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  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
  • REYES, MICAELA vs DOCTORS MEDICAL CENTER OF MODESTO INCMedical Malpractice: Unlimited document preview
						
                                

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1 Electronically Filed DUMMIT, BUCHHOLZ & TRAPP 12/21/2020 12:25 PM Attorneys At Law 2 Superior Court of California 1661 Garden Highway County of Stanislaus 3 Sacramento, California 95833 Clerk of the Court Telephone (916) 929-9600 4 By: Kimberly Mean, Deputy Fax (916) 927-5368 5 Carolyn L. Northrop – State Bar No. 237989 Email: carolyn.northrop.@dbt.law $60 PD 6 Thomas M. Gray – State Bar No. 265212 Email: thomas.gray@dbt.law 7 Attorneys for Defendant, DOCTORS MEDICAL CENTER OF MODESTO, INC. 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF STANISLAUS 11 12 MICAELA REYES, AN INDIVIDUAL, Case No.: CV-20-003725 AND MACARIO REYES, AN 13 INDIVIDUAL; AND AS A WRONGFUL DEATH BENEFICIARY OF ELVIRA DEFENDANT DOCTORS MEDICAL 14 REYES, CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND 15 Plaintiffs, DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 16 v. DATE: January 27, 2021 17 DOCTORS MEDICAL CENTER OF TIME: 8:30 a.m. MODESTO, INC., A CALIFORNIA DEPT.: 23 18 CORPORATION; AND DOES 1-100, INCLUSIVE, 19 Complaint Filed: 08/28/20 Defendants. FAC Filed: 10/22/20 20 Trial Date: Not Set 21 22 PLEASE TAKE NOTICE that on January 27, 2021 at 8:30 a.m., or as soon thereafter as 23 counsel may be heard, in Department 23 of the above-entitled Court, located at 801 10th Street, 24 4th Floor, Modesto, CA 95354, Defendant, DOCTORS MEDICAL CENTER OF MODESTO, 25 INC., (hereinafter “DMC”) will and hereby does move the Court for an Order sustaining its 26 Demurrer to Plaintiffs’ First Amended Complaint for Damages, without leave to amend, as 27 follows: 28 /// -1- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 1. Defendant DMC demurs to the Second Cause of Action for Intentional Infliction 2 of Emotional Distress on the basis that the First Amended Complaint fails to state facts 3 sufficient to state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 4 2. Defendant DMC demurs to the Second Cause of Action for Intentional Infliction 5 of Emotional Distress on the basis that the cause of action is uncertain, vague, and ambiguous. 6 (C.C.P. §430.10(f)) 7 3. Defendant DMC demurs to the Second Cause of Action for Intentional Infliction 8 of Emotional Distress on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 9 §430.10(b)) 10 4. Defendant DMC demurs to the Third Cause of Action for Negligent Infliction of 11 Emotional Distress on the basis that the First Amended Complaint fails to state facts sufficient 12 to state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 13 5. Defendant DMC demurs to the Third Cause of Action for Negligent Infliction of 14 Emotional Distress on the basis that the cause of action is uncertain, vague, and ambiguous. 15 (C.C.P. §430.10(f)) 16 6. Defendant DMC demurs to the Third Cause of Action for Negligent Infliction of 17 Emotional Distress on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 18 §430.10(b)) 19 7. Defendant DMC demurs to the Fourth Cause of Action for Unfair Business 20 Practices Pursuant to Bus. & Prof. Code §17200 on the basis that the First Amended Complaint 21 fails to state facts sufficient to state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 22 8. Defendant DMC demurs to the Fourth Cause of Action for Unfair Business 23 Practices Pursuant to Bus. & Prof. Code §17200 on the basis that the cause of action is 24 uncertain, vague, and ambiguous. (C.C.P. §430.10(f)) 25 9. Defendant DMC demurs to the Fourth Cause of Action for Unfair Business 26 Practices Pursuant to Bus. & Prof. Code §17200 on the basis that standing is lacking as to one 27 or more plaintiffs. (C.C.P. §430.10(b)) 28 /// -2- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 10. Defendant DMC demurs to the Fifth Cause of Action for Medical Malpractice – 2 Wrongful Death – CCP §377.60 on the basis that the First Amended Complaint fails to state 3 facts sufficient to state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 4 11. Defendant DMC demurs to the Fifth Cause of Action for Medical Malpractice – 5 Wrongful Death – CCP §377.60 on the basis that the cause of action is uncertain, vague, and 6 ambiguous. (C.C.P. §430.10(f)) 7 12. Defendant DMC demurs to the Fifth Cause of Action for Medical Malpractice – 8 Wrongful Death – CCP §377.60 on the basis that standing is lacking as to one or more 9 plaintiffs. (C.C.P. §430.10(b)) 10 13. Defendant DMC demurs to the Sixth Cause of Action for Medical Malpractice – 11 Survival Action on the basis that the First Amended Complaint fails to state facts sufficient to 12 state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 13 14. Defendant DMC demurs to the Sixth Cause of Action for Medical Malpractice – 14 Survival Action on the basis that the cause of action is uncertain, vague, and ambiguous. 15 (C.C.P. §430.10(f)) 16 15. Defendant DMC demurs to the Sixth Cause of Action for Medical Malpractice – 17 Survival Action on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 18 §430.10(b)) 19 16. Defendant DMC demurs to the Seventh Cause of Action for Abandonment on 20 the basis that the First Amended Complaint fails to state facts sufficient to state a cause of 21 action as to each plaintiff. (C.C.P. §430.10(e)) 22 17. Defendant DMC demurs to the Seventh Cause of Action for Abandonment on 23 the basis that the cause of action is uncertain, vague, and ambiguous. (C.C.P. §430.10(f)) 24 18. Defendant DMC demurs to the Seventh Cause of Action for Abandonment on 25 the basis that standing is lacking as to one or more plaintiffs. (C.C.P. §430.10(b)) 26 19. Defendant DMC demurs to the Eighth Cause of Action for Negligence on the 27 basis that the First Amended Complaint fails to state facts sufficient to state a cause of action as 28 to each plaintiff. (C.C.P. §430.10(e)) -3- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 20. Defendant DMC demurs to the Eighth Cause of Action for Negligence on the 2 basis that the cause of action is uncertain, vague, and ambiguous. (C.C.P. §430.10(f)) 3 21. Defendant DMC demurs to the Eighth Cause of Action for Negligence on the 4 basis that standing is lacking as to one or more plaintiffs. (C.C.P. §430.10(b)) 5 22. Defendant DMC demurs to the Ninth Cause of Action for Violation of Statutes 6 under California Administrative Code Title 22, Sections 70231, 70233, 70235 on the basis that 7 the First Amended Complaint fails to state facts sufficient to state a cause of action as to each 8 plaintiff. (C.C.P. §430.10(e)) 9 23. Defendant DMC demurs to the Ninth Cause of Action for Violation of Statutes 10 under California Administrative Code Title 22, Sections 70231, 70233, 70235 on the basis that 11 the cause of action is uncertain, vague, and ambiguous. (C.C.P. §430.10(f)) 12 24. Defendant DMC demurs to the Ninth Cause of Action for Violation of Statutes 13 under California Administrative Code Title 22, Sections 70231, 70233, 70235 on the basis that 14 standing is lacking as to one or more plaintiffs. (C.C.P. §430.10(b)) 15 25. Defendant DMC demurs to the Tenth Cause of Action for Negligence Per Se and 16 Negligent Infliction of Emotional Distress on the basis that the First Amended Complaint fails 17 to state facts sufficient to state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 18 26. Defendant DMC demurs to the Tenth Cause of Action for Negligence Per Se and 19 Negligent Infliction of Emotional Distress on the basis that the cause of action is uncertain, 20 vague, and ambiguous. (C.C.P. §430.10(f)) 21 27. Defendant DMC demurs to the Tenth Cause of Action for Negligence Per Se and 22 Negligent Infliction of Emotional Distress on the basis that standing is lacking as to one or more 23 plaintiffs. (C.C.P. §430.10(b)) 24 28. Defendant DMC demurs to the Eleventh Cause of Action for Breach of Fiduciary 25 Duty on the basis that the First Amended Complaint fails to state facts sufficient to state a cause 26 of action as to each plaintiff. (C.C.P. §430.10(e)) 27 /// 28 /// -4- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 29. Defendant DMC demurs to the Eleventh Cause of Action for Breach of Fiduciary 2 Duty on the basis that the cause of action is uncertain, vague, and ambiguous. (C.C.P. 3 §430.10(f)) 4 30. Defendant DMC demurs to the Eleventh Cause of Action for Breach of Fiduciary 5 Duty on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. §430.10(b)) 6 31. Defendant DMC demurs to the Twelfth Cause of Action for Negligent Hiring 7 and Supervision on the basis that the First Amended Complaint fails to state facts sufficient to 8 state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 9 32. Defendant DMC demurs to the Twelfth Cause of Action for Negligent Hiring 10 and Supervision on the basis that the cause of action is uncertain, vague, and ambiguous. 11 (C.C.P. §430.10(f)) 12 33. Defendant DMC demurs to the Twelfth Cause of Action for Negligent Hiring 13 and Supervision on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 14 §430.10(b)) 15 34. Defendant DMC demurs to the Thirteenth Cause of Action for Res Ipsa Loquitur 16 on the basis that the First Amended Complaint fails to state facts sufficient to state a cause of 17 action as to each plaintiff. (C.C.P. §430.10(e)) 18 35. Defendant DMC demurs to the Thirteenth Cause of Action for Res Ipsa Loquitur 19 on the basis that the cause of action is uncertain, vague, and ambiguous. (C.C.P. §430.10(f)) 20 36. Defendant DMC demurs to the Thirteenth Cause of Action for Res Ipsa Loquitur 21 on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. §430.10(b)) 22 37. Defendant DMC demurs to the Fourteenth Cause of Action for Unjust 23 Enrichment on the basis that the First Amended Complaint fails to state facts sufficient to state a 24 cause of action as to each plaintiff. (C.C.P. §430.10(e)) 25 38. Defendant DMC demurs to the Fourteenth Cause of Action for Unjust 26 Enrichment on the basis that the cause of action is uncertain, vague, and ambiguous. (C.C.P. 27 §430.10(f)) 28 /// -5- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 39. Defendant DMC demurs to the Fourteenth Cause of Action for Unjust 2 Enrichment on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 3 §430.10(b)) 4 40. Defendant DMC demurs to the Fifteenth Cause of Action for Survival Action by 5 Virtue of Statute on the basis that the First Amended Complaint fails to state facts sufficient to 6 state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 7 41. Defendant DMC demurs to the Fifteenth Cause of Action for Survival Action by 8 Virtue of Statute on the basis that the cause of action is uncertain, vague, and ambiguous. 9 (C.C.P. §430.10(f)) 10 42. Defendant DMC demurs to the Fifteenth Cause of Action for Survival Action by 11 Virtue of Statute on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 12 §430.10(b)) 13 43. Defendant DMC demurs to the Sixteenth Cause of Action for Negligent 14 Infliction of Emotional Distress – Bystander on the basis that the First Amended Complaint fails 15 to state facts sufficient to state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 16 44. Defendant DMC demurs to the Sixteenth Cause of Action for Negligent 17 Infliction of Emotional Distress – Bystander on the basis that the cause of action is uncertain, 18 vague, and ambiguous. (C.C.P. §430.10(f)) 19 45. Defendant DMC demurs to the Sixteenth Cause of Action for Negligent 20 Infliction of Emotional Distress – Bystander on the basis that standing is lacking as to one or 21 more plaintiffs. (C.C.P. §430.10(b)) 22 46. Defendant DMC demurs to the Seventeenth Cause of Action for Survivor’s 23 Claim on the basis that the First Amended Complaint fails to state facts sufficient to state a 24 cause of action as to each plaintiff. (C.C.P. §430.10(e)) 25 47. Defendant DMC demurs to the Seventeenth Cause of Action for Survivor’s 26 Claim on the basis that the cause of action is uncertain, vague, and ambiguous. (C.C.P. 27 §430.10(f)) 28 /// -6- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 48. Defendant DMC demurs to the Seventeenth Cause of Action for Survivor’s 2 Claim on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. §430.10(b)) 3 49. Defendant DMC demurs to the Eighteenth Cause of Action for Willful 4 Misconduct on the basis that the First Amended Complaint fails to state facts sufficient to state 5 a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 6 50. Defendant DMC demurs to the Eighteenth Cause of Action for Willful 7 Misconduct on the basis that the cause of action is uncertain, vague, and ambiguous. (C.C.P. 8 §430.10(f)) 9 51. Defendant DMC demurs to the Eighteenth Cause of Action for Willful 10 Misconduct on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 11 §430.10(b)) 12 52. Defendant DMC demurs to the Nineteenth Cause of Action for Health and Safety 13 Code Section 1430(b) on the basis that the First Amended Complaint fails to state facts 14 sufficient to state a cause of action as to each plaintiff. (C.C.P. §430.10(e)) 15 53. Defendant DMC demurs to the Nineteenth Cause of Action for Health and Safety 16 Code Section 1430(b) on the basis that the cause of action is uncertain, vague, and ambiguous. 17 (C.C.P. §430.10(f)) 18 54. Defendant DMC demurs to the Nineteenth Cause of Action for Health and Safety 19 Code Section 1430(b) on the basis that standing is lacking as to one or more plaintiffs. (C.C.P. 20 §430.10(b)) 21 55. Defendant DMC demurs to the Twentieth Cause of Action for Agency/Joint 22 Venture, Aiding and Abetting/Conspiracy & Alter Ego Allegations on the basis that the First 23 Amended Complaint fails to state facts sufficient to state a cause of action as to each plaintiff. 24 (C.C.P. §430.10(e)) 25 56. Defendant DMC demurs to the Twentieth Cause of Action for Agency/Joint 26 Venture, Aiding and Abetting/Conspiracy & Alter Ego Allegations on the basis that the cause of 27 action is uncertain, vague, and ambiguous. (C.C.P. §430.10(f)) 28 /// -7- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 57. Defendant DMC demurs to the Twentieth Cause of Action for Agency/Joint 2 Venture, Aiding and Abetting/Conspiracy & Alter Ego Allegations on the basis that standing is 3 lacking as to one or more plaintiffs. (C.C.P. §430.10(b)) 4 The Demurrer is based on this Notice of Demurrer and Demurrer, the Memorandum of 5 Points and Authorities in Support of Demurrer, and the Declaration of Thomas M. Gray filed 6 herewith. The Demurrer is further based on matters of which the Court may take judicial 7 notice. The Demurrer will further be based on such other and further evidence as the Court may 8 admit at the hearing. 9 PLEASE TAKE FURTHER NOTICE that, pursuant to Stanislaus County Local 10 Rules, Rule 3.01(C): 11 Tentative rulings will be issued on law and motion matters the Court day prior to 12 the hearing date. Tentative rulings can be accessed on the Internet at www.stanct.org after 1:30 p.m. You may request a hearing by calling the 13 calendar line at (209) 530-3162 or the main line at (209) 530-3100, prior to 4:00 p.m. – OR – by e-mailing at civil.tentatives@stanct.org. E-mail requests must be 14 made prior to 4:00 p.m. AND confirmed by return e-mail. If you do not receive 15 confirmation e-mail from the clerk, you MUST call (209) 530-3162 to request your hearing. (Local Rule 3.01(C) emphasis added). 16 17 DATED: December 18, 2020 DUMMIT, BUCHHOLZ & TRAPP 18 19 By: Carolyn L. Northrop 20 Thomas M. Gray Attorneys for Defendant, DOCTORS MEDICAL 21 CENTER OF MODESTO, INC. 22 23 24 25 26 27 28 -8- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT DECLARATION OF SERVICE 1 2 Reyes v. Modesto, et al. Stanislaus County Superior Court Case No. CV-20-003725 3 I am employed in Sacramento County; I am over the age of eighteen years and not a party 4 to the within action; my business address is 1661 Garden Highway, Suite 100, Sacramento, 5 California 95833-9706. On December 18, 2020, I served the foregoing documents described as DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF 6 DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 7 on the interested parties in this action as follows: 8 Attorneys for Plaintiffs: Jacob O. Partiyeli, Esq. 9 LAW OFFICES OF JACOB O. PARTIYELI 10 4751 Whittier Blvd. Los Angeles, CA 90022 11 Phone: (310) 801-1919 Fax: (323) 647-2387 12 Email: jacob@jacobfights.com 13 By United States Postal Service. I enclosed the documents in a sealed envelope or package 14 with postage fully prepaid, addressed to each party at their address of record (listed herein) and placed the envelope for collection and depositing with the United States Postal Service on this 15 same date in accordance with ordinary business practices. The envelope or package was placed 16 in the mail in Sacramento, California. 17 ✔ By E-Mail or Electronic Transmission. Based on a court order or an agreement of the 18 parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to each party at their e-mail addresses of record (listed herein). I did not receive, within a 19 reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 20 21 By Overnight Delivery Service. I enclosed the documents in an envelope or package provided by an overnight carrier and addressed to each party at their address of record (listed 22 herein). I caused the envelope or package to be placed for collection and overnight delivery at a regularly utilized pick-up location of the overnight delivery carrier. 23 24 By Messenger Service. I served the documents by placing them in an envelope or package addressed to each party at their address of record (listed herein) and providing them to a 25 professional messenger service for service. (See Declaration of Messenger, attached). 26 I am aware that on motion of a party served, service is presumed invalid if the postal 27 cancellation date or postage meter date is more than one day after date of deposit for mailing as stated on this declaration. 28 -9- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT I declare under penalty of perjury under the laws of the State of California that the 1 foregoing is true and correct. Executed on December 18, 2020, at Sacramento, California. 2 3 _____________________________ Catherine M. Kort 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT