Feb 23, 2018


TENTATIVE RULINGS                                       

LAW & MOTION CALENDAR                           

Friday, February 23, 2018, 3:00 p.m.                     

Courtroom 17 – Hon. Arthur A. Wick

3035 Cleveland Avenue, Suite 200, Santa Rosa



CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.


The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Wick’s Judicial Assistant by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. on Thursday, February 22nd.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The court no longer provides court reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained certified shorthand reporter to serve in the matter.





1.      SCV-259707, Karraker-Vincent v. Santa Rosa Memorial Hospital:


This is on calendar for Defendant Santa Rosa memorial Hospital’s (SRMH) demurrer to the Second Cause of Action for “Ordinary Negligence” (2COA) in the Third Amended Complaint (3AC) and also on calendar for the Plaintiff’s motion to compel further discovery responses.



Defendant SRMH generally demurs to the 2COA for “Ordinary Negligence” on the grounds that this COA is duplicative of the 1COA for Professional Negligence. SRMH argues that the facts, as alleged, “sound entirely in professional negligence” and the inclusion of the 2COA is an attempt to circumvent MICRA. The Defendant argues that under controlling legal authority, all functions of a hospital relate to the provision of healthcare, and therefore are broadly subject to professional negligence claims. SRMH contends that the allegations in the 3AC revolve around the alleged iliac fracture—which it argues (pursuant to the allegations) would have had to have happened in the recovery room or hospital room. SRMH further asserts that the 3AC fails to allege sufficient facts to support “ordinary negligence” and therefore fails to state a claim. Notably, SRMH relies on deposition transcripts of the Plaintiff to support its claim that the iliac fracture could have only occurred in a healthcare setting.


The Plaintiff opposes, contending that the issue of whether the 3AC properly alleges negligence has already been decided. The Plaintiff notes that Judge Ottenweller has already found the facts, as alleged, could constitute a claim for ordinary negligence. The Plaintiff further argues that a hospital can be held for both professional and ordinary negligence. (Citing Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153.)


SRMH replies contending that the Plaintiff’s allegations can only support professional negligence, citing paragraph 10 of the 3AC which alleges that the Plaintiff first felt the iliac fracture immediately after awaking from surgery. (3AC ¶ 10.) SRMH surmises that anything that would have happened during the time she was unconscious must have occurred during the provision of healthcare. SRMH then cites two cases, Johnson, supra, and Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75 for the proposition that since the Plaintiff’s care and treatment was “ongoing” at the time of the alleged negligence it must be characterized as “professional” versus “ordinary.”


Medical malpractice, whether referred to as medical negligence or professional negligence is at its core a claim for negligence. While the distinction between “ordinary” and “professional” negligence “may be relevant and necessary for purposes of statutory construction and application [citation], ... it is misplaced” at the demurrer stage in which the question is whether complaint states a cause of action. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [discussing distinction in context of motion for summary judgment].) For example, the distinction between the two types of negligence is highly relevant to an analysis of the limitations period—an issue that is not before the court on the instant demurrer. (See Johnson, supra; and Flores, supra.) SRMH has not cited a case that makes the distinction of “ordinary” and “professional” negligence relevant in the context of a general demurrer.


Here, SRMH is moving, in essence, for summary judgment based on its interpretation of facts it unearthed in discovery. (See e.g. Dec. Leonard at ¶ 2, Exhibit A [Attaching deposition transcripts of the Plaintiff].) It is improper at this stage to go outside of the pleadings. The hearing on demurrer may not be turned into a contested evidentiary hearing. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.)  The 3AC alleges sufficient facts to support a cause of action for negligence—which is sufficient to withstand the instant general demurrer. (See e.g. 3AC ¶ 22 [“[SRMH] so negligently acted or failed to act other than by providing medical services….”].)


Accordingly, the demurrer is overruled. The Plaintiff shall draft an order consistent with this ruling.



Compel Further Responses

This matter is continued to a later date to be heard by Judge Ottenweller. While the record is not completely clear, it appears that Judge Ottenweller issued a tentative ruling, and took the matter under submission. Judge Ottenweller then directed the matter to a discovery facilitator. Since Judge Ottenweller issued a tentative ruling and took it under submission (according to the minutes), the court will set this motion specially in front of Judge Ottenweller. The court will send notice of a new hearing date, time, and place.




2.      SCV-259950, Rosson v. Flitner:


Appearances required.




3.      SCV-260035, Rossetti v. Codding:


Motion to Compel Deposition Denied without prejudice unless Defendant cures the defects noted herein.  Defendant has provided no admissible evidence supporting his position.  The declaration contains only the first introductory page and exhibits without the substantive part of the declaration containing the factual assertions or foundation for the exhibits.  Thus, unless Defendant cures this defect, there is no evidence to support this motion and the court must deny it.  Even based on the factual assertions made in the moving papers, the motion is still defective.  Defendant fails to explain if he met and conferred about Plaintiff’s failure to appear before bringing this motion while Defendant again brought this motion before the most recently scheduled deposition date, making it unclear if this motion is still valid or is now moot.  While that deposition date has since passed, there is nothing demonstrating to the court that Plaintiff failed to appear again or that the motion is not otherwise moot.


Motion to Deem Admissions Granted.  Defendant shows that he served Plaintiff with requests for admissions and Plaintiff failed to respond even though the deadline had passed.  Plaintiff does claim that he has served responses but his evidence shows that these lack verifications, making them the equivalent of no response.  Should Plaintiff wish to avoid an order deeming the admissions, he must demonstrate that he has verified the responses by the time of the hearing. 


© 2018 Superior Court of Sonoma County