Judge: Gregory Keosian, Case: 21STCV35472, Date: 2023-08-07 Tentative Ruling

Case Number: 21STCV35472    Hearing Date: August 7, 2023    Dept: 61

Defendants New Vista Post Acute Care Center’s and Family Home Health Agency LLC’s Demurrers to the Third Amended Complaint are SUSTAINED without leave to amend as to the third cause of action for wrongful death.

I.                   DEMURRERS

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants New Vista Post Acute Care Center (New Vista) and Family Home Health Agency (FHHA) demurrer to the third cause of action contained in Plaintiffs Richard Perez and Gina Perez’s (Plaintiffs) Third Amended Complaint (TAC). New Vista argues that Plaintiffs have failed to specifically plead that any conduct on their part caused the death of Decedent Rudy Perez (Decedent). (Demurrer at p. 5.) FHHA argues much the same in its demurrer, noting that the death certificate lists the immediate cause of Decedent’s death as cardiac arrest, with underlying causes listed as respiratory arrest, sick sinus syndrome, and chronic obstructive pulmonary disease. (FHHA Demurrer Exh. A.) FHHA argues that the facts pleaded in the TAC show that Decedent died more than seven months after he was last seen by FHHA personnel, meaning that no act on FHHA’s part could plausibly have caused Decedent’s death. (FHHA Demurrer at pp. 9–10.)

This court previously sustained, with leave to amend, the demurrers of New Vista and co-defendant Emanate Health Inter-Community Hospital (Emanate) to the third cause of action for wrongful death, on the grounds of Plaintiffs’ failure to plead facts suggestive of causation. In doing so, the court relied on the following authority:

In the ordinary personal injury lawsuit, in which the complaint's factual recitations show plainly the connection between cause and effect, it suffices to plead causation succinctly and generally. The pleading requirements in such a case are unlike those of certain suits in which pleading with particularity is required, such as suits claiming fraud. But when, by contrast, the pleaded facts of negligence and injury do not naturally give rise to an inference of causation, the plaintiff must plead specific facts affording an inference the one caused the others.

(Bockrath v. Aldrich Chemical Co., Inc (1999) 21 Cal.4^th 71, 78, internal citations quotation marks, and alterations omitted.) The court reasoned that Plaintiffs had not pleaded a causal connection between Defendants’ alleged neglect, the ensuing pressure ulcer, and Decedent’s ultimate death.

Plaintiffs attempt to provide an explanation in the TAC. The amended pleading states that in April 2019, Decedent was diagnosed with a pressure ulcer “with osteomyelitis related to his severe pressure ulcers. Once osteomyelitis is present, it is difficult to treat and inevitably remains. Osteomyelitis caused Mr. Perez [Decedent] to suffer decreased health status and ultimately led to his untimely death.” (TAC ¶ 155; Opposition at pp. 8–9.)

There is a problem with this new allegation, however: Decedent’s April 2019 diagnosis of osteomyelitis could not have resulted from Defendants’ conduct, because Decedent is alleged to have only entered the care of FHHA in September 2020, and to have gone into New Vista’s custody in November 2020 — more than a year after the alleged diagnosis of osteomyelitis. (TAC ¶¶ 40, 54.) Plaintiffs’ new allegations therefore add nothing by way of causal explanation to the allegations against New Vista and FHHA.

The demurrers are therefore properly SUSTAINED as to the third cause of action, without leave to amend.[1]