Judge: Daniel M. Crowley, Case: 21STCV45899, Date: 2022-10-27 Tentative Ruling

Case Number: 21STCV45899    Hearing Date: October 27, 2022    Dept: 28

Defendant West Hills Hospital and Medical Center’s Demurrer with Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On December 17, 2021, Plaintiffs Barbara Levine (“Barbara”), Scott Levine (“Scott”), Mindy Levine (“Mindy”), Matthew Levine (“Matthew”) and Ryan Levine (“Ryan”) filed this action against Defendants West Hills Hospital and Medical Center (“WH”) and Rami M. Shaarawy, M.D. (“Shaarawy”) for medical negligence – wrongful death and medical negligence – survival action.

On September 30, 2022, WH filed a Demurrer with Motion to Strike to be heard on October 27, 2022. On October 13, 2022, Plaintiffs filed an opposition. On October 20, 2022, WH filed a reply.

Trial is scheduled for June 16, 2023.

PARTY’S REQUESTS

WH requests the Court sustain the demurrer to the entire complaint on the basis that Matthew and Ryan are improper parties to the action. WH also requests the Court strike all mentions of Matthew and Ryan, as well as page 12, paragraph 61, lines 25-28, and page 13, paragraph 2, line 7.

Plaintiffs request the Court overruled the demurrer and deny the motion on the basis it is untimely, and that Matthew and Ryan are proper parties.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

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.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

Under CCP §377.60, a cause of action for wrongful act may only be brought by the following persons:

“(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.

(b) (1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.

(2) As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.

(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.”

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  (CCP § 435(b)(1).)  “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.”  (CRC 3.1322(b), italic added.)  “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.”  (CCP § 471.5(a).)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff, supra, 9 Cal.App.5th p. 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Under CCP §377.34, “in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.”

DISCUSSION

Timeliness

Plaintiffs allege that the demurrer is untimely, as WH was served on July 5, 2022, but did not file the demurrer until September 30, 2022—57 days after the deadline.

WH states that the initial service was actually improper. Plaintiffs served WH directly on the hospital, rather than serving WH’s agent of process, as required. WH agreed that Plaintiffs need not actually serve the agent of process and that the previous service could be considered effective. Parties then attempted to meet and confer prior to filing a demurrer, and expressly agreed to refrain from filing a request for entry default or a demurrer to allow time to continue discussions.

Based on the above, the Court will rule on the merits of the motion.

Proper Parties

Plaintiffs’ complaint is based on the wrongful death of Decedent. Barbara was Decedent’s wife. Scott and Mindy were both Decedent’s children. Matthew and Ryan were Mindy’s children; the complaint alleges that they were both Decedent’s “putative sons”, as he served “in all aspects” as Matthew and Ryan’s father.

WH argues that Matthew and Ryan are not appropriate parties to this action. Matthew and Ryan were the issue of Mindy—who is not deceased—meaning that Matthew and Ryan are not appropriate parties under CCP §337.60(a). Although Matthew and Ryan are identified as the “putative sons” of Decedent, this does not meet the qualifications for §337.60(c) inherently. Subsection (c) requires that the complaint allege that the minors were dependent on decedent for one-half or more of the minor’s support and that they had resided for the preceded 180 days in the decedent’s household. Neither of these requirements are clearly alleged.

Plaintiffs allege that they have sufficiently met the requirements under CCP §337.60(c), because they pled that Decedent served as Matthew and Ryan’s father in all aspects; they specifically argue that there is no caselaw that articulates what “household” means under CCP §337.60(c), and this should be based on other case law. However, this is completely irrelevant at this stage. CCP §337.60(c) requires that a minor who does not qualify otherwise be supported and have lived in Decedent’s household. Plaintiffs have not alleged either of these facts. The vague statement that Decedent served as their father in all aspects is uncertain and does not provide adequate information to establish that Matthew and Ryan are entitled to bring this action. The Court sustains the demurrer.

Motion to Strike

Plaintiffs' complaint makes a reference to Decedent enduring “great pain and suffering” from the alleged negligence before dying at the hospital; WH argues that this should be stricken pursuant to CCP §337.34, which requires that Plaintiffs seek a preference to include a request for damages arising from Decedent’s pain and suffering. However, there is no request for damages based on pain and suffering—it is merely a factual allegation given to provide context to additional facts. The Court denies the motion as to this request.

WH also requests the Court strike the request for “loss of wages, earning capacity and/or any related expenses,” because it is not strictly allowed under CACI 3921. The Court disagrees: CACI 3921 explicitly states that “the financial support...[decedent] would have contributed to the family during his life expectancy...”, which clearly would allow for lost wages. The Court denies the motion as to this request.

The request to strike mentions of Matthew and Ryan is moot.

CONCLUSION

Defendant West Hills Hospital and Medical Center’s Demurrer is SUSTAINED, with 30 days leave to amend.

Defendant West Hills Hospital and Medical Center’s Demurrer is MOOT, as to references to Matthew and Ryan, and is DENIED, as to all other requests.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.