PH II, Born Anew

Moran v. Prime Healthcare Mgmt., Inc., No. G060920 (D4d3 Aug. 7, 2023)

This is mostly a case about healthcare law. I don’t do that. But procedurally, this is a rare recent option to touch on the usefulness of the common law motion to strike, so it’s worth a note.

As I said a long time ago, the oft-cited rule that a demurrer lies only to a whole “cause of action” provides a strong incentive for plaintiffs to engage in what I’ve called “claim jamming”—the practice of combining different legal theories into the same count. And because nobody really wants to suffer the brain damaged required to get into the sausage of how a “cause of action” is made, that generally lets crafty plaintiffs shield dubious legal theories from a demurrer (and get discovery on them) by intermingling them with more ordinary ones. It also deprives a defendant of the one real shot it has to get rulings on important legal questions at a relatively early point in a case. 

Some relief from this unnecessary formalism was held out by a Court of Appeal case from almost 30 years ago. In a 1995 case called PH II, the Court of Appeal recognized that an traditional motion to strike under Code of Civil Procedure § 436 permits a trial court to strike out part of a pleaded count that relies on an invalid legal theory, even though it does not dispose of a whole cause of action. That is a useful rule, but for whatever reason, it went essentially unapplied in another published case for a long, long, time. The Supreme Court cited it favorably in 2016 in Baral v. Schnitt—the case that explained how a “special” motion to strike under the anti-SLAPP statute applied to “mixed” causes of action. Even that, however, did not revive the utility of PH II.

But this case applies the PH II rationale. Plaintiff lost most of its claims in a class action in a prior appeal. But the Court of Appeal let one theory go. On remand, Plaintiff amended his complaint to add new theories under the UCL and CLRA. But he jammed those theories into the same “cause of action” as the prior theory endorsed on appeal. The trial court followed PH II and struck the language that implicated those theories, holding that they were not actionable as a matter of law. 

On a death knell doctrine appeal, Plaintiff argued that because Defendant didn’t challenge the part of his claim that was previously blessed by the Court of Appeal, any resolution of the other legal theories needed to await a motion for summary adjudication*. The Court here rejects that argument, finding that the issue “easily falls within the purview of PH II[.]” As the Court explains,  “[t]here is no need for an expensive motion for summary adjudication to add to what must already be the high costs of this almost 10-year-old case. The purported defects are clear from the face of the complaint, and therefore, a motion to strike was proper.”

So now, at least, there’s something from this century to cite for the point.

Affirmed.

*Summary adjudication is similarly limited to whole causes of action under § 437c(f), so not sure what that would be any better.