Judge: Gary I. Micon, Case: 23CHCV00846, Date: 2024-06-06 Tentative Ruling
Case Number: 23CHCV00846 Hearing Date: June 6, 2024 Dept: F43
Dept. F43
Date: 6-6-24
Case #23CHCV00846 , Jacek
Lodl and Barbara Lodl vs. Child and Family Center, et al.
Trial Date: N/A
DEMURRER TO FIRST AMENDED COMPLAINT WITH
MOTION TO STRIKE
MOVING PARTY: Defendant Child and Family Center
RESPONDING PARTY: Plaintiffs Jacek Lodl and Barbara Lodl
RELIEF REQUESTED
Demurrer to the Complaint
·
2nd Cause of Action for Wrongful
Death
Motion to Strike
·
Page 15, Line 26 of the Prayer for Relief [claim
for exemplary punitive damages]
RULING: Demurrer is sustained without leave to
amend. Motion to strike is moot.
SUMMARY OF ACTION
Plaintiffs Jacek Lodl and Barbara Lodl (Plaintiffs) are
the successors in interest to Decedent Michal Lodl. Plaintiffs allege that
Michal, who was their son, was seeing a therapist employed by Defendant Child
and Family Center (Defendant). Plaintiffs allege that Michal suffered from
post-traumatic stress disorder, anxiety, depression, and suicidal ideation. Plaintiffs
allege that due to Defendant’s actions, inactions, and overall incompetence,
Michal succumbed to his mental health disability and committed suicide on July
7, 2020, when he was 17 years old, making him a minor.
Prior to filing this state court action, Plaintiffs filed
a federal court action on July 5, 2022, in the Central District of California.
That complaint included both federal and state claims. The federal court
granted Defendant’s motion to dismiss the federal claims on January 9, 2023,
but declined to address Defendant’s arguments as to the state law claims. On
January 30, 2023, Plaintiffs filed a First Amended Complaint in the same court.
On March 2, 2023, Plaintiffs voluntarily dismissed their federal claims,
leaving only the state law claims in the federal action. On March 6, 2023, the
federal court dismissed Plaintiffs’ First Amended Complaint in its entirety,
without prejudice, indicating that Plaintiffs should refile the case in the
appropriate state court.
After the dismissal of the federal action, this state
court action was filed on March 23, 2023. Plaintiffs’ First Amended Complaint,
filed on December 15, 2023, alleges four causes for survival action, wrongful
death, professional negligence, and negligence.
Defendant filed its demurrer with motion to strike on January
21, 2024. On May 22, 2024, Plaintiffs dismissed their request for punitive
damages. Plaintiffs filed their amended opposition on May 23, 2024. Defendant
filed its reply on May 30, 2024.
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. (CCP § 430.30(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.) “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.” (CCP
§ 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.) 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.)
Second
Cause of Action for Wrongful Death
Defendant demurs to Plaintiffs’ cause of action for wrongful
death is time-barred by the applicable statute of limitations.
Defendant insists that the one year statute of limitations
for medical malpractice from CCP § 340.5 should apply rather than the two year
statute of limitations for wrongful death actions from CCP § 335.1. This Court
previously found, in the Order on the prior demurrer dated November 16, 2023,
that the two year statute of limitations period from Section 335.1 would apply
if the wrongful death cause of action is separate from the professional
negligence cause of action.
Wrongful death is governed by a two year statute of
limitations. (CCP § 335.1.) “[T]he statute of limitations on a wrongful death
action begins to run at the time of death, and not at the time of injury which
caused the death, for it is only on the date of death that the action is
complete in all of its elements.” (Kincaid v. Kincaid (2011) 197
Cal.App.4th 75, 80–81.)
However, courts have held that when the wrongful death is
due to the professional negligence of a health care provider, such as Defendant
in this case, then the statute of limitations from CCP § 340.5 for actions
against health care providers would apply. (See Ferguson v. Dragul
(1986) 187 Cal.App.3d 702; Larcher v. Wanless (1976) 18 Cal.3d 646l; Knowles
v. Superior Court (2004) 118 Cal.App.4th 1290.) The applicable statute of
limitations from this section is three years from the injury or one year from
discovery of the injury, or three years for actions involving minors. (CCP §
340.5)
In this case, Plaintiffs “discovered” Michael’s injury the
day he died, July 7, 2020. That would appear to mean that Plaintiffs would have
had one year to file their wrongful death action against Defendant. They did
not file their federal action against Defendant until July 5, 2022. That being
said, Plaintiffs argue that courts have held that the three year limitations
period for minors in CCP § 340.5 applies both when the minor is an heir and
when the minor is a victim. (Ferguson, 187 Cal.App.3d at 707-708.) While
this is true and Michal is the alleged victim, the California Supreme Court has
held that the phrase “by a minor” in CCP § 340.5 applies only to actions where
a minor is the plaintiff. (Steketee v. Lintz, Williams & Rothberg
(1985) 38 Cal.3d 46, 52-53.) In the case of Plaintiffs’ wrongful death claim,
Plaintiffs, as Michal’s parents, are the plaintiffs, not Michal. They did not
bring the wrongful death action on Michal’s behalf, but instead brought it on
their own behalf. Because Plaintiffs are not minors, the one-year statute of
limitations would apply, not the three-year statute of limitations.
Based on the foregoing, Plaintiffs’ wrongful death cause of
action was not timely filed. Defendant’s demurrer to Plaintiffs’ Second Cause
of Action is sustained without leave to amend, as Plaintiffs could not amend
their complaint to be within the statute of limitations period.
Motion to Strike
Defendant had moved to strike Plaintiffs’ request for
punitive damages. Plaintiffs’ submitted a request for dismissal of their claim
for punitive damages on May 22, 2024. Dismissal of the request for punitive
damages was entered that same day. Defendant’s motion to strike is moot.
CONCLUSION
Defendant’s demurrer to Plaintiff’s Second Cause of Action
is sustained without leave to amend.
Defendant’s motion to strike is moot.
Moving party to give notice to all parties.