Kwak vs. Progeny Psychiatric Clinic

2 Kwak vs. Progeny Psychiatric Demurrer Clinic Plaintiff Deborah Kwak’s Demurrer is OVERRULED.

30-2025-01482453 Pending Motion

Plaintiff Deborah Kwak demurs to “the First, Second, Third and Fourth Causes of Action in the Demurrer and Motion to Strike.” (Pltf. Dem.; Mem. of P.s&A.s at p. 2:9-10.)

Standard for Demurrer

Civil Procedure Code section 430.10 provides that:

The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer . . . to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the

contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.

(Code Civ. Proc., § 430.10.)

In addition, Civil Procedure Code section 430.20 states that:

A party against whom an answer has been filed may object, by demurrer. . . to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.

(Code Civ. Proc., § 430.20.)

Here, Plaintiff demurs to “the First, Second, Third and Fourth Causes of Action in the Demurrer and Motion to Strike.” (Pltf. Dem.; Mem. of P.s&A.s at p. 2:9-10.)

However, demurrer may be asserted against a complaint, cross-complaint, or answer. Plaintiff points to no authority that would allow her to demur to another demurrer or a motion to strike.

Further, the Defendant Progeny Psychiatric Clinic’s demurrer and motion to strike do not contain any causes of action against Plaintiff.

In fact, the court record does not show that Defendant has asserted any causes of action against the Plaintiff in this action.

In her demurrer, Plaintiff also contends that there is a dispute over medical records and that Defendant cannot request an injunction.

However, as Defendant notes, there has been no request for an injunction by Defendant, and any dispute regarding the production of records would not be resolved by way of a demurrer.

A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

To the extent this demurrer serves as an opposition to Defendant’s demurrer and motion to strike, the court has already considered it in ruling on those matters. (See ROA #47, #53.)

Therefore, the court will overrule the demurrer in its entirety.

Defendant shall give notice of this ruling.

3 William N. Langstaff Motion to Continue Action After Party’s Death Professional Dental Corporation vs. Swope Toby Herscovitz-Langstaff’s Motion to Continue Pending Action by Decedent’s Representative is GRANTED. 30-2024-01439562 Toby Herscovitz-Langstaff shall continue this action in the place of Plaintiff William N. Langstaff DDS, as his successor in interest.

Pending Motion

Toby Herscovitz-Langstaff moves for an order allowing this action to be continued by her in the place of Plaintiff William N. Langstaff DDS upon his passing.

Standard to Continue Action After Party’s Death

Civil Procedure Code section 377.20 provides that “[e]xcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).)

A cause of action that survives the death of a plaintiff passes to “the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.)