Judge Christopher K. Lui, Case Number: 23STCV04182, Date: 2024-09-18 Tentative Ruling

Judge: Christopher K. Lui, Case: 23STCV04182, Date: 2024-09-18 Tentative Ruling

Case Number: 23STCV04182 Hearing Date: September 18, 2024 Dept: 76

NOTICE TO PARTIES: IF ALL PARTIES SUBMIT ON THE FOLLOWING TENTATIVE RULING, THE COURT WILL ADOPT THE TENTATIVE AND WILL CONTINUE THE TRIAL SETTING CONFERENCE TO DECEMBER 13, 2024 AT 8:30 A.M.

Plaintiffs allege elder abuse and wrongful death relating to decedent’s stay at Defendants’ facilities.

Defendant PIH Health Whittier Hospital dba PIH Health Home Healthcare and Hospice [erroneously sued as Presbyterian Intercommunity Hospital dba Hospice of Presbyterian – Doe 1] and Defendant PIH Health Downey Hospital [Doe 2] demur to the Complaint and move to strike portions thereof.

TENTATIVE RULING

Defendant PIH Health Whittier Hospital dba PIH Health Home Healthcare and Hospice [erroneously sued as Presbyterian Intercommunity Hospital dba Hospice of Presbyterian – Doe 1] and Defendant PIH Health Downey Hospital [Doe 2]’s demurrer to the Complaint is SUSTAINED with leave to amend as to the first, second and third causes of action.

Plaintiff is given 30 days’ leave to amend.

Given the ruling on the demurrers, there are currently no viable causes of action against Doe 1 and Doe 2. As such, the motions to strike are MOOT.

ANALYSIS

The Court addresses both demurrers at once, as they both raise the same issues.

Meet and Confer

The form Declaration of Nicole G. Wells reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Discussion

1. Second Cause of Action (Negligence) and Third Cause of Action (Wrongful Death).

Defendants argue that the one-year statute of limitations set forth in Civ. Proc. Code, § 340.5 bars these claims “for injury or death against a health care provider based upon such person’s professional negligence.”

Civ. Proc. Code, § 340.5 provides in pertinent part:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be 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. . . . .

For the purposes of this section:

(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;

(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

(Civ. Proc. Code, § 340.5 [bold emphasis added].)

Civ. Proc. Code, § 364 provides for a possible 90-day extension of the applicable statute of limitations following the expiration thereof.

(a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

(b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

(d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.

(e) The provisions of this section shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474.

(f) For the purposes of this section:

(2) “Professional negligence” means negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

(Civ. Proc. Code, § 364.)

Plaintiff's decedent died on December 25, 2021. (Complaint, ¶ 1.) The Complaint alleges that on December 13, 2022, Defendants mailed a Civ. Proc. Code, § 364 letter to Defendants Whittier Hospital and PHHH. (Compliant, ¶ 7.) The instant Complaint was filed on February 27, 2023, which is 1 year 2 months and 2 days after decedent passed away. As such, the Complaint was timely filed as to the Defendants named in the Complaint.

However, the Doe Defendants were not substituted in until June 10, 2024, which is 2 years, 5 months and 16 days after decedent passed away. As such, the Complaint is time-barred as to the second and third causes of action against the Doe Defendants, unless the amendments relate back to the filing on the Complaint.

Civ. Proc. Code § 474 provides in pertinent part:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; . . . .

Plaintiff’s ignorance of the identity of the person named as Doe defendant is measured as of the time of the filing of the complaint, and such ignorance must only be real, even if due to misinformation or negligence; there is no duty of reasonable inquiry to discover the defendant’s identity. (Balon v. Drost (1993) 20 Cal.App.4th 483, 487-90.) Moreover, even if plaintiff knew the defendant’s identity but did not know the facts gave rise to a cause of action against that defendant, plaintiff may properly utilize the fictitious name statute. (Motor City Sales, supra, 31 Cal.App.3d 342, 345-46.)

However:

It is established that where a defendant is designated by a fictitious name in an original complaint and no attempt made therein to state any cause of action against such defendant, the statute of limitations is not tolled as to such defendant. If there is an attempt to assert a cause of action in an amended complaint against such defendant, the statute of limitations is computed from the date of the alleged [*862] acts to the date of the filing of the amended complaint. (Kolodziejski v. Hover, 124 Cal.App.2d 731, 732-733 [269 P.2d 163]; Sullivan v. Wright, 124 Cal.App.2d 836 [269 P.2d 671]; Gates v. Wendling Nathan Co., 27 Cal.App.2d 307 [81 P.2d 173

(Williams v. Goodman (1963) 214 Cal.App.2d 856, 861-862.)

Here, the demurring Defendants were substituted in as Does 1 and 2. However, the Complaint did not allege what Does 1 and 2 did or the capacity in which they should be held responsible. Indeed, ¶ 8 makes allegations as to Does 10 – 50 as licensed and unlicensed individuals and/or entities, and employees of Whittier Hospital who rendered care and services to Chavez and whose conduct caused the injuries, and damages alleged herein. ¶ 9 makes allegations as to Does 51 – 90 as caregivers and other persons employed by PHHH to provide nursing care, home health care, or other related services. (See also ¶ 33.) ¶ 14 makes allegations as to Does 91- 149 as members of the “Governing Body” of WHITTIER HOSPITAL and PHHH responsible for the creation and implementation of policies and procedures for the operation of their hospitals and home health agencies and for supervising the administration of the same pursuant to 42 C.F.R. §483.75 and 22 C.C.R. §70035. ¶ 10 only makes a boilerplate blanket allegation that “Plaintiffs are ignorant of the true names and capacities of those Defendants sued herein as Does 1 through 200, and for that reason have sued those Defendants by such fictitious names. Plaintiffs will seek leave from the court to amend this Complaint to identify said Defendants when their identities are ascertained.”

Because Plaintiff did not specify that Does 1 and 2 engaged in any conduct or existed in any capacity for which they can be held liable, there is no basis to hold that that Doe Amendments relate back to the filing of the original Complaint.

As such, the demurrer to the second and third causes of action is SUSTAINED with leave to amend.

2. First Cause of Action (Elder Abuse).

Defendants argue that this cause of action is barred by the two-year statute of limitations set forth in Civ. Proc. Code, § 335.1, which applies to “[a] action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”

[Civ. Proc. Code §] 335.1 [*126] statute of limitations (applicable to causes for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another”) is facially applicable to elder abuse actions and provides a two-year limitation period, and is subject to tolling for “insanity” as defined in Code of Civil Procedure section 352.

(Benun v. Superior Court (2004) 123 Cal.App.4th 113, 125-126.)

Here, Plaintiff decedent died on December 25, 2021. (Complaint, ¶ 1.) The Complaint alleges that on December 13, 2022, Defendants mailed a Civ. Proc. Code, § 364 letter to Defendants Whittier Hospital and PHHH. (Compliant, ¶ 7.) The instant Complaint was filed on February 27, 2023, which is 1 year 2 months and 2 days after decedent passed away. As such, the Complaint was timely filed as to the Defendants named in the Complaint.

However, the Doe Defendants were not substituted in until June 10, 2024, which is 2 years, 5 months and 16 days after decedent passed away. As such, the Complaint is time-barred as to the first cause of action against the Doe Defendants, unless the amendments relate back to the filing on the Complaint.

For the reasons discussed above re: the second and third causes of action, the allegations of the Complaint do not demonstrate that the Doe 1 and Doe 2 amendments relate back to the filing of the Complaint.

As such, the demurrer to the third cause of action is SUSTAINED with leave to amend.

Plaintiff is given 30 days’ leave to amend.

Given the ruling on the demurrers, there are currently do viable causes of action against Doe 1 and Doe 2. As such, the motions to strike are MOOT.