Judge Jill Feeney, Case 21STCV20535 2022-09-13 Tentative Ruling

This is an action for medical malpractice, wrongful death, and government negligence arising from a 2019 vehicle accident that resulted in the death of Marlon Lamont Session (“Decedent”). Plaintiffs Brenda Session, Lowdean Session, and Micah Session filed their Complaint against Memorial Hospital of Gardena, Los Angeles County Metropolitan Transportation Authority, and Does 1 through 20 on June 1, 2021.

On June 23, 2022, the Court granted Hospital’s demurrer with leave to amend. Plaintiffs’ claim for medical negligence was time-barred. The issues of standing and Plaintiffs’ Counsel’s licensing were not addressed because the demurrer was sustained. At the hearing, Plaintiff claimed that Decedent’s date of death was wrongly stated in the complaint. The Court granted leave to amend and ordered Plaintiff to file an amended complaint within 20 days of the order. Plaintiff thereafter failed to file an amended complaint within the time allotted.

Hospital demurs to Plaintiff’s First Amended Complaint on the grounds that Plaintiff’s cause of action for medical malpractice fails because (1) the Complaint fails to state facts sufficient to constitute a cause of action, and (2) the cause of action is uncertain. Defendant’s memorandum of points and authorities clarifies that the basis for the demurrer is that Brenda and Lowdean Session, as parents of the deceased who was an adult, lack standing to sue for wrongful death.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike. (See Code of Civ. Proc. §§ 430.41; 435.5.)

Here, Hospital attempted to meet and confer via email. (Charles Decl., ¶3.) This is insufficient under Code of Civ. Proc., section 430.41, subd. (a), which requires that the parties meet in person or by telephone. Failure to confer, however, is not a basis for denying the demurrer.

Hospital’s demurrer was previously sustained with leave to amend because Plaintiff’s claim was time-barred. Plaintiffs were to file an amended complaint within 20 days of the Court’s June 23, 2022 order. The last day for Plaintiffs to file an amended complaint was July 13, 2022. Plaintiffs failed to file an amended complaint by that date and instead filed their First Amended Complaint on July 18, 2022. Though late, the FAC cures the defect with timing because Plaintiffs advanced all dates by one year. The FAC now states Decedent was pronounced dead on May 26, 2020, meaning the filing deadline for Plaintiffs’ Complaint was May 26, 2021. (FAC ¶32.) Plaintiffs’ Complaint was received by the filing window on May 20, 2021. (Compl., p. 1.) Thus, the Complaint was timely.

Under California Code of Civil Procedure Section 377.60, a cause of action for the death of another may be asserted by the following individuals or by decedent’s personal representative on their behalf: the decedent’s surviving spouse, domestic partner, children and issue of deceased children. Only if there are no surviving issue, does the statute turn to the line of intestate succession. Here, decedent has a surviving child who is a plaintiff in this action. However, if parents were dependent on a decedent, they may still assert such an action.