Judge: Craig Griffin, Case: Gladstone v. Nguyen, Date: 2022-08-15 Tentative Ruling

Defendants Huy T. Nguyen, M.D. and CCOC, Inc. dba Coastal Cardiology of Orange County (“Moving Defendants”) Demurrer to the Complaint of Plaintiff Nikki Gladstone (“Plaintiff”) is SUSTAINED with 15 days leave to amend as to the First and Second Causes of Action (CCP §430.10(f)) and without leave to amend as to Third Cause of Action.  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.)

A cause of action that survives the decedent’s death may be commenced by the decedent's personal representative.  If no representative has been appointed, suit may be commenced and recovery may be had by the decedent's “successors in interest”.  (CCP §§ 377.30, 377.34.)

“Unlike a cause of action for wrongful death a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event [citation].”  (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.)

By contrast, a cause of action for wrongful death is a statutory claim that compensates specified heirs of the decedent for losses suffered as a result of a decedent's death.  (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1550-51.)  Because a wrongful death action compensates an heir for his or her own independent pecuniary losses, it is one for “personal injury to the heir.”  (Id., citing Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263-64; Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 819.)  Thus, in a wrongful death action the “injury” is not the general loss of the decedent, but the particular loss of the decedent to each individual claimant.

Here, Defendant is correct that the Complaint is uncertain because it fails to specify on whose behalf each cause of action is sought.  (Cal. Rules of Court 2.112(3).)  Plaintiff alleges she is the decedent’s daughter and successor in interest.  (Compl. ¶¶ 1, 44.)  The caption of the Complaint names only “Nikki Gladstone, an individual” as plaintiff.  With regard to the first cause of action for professional negligence, para. 27 alleges: “Consequently, Plaintiff is suing said Defendants, inclusive, and each of them, for general and special damages on behalf of herself and as a representative of Ms. Whitener.”  Such allegation renders the Complaint uncertain because the professional negligence action is a survival action that belongs to the decedent only.  Defendant is correct that to the extent that Plaintiff is attempting to assert a professional negligence claim on behalf of herself, this is improper because she has no standing to assert such a claim as that claim belongs to the decedent.  Plaintiff may properly assert this claim as successor in interest to the decedent along with the filing of the appropriate declaration.  (CCP § 377.32.)

As to the second cause of action for wrongful death, given the allegations elsewhere in the Complaint that Plaintiff seeks damages on behalf of herself and as a representative of decedent, further clarification stating that the second cause of action is brought by Plaintiff in her individual capacity is warranted.

With regard to the third cause of action for “survival,” Defendant is correct that this cause of action is duplicative of the professional negligence claim.  (Compare Compl. ¶¶ 24-26 and ¶¶ 40-42.)  Thus, the Court may disregard the third cause of action as superfluous as no additional claim is actually stated.  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) 

However, Plaintiff is given leave to combine the Survival allegations with the Professional Negligence allegations, as she requested in her opposition.

Lastly, Defendant is correct that the attestation at the end of the Complaint is not a proper affidavit or declaration that would satisfy the requirements of CCP § 377.32.  (See Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.)  Plaintiff’s attestation does not show the declarant's personal knowledge and competency to testify.  Thus, a declaration that is in proper form and that satisfies the requirements of CCP § 377.32 must be filed. 

Accordingly, the demurrer is SUSTAINED with leave to amend as to the first and second causes of action and without leave to amend as to the third cause of action.

Moving Defendants to give notice.