Judge: Edward B. Moreton, Jr., Case: 21STCV18600, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV18600    Hearing Date: December 6, 2022    Dept: 200

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 200

MOVING PARTY:                    Plaintiff Octavio Pineda

RESPONDING PARTY:         Defendants Renal CarePartners of Los Angeles, Inc., US Renal Care Culver City Dialysis and Jaime Leongson

BACKGROUND

            This case arises from a medical negligence claim.  Plaintiff Octavio Pineda was receiving dialysis treatment from Defendants Renal CarePartners of Los Angeles, Inc., US Renal Care Culver City Dialysis and Jaime Leongson.  Plaintiff developed a blister at the site where he received dialysis.  Over the next twelve visits, the blister grew, but Defendants took no action.  Plaintiff claims Defendants failed to inform Plaintiff’s primary care physician or the doctor at the facility about the enlarged blister.  Eventually, the blister burst, and Plaintiff had to be taken to the emergency room, where he was in critical condition due to the loss of a significant amount of blood and almost died.

            The first amended complaint (“FAC”) alleged claims for negligence and negligent infliction of emotional distress (“NIED”).  The Court sustained a demurrer to the FAC on grounds that the negligence claim sounded in professional negligence, not ordinary negligence, and that the NIED claim cannot survive as an independent cause of action because Plaintiff’s fiancé and children were not “at the scene of the injury-producing event at the time it occurred.”  (December 3, 2021 Minute Order.)  Plaintiff sought reconsideration which was denied.  (February 9, 2022 Minute Order.) 

Plaintiff then filed a Second Amended Complaint (“SAC”) which again alleged ordinary negligence and negligent infliction of emotional distress.  Defendants again demurred, arguing that the first cause of action for negligence must be alleged as a claim for medical negligence and Plaintiffs had failed to remove the cause of action for NIED.  Plaintiff argued he adequately plead negligence via a negligent retention and hiring claim.  The Court concluded the amendment was outside the scope of the Court’s prior grant of leave, and the Court had only given Plaintiff leave to amend to allege a claim for professional negligence, rather than ordinary negligence.  (June 22, 2022 Minute Order.)  Plaintiff then filed a Third Amended Complaint alleging only medical negligence. 

            This hearing is on Plaintiff’s motion for leave to file a Fourth Amended Complaint.  Plaintiff seeks leave to add claims for “general negligence” and “negligent hiring, training, supervision and retention.”  No opposition was filed.       

LEGAL STANDARD

CCP § 473(a)(1), provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” 

Under California Rules of Court Rule, rule 3.1324, subdivision (a),¿a motion to amend a pleading shall: 

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; 

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and 

(3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.¿ 

In addition, under California Rules of Court, Rule 3.1324, subdivision (b),¿a¿separate declaration¿must accompany the motion and must specify:¿ 

(1) the effect of the amendment; 

(2) why the amendment is necessary and proper; 

(3) when the facts giving rise to the amended allegations were discovered; and 

(4) the reasons why the request for amendment was not made earlier. 

The Court’s discretion to grant leave “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿ (Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ Ordinarily, the Court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿¿The Court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿ (See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by¿Kransco v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)

DISCUSSION

Plaintiff’s declaration in support of the motion satisfies the requirements under CRC Rule 3.1324.  Plaintiff identifies the amendments, their effect, and the recently received information that prompted the amendment.  (Bhanji Decl. ¶¶3, 10, 12, 13.)

The Court next considers whether the amendment is proper.  Plaintiff seeks to add an ordinary negligence claim, on which the Court had previously sustained a demurrer.  According to Plaintiff, the ordinary negligence claim is based on allegations that the “Defendant facility did not maintain and follow health and safety protocols and or policies within Defendant facility and in compliance with federal and state regulations.”  (Motion at 8.)  But these were the same allegations made in his First Amended Complaint (FAC ¶48), on which the demurrer was sustained. 

Plaintiff also seeks to add a claim for negligent hiring, training, supervision and retention.  Again, these allegations were part of his First Amended Complaint (FAC ¶48), on which the demurrer was sustained. 

Plaintiff argues that these additional claims “cannot fall within the medical negligence cause of action because Defendant facility is not a natural person but a corporation.”  (Motion at 9.)  But hospitals, clinics and facilities are subject to medical negligence claims.  Indeed, Plaintiff is asserting its medical negligence claim against Defendant facilities. 

Relying on Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4^th 1412, 1420, Plaintiff argues that only “health care providers” can be sued for medical negligence, and a “health care provider” includes only natural persons licensed to practice medicine.  But Lathrop acknowledged that, under the Medical Injury Compensation Reform Act (or “MICRA”), a “health care provider” includes both “(1) any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code …  and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.”  (Id. at 1419 (emphasis added).)  In Lathrop, the corporate defendant did not argue that it was a clinic, health dispensary or health facility, so the court focused on whether it would qualify as a “person licensed or certified under Division 2 of the Business and Professions Code.”  (Id.)  Lathrop did not hold that a medical negligence claim can only be made against a natural person.

Plaintiff next argues that “non-licensed employees/agents of the Defendant facility who are not licensed health care providers as outlined by Business and Professions Code 2000 et seq. cannot be held liable for their negligent acts under the theory of medical negligence.”  (Motion at 9.)  But the only employee or agent Plaintiff has sued is Jamie Leongson who is the Administrator and Director of Nursing at Defendant US Renal Care Culver City Dialysis.  Plaintiff has not alleged that Mr. Leongson is not a licensed health care provider. 

Accordingly, the Court finds that Plaintiff’s proposed Fourth Amended Complaint is futile as it seeks to assert claims on which Court has previously sustained a demurrer.      

CONCLUSION

Based on the foregoing, the Court DENIES Plaintiffs’ motion for leave to file fourth amended complaint. 

IT IS SO ORDERED.

DATED: December 6, 2022                                                 ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court