Case Number: 20STCV25497    Hearing Date: March 8, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background Allegations

On August 28, 2019, Conail Kwok—both as an individual and as the Successor in Interest of the Estate of Tat Kwok—and her sister Melissa Kwok Anderson brought this action against Defendant Ramon Healthcare Associates, Inc. (hereafter, Defendant “Mission Care Center”; originally sued as Riverside Equities, LLC), alleging claims of (1) Elder Abuse and Neglect pursuant to Welfare & Institutions Code sections 15600, et seq., (2) Violation of Resident Rights pursuant to Health and Safety Code section 1430, subdivision (b), and (3) Wrongful Death. The claims were premised on the ground that Tat Kwok died as a result of Mission Care Center’s failure to prevent a wound that contributed to his death on April 28, 2019.

On November 4, 2019, Conail Kwok—both as an individual and as the Successor in Interest of the Estate of Tat Kwok—filed a First Amended Complaint against Mission Care Center, alleging the same claims as the original Complaint but failing to include Melissa Kwok Anderson as a plaintiff or defendant or to mention Melissa in the pleadings altogether.

On May 3, 2021, this action was dismissed after counsel for the Plaintiffs failed to appear for five scheduled Order to Show Cause hearings relating to Plaintiffs’ search for counsel, with the caveat that “should Successor in Interest Plaintiff [Kwok] secure an attorney, Plaintiffs’ case [could] be reinstated.”

On March 21, 2022, the Court granted an opposed motion to vacate the dismissal and reinstated this action.

Now before the Court is Defendant Mission Care Center’s unopposed Motion to Temporarily Abate Plaintiffs’ Action Until All Potential Plaintiffs are Properly Joined as Parties, as based on the First Amended Complaint’s failure to include Melissa Kwok Anderson as a plaintiff or defendant thereto.

Motion to Abate Action: GRANTED.

Legal Standard

“Defendants facing a wrongful death action in which all the heirs should have, but have not, been joined are entitled to move to abate the action.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 77.) “The California Supreme Court in holding that a wrongful death action by only a portion of the heirs is not the action authorized by statute said, ‘[a]ll the heirs should, therefore, join as plaintiffs in an action by heirs, and if the consent of anyone who should be so joined cannot be obtained, he may be made a defendant ([Code of Civil Procedure] § 382) . . . where all the heirs are not joined, and timely objection is made on that ground by a defendant, the action should be abated, or, at least, the other heirs should be made parties.” (Id. at p. 77 [citing Salmon v. Rathjens (1907) 152 Cal. 290, 294-95]; Valdez v. Smith (1985) 166 Cal.App.3d 723, 730 [same].)

Only a single action for wrongful death may be brought on behalf of all the heirs and there cannot be a series of suits by the heirs separately against the alleged tortfeasor. (Cross v. Pacific Gas & Electric Co. (1964) 60 Cal.2d 690, 694.) “[A]n heir bringing an action for wrongful death should join all known heirs. If an heir refuses to join as a plaintiff, he or she may be named as a defendant, so all heirs are before the court in the same action.” (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 697 [citing Salmon v. Rathjens, supra, 152 Cal. at pp. 294-95].) “[A]n heir named as a defendant in a wrongful death action is, in reality, a plaintiff.” (Smith v. Premier Alliance Ins. Co., supra, at p. 697 [citing Watkins v. Nutting (1941) 17 Cal.2d 490, 498-99].)

“An heir wholly omitted from a wrongful death action generally cannot bring a subsequent action for wrongful death. The defendant cannot be subjected to a second recovery by another heir ‘of whose existence [the defendant] had no knowledge at the time of [the initial wrongful death] action.’” (Smith v. Premier Alliance Ins. Co., supra, 41 Cal.App.4th at p. 697 [citing Salmon v. Rathjens, supra, 152 Cal. at p. 296.) “Instead, the wrongfully omitted heir may bring an action against the heir who brought the wrongful death action, in order to recover damages for the omission.” (Smith v. Premier Alliance Ins. Co., supra, at p. 697 [citing 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1216, p. 651].)

“However, if the defendant had knowledge of the omitted heir, but did not attempt to abate the action or join the heir, the defendant waives the right to a single wrongful death action and may be subjected to a second wrongful death action by the omitted heir, even after settlement of the original action.” (Smith v. Premier Alliance Ins. Co., supra, 41 Cal.App.4th at p. 697 [citing Valdez v. Smith, supra, 166 Cal.App.3d at p. 731].)

Analysis

The original August 28, 2019 Complaint for this wrongful death action names “Conail Kwok and Melissa Kwok Anderson” as “Heir[s]” of Tat Kwok. (Complaint, ¶ 4.) However, the First Amended Complaint filed on November 4, 2019 completely fails to mention Melissa Kwok Anderson in any capacity, e.g., as plaintiff or defendant. (See FAC generally.) Because the decedent—Tat Kwok—has an heir that is not party to this case, abatement of the action is proper until she and any other non-party heir is made party to this action. (Valdez v. Smith, supra, 166 Cal.App.3d at p. 730.)

Conclusion