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Scott v. Romans6/22/2005
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"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. `We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
We focus on the second amended complaint. It is elementary that, if a plaintiff amends the complaint, the new pleading supersedes the original. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 941, p. 399.) The sufficiency of the amended complaint is determined without reference to the original, except that the original complaint may be examined to discover whether the new pleading, by reason of unexplained omissions, is untruthful or a sham. (5 Witkin, Cal. Procedure, supra, Pleading, §§ 1119, 1122, pp. 575, 577.)
Procedural Background
Plaintiff is serving a 25-year-to-life sentence for 1990 murder and robbery convictions. Romans is a plastic surgeon who presumably performs work for the Department of Corrections. He removed skin cancer from plaintiff's cheek, and the operation left a scar. Representing himself, plaintiff filed this action to recover compensation for the scarring. The trial court sustained a demurrer, granted a motion to strike, and gave plaintiff 30 days leave to amend. Plaintiff failed to amend. But he later sought leave to amend, and the trial court granted the motion. Instead of serving an amended complaint, plaintiff served a "new amended complaint cover page." Romans demurred and moved to strike the cover page. Plaintiff responded by serving a first amended complaint. The trial court thereafter sustained another demurrer with leave to amend. Plaintiff failed to amend, and Romans moved to dismiss. The trial court denied the motion, but ordered plaintiff to amend. Plaintiff filed and served the instant verified second amended complaint. Romans demurred on numerous grounds. Plaintiff obtained an unopposed extension of time to oppose the demurrer. One week before the hearing, plaintiff filed another motion to extend the time to oppose. Romans opposed the motion. Plaintiff filed no opposition to the demurrer. The trial court denied plaintiff's motion. It then sustained Romans's demurrer for failure to state a cause of action.
Verified Second Amended Complaint
Plaintiff underwent a "punch biopsy" of a left-cheek freckle. Dermatologist Bruce Ragsdale reported that the biopsy specimen contained "Squamous Cell Carcinoma in Situ." He recommended "a clinical correlation to assess the adequacy of treatment." Plaintiff met with Romans and showed him the "left over freckle." Romans examined the cheek and drew on the cheek with a surgery marker the area and shape he intended to remove. Plaintiff looked in the mirror and then told Romans that the area was too large and "would leave a big ugly scar." Romans replied that the carcinoma would quickly spread if he did not remove the area. Plaintiff countered that the area was too large and would leave a sca
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