Judge Deirdre Hill, Case 21STCV20535 2023-01-17 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

Moving Party: Defendant Los Angeles County Metropolitan Transportation Authority

The motion is GRANTED WITHOUT LEAVE TO AMEND as to plaintiffs Brenda Session and Lowdean Session as to the FAC.

On June 1, 2021, plaintiffs Brenda Session, Lowdean Session, and Micah Session filed a complaint against Memorial Hospital of Gardena and Los Angeles County Metropolitan Transportation Authority for (1) wrongful death, (2) governmental negligence, and (3) medical malpractice.

On May 31, 2022, the court (PI Hub) denied defendant Gardena Hospital, L.P. dba Memorial Hospital of Gardena’s motion to transfer PI case to IC court.

On June 23, 2022, the court (PI Hub) sustained Gardena Hospital’s demurrer with leave to amend and denied the motion to strike.

On July 18, 2022, plaintiffs filed a FAC for (1) negligence and (2) medical malpractice.

On July 25, 2022, defendant Gardena Hospital filed a stipulation to strike mention of punitive damages and attorney’s fees from FAC and an order was entered on July 26, 2022.

On September 13, 2022, the court sustained Gardena Hospital’s demurrer without leave to amend as to plaintiffs Brenda and Lowdean Session on the ground that as parents, they lack standing and the 2^nd cause of action for medical malpractice as alleged by them.

On October 10, 2022, Gardena Hospital filed a notice of stay of proceedings as to a voluntary bankruptcy petition filed by Pipeline Health System, LLC and 32 affiliated companies.

CCP § 438 states, in relevant part: “(b)(1) A party may move for judgment on the pleadings. . . . (c)(1) The motion provided for in this section may only be made on one of the following grounds: (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (B) If the moving party is a defendant, that either of the following conditions exist: . . . . (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”

A motion for judgment on the pleadings “has the purpose and effect of a general demurrer.” Smiley v. Citibank (s.D.), N.A. (1995) 11 Cal. 4th 138, 146 (citation omitted). “[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein. As appropriate, however, it may extend its consideration to matters that are subject to judicial notice. In this, it performs essentially the same task that it would undertake in ruling on a general demurrer.” Id. (citations omitted).

Defendant LA County Metropolitan Transportation Authority requests a judgment on the pleadings as to the entire FAC, including the 1^st cause of action for negligence (identified as “Count 1”), which is the sole cause of action against moving defendant, on the ground that the allegations are insufficient to constitute a cause of action because plaintiffs Brenda and Lowdean Session lack standing as decedent’s mother and father.

The FAC alleges that plaintiffs Brenda Session and Lowdean Session are the mother and father of deceased Marlon Lamont Session, and Micah Session is the son of deceased. FAC, ¶8. On May 10, 2020, Marlon Lamont Session, then age 46, was leaning against an MTA bus, operated by Metro and driven by Doe 21, a driver trained and authorized by Metro, at 11922 S. Vermont at 2100 hours. When the bus abruptly pulled forward, Marlon was struck by the bus and shoved to the ground. Id., ¶17. There was no reason that a trained Metro driver should have failed to identify that an adult male, 6’ in height and 282 pounds, was leaving against the MTA bus before abruptly pulling the bus forward. Id., ¶18. Doe 21, the Metro driver, had a duty to observe the surroundings of the bus before departing from a parked position, knowing that pedestrians and passersby may be approaching, conversating by and leaning against the bus. Doe 21 breached that duty by abruptly pulling forward without warning, in a manner that Marlon was struck by the MTA bus and sustained multiple fractures and other injuries. Id., ¶19.

The FAC further alleges that a bystander called 911 and an ambulance transported Marlon to Gardena Hospital. Id., ¶23. While Marlon was admitted, his presentation included rib fractures, bruising to his torso, a broken toe, abrasions to his abdomen, abrasions to his right leg, shortness of breath, and neurologic deficits. Id., ¶26. Despite that Marlon fit multiple risk factors for post-traumatic blood clots, Does 1-20 did not order further study to identify whether Marlon was developing blood clots, which, in fact, he was. Id., ¶27. On May 11, 2020, Gardena Hospital ordered that he should be discharged. Id., ¶28. Marlon went home. Gardena Hospital gave him no instructions regarding the risk of development of post-traumatic blood clots. They gave him no instructions regarding follow-up care if he showed signs of progression of post-traumatic blood clots. Marlon was unaware that he had blood clots in his body, which thereafter progressed and grew over the next two weeks. Id., ¶29. By May 22, 2020, Marlon was again reporting shortness of breath. Id., ¶30. On May 26, 2020, Brenda Session found Marlon unresponsive on the floor of Marlon’s home. She called 911 and paramedics responded and transported Marlon to a different hospital. Id., ¶31. But in spite of efforts to resuscitate Marlon, he was pronounced dead on May 26, 2020. The Deputy Medical Examiner performed an autopsy on Marlon and determined that the cause of Marlon’s death was massive pulmonary thromboembolism due to deep vein thrombosis, which in turn resulted from chronic immobility as a consequence of traumatic leg injury resulting from the bus accident. Id., ¶32.

Defendant contends that plaintiff Marlon Lamont Session, the son of decedent, is the only person with standing under CCP §377.60.

CCP §377.60 states: “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: (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.”

The 1^st cause of action for negligence against moving defendant is based on wrongful death. See para. 34 (“Plaintiffs allege that Defendant Metro and Defendant Doe 21 committed negligence, which was the proximate cause of the wrongful death of Marlon Session.”) There are no allegations that plaintiff parents were dependent on decedent. Plaintiffs did not file an opposition or indicate that they can amend the FAC to address the issue of standing.

See also the court’s September 13, 2022 minute order sustaining Gardena Hospital’s demurrer without leave to amend on the same grounds.

The motion is GRANTED WITHOUT LEAVE TO AMEND as to plaintiffs Brenda Session and Lowdean Session.