Preview
1 DENISE BILLUPS-SLONE (State Bar No. 151606)
denise.billups-slone@mcnamaralaw.com
2 MORRIETTA K. DAVIS (State Bar No. 310460)
morrietta.davis@mcnamaralaw.com ELECTRONICALLY
3 MCNAMARA, NEY, BEATTY, SLATTERY,
BORGES & AMBACHER LLP
F I L E D
Superior Court of California,
4 3480 Buskirk Avenue, Suite 250 County of San Francisco
Pleasant Hill, CA 94523 05/26/2020
5 Telephone: (925) 939-5330 Clerk of the Court
Facsimile: (925) 939-0203 BY: EDNALEEN ALEGRE
Deputy Clerk
6
Attorneys for Defendant
7 DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO
8 SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO
LLP
9 CIVIL - UNLIMITED JURISDICTION
& AMBACHER
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10
11 LILY PIZANO, Case No. CGC-20-582553
BORGES
12 Plaintiff, MEMORANDUM OF POINTS &
(925) 939-5330
AUTHORITIES IN SUPPORT OF
ATTORNEYS AT LAW
13 vs. DEFENDANT DERMATOLOGY
MEDICAL GROUP OF SAN
SLATTERY,
14 DERMATOLOGY MEDICAL GROUP OF FRANCISCO’S MOTION TO STRIKE
SAN FRANCISCO; ALLERGAN and PORTIONS OF PLAINTIFF’S
TELEPHONE:
15 DOES 1 to 100, COMPLAINT
BEATTY,
16 Defendants. Date: June 30, 2020
Time: 9:30 a.m.
17 Dept: 302
Judge: Ethan P. Schulman
NE Y ,
18 Trial Date: Not Set
Action Filed: January 29, 2020
McNAMARA,
19
RESERVATION NO. N/A
20
21 I. INTRODUCTION
22 As to defendant Dermatology Medical Group of San Francisco ("DMGSF"), this action
23 arises out of medical care and treatment rendered to Lily Pizano, which involved a Cool Sculpting
24 device. Plaintiff alleged that she was injured by the device during her treatment. The Complaint
25 is devoid of any facts to suggest property owned by plaintiff was damaged as a result of the
26 subject treatment. She asserts the first cause of action for alleged general negligence, and the
27 second cause of action for alleged Products Liability against DMGSF. The second cause of
28
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY
MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S
COMPLAINT
1 action for products liability further asserts subparts of strict liability, negligence and breach of
2 warranty. Plaintiff seeks property damage, strict liability damages, and other damage against
3 DMGSF.
4 Pursuant to Code of Civil Procedure sections 435 and 436, DMGSF move to strike the
5 claims for property damage and other damages, to the extent the claims are asserted against
6 DMGSF [items 1, and 2 in the notice of motion]. Specifically, the motion is directed at the
7 following:
8 1. Paragraph 11 (e), page 3, in the first cause of action for alleged general negligence and
LLP
9 in the second cause of action for alleged products liability in its entirety, to the extent the
& AMBACHER
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 paragraph is directed at defendants Dermatology Medical Group of San Francisco, which
11 paragraph reads:
BORGES
12 “Plaintiff has suffered property damage”
(925) 939-5330
ATTORNEYS AT LAW
13 2. Paragraph 11(g), page 3, in the first cause of action for alleged general negligence and
SLATTERY,
14 in the second cause of action for alleged products liability in its entirety, to the extent the
TELEPHONE:
15 paragraph is directed at defendants Dermatology Medical Group of San Francisco, which
BEATTY,
16 paragraph reads:
17 “Plaintiff has suffered other damage”
NE Y ,
18 3. Paragraphs Prod. L-4, L-5 and L-6 of page 5, in the second cause of action for alleged
McNAMARA,
19 products liability in its entirety, to the extent the paragraphs are directed at defendants
20 Dermatology Medical Group of San Francisco.
21 As stated in DMGSF’s Demurrer to plaintiff’s First Amended Complaint, there is an
22 important exception to the general rule for products liability, which applies to healthcare
23 providers that use or dispense products as part of their treatment of patients. DMGSF is a
24 medical provider and the product at issue in this case was used to deliver healthcare services. The
25 allegations support a conclusion that the dominant purpose of plaintiff and DMGSF’s engagement
26 was for plaintiff to obtain services, even though a Cool Sculpting device was allegedly used. The
27 user of the product may not be held liable under a products liability theory of recovery. Thus,
28 2
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY
MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S
COMPLAINT
1 plaintiff may not recover “property damage”, “other damage” or “strict liability” or “products
2 liability” as a result of the medical treatment provided by DMGSF. As such the motion to strike
3 should be granted in its entirety.
4 II. STATEMENT OF FACTS
5 Plaintiff Lily Pizano asserts that she was a patient of Dermatology Medical Group of San
6 Francisco (hereinafter “DMGSF”) and that she was diagnosed as being a candidate for the Cool
7 Sculpting machine. She further alleges, on information and belief, that the Cool Sculpting
8 machine is to be operated by a person who is Cool Sculpting certified or a licensed nurse. [All of
LLP
9 these alleged facts are found on p. 4 of the Complaint]
& AMBACHER
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 Plaintiff alleges that “on February 8, 2019 she was injured by the following product: Cool
11 Sculpting machine”. [Complaint p. 5] (The Cool Sculpting at issue was actually performed on
BORGES
12 June 22, 2018. She did not receive any Cool Sculpting at DMGSF after that date. Thus,
(925) 939-5330
ATTORNEYS AT LAW
13 plaintiff’s claim is time-barred and DMGSF reserves a statute of limitations defense.)
SLATTERY,
14 Specifically, the complaint states that in the course of plaintiff’s Cool Sculpting session,
TELEPHONE:
15 the Cool Sculpting machine was placed on her neck, it flashed “error, too cold” and allegedly
BEATTY,
16 caused plaintiff to suffer an apparent permanent facial scar. [Complaint p. 4.] The complaint
17 further asserts that the Cool Sculpting machine was manufactured by and supervised by defendant
NE Y ,
18 Allergen. Plaintiff claims that “as a result of either the breach of duty of persons at the medical
McNAMARA,
19 office or breach of duty of Allergan,” the Cool Sculpting machine caused plaintiff’s injury.
20 [Complaint p. 4.]
21 III. LAW APPLICABLE TO MOTION TO STRIKE
22 . California Code of Civ. Proc. §§ 435 and 436 provide that a party may move to strike
23 any irrelevant, false or improper matter asserted in a pleading.
24 California Code of Civ. Proc. § 431.10 provides in relevant part:
25 (a) A material allegation in a pleading is one essential to the claim
or defense of which and which could not be stricken from the
26 pleading without leaving it insufficient as to that claim or defense.
27 (b) An immaterial Allegation in the pleading is any of the
following:
28 3
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY
MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S
COMPLAINT
1 (1) An allegation that is not essential to the statement of a claim or
defense.
2
…
3
(3) An “immaterial allegation” means “irrelevant matter” as that
4 term is used in section 436.
5 California Code of Civ. Proc. § 436 provides the Court may
exercise discretion and upon any terms it deems proper, strike out
6 any irrelevant, false, or improper matter inserted in any pleading,
and any part of a pleading not drawn or filed in conformity with the
7 laws of this state
IV. LEGAL ARGUMENT
8
LLP
9 A. NO PROPERTY IS IDENTIFIED IN PLAINTIFF’S COMPLAINT
& AMBACHER
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
THAT HAS BEEN DAMAGED.
10
11 Plaintiff’s claim for property damage against DMGSF is improper. California Judicial
BORGES
12 Council Jury Instruction 3903J concerns claims to personal property damage and the measure of
(925) 939-5330
ATTORNEYS AT LAW
13 such damages. To recover on a claim for personal property damage against this healthcare
SLATTERY,
14 provider, plaintiff must first identify the alleged harm caused to plaintiff’s item of personal
TELEPHONE:
15 property. Plaintiff must assert (and ultimately prove) the reduction in the item’s value, or the
BEATTY,
16 reasonable cost of repairing it, whichever is less. If there both exist, plaintiff is entitled to the
17 lesser of the two amounts. Kimes v. Grosser, (2011) 195 Cal. App. 4th 1556, 1559.
NE Y ,
18 In this instance, plaintiff Lily Pizano’s entire Complaint for Damages concerns medical
McNAMARA,
19 treatment received at DMGSF that involved a Cool Sculpting device. Plaintiff asserts those set of
20 facts to show DMGSF was allegedly negligent and caused her injury during the medical
21 treatment. However, what the Complaint does not say is telling. The Complaint fails to identify a
22 single item of property that has been allegedly damaged in this case. Therefore, the Complaint is
23 entirely devoid of facts that suggest a claim for property damage. Plaintiff has not complied with
24 the legal requirements that support a relief for property damage against DMGSF. As such, the
25 Court should grant defendant DMGSF’s motion to strike plaintiff’s request/prayer for property
26 damage.
27
28 4
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY
MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S
COMPLAINT
1 B. PLAINITFF MAY NOT RECOVER “OTHER DAMAGES”
BECAUSE THE FIRST AND SECOND CAUSE OF ACTION FAIL
2 TO STATE FACTS THAT STATE CAUSES OF ACTION FOR
GENERAL NEGLIGENCE AND PRODUCTS LIABILITY.
3
4 As stated in defendant’s demurrer to the Complaint and as mentioned herein, the first
5 cause of action for general negligence is uncertain, fails to state a cause of action against a
6 healthcare provider because an alleged injury sustained during the course of medical services, at
7 best gives rise to a claim for professional negligence, not general negligence. Flowers v.
8 Torrance Memorial Medical Center (1994) 8 Cal.App.4th 992.
LLP
9 Plaintiff’s alleged “other damages” may be associated with the second cause of action for
& AMBACHER
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 products liability and its subparts, strict liability, negligence and breach of warranty. However,
11 plaintiff’s claim for products liability may not be asserted against DMGSF in this case for the
BORGES
12 aforementioned reasons found in San Diego Hospital Assn. v. Superior Court (1994) 30
(925) 939-5330
ATTORNEYS AT LAW
13 Cal.App.4th 8, 13; Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1027–1028;
SLATTERY,
14 Flowers v. Torrance Memorial Medical Center, supra.; and Christ v. Lipsitz (1979) 99 Cal. App.
TELEPHONE:
15 3d. 894. Thus, the Court should strike in its entirety reference to “other damages” to include the
BEATTY,
16 following: Paragraphs Prod. L-4, L-5 and L-6 of page 5, in the second cause of action for alleged
17 products liability in its entirety, to the extent the paragraphs are directed at defendants
NE Y ,
18 Dermatology Medical Group of San Francisco, which paragraphs reads:
McNAMARA,
19 “PLAINTIFF'S INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE
20 FOLLOWING:
21 Prod. L- 4. Count One—Strict liability of the following defendants who
22 a. manufactured or assembled the product (names):
Allergan; Dematology [sic]Medical Group of SF
23
Does 1to 100
24
b. designed and manufactured component parts supplied to the
25 manufacturer (names):
Allergan; Dermatology Medical Group of SF
26
27 Does 1to 100
28 5
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY
MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S
COMPLAINT
1 c. sold the product to the public (names):
Allergan; Dermatology Medical Group of SF
2
3
Prod. L-5. Count Two—Negligence of the following defendants who owed a duty to plaintiff
4 (names):
allergan; dermatology medical group of sf
5
Does 1to 100
6
Prod. L-6. Count Three—Breach of warranty by the following defendants (names):
7 allergan; dermatology medical group of sf
8
LLP
Does 1 to 100
9 a. who breached an implied warranty
& AMBACHER
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 Based on California law, plaintiff may not recover any “other damages” to the extent they
11 are “strict liability” or “products liability” damages against DMGSF. Therefore, the Court should
BORGES
12 grant plaintiff’s Motion to Strike.
(925) 939-5330
ATTORNEYS AT LAW
13 V. CONCLUSION
SLATTERY,
14 WHEREFORE, for the foregoing reasons, moving defendant Dermatology Medical Group
TELEPHONE:
15 of San Francisco, requests that this Motion to Strike portions of plaintiff’s complaint be sustained
BEATTY,
16 without leave to amend.
17 Dated: May 26, 2020 MCNAMARA, NEY, BEATTY, SLATTERY,
BORGES & AMBACHER LLP
NE Y ,
18
McNAMARA,
19
20 By:
Denise Billups-Slone
21 Morrietta K. Davis
Attorneys for Defendant
22 DERMATOLOGY MEDICAL GROUP OF SAN
FRANCISCO
23
24
25
26
27
28 6
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY
MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S
COMPLAINT
Preview
1 DENISE BILLUPS-SLONE (State Bar No. 151606) denise.billups-slone@mcnamaralaw.com 2 MORRIETTA K. DAVIS (State Bar No. 310460) morrietta.davis@mcnamaralaw.com ELECTRONICALLY 3 MCNAMARA, NEY, BEATTY, SLATTERY, BORGES & AMBACHER LLP F I L E D Superior Court of California, 4 3480 Buskirk Avenue, Suite 250 County of San Francisco Pleasant Hill, CA 94523 05/26/2020 5 Telephone: (925) 939-5330 Clerk of the Court Facsimile: (925) 939-0203 BY: EDNALEEN ALEGRE Deputy Clerk 6 Attorneys for Defendant 7 DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO 8 SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO LLP 9 CIVIL - UNLIMITED JURISDICTION & AMBACHER 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 11 LILY PIZANO, Case No. CGC-20-582553 BORGES 12 Plaintiff, MEMORANDUM OF POINTS & (925) 939-5330 AUTHORITIES IN SUPPORT OF ATTORNEYS AT LAW 13 vs. DEFENDANT DERMATOLOGY MEDICAL GROUP OF SAN SLATTERY, 14 DERMATOLOGY MEDICAL GROUP OF FRANCISCO’S MOTION TO STRIKE SAN FRANCISCO; ALLERGAN and PORTIONS OF PLAINTIFF’S TELEPHONE: 15 DOES 1 to 100, COMPLAINT BEATTY, 16 Defendants. Date: June 30, 2020 Time: 9:30 a.m. 17 Dept: 302 Judge: Ethan P. Schulman NE Y , 18 Trial Date: Not Set Action Filed: January 29, 2020 McNAMARA, 19 RESERVATION NO. N/A 20 21 I. INTRODUCTION 22 As to defendant Dermatology Medical Group of San Francisco ("DMGSF"), this action 23 arises out of medical care and treatment rendered to Lily Pizano, which involved a Cool Sculpting 24 device. Plaintiff alleged that she was injured by the device during her treatment. The Complaint 25 is devoid of any facts to suggest property owned by plaintiff was damaged as a result of the 26 subject treatment. She asserts the first cause of action for alleged general negligence, and the 27 second cause of action for alleged Products Liability against DMGSF. The second cause of 28 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 action for products liability further asserts subparts of strict liability, negligence and breach of 2 warranty. Plaintiff seeks property damage, strict liability damages, and other damage against 3 DMGSF. 4 Pursuant to Code of Civil Procedure sections 435 and 436, DMGSF move to strike the 5 claims for property damage and other damages, to the extent the claims are asserted against 6 DMGSF [items 1, and 2 in the notice of motion]. Specifically, the motion is directed at the 7 following: 8 1. Paragraph 11 (e), page 3, in the first cause of action for alleged general negligence and LLP 9 in the second cause of action for alleged products liability in its entirety, to the extent the & AMBACHER 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 paragraph is directed at defendants Dermatology Medical Group of San Francisco, which 11 paragraph reads: BORGES 12 “Plaintiff has suffered property damage” (925) 939-5330 ATTORNEYS AT LAW 13 2. Paragraph 11(g), page 3, in the first cause of action for alleged general negligence and SLATTERY, 14 in the second cause of action for alleged products liability in its entirety, to the extent the TELEPHONE: 15 paragraph is directed at defendants Dermatology Medical Group of San Francisco, which BEATTY, 16 paragraph reads: 17 “Plaintiff has suffered other damage” NE Y , 18 3. Paragraphs Prod. L-4, L-5 and L-6 of page 5, in the second cause of action for alleged McNAMARA, 19 products liability in its entirety, to the extent the paragraphs are directed at defendants 20 Dermatology Medical Group of San Francisco. 21 As stated in DMGSF’s Demurrer to plaintiff’s First Amended Complaint, there is an 22 important exception to the general rule for products liability, which applies to healthcare 23 providers that use or dispense products as part of their treatment of patients. DMGSF is a 24 medical provider and the product at issue in this case was used to deliver healthcare services. The 25 allegations support a conclusion that the dominant purpose of plaintiff and DMGSF’s engagement 26 was for plaintiff to obtain services, even though a Cool Sculpting device was allegedly used. The 27 user of the product may not be held liable under a products liability theory of recovery. Thus, 28 2 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 plaintiff may not recover “property damage”, “other damage” or “strict liability” or “products 2 liability” as a result of the medical treatment provided by DMGSF. As such the motion to strike 3 should be granted in its entirety. 4 II. STATEMENT OF FACTS 5 Plaintiff Lily Pizano asserts that she was a patient of Dermatology Medical Group of San 6 Francisco (hereinafter “DMGSF”) and that she was diagnosed as being a candidate for the Cool 7 Sculpting machine. She further alleges, on information and belief, that the Cool Sculpting 8 machine is to be operated by a person who is Cool Sculpting certified or a licensed nurse. [All of LLP 9 these alleged facts are found on p. 4 of the Complaint] & AMBACHER 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 Plaintiff alleges that “on February 8, 2019 she was injured by the following product: Cool 11 Sculpting machine”. [Complaint p. 5] (The Cool Sculpting at issue was actually performed on BORGES 12 June 22, 2018. She did not receive any Cool Sculpting at DMGSF after that date. Thus, (925) 939-5330 ATTORNEYS AT LAW 13 plaintiff’s claim is time-barred and DMGSF reserves a statute of limitations defense.) SLATTERY, 14 Specifically, the complaint states that in the course of plaintiff’s Cool Sculpting session, TELEPHONE: 15 the Cool Sculpting machine was placed on her neck, it flashed “error, too cold” and allegedly BEATTY, 16 caused plaintiff to suffer an apparent permanent facial scar. [Complaint p. 4.] The complaint 17 further asserts that the Cool Sculpting machine was manufactured by and supervised by defendant NE Y , 18 Allergen. Plaintiff claims that “as a result of either the breach of duty of persons at the medical McNAMARA, 19 office or breach of duty of Allergan,” the Cool Sculpting machine caused plaintiff’s injury. 20 [Complaint p. 4.] 21 III. LAW APPLICABLE TO MOTION TO STRIKE 22 . California Code of Civ. Proc. §§ 435 and 436 provide that a party may move to strike 23 any irrelevant, false or improper matter asserted in a pleading. 24 California Code of Civ. Proc. § 431.10 provides in relevant part: 25 (a) A material allegation in a pleading is one essential to the claim or defense of which and which could not be stricken from the 26 pleading without leaving it insufficient as to that claim or defense. 27 (b) An immaterial Allegation in the pleading is any of the following: 28 3 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 (1) An allegation that is not essential to the statement of a claim or defense. 2 … 3 (3) An “immaterial allegation” means “irrelevant matter” as that 4 term is used in section 436. 5 California Code of Civ. Proc. § 436 provides the Court may exercise discretion and upon any terms it deems proper, strike out 6 any irrelevant, false, or improper matter inserted in any pleading, and any part of a pleading not drawn or filed in conformity with the 7 laws of this state IV. LEGAL ARGUMENT 8 LLP 9 A. NO PROPERTY IS IDENTIFIED IN PLAINTIFF’S COMPLAINT & AMBACHER 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 THAT HAS BEEN DAMAGED. 10 11 Plaintiff’s claim for property damage against DMGSF is improper. California Judicial BORGES 12 Council Jury Instruction 3903J concerns claims to personal property damage and the measure of (925) 939-5330 ATTORNEYS AT LAW 13 such damages. To recover on a claim for personal property damage against this healthcare SLATTERY, 14 provider, plaintiff must first identify the alleged harm caused to plaintiff’s item of personal TELEPHONE: 15 property. Plaintiff must assert (and ultimately prove) the reduction in the item’s value, or the BEATTY, 16 reasonable cost of repairing it, whichever is less. If there both exist, plaintiff is entitled to the 17 lesser of the two amounts. Kimes v. Grosser, (2011) 195 Cal. App. 4th 1556, 1559. NE Y , 18 In this instance, plaintiff Lily Pizano’s entire Complaint for Damages concerns medical McNAMARA, 19 treatment received at DMGSF that involved a Cool Sculpting device. Plaintiff asserts those set of 20 facts to show DMGSF was allegedly negligent and caused her injury during the medical 21 treatment. However, what the Complaint does not say is telling. The Complaint fails to identify a 22 single item of property that has been allegedly damaged in this case. Therefore, the Complaint is 23 entirely devoid of facts that suggest a claim for property damage. Plaintiff has not complied with 24 the legal requirements that support a relief for property damage against DMGSF. As such, the 25 Court should grant defendant DMGSF’s motion to strike plaintiff’s request/prayer for property 26 damage. 27 28 4 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 B. PLAINITFF MAY NOT RECOVER “OTHER DAMAGES” BECAUSE THE FIRST AND SECOND CAUSE OF ACTION FAIL 2 TO STATE FACTS THAT STATE CAUSES OF ACTION FOR GENERAL NEGLIGENCE AND PRODUCTS LIABILITY. 3 4 As stated in defendant’s demurrer to the Complaint and as mentioned herein, the first 5 cause of action for general negligence is uncertain, fails to state a cause of action against a 6 healthcare provider because an alleged injury sustained during the course of medical services, at 7 best gives rise to a claim for professional negligence, not general negligence. Flowers v. 8 Torrance Memorial Medical Center (1994) 8 Cal.App.4th 992. LLP 9 Plaintiff’s alleged “other damages” may be associated with the second cause of action for & AMBACHER 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 products liability and its subparts, strict liability, negligence and breach of warranty. However, 11 plaintiff’s claim for products liability may not be asserted against DMGSF in this case for the BORGES 12 aforementioned reasons found in San Diego Hospital Assn. v. Superior Court (1994) 30 (925) 939-5330 ATTORNEYS AT LAW 13 Cal.App.4th 8, 13; Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1027–1028; SLATTERY, 14 Flowers v. Torrance Memorial Medical Center, supra.; and Christ v. Lipsitz (1979) 99 Cal. App. TELEPHONE: 15 3d. 894. Thus, the Court should strike in its entirety reference to “other damages” to include the BEATTY, 16 following: Paragraphs Prod. L-4, L-5 and L-6 of page 5, in the second cause of action for alleged 17 products liability in its entirety, to the extent the paragraphs are directed at defendants NE Y , 18 Dermatology Medical Group of San Francisco, which paragraphs reads: McNAMARA, 19 “PLAINTIFF'S INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE 20 FOLLOWING: 21 Prod. L- 4. Count One—Strict liability of the following defendants who 22 a. manufactured or assembled the product (names): Allergan; Dematology [sic]Medical Group of SF 23 Does 1to 100 24 b. designed and manufactured component parts supplied to the 25 manufacturer (names): Allergan; Dermatology Medical Group of SF 26 27 Does 1to 100 28 5 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 c. sold the product to the public (names): Allergan; Dermatology Medical Group of SF 2 3 Prod. L-5. Count Two—Negligence of the following defendants who owed a duty to plaintiff 4 (names): allergan; dermatology medical group of sf 5 Does 1to 100 6 Prod. L-6. Count Three—Breach of warranty by the following defendants (names): 7 allergan; dermatology medical group of sf 8 LLP Does 1 to 100 9 a. who breached an implied warranty & AMBACHER 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 Based on California law, plaintiff may not recover any “other damages” to the extent they 11 are “strict liability” or “products liability” damages against DMGSF. Therefore, the Court should BORGES 12 grant plaintiff’s Motion to Strike. (925) 939-5330 ATTORNEYS AT LAW 13 V. CONCLUSION SLATTERY, 14 WHEREFORE, for the foregoing reasons, moving defendant Dermatology Medical Group TELEPHONE: 15 of San Francisco, requests that this Motion to Strike portions of plaintiff’s complaint be sustained BEATTY, 16 without leave to amend. 17 Dated: May 26, 2020 MCNAMARA, NEY, BEATTY, SLATTERY, BORGES & AMBACHER LLP NE Y , 18 McNAMARA, 19 20 By: Denise Billups-Slone 21 Morrietta K. Davis Attorneys for Defendant 22 DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO 23 24 25 26 27 28 6 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT DERMATOLOGY MEDICAL GROUP OF SAN FRANCISCO’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT