Judge: Joel L. Lofton, Case: 20STCV39524, Date: 2023-05-11 Tentative Ruling

Case Number: 20STCV39524    Hearing Date: March 6, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     March 6, 2024                                     TRIAL DATE: May 7, 2024

CASE:                         THE ESTATE OF RATAVOUS SHAHVERDI, an individual; NORA SHAHVERDI, an individual, v. NARBEH TOVMASSIAN, M.D., an individual; ELEVATE HEALTH GROUP, a medical corporation; MONTROSE HEALTHCARE CENTER, business form unknown; and DOES 1 through 50, inclusive. 

CASE NO.:                 20STCV39524

DEMURRER

MOTIONS TO COMPEL

MOVING PARTY:               Defendants Narbeh Tovmassian, M.D., and Elevate Health

RESPONDING PARTY:      Plaintiffs Estate of Ratavous Shahverdi and Nora Shahverdi

RELIEF REQUESTED

             Defendants demurrer to Plaintiffs’ first amended complaint, move to strike Plaintiffs prayer for punitive damages, and move for an order compelling a response from Nora Shahverdi.

BACKGROUND

             This case arises out of Plaintiffs Estate Ratavous Shaverdi (“Ratavous”) and Nora Shahverdi (“Nora”) (collectively “Plaintiffs”) claim that Defendants Narbeh Tovmassian, M.D. (“Dr. Tovmassian”), Elevate Health Group (“Elevate”), and Montrose Healthcare Center (“MHC”) (collectively “Defendants”) negligent provide medical services. Specifically, Plaintiffs allege that Defendants prescribed and force-fed Ratavous a regimen of unneeded medication. Plaintiffs allege the medication caused adverse chemical reactions, such as producing a high level of insulin in Ratavous, causing him to be bedridden. Plaintiffs allege that the adverse reactions caused Ratavous to be unable to communicate and lose his independence.

            Plaintiffs filed a first amended complaint on August 14, 2023, alleging eigth causes of action for (1) medical malpractice, (2) lack of informed consent, (3) failure to screen, (4) loss of consortium, (5) general negligence, (6) general negligence (negligent infliction of emotional distress), (7) wrongful death, and (8) fraud.

TENTATIVE RULING

            Defendants’ demurrer to Plaintiff’s sixth and eighths causes of action are SUSTAINED without leave to amend.

Defendants’ motion to strike Plaintiffs’ prayer for punitive damages is GRANTED without leave to amend.

Defendants’ motion to compel discovery responses are DENIED as moot.

LEGAL STANDARD

Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (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 v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Motion to Compel

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling a response to the interrogatories. (Code Civ. Proc. section 2030.290, subd. (b).) The same applies to a party that fails to respond to a request for document production. (Code Civ. Proc. section 2031.300, subd. (b).)

DISCUSSION

            Code of Civil Procedure Section 377.31 and Statute of Limitations

Defendants argue that section 377.31 and the applicable statute of limitations bar Plaintiff’s claims.

Code of Civil Procedure section 377.31, subdivision (a), provides that a person seeking to continue a pending action as a decedent’s successor in interest “shall execute and file an affidavit or a declaration” stating several factual statements. Defendants contend Plaintiffs’ claims fail because they failed to include the affidavit with their first amended complaint. In opposition, Plaintiffs concede they failed to include the affidavit with their FAC but provide that they previously executed and filed the declaration with their motion for leave to amend. Because Plaintiff has previously executed and filed a declaration as decedent’s successor-in-interest, Defendants’ arguments regarding Plaintiff’s failure to comply with section 377.31 are rejected.

Defendants also argue that Plaintiffs’ claims are barred by the statute of limitations because they do not relate back to Plaintiffs’ original complaint. Specifically and as applied to Defendants’ demurrer, Defendants argue that Plaintiffs’ sixth cause of action for negligent infliction of emotional distress and eighth cause of action for fraud do not relate back to Plaintiffs’ original complaint. In opposition, Plaintiffs state they have decided to dismiss those causes of action. (Opposition at p. 4:10.) Thus, Defendants’ demurrer to Plaintiff’ sixth and eighth causes of action is sustained.

            Duplicative Causes of Action

            Defendants demurrer to Plaintiffs’ causes of aciton on the grounds that they are duplicative. However, Defendant Elevate previously raised this issue, which was sustained in part and overruled in part. “[A] defendant cannot demur on the same grounds to a previous demurrer that was overruled[.]” (County of El Dorado v. Superior Court (2019) 42 Cal.App.5th 620, 625.) Defendants’ demurrer to Plaintiffs’ causes of action on the grounds that the claims are duplicative are overruled.

            Third Cause of Action for Negligent Failure to Screen

            Defendants demurrer to Plaintiff’s third cause of action for negligent failure to screen. This issue was previously raised by Defendants in their previous demurrer. The demurrer was sustained without leave to amend as to Dr. Tovmassian but overruled as to Elevate. Elevate brings this demurrer on the same grounds as contained in its previous demurrer. Thus, Elevate’s  demurrer to Plaintiff’s third cause of action is overruled.

            Motion to Strike

            Defendants move to strike Plaintiffs’ prayer for punitive damages pursuant to Code of Civil Procedure section 425.13.

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” (Code Civ. Proc. section 45.13, subd. (a).)

Previously, this court granted Plaintiffs’ motion for leave to file a first amended complaint. Plaintiffs’ motion was predominately framed as a means of updating the complaint to add a successor-in-interest to reflect that Ratavous Shahverdi had passed away. Neither the motion nor declarations made sufficient showing that there was a substantial probability that plaintiff would prevail on the claim. Thus, Plaintiffs’ prayer for punitive damages in their FAC are improper. Plaintiff does not address this issue in opposition. Defendants’ motion to strike Plaintiffs’ prayer for punitive damages is granted.

            Discovery Motions

            Defendants separately move for an order compelling Nora Shahverdi to provide responses to their discovery requests. Elevate moves to compel responses to its special interrogatories set two and requests for the production of documents set two. Dr. Tovmassian moves to compel Nora to provide responses to his form interrogatories, requests for the production of documents, and special interrogatories.

            Defendants provide that they served their discovery requests on Plaintiff on October 20, 2023. (Mcamis Decl. ¶ 2.) Defendants provide that they have not received any responses from Plaintiff. (Id. ¶ 4.) In opposition, Plaintiff’s counsel provide that no responses were served based on Plaintiff’s deteriorating health condition. (Keshishian Decl. ¶ 4.) Plaintiff’s counsel also provides that Nora Shahverdi passed away in January of 2024. (Opposition at p. 3:4.)

            It appears to the court that Defendants’ motion are mooted by Plaintiff’s passing. However, Plaintiff’s counsel has not stated in his declaration that Plaintiff has passed. Upon Plaintiff’s counsel’s affirmative statement or declaration that he has been informed of Plaintiff's passing, Defendants’ motions to compel are denied as moot.

CONCLUSION

            Defendants’ demurrer to Plaintiff’s sixth and eighths causes of action are SUSTAINED without leave to amend.

Defendants’ motion to strike Plaintiffs’ prayer for punitive damages is GRANTED without leave to amend.

Defendants’ motion to compel discovery responses are DENIED as moot.

            Moving Party to give notice.

Dated:   March 6, 2024                                               ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  alhdeptx@lacourt.org