Judge: Gregory Keosian, Case: 21STCV35472, Date: 2022-09-06 Tentative Ruling

Case Number: 21STCV35472    Hearing Date: September 6, 2022    Dept: 61

Defendants New Vista Post Acute Care Center, Emanate Health Inter-Community Hospital, and Family Home Health Agency LLC’s Motion to Temporarily Abate Action is GRANTED , and this action is abated pending the joinder of Diane Almadovar and Annette Cota.

Defendant to give notice.

I.                MOTION TO ABATE ACTION

Defendant New Vista moves to temporarily abate the present action on the grounds that Plaintiffs have failed to join all necessary parties to their wrongful death action.

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.

(Code Civ. Proc. § 389, subd. (a).)

A claim for wrongful death may be asserted by: “[t] he 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.” (Code Civ. Proc. § 377.60, subd. (a).) “While each heir designated in section 377.60 has a personal and separate wrongful death cause of action, the actions are deemed joint, single and indivisible and must be joined together in one suit.” (Corder v. Corder (2007) 41 Cal.4th 644, 652.) It follows that “[a]n heir who files a wrongful death action is required to properly join all known heirs in that action.” (Id. at p. 652 fn. 3.) Heirs not joined as plaintiffs must be joined as nominal defendants. (See Code Civ. Proc. § 382; Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 215.)

The failure to properly join all heirs in a wrongful death action may be raised by a plea in abatement. (See Perkins v. Robertson (1956) 140 Cal.App.2d 536, 543.)

Defendants here argue that, as of May 12, 2022, Plaintiff Gina Perez served responses to special interrogatories identifying additional heirs of the decedent: Diane Almadovar and Annette Cota, who are not joined as plaintiffs or as nominal defendants in the present action. (Motion at p. 3, Alvarado Decl. Exh. A.) As such, the action here must be abated until Almadovar and Cota are joined.

Defendants’ argument is persuasive. Plaintiff has identified in her discovery two individuals who claim to be heirs of decedent. (Alvarado Decl. Exh. A, No. 72.) Under the authority described above, a plea in abatement is proper and has been promptly offered here. Plaintiffs have filed no opposition to the motion, and while a third amended complaint has been filed in the meantime, Almadovar and Cota still have not been joined to this case.

Accordingly, the motion is GRANTED, and this action is abated pending Almadovar and Cota’s joinder.