Kwak vs. Progeny Psychiatric Clinic

1 Kwak vs. Demurrer Progeny Psychiatric Defendant Progeny Psychiatric Clinic’s Demurrer is SUSTAINED with 15 Clinic days leave to amend.

Pending Motion 30-2025- 01482453 Defendant Progeny Psychiatric Clinic demurs to the Complaint – Personal Injury, Property Damage, Wrong Death (Complaint) filed by Plaintiff Deborah Kwak.

Standard for 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.)

For this reason, the court will not decide questions of fact on demurrer. (See Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.)

Instead, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” (Serrano v. Priest (1971) 5 Cal.3d 584, 591, citation omitted; see Blank v. Kirwan (1985) 39 Cal.3d 311, 318).

Therefore, the court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

However, “where facts appearing in attached exhibits or judicially noticed documents contradict, or are inconsistent with, the complaint's allegations, we must rely on the facts in the exhibits and judicially noticed documents.” (Jimenez vs. Mrs. Gooch’s Natural Foods Markets, Inc. (2023) 95 Cal.App.5th 645, 653.)

Although courts should take a liberal view of inartfully drawn pleadings, (see Code Civ. Proc., § 452), it remains essential that a pleading set forth the actionable facts relied upon with sufficient precision to inform the responding party of the matters that the pleading party is alleging, and what remedies or relief is being sought, (see Leek v. Cooper (2011) 194 Cal.App.4th 399, 413).

Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

1st Cause of Action (General Negligence)

The Complaint asserts one cause of action for general negligence.

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834, quoting 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, pp. 60-61, italics original.)

In this case, Plaintiff has filed a form Complaint that states “each complaint must have one or more causes of action attached” above the statement of Plaintiff’s causes of action. (See Compl., ¶ 10, italics original.)

However, Plaintiff failed to include the attachment to state a negligence cause of action.

Accordingly, Plaintiff has failed to allege the elements of a negligence claim – legal duty, breach, causation, and damages.

Nor has Plaintiff alleged any facts to support the existence of a legal duty, breach, causation, or damages.

The court will sustain the demurrer.

Leave to Amend

“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)

However, it is the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) In order to meet this burden, a plaintiff may submit a proposed amended complaint or enumerate facts and demonstrate how those facts establish a cause of action. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)

Nonetheless, “for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” (Eghtesad v. State Farm General Insurance. Co. (2020) 51 Cal.App.5th 406, 411, quoting King v. Mortimer (1948) 83 Cal.App.2d 153, 158; see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 [“Only rarely should a demurrer to an initial complaint be sustained without leave to amend.”].)

As the Court of Appeal has explained: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, although Plaintiff has not requested leave to amend and has not explained how the Complaint could be amended, the demurrer is asserted against an original complaint and Plaintiff has not had a prior opportunity to amend the Complaint.

Further, the deficiencies in the Complaint arise from allegations that are not plead rather than underlying facts that cannot be changed. The Complaint, for example, could amended by including the form causes of action attachments.

However, Defendant contends that the court should deny leave to amend because Plaintiff has been declared a vexatious litigant.

Defendant concedes that Plaintiff filed this action before being declared a vexatious litigant such that Plaintiff did not violate in the vexatious litigant statute when she filed the Complaint.

Nonetheless, Defendant argues that an amended pleading is equivalent to “new litigation,” such that leave to amend would “implicitly afford plaintiff the opportunity to circumvent the requirement that she first obtain leave of the presiding judge of this Court.” (Def.’s Dem. at p. 6:5- 8.)

Defendant cites to no authority for the proposition that an amended pleading constitutes “new litigation” or that the court should deny leave to amend simply because the plaintiff has been designated a vexatious litigant.

As the Supreme Court has explained:

[I]n an order barring a vexatious litigant from “filing any new litigation” in propria persona, “the word ‘new’ plainly refers to a civil lawsuit filed after entry of the prefiling order. It does not . . . refer to an early procedural stage in the lawsuit.”

(Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172, citation omitted, quoting Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 196.)

In addition, “the statutory term ‘filing’ plainly refers to filing the lawsuit, not to prosecuting or maintaining it.” (Shalant v. Girardi, supra, 51 Cal.4th at p. 1173.)

Thus, the prohibitions of the vexatious litigant statute should be read to apply only to the filing (and not maintaining) of litigation after the vexatious litigant order.

Further, if the issue a close one, the case law clearly indicates that the court should err towards granting leave to amend.

Therefore, the court will exercise its discretion and grant leave to amend.

However, the parties are reminded that when leave to amend is granted upon the sustaining of a demurrer, amendments are limited to the issues addressed in the court’s ruling and generally may not include amendments to causes of action not addressed in the ruling or the addition of new causes of action. (See Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”].)

Case Management Conference

The Case Management Conference is CONTINUED to September 24, 2026 at 9:00 a.m. in Department N15.

Defendant shall give notice of these rulings.

2 Ascencio vs. Motion to Continue Orange County Fire Defendant Falck Mobile Health Corp. dba Care Ambulance’s Motion to Authority Continue Trial and All Related Dates is taken OFF CALENDAR, pursuant to the Stipulation and Order to Continue Trial and All Trial Related Dates issued March 5, 2026 (ROA #68), and the Notice of Withdrawal of Motion 30-2023- filed March 20, 2026 (ROA #78). 01336125

3 Habibi vs. Motion to Continue Yang-Davies Plaintiff Ghulam Reza Habibi’s Motion for Continuance is taken OFF CALENDAR as moot. 30-2025- 01471995 Pending Motion

Plaintiff Ghulam Reza Habibi seeks leave to “use another way to serve [the landlords] or allow more time and permission to use substituted service.” (Mot. for Continuance at p. 1:23-26.)

Here, Plaintiff only seeks permission to serve by substituted service and does not specify any other method of service for which she seeks leave of the court.

However, “[n]either service by mail nor substituted service requires the plaintiff to obtain permission of the court before using the alternative to personal service.” (Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 337.)