Judge: David B. Gelfound, Case: 24CHCV02523, Date: 2025-02-25 Tentative Ruling

Case Number: 24CHCV02523    Hearing Date: February 25, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER TO FIRST AMENDED COMPLAINT

Motion filed: 11/26/24

MOVING PARTY: Defendants Marjun Duldulao, M.D., Gwenda Pope, N.P., and Keck Medical Center of USC

RESPONDING PARTY: Plaintiffs Pamela Bauer, Christy Coleman, Breana Bauer

NOTICE: OK.

RELIEF REQUESTED: An order sustaining the Demurrer to the Third Cause of Action for Negligent Infliction of Emotional Distress as to Defendants Marjun Duldulao, M.D., Gwenda Pope, N.P., and Keck Medical Center of USC, in Plaintiffs’ First Amended Complaint.

TENTATIVE RULING: The Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

BACKGROUND

This is a medical malpractice action.

On July 11, 2024, Plaintiffs Pamela Bauer (“Pamela”), Christy Coleman (“Coleman”), Breana Bauer (“Breana”), individually and as Successor in Interest to decedent Dean Bauer (“Dean” or “Decedent”) (collectively, “Plaintiffs”) initiated this action by filing a Complaint.

On October 29, 2024, Plaintiffs filed their operative First Amended Complaint (“FAC”) against Defendants Henry Mayo Newhall Memorial Hospital (erroneously sued as Henry Mayo Newhall), Marjun Duldulao, M.D. (“Dr. Duldulao”), Santa Clarita Outpatient Surgery Center, Gwenda Pope, N.P. (erroneously sued as Gwenda Pope, P.A.) (“Dr. Pope”), Keck Medical Center of USC (erroneously sued as Keck Hospital Center of USC), and Does 1 to 100. The FAC alleges three causes of action: (1) Negligence – Medical Malpractice, (2) Wrongful Death – Medical Malpractice, and (3) Negligent Infliction of Emotional Distress. Subsequently, Henry Mayo Newhall Memorial Hospital filed its Answer to the FAC on November 22, 2024.

On November 26, 2024, Defendants Dr. Duldulao, Dr. Pope, and Keck Medical Center of USC (“Demurring Defendants”) filed the instant Demurrer to the FAC (the “Demurrer”). Subsequently, Plaintiffs filed their Opposition on February 10, 2025, and Demurring Defendants submitted their Reply on February 18, 2025.

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against them. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721 (Semole.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

A.    Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) However, failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

Here, Demurring Defendants wrote to Plaintiffs’ counsel on November 14, 2024, outlining the issues raised in the Demurrer and requesting a further telephonic discussion. (Velazquez Decl. ¶ 5, Ex. “4.”) However, the parties were unable to reach an agreement on the issues. (Ibid.)

Accordingly, the Court finds that Demurring Defendants have made good efforts to meet and confer. The Court will proceed to review the merits of the Demurrer.

B.     Third Cause of Action- Negligent Infliction of Emotional Distress

            In Thing v. La Chusa (1989) 48 Cal.3d 644, 667–68, 257 (Thing ), the California Supreme Court established three requirements that a plaintiff must satisfy to recover on a claim for Negligent Infliction of Emotional Distress (NIED) to a bystander: (1) the plaintiff must be closely related to the injury victim; (2) the plaintiff must have been present at the scene of the injury-producing event at the time it occurred and then aware that it was causing injury to the victim; and (3) as a result, the plaintiff must have suffered serious emotional distress.

The line of bystander emotional distress cases, as summarily restated by the California Supreme Court in Bird v. Saenz (2002) 28 Cal.4th 910 (Bird), make clear that in order to permit recovery, it is not enough that the plaintiff bystanders observe the injured person's suffering. The plaintiffs must “ ‘experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.’ ” (Id. at p. 918.) There must be “ ‘contemporaneous awareness the defendant's conduct or lack thereof is causing harm.’ ” (Id. at p. 919.) While the court rejected the notion “that a layperson can never perceive medical negligence” (id. at p. 918), the court made clear that recovery is possible only in extreme cases (such as observation of the amputation of the wrong limb), “[b]ut the same cannot be assumed of medical malpractice generally.” (Ibid.). In Bird, the court makes clear that to permit recovery, the bystander plaintiff must observe not only the negligent act and the injury, but also must be aware of the causal connection between the two. There must be “contemporaneous, understanding awareness of the event as causing harm to the victim.” (Id. at p. 920.)

            Demurring Defendants contend that the facts alleged in the FAC do not satisfy the elements of an NIED claim under Thing. Specifically, they assert that Plaintiffs have failed to specify an injury-producing event, and that Plaintiffs were contemporaneously aware it was causing injury to the Decedent. (Mot. at pp. 9-12.)

            In their Opposition, Plaintiffs contend that the paragraphs 39 – 52 of the FAC establish that the injury-producing event was “the post-surgical failure to provide medical attention despite the [D]ecedent exhibiting symptoms.” (Opp’n. at p. 5.) Moreover, Plaintiffs assert that a layperson could clearly perceive these symptoms as warranting urgent or emergent medical attention. (Ibid.)

In their Reply, Demurring Defendants argue that Plaintiffs’ attempt to incorporate the entire outpatient period following Decedent’s hemorrhoidectomy procedure (the “Procedure”) lacks particularity and fails to identify a specific injury-producing event.

Here, only the second Thing requirement is at issue.

The Court reviews the allegations presented in the FAC, including paragraphs 39-52, which Plaintiffs rely upon to support their position.

            First, the FAC suggests that Decedent was discharged from Henry Mayo Newhall Memorial Hospital on May 10, 2023. (FAC ¶ 40.) The following day, May 11, 2023, Decedent presented to Dr. Pope to have his catheter removed and complained of abdominal pain. However, Defendant Dr. Pope did not check Decedent’s surgery site, and Defendant Dr. Duldulao was not present. (Ibid.)

Even assuming that Dr. Pope’s failure to examine Decedent’s surgery site constitutes a potential injury-producing event, Plaintiffs could not recover for NIED as bystanders because the FAC contains no allegations that any Plaintiff was present at the time of this event, thereby failing to satisfy the second Thing requirement.

            Second, the FAC asserts that Plaintiffs witnessed Decedent’s physical distress and deterioration over the course of the next several days. (FAC ¶ 41.) On May 12, 2023, Plaintiffs Pamela made multiple attempts to contact Dr. Duldulao via telephone, but they were not answered. (Id. ¶ 42.) Pamela and Decedent returned to Henry Mayo Newhall Memorial Hospital’s emergency room due to Decedent’s abdominal pain and inability to urinate (ibid), during which, “Dr. Duldulao was not present[,]” but “Dr. Darrin Pivett noted scrotal swelling and induration of the buttocks region.” (Ibid.) Decedent’s catheter was replaced, and he was discharged. (Ibid.)

            It is unclear how these allegations support Plaintiffs’ position that Demurring Defendants failed to provide medical attention despite the Decedent exhibiting symptoms. (Opp’n. at p. 5.) The Court observes that Dr. Duldulao’s inability to answer phone calls on May 12, 2023, and his absence from the emergency room during Plaintiffs’ visit on the same day do not constitute a “failure to provide medical attention” or “denial of such care.” (Opp’n. at pp. 3, 5.) Therefore, the Court finds Plaintiffs’ reliance on these allegations are misplaced.

            Third, the FAC claims that Plaintiffs observed Decedent’s symptoms worsen over May 13, and 14, 2023. (FAC ¶ 43.) Decedent appeared clammy and pale and was found passed out on the shower floor. Plaintiffs also noted that “there was no urine in [Decedent’s] foley bag and it appeared to them that his kidneys were shutting down.” (Id. ¶ 44.) “[Decedent] was barely able to maintain consciousness.” (Ibid.) At 11:19 a.m., on May 14, 2023, Decedent was sent back to Henry Mayo Newhall Memorial Hospital’s emergency room via ambulance. (Id. ¶ 45.) The FAC emphasizes that it was not until 4:00 p.m. that day that another care provider, Dr. Andonian admitted Decedent, suspecting that Decedent was suffering from sepsis, a life-threatening ailment. (Ibid.)

Plaintiffs allege that they “understood that [Decedent] was going in and out of consciousness and was showing signs of organ failure and was in extreme physical distress. They felt helpless with the contemporaneous awareness that their husband and father was languishing in severe pain and on the brink of death, as hours went by without the hospital admitting Decedent or caring for him.” (FAC ¶ 45.)

            Plaintiffs analogize their allegations to the facts of Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484 (Keys). In Keys, the plaintiffs were present when their mother and sister, Knox, experienced difficulty breathing following thyroid surgery. (Id. at p. 486.) They observed inadequate efforts to assist her breathing, and called for help from the respiratory therapist, at one point directing him to suction Knox’s throat. They also directed hospital staff to call for the surgeon to return. (Id. at p. 487.) Knox remained uncomfortable and had trouble breathing. When the surgeon arrived and began removing the sutures on her incision to relieve pressure, Knox stopped breathing and without pulse for several minutes. As a result of her blocked airway, she suffered a permanent brain injury. (Id. at p. 486.) The First District Court of Appeal concluded that “[t]hese facts could be properly considered by the jury to demonstrate that plaintiffs were contemporaneously aware of Knox’s injury and the inadequate treatment provided by defendant.” (Id. at p. 489.)

            The court distinguishes Keys, where the injury-producing event was the defendant hospital’s “lack of acuity and response to Knox’s inability to breathe.” (Keys, supra, 235 Cal.App.4th at 490.)

Significantly, the Keys court stated:“ [t]he negligence in this case was the failure of defendant to intubate the decedent or otherwise treat her compromised airway, not a failure to diagnose her post-surgical hematoma.” (Keys, supra, 235 Cal.App.4th at 490.) It further reasoned that “It would be erroneous for us to characterize a common surgical complication [hematoma] that may occur without any breach of the duty of care to be an injury producing event for a medical malpractice or NIED claim.” (Ibid.) In other words, an injury-producing event inherently requires negligence by the defendant.

            Here, even assuming that Plaintiffs sufficient alleged an event involving a failure to provide medical attention that is not necessarily hidden from a layperson’s understanding and awareness, such an event cannot be categorized as an injury-producing event as to Demurring Defendants. This is because the allegations do not indicate any negligence attributable to Demurring Defendants.

Plaintiffs assert that on May 14, 2023, Decedent was rushed back to Henry Mayo Newhall Memorial Hospital by ambulance. (FAC ¶ 45.) Decedent was subsequently admitted by another care provider, Dr. Andonian, who promptly suspected that Decedent was suffering from sepsis. (Id. ¶ 46.) On May 15, 2023, Decedent was transferred to the Intensive Care Unit where he died later that day from sepsis. (Id. ¶ 47.) However, the FAC contains no allegation indicating any involvement by Demurring Defendants in these events, as they are separate from Henry Mayo Newhall Memorial Hospital’s care and treatment during this time.

            Accordingly, applying the legal principles outlined in Keys, the Court cannot reasonably infer from the allegations in the FAC that Demurring Defendants breached their duty of care in connection with the alleged injury-producing event. As such, the Court concludes that the FAC has failed to satisfy the second prong of Thing’s three-prong test for liability based on a theory of NIED.

            Therefore, the Court SUSTAINS the Demurrer.

C.    Leave to Amend

Leave to amend is generally available when “the defect raised by a motion to strike or by demurrer is reasonably capable of cure . . . to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

However, the burden of proving the existence of a reasonable possibility to cure the defect by amendment is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Here, Plaintiffs have failed to present any explanation as to how the identified defects could be cured with reasonable possibility through further amendment. Additionally, Plaintiffs have already had an opportunity to amend their pleadings and correct any deficiencies.

Accordingly, Plaintiffs have not met their burden to justify leave to amend.

Therefore, the Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

CONCLUSION

The Demurrer to the First Amended Complaint as to Defendants Marjun Duldulao, M.D., Gwenda Pope, N.P., and Keck Medical Center of USC is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.