Preview
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