Judge: Christian R. Gullon, Case: 24PSCV00219, Date: 2025-02-13 Tentative Ruling
Case Number: 24PSCV00219 Hearing Date: February 13, 2025 Dept: O
Tentative Ruling
DEFENDANT FALCK USA’S DEMURRER TO FIRST AMENDED COMPLAINT
is SUSTAINED with one more opportunity at leave to amend to allege
allegations as to each of the Ambulance defendants.
Background
This is a negligence/medical malpractice case. Plaintiff
Angela Tapias (“Plaintiff” or “minor”), by and through her Guardian ad Litem
Hortencia Tapias, and Hortencia Tapias (“mother”) (collectively, “Plaintiffs”) allege
the following against Defendants CARE AMBULANCE SERVICE, INC (“CAS”) and FALCK
USA (collectively, “Ambulance”);[1]
LOS ANGELES COUNTY FIRE DEPARTMENT (the “Fire Department”); COUNTY OF LOS
ANGELES (the “County”); EMANATE HEALTH QUEEN OF THE VALLEY HOSPITAL (“Emanate”
or “Hospital”) (collectively, “Defendants”): On January 23, 2023, Plaintiff,
then a 5-year-old, started to have symptoms consistent with an upper
respiratory infection. On January 28, 2023, she was diagnosed with pneumonia,
but later that day, Plaintiff’s mother called 911 as Plaintiff started to have
fevers and chills. Neither the Fire Department nor the Ambulance took
Plaintiff’s body temperature or implemented treatment modalities to lower
Plaintiff’s body temperature. “As a result of [the minor’s] untreated high and
sustained fever, [the minor] suffered a brain injury and currently has the
intellectual capacity of a 2 year old.” (Second Amended Complaint ¶23.)
On January 22, 2024, Plaintiffs filed suit against
Defendants for:
1. Professional
Negligence
2. Violation
of Government Code section 815.2
3. Negligence
On February 15, 2024, Emanate filed a demurrer as to the 3rd
COA (NIED), which the court sustained on 3/28/24 with leave to amend (as the
complaint did not allege an injury-producing event).
On May 29, 2024, Plaintiffs filed their first amended
complaint (FAC) realleging the same COAs.
On June 12, 2024, Emanate filed its answer.
On June 28, 2024, the County filed its answer.
On August 7, 2024, Defendant FALCK USA (“Falck”) filed a
demurrer to the FAC.
On September 4, 2024, the court sustained the demurrer with
leave to amend for two reasons: (i) improper lumping of defendants Falck and
Care and (ii) the mother did not have contemporaneous awareness that fever was
causing anoxic brain injury; the injury is not the fever.
On October 18, 2024, Plaintiffs filed their Second Amended
Complaint (SAC) reasserting the same COAs against the same Defendants.
On November 15, 2024, the County filed its answer to the
SAC.
On November 18, 2024, the Hospital filed its answer to the
SAC.
On December 18, 2024, Falck filed the instant demurrer to
the SAC.
On January 30, 2025, Plaintiffs filed their opposition to
Falck’s demurrer.
On January 31, 2025, the Hospital filed a motion for summary
judgment. (The hearing on the MSJ is set for 4/30/25.)
On February 6, 2025, Falck filed its reply.
There is also an OSC re Failure to file a POS as to Care
Defendant; there is also a CMC set for 2/13/25.
Discussion
Falck files this instant demurrer on the grounds that the
First and Third COAs for Professional Negligence and Negligence, respectively,
again fail to allege facts sufficient to state a cause of action and is
uncertain. (Code Civ. Proc., § 430.10 (e)-(f).)
a. Lumping
of Defendants
Previously, the court sustained
the demurrer because Plaintiffs improperly lumped together Falck and CAS,
alleging that they both were dispatched, both arrived at the scene, and both
attended to Angela Tapias. (FAC ¶16.) The SAC makes the same allegation in the
same paragraph.
In opposition, Plaintiffs argue
that they have properly joined parties because:
i.
California law permits the joinder of
multiple defendants in a negligence COA when the plaintiff is in doubt as to
which defendant is liable (citing to CCP section 379(c) and Landau v. Salam (1971)
4 Cal.3d 901, 905-910)
ii.
Less particularity in the pleading is
allowed when defendant has superior knowledge of the facts (citing to Foster
v. Sexton (2021) 61 Cal.App.5th 998, 1028; Thomas v. Regents of Univ. of
California (2023) 97 Cal.App.5th 587, 611)
iii.
Demurrers for uncertainty should be
overruled where the facts are ascertainable by invoking discovery procedures
(citing Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; A.J. Fistes
Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)
iv.
Plaintiffs’ pleading complies with the
Fair Notice Test in that it shows Falck and Care were in a legal relationship
such that “Defendant should understand that their liability is for both for
their individual acts as well any vicariously [sic] responsibility.”
Here, the court again determines that the pleading is
uncertain as it fails to differentiate between the actions of the parent
company and subsidiary.
First, as to CCP section 379 subdivision (c), the statute
provides that “Where the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or she may join two or more defendants, with the
intent that the question as to which, if any, of the defendants is liable, and
to what extent, may be determined between the parties.” According to the
Legislative Committee Comments, this statute provides statutory standards for
joinder of defendants. In turn, joinder occurs where the plaintiff is uncertain
as to who is liable. For example, in Kraft v. Smith (1944)
24 Cal.2d 124, 127, joinder of two doctors who operated on the plaintiff’s leg
at two different times was permitted when the plaintiff was uncertain as to who
caused the “final” negligence. In Landau, the plaintiff claimed to have
been injured as the result of both the negligent driving of an automobile on one
date and the negligent maintenance of property by a different defendant on
another date. (Id. at p. 903.) The plaintiff asserted his uncertainty as
to whether his injuries, medical expenses, and loss of income emanated from the
first or the second accident. (Ibid.) The state supreme court held that
joinder of the defendants was proper because the plaintiff showed “a reasonable
doubt as to which defendant is liable for his injuries.” (Ibid.)
Here, there is no doubt, that CAS was not present at the
scene for there to be a “reasonable doubt as to which defendant is liable.”
Instead, Plaintiffs seek to impose liability upon CAS based upon its
mere relationship with Falck.
As for the argument that less particularity is required, as
noted by Falck in Reply, Foster and Thomas do not apply to these
facts. Foster involved the question of whether an inmate must allege
specific facts showing the administrative procedure is effectively unavailable.
The reference to less particularity was but one sentence in a section
discussing pleading standards. Thomas is equally inapposite as it was a
sexual harassment case.
As for the argument that discovery
would allow for the facts, as with above, the cited authority do not support
Plaintiffs’ position. Chen, for example, discussed uncertainty and
permissible discovery to resolve ambiguity as to who a stereo belonged to. (Chen,
supra, at p. 822.) A.J, supra, is also irrelevant because the
uncertainty argument went to the issue of whether the complaint contained substantive factual
allegations to apprise the certain parties of the claims, whether the award of
the project contract was unlawful, and whether one of the parties must have
returned the payments it received. (Id. at p. 659.) None of the cases
involved the lumping of defendants based upon a parent and subsidiary
relationship.
All in all, as noted in the
prior ruling, it is improper to lump allegations against multiple defendants. (See, e.g., Moore
v. Regents of Univ. of Cal. (1990) 51 Cal. 3d 120, 125 n.1 & 134 n.12; Wilson
v. Household Fin. Corp. (1982) 131 Cal. App. 3d 649, 653 [noting that
plaintiff cannot allege claim against defendant HFC by merely lumping it together with the other defendant, as HFC
did not have duties of an insurer].) This is especially so as Falck’s
mere role as the parent company of CAS does not automatically impose potential
liability upon Falck. (Demurrer p. 7, citing Davidson v. Seterus, Inc.
(2018) 21 Cal. App. 5th 283, 305; United States v. Bestfoods (1998) 524
US 51, 61 [a parent corporation is not liable for the act of its
subsidiaries].)
Conclusion
Based on the foregoing, the court
affords Plaintiffs with one more opportunity to fix the impermissible entwining
of allegations against CAS and Falck. With that, as the uncertainty argument is
as to both COAs, the court need not address whether Plaintiffs have stated a
viable claim of NIED against Falck.