Shade v. Freedhand CA1/4

Filed 8/28/13 Shade v. Freedhand CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ROSS SHADE, Plaintiff and Appellant, A136605 v. ADAM FREEDHAND, (Napa County Super. Ct. No. 2658529) Defendant and Respondent.

This is the second lawsuit brought by pro per appellant Ross Shade seeking damages arising out of a hip-replacement surgery performed by respondent Adam Freedhand, M.D. Shade contends the trial court erred in sustaining Freedhand’s demurrer to his amended complaint and denying Shade leave to amend his complaint a second time. We disagree and affirm. I. FACTUAL AND PROCEDURAL BACKGROUND

Shade alleges that he suffered several physical problems as a result of an artificial hip system implanted in his right hip by Freedhand in June 2009. Shade first sued Freedhand in April 2011 on a theory of professional negligence. After giving Shade two opportunities to amend his complaint, the trial court in that case sustained Freedhand’s demurrer on the basis that the action was barred by the one-year statute of limitations in Code of Civil Procedure section 340.5. This court affirmed in a nonpublished opinion. (Shade v. Freedhand (Jan. 10, 2013, A134754) (Shade I).)

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While Shade’s appeal was pending in this court, he sued Freedhand a second time. Freedhand demurred to this complaint on the ground that it essentially duplicated the allegations in the first action. The day before a scheduled hearing on the demurrer, Shade filed a first amended complaint that purported to “replace in total” the first complaint to eliminate any claim for negligence. The amended complaint is based on “product warranty.” In it, Shade alleges that Freedhand used a hip-replacement product provided by “DePuy Orthopedics.” Although the bulk of the complaint focuses on the product’s defects, the complaint does not attempt to add DePuy or any other party to the action. Freedhand demurred to the amended complaint on the ground that it failed to state a cause of action against him. The trial court agreed that Shade’s sole cause of action for “product warranty” failed to state a claim against Freedhand, and it sustained the demurrer without leave to amend. Shade appealed the order.1 II. DISCUSSION A. The Trial Court Properly Sustained Freedhand’s Demurrer. In rambling and disjointed appellate briefs, Shade argues that the trial court erred when it sustained the demurrer to his amended complaint. “In reviewing a trial court’s order sustaining a demurrer, we review the order de novo to determine whether the complaint states a cause of action as a matter of law. [Citation.] We give the complaint a reasonable interpretation, reading it as a whole and its parts in context. [Citations.] We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.)