Judge Bruce G. Iwasaki, Case Number: 22STCV04718, Date: 2024-11-15 Tentative Ruling

Moving Party: Defendant Nicholas Jauregui, M.D., Inc. dba Supportive Care Medical Group

Tentative Ruling: The motion for judgment on the pleadings to the Third Amended Complaint is granted as to the second and third causes of action without leave to amend.

The is an elder abuse action. On February 7, 2022, Plaintiffs George Small III (Decedent) (by and through his Successor in Interest, Barbara Small), Barbara Small, and Kent Small, M.D. (collectively, Plaintiffs) filed their initial complaint in this action.

On July 11, 2023, Defendant Nicholas Jauregui, M.D., Inc. (Defendant or Supportive Care) filed a demurrer to the first cause of action and a motion to strike. Plaintiffs opposed the demurrer and motion to strike. The Court sustained the demurrer with leave to amend and granted the motion to strike.

On September 13, 2023, Plaintiffs filed a First Amended Complaint (FAC); the FAC contains causes of action for (1.) elder abuse, (2.) negligence, and (3.) wrongful death. Defendant Supportive Care filed a demurrer to the first cause of action to the FAC and a motion to strike. The Court sustained the demurrer with leave to amend.

On February 9, 2024, Defendant Supportive Care filed a demurrer to the first cause of action for the SAC and a motion to strike. Plaintiffs opposed the demurrer and motion to strike. The demurer to the first cause of action was sustained without leave to amend. The motion to strike was also granted without leave to amend.

Then, Defendant European Loving Care II (European) demurred to the first, second and third causes of action in the SAC and moves to strike portions of the pleading. Plaintiffs opposed the demurrer and motion to strike. The Court sustained the demurrer and granted the motion to strike.

On August 15, 2024, Plaintiffs filed a Third Amended Complaint (TAC); the TAC contains causes of action for (1.) elder abuse, (2.) negligence, and (3.) wrongful death.

On September 16, 2024, Defendant Nicholas Jauregui, M.D., Inc. dba Supportive Care Medical Group (Supportive Care) filed the instant motion for judgment on the pleadings as to the second and third causes of action. (The first cause of action of the Third Amended Complaint was not pleaded against Supportive Care; the Court had previously sustained a demurrer without leave to amend as to that claim against that Defendant.) Plaintiff filed no opposition to Defendant Supportive Care’s motion for judgment on the pleadings.

“[A] motion for judgment on the pleadings is the functional equivalent of a general demurrer.... Indeed, the only significant difference between the two motions is in their timing.” (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. The defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

Second Cause of Action for Negligence and Third Cause of Action for Wrongful Death:

The essential elements of a negligence claim are: “(1) a defendant's legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury.” (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 338.) Similarly, the elements of a cause of action for wrongful death are (1) a wrongful act or negligence on the part of the defendants, (2) caused the decedent’s death, (3) resulting in damages to the plaintiff. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.)

In a cause of action for medical malpractice and wrongful death, the statute of limitations is “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” (Code Civ. Proc., § 340.5.)

Injury is “ ‘ “damage which has clearly surfaced and is noticeable.” ’ ” (Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1550.) “Once the damaging effect of the alleged wrongful act is apparent, the statute [of limitations] is activated. This event may occur even without the knowledge that negligence was the cause of the injury.” (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762.)

To avoid being time-barred by the statute of limitations, Plaintiffs were required to bring their cause of action for medical malpractice and wrongful death “on the earlier date of three years after [her] injury or one year after [she] discovered the injury.” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 778.)[1]

Here, the TAC alleges that Decedent passed away on February 6, 2020. (TAC ¶¶ 1, 37.) There are no allegations suggesting a delayed discovery of the negligent cause of Decedent’s injury. In fact, the TAC alleges that Plaintiff Kent Small was “shocked” by Decedent’s condition as of February 6, 2020 “when [Decedent] was awake, alert, and oriented a few days earlier.” (TAC ¶ 37.) Plaintiff Kent Small then “demanded that [Defendants] cease all further chemical restraints of his father.” (TAC ¶ 37.)

These allegations indicate that Plaintiffs were on notice that something was wrong and deserving of further inquiry. (Enfield v. Hunt (1984) 162 Cal.App.3d 302, 308.) The statute of limitations requires Plaintiffs then “conduct a reasonable investigation of all potential causes of that injury.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808; Hills, supra, 152 Cal.App.3d at p. 760.)

Thus, to be timely, the complaint had to be filed no later than February 6, 2021 – one year from the date of injury/death. Here, the instant action was filed on February 7, 2022 – more than a year later. Based on the foregoing allegations, Plaintiffs’ claims for negligence and wrongful death against Defendant Supportive Care are time barred.

The motion for judgment on the pleadings is granted in favor of Defendant Supportive Care as to the second and third causes of action.

Plaintiff has failed to make a specific showing of a reasonable possibility of amending. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43 [“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.”].) Accordingly, the motion for judgment on the pleadings is granted without leave to amend.

The Court dismisses with prejudice the entire complaint against Defendant Nicholas Jauregui, M.D., Inc. dba Supportive Care Medical Group.

[1] A medical malpractice cause of action is not timely if only one of the limitations requirements is met because the statute “requires that the action be brought within the limitation which ‘occurs first.’ ” (Hills, supra, 152 Cal.App.3d at p. 758.) “To make it even more evident that a plaintiff must satisfy the requirements of both provisions, the statute further provides that ‘[i]n no event shall the time for commencement of legal action exceed three years.’ ” (Ibid.; Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 382.)