and emotional trauma (¶¶24-30, 32). In construing these allegations with applicable legal authority, Plaintiff sufficiently alleges that he was contemporaneously aware that administering the prescribed Vancomycin to Cameo was injuring her, e.g., causing her to suffer seizures, vomiting, dizziness, and loss or almost loss of consciousness.

RULING 1. Defendant’s Demurrer to Cause of Action No. 2 is OVERRULED. Defendant is ordered to file and serve an Answer within 20 days.

2. Movant to give Notice.

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