Case Number: 19STCV44154    Hearing Date: February 13, 2020    Dept: 27



On December 10, 2019, plaintiff Jens Frederick Larsen filed this action against defendants Tender Home Health and Annabelle Vita (erroneously sued as “Annabel Evita,” hereinafter “Vita”) (collectively, “Defendants”) for medical malpractice.  Plaintiff also named “All Owners” as defendants.  Defendants demur on the grounds that the form complaint fails to state facts sufficient to constitute a cause of action and is uncertain.  Defendants move to strike various parts of the complaint.


A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond.  (Code Civ. Proc., § 430.10, subd. (f).)  Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)



Plaintiff alleges Tender Home Health personnel did not respond properly to his requests for help and in particular did not provide necessary physical therapy.

Tender Home Health argues Plaintiff’s detailed allegations are irrelevant and that the complaint fails to state a cause of action and is uncertain.  Plaintiff’s allegations that Tender Home Health’s lack of treatment, namely the failure to provide physical therapy and sufficient care to prevent the formation of blood clots in his legs, are sufficient to identify the particular negligent acts and omissions that Plaintiff alleges constitute medical malpractice as to Tender Home Health.  But Plaintiff needs to use the proper form complaint for a personal injury action (Judicial Council Form PLD-PI-001).

The complaint does not allege negligence by Annabelle Vita and does not allege her connection to Tender Home Health or this dispute.  In addition, the complaint as to “All Owners” is uncertain because it does not identify those parties or allege their connection to Tender Home Health or this dispute.

Accordingly, the demurrer is SUSTAINED with 20 days’ leave to amend.

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)

A motion to strike is an inappropriate vehicle to strike an entire cause of action.  A motion to strike can be used to attack portions of a cause of action while a demurrer is used to attack entire causes of action.  “[I]t is improper for a court to strike a whole cause of action of a pleading under Code of Civil Procedure section 436. … Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike. [Citation.]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)   Accordingly, the motion to strike the entire complaint and defendants is DENIED.

Plaintiff’s request for damages is improper.  Code of Civil Procedure section 425.10 directs a plaintiff to comply with section 422.30 in a personal injury case, and either respond to a defendant’s request for a statement of damages or to serve a statement of damages on the defendant on Judicial Council Form CIV-050 in the same manner as the summons and complaint.  Defendant’s motion to strike Plaintiff’s request for $55,000,000.00 is GRANTED.

The balance of the motion to strike is DENIED.  The allegations are sufficiently connected to Plaintiff’s medical malpractice claims.

Moving party to give notice.