Judge: Deborah C. Servino, Case: 30-2022-01268255, Date: 2022-11-04 Tentative Ruling

Defendant Care Ambulance Service’s (“Defendant”) demurrer to Plaintiffs Parisa and Ben Arshadi’s Complaint, is overruled.

Plaintiffs bring this action for medical malpractice through a survival action, as personal representatives or successors-in-interest to Molly Arshadi, deceased. (ROA 2.) Defendant specially demurs to the Complaint, under Code of Civil Procedure section 430.10, subdivision (c), on the ground that there is another action pending between the same parties on the same cause of action. Specifically, Defendant contends that this action is improper, because the instant Complaint is “based on alleged violation of the exact same, single ‘primary right’ of the same person and same resulting injuries,” alleged in a prior action filed by Plaintiffs in Orange County Superior Court case no. 30-2021-01232536 (the “2021 Action”). (Not. at 2.) Defendant argues that allowing both actions to proceed would contravene the rule against “splitting” causes of action. (Dem., at p. 3.)

Code of Civil Procedure section 430.10, subdivision (c) provides that a ground for a demurrer: “There is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) “In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787–788.)

“The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) Because a “cause of action” is based “upon the harm suffered, as opposed to the particular theory asserted by the litigant,” even if there are “multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.” (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 340-341.) Conversely, “different primary rights may be violated by the same wrongful conduct.” (Id. at p. 342.)

Code of Civil Procedure section 377.30 provides: “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, . . . , and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.” (Code Civ. Proc., § 377.30.) A cause of action for wrongful death, on the other hand, belongs to qualifying heirs and dependents (i.e., the persons specified in Code of Civil Procedure section 377.60), not the decedent or prospective decedent. (Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 860, citations omitted.) Even if both the wrongful death and survival cause of action arise from the same facts, (i.e., that Defendant’s negligence caused or contributed to decedent’s death and pre-death injuries), courts have found that the injury between the two are “different,” in both the “injury” suffered and in the capacities by which they are brought. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1278; Brenner v. Universal Health Services of Rancho Springs, Inc. (2017) 12 Cal.App.5th 589, 605, fn. 9; Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 325.)

Plaintiffs’ causes of action in the 2021 Action are not the same as the cause of action alleged here, because the injuries suffered in the former belong to decedent’s heirs (wrongful death), while the injuries in the latter belong to the decedent (survival action).

The adjudication of Defendant’s liability in the 2021 Action might preclude re-litigation of Defendant’s liability in this action, but that does not mean this action is barred by the primary rights doctrine. “The fact some of the same issues are involved so that a finding in either case would give rise to collateral estoppel (issue preclusion) in the other is not enough if in fact two different ‘causes of action’ are involved.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:75.3 [citing Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384].)  Accordingly, the demurrer is overruled. 

Within 15 days, Defendant shall file an answer to the Complaint.

Plaintiffs shall give notice of the ruling.

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