Judge Jill Feeney, Case Number: 22STCV20465, Date: 2023-11-30 Tentative Ruling

This is an action for elder abuse and negligent hiring. Plaintiffs allege that Decedent Rosa Stephenson was a patient at Park Avenue Healthcare & Wellness Center in Pomona, California in February 2022. Defendants failed to turn Decedent every two hours to avoid the development of pressure sores, causing Plaintiff to develop severe pressure sores. Defendants’ facility was understaffed and there were no employees who could assess and treat Plaintiffs’ skin conditions. After Plaintiff was discharged from the facility, the facility was investigated by the California Department of Public Health, which found that the facility had violated federal regulations.

On June 22, 2022, Rosa Stephenson filed her Complaint against Pomona Healthcare & Wellness, LLC (“Pomona Healthcare”), Pomona Nursing & Healthcare Centre, LLC, Brius Management Co., and Rockport Administrative Services, LLC.

The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading 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. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and 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. (Code Civ. Proc., § 473, subd. (a)(1); Branick, supra, 39 Cal.4th at 242.) As judicial policy favors resolution of all disputed matters between the parties, leave to amend is generally liberally granted. (See Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

A motion to amend a pleading before trial must (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. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party.¿If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend.¿(Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)¿Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery.¿(Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)¿

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].)

Here, Plaintiffs’ proposed amendment would correct party names, add new allegations regarding the joint venture between the named Defendants, add a new cause of action for violation of the patient’s bill of rights, add a cause of action for wrongful death, add demands for punitive and exemplary damages, add demands for attorney’s fees, add demands for injunctive relief, and add demands for prejudgment interest. Plaintiffs’ counsel testifies that the proposed changes were not pled earlier because the information was obtained in discovery before Plaintiff’s death in December 2022 and because Plaintiff was still alive when the Complaint was originally filed.

Defendant Pomona Healthcare opposes Plaintiffs’ motion on the grounds that Plaintiffs’ delay in making this motion is inexcusable because Stephenson passed away in December 2022. However, Plaintiffs’ counsel testifies that he could not move to file an amended complaint until Plaintiff Lyles had been appointed Stephenson’s successor in interest. (Partain Reply Decl., ¶3.) Because Stephenson’s death certificate was not available as of February 2023, the conference regarding Lyles’s application to be appointed successor in interest was continued to May 2023. (Id.) However, the Court granted Lyles’s application in late March 2023, leaving an unexplained delay of five months. Even if Pomona Healthcare’s counsel failed to respond to meet and confer requests pertaining to the proposed amendment in July 2023, there is still an unexplained delay of four months. (Id., ¶2.) Nevertheless, delay alone will not bar a proposed amendment.

Pomona Healthcare next argues that it would be prejudiced if Plaintiffs’ motion is granted because the proposed FAC would open a new area of inquiry into the cause of Stephenson’s death and her care after she was discharged from Defendants’ facility. Defendants would need to conduct discovery as to the eight month period between Stephenson’s discharge and her death. However, trial is scheduled for July 2024 and there is still sufficient time for the parties to complete additional discovery into this new issue. Pomona Healthcare makes no argument that any evidence has been lost due to Plaintiffs’ delay in making this motion. Therefore, Pomona Healthcare will not be prejudiced if this motion is granted.

Finally, the parties dispute whether the cause of action for wrongful death is time-barred. Plaintiff argues that the limitations period is two years, but failed to cite any authority supporting this assertion. Pomona Healthcare argues that the limitations period is one year, citing Code Civ. Proc., section 340.5. Both parties agree that the limitations period began accruing at the time of Plaintiff’s death in December 2022.

An action for injury or death against a health care provider based upon professional negligence must be brought one year after the date of injury or three years after the plaintiff discovers, or should discover, the injury. (Code of Civ Proc., section 340.5.) As Pomona Healthcare points out, a skilled nursing facility is a health care provider for the purposes of section 340.5. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 974.) Because Pomona Healthcare is a skilled nursing facility, the statute of limitations here for the cause of action for wrongful death is one year from the date of the injury, Stephenson’s death. The parties do not dispute that Plaintiffs knew of the facts which would give rise to a cause of action for wrongful death against Defendants at the time of Stephenson’s death.

Pomona Healthcare argues that the statute of limitations has already expired, and Plaintiffs waited over a year to file an amended complaint. Plaintiffs argue that the statute of limitations was tolled when this motion was filed within one year of Stephenson’s death. The parties do not dispute that the cause of action does not relate back to the date of the original Complaint because a cause of action for wrongful death is an independent right which belongs to Plaintiff Lyles. The issue is whether Plaintiff Lyles brought her cause of action for wrongful death when she filed this motion and lodged a first amended complaint.

When a proposed amended complaint is filed with a motion for leave to amend, the complaint is deemed filed, for purposes of compliance with a statute of limitations, when the proposed amended complaint is filed with a motion for leave to amend a complaint. (Weiner v. Superior Court (1976) 58 Cal.App.3d 525, 531 [“We recognize that an amendment or an amended pleading is commonly ordered ‘filed’ when the court grants the motion for leave to amend, and that in some cases a new document is filed following the order granting the motion. These activities, which are important for the sake of a complete and convenient trial court record, do not militate against our decision that, under the facts of the case at bench, the action…commenced when plaintiffs filed their proposed first amended complaint with their notice of motion for leave to amend.”])

Here, Plaintiffs filed this motion, along with a proposed FAC on August 14, 2023, within one year after Stephenson’s death in December 2022. The action commenced for purposes of compliance with the one-year statute of limitations on the date Plaintiffs filed this motion. Therefore, the cause of action for wrongful death is not time-barred.

Although Plaintiffs delayed filing this motion for at least four months after Stephenson’s death, the Court finds that this delay is not unreasonable and has not resulted in prejudice to Defendants. In light of the liberal policy favoring resolution of all disputed matters between the parties, Plaintiffs’ motion is granted.