(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
ARGUMENT
IT IS WELL SETTLED THAT INCONSISTENT PLEADINGS ARE PERMITTED
Defendants’ David X., M.D. and Doctors Medical Group’s demurrer to Plaintiffs Complaint is based (initially) on the grounds that Plaintiffs first cause of action, for medical negligence, is duplicative of Plaintiff’s second cause of action, for Wrongful Life.
It is well established that a plaintiff is entitled to plead inconsistent causes of action. Rader Co. v. Stone (1986) 178 Cal.App.3d 10.
Rader Co., supra, involved an appeal from an Order of dismissal following the sustaining of demurrers, without leave to amend.
In holding that inconsistent causes of action are appropriate, the Rader Co., supra, court, stated, at p.29, of 178 Cal.App.3d, as follows:
Moreover, Rader is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action. To the extent Rader’s allegation in one cause of action of a fully executed contract with Stone is at odds with an allegation in a separate cause of action that PSR interfered in Rader’s advantageous relationship with Stone, such inconsistency is not fatal to Rader’s claims at the pleading stage, as a plaintiff is permitted to plead inconsistent or …, alternative counts.
(Rader Co., supra at p.29, Emphasis Added, citing Skelly v. Richman (1970) 10 Cal.App.3d 844)
As such, defendants’ David X., M.D. and Doctors Medical Group’s demurrer to Plaintiff’s Complaint, based upon alleged inconsistent pleadings, must be overruled. (See Part 3 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.