Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse case and its proceedings.)
It is also worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
DEFENDANT’S UNCERTAINTY ARGUMENT FAILS
When a demurrer is made upon the ground of uncertainty, National was required to specify exactly how and why the pleading is uncertain and where such uncertainty appears. Good practice requires reference to page and line. See, Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809. As noted in the treatise, California Practice Guide, Civil Procedure Before Trial, (TRG 2009) 7:88:1, page 7(1)-38, Although not specifically required by CRC 3.1230(a), a demurrer for uncertainty should refer by page and line number to the particular allegations or part of the pleading that is uncertain. Plaintiff should not have search or guess. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Defendant sets forth in its notice, but does not provide any argument in its Points & Authorities, that the first cause of action is uncertain, without citing to any page or line, as to facts of defendant’s officer, director or managing agent’s reckless conduct. As discussed above, to meet the standard of Civil Code §3294(b), plaintiff has the option of pleading that Defendant’s officer, director, or managing agent had advance knowledge of the unfitness of individual employees and employed him/her with a knowing disregard of the rights or safety of others or Defendant’s officer, director, or managing agent ratified the conduct of defendant’s employees. The issue is the sufficiency of the facts of defendant’s ratification of what this court has already held are sufficiently stated facts of defendant’s staff’s reckless neglect of Mr. White.
Further, a demurrer for uncertainty will be sustained only where the defendant cannot reasonably determine what issues must be admitted or denied or what claims are directed against it. 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. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 927, p. 364; 1 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1990) § 7:85, p. 7-23. See, Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616. (See Part 10 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.