Judge: Jon R. Takasugi, Case: BC691142, Date: 2023-04-21 Tentative Ruling

Case Number: BC691142    Hearing Date: April 21, 2023    Dept: 17

­­­­Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND.  Plaintiffs’ claim is ordered dismissed, with prejudice.

In light of this ruling, Defendants’ motion to strike is MOOT.

On 1/24/2018, Wayne Brent by and though his surviving spouse and successor in interest Najila K. Brent and Najila K. Brent individually filed this action asserting 30 causes of action.

            On 10/10/2022, Plaintiffs filed an SAC, alleging: (1) wrongful death; (2) gross negligence (3) hospital negligence; (4) professional negligence; (5) medical negligence; (6) medical battery; (7) breach of fiduciary duty; (8) fraud; (9) intentional infliction of emotional distress; (10) negligent infliction of emotional distress; (11) survival action; (12) elder abuse; (13) public entity’s liability; and (14) civil conspiracy to commit fraud, deceit, and conceal.

            Now, Defendants Fairooz Kabbinavar, MD, Chinsuk Kim, NP, Jenny J. Kim, MD, the Regents of the University of California, Paul Watkins, Administrator, Manuel Eskildsen, M.D., and Jonsson Comprehensive Cancer Center and Foundation/UCLA (collectively, Defendants) demur to Plaintiffs’ SAC. Defendants also move to strike portions of the Complaint.

Discussion

            As a preliminary matter, Defendants note that Plaintiffs have, once again, used the leave afforded to add additional causes of action. This is improper, and Plaintiffs have already been admonished by the Court for this conduct: “…the Court notes that Plaintiffs used the leave afforded after the last demurrer was sustained to add several additional causes of action. This is improper. After the Court grants leave to amend, the scope of the amendment is limited to the cause of action to which a demurrer was sustained. (People v. Clausen (1967) 248 Cal.App.2d 770, 785- 786.).” (See FAC Demurrer Minute Order.) Plaintiffs’ SAC also improperly consolidates 6 different fraud causes of action into one.  

            Defendants also argue that Plaintiffs’ SAC is defective because it “is an exact duplicate of the First Amended Complaint, but for the addition of sub-parts a-l to Paragraph 118 on Pages 56 and 57. But for that small addition, the Second Amended Complaint is verbatim to the First Amended Complaint.” (Demurrer, 8:1-5.)

            In the Court’s ruling to the FAC, the Court wrote:

Setting that aside, the Court agrees that Plaintiff’s FAC remains uncertain given that it still does not specifically allege any act or omission by any of the Regent Defendants giving rise to this lawsuit. Defendants are entitled to notice as to the claims against them so that they may properly respond and defend against them.

This uncertainty also means that Plaintiffs’ causes of action are not supported by adequate facts. For example, as to the wrongful death cause of action, there are no facts alleged in the FAC regarding any negligence or other wrongful act by any of the Defendants here and the decedent. Adding to the uncertainty is that Plaintiffs have elected to bring this cause of action on behalf of all plaintiffs against all defendants. This cause of action is available only to the decedent’s heirs, and the damages sought for this cause of action are limited, which excludes damages for grief, sorrow, or mental anguish. Similarly, the lack of specificity as to what is being alleged against each defendants precludes an assessment of whether or not the allegations are sufficient to state a claim for the fiduciary duty cause of action.

            After review, the Court agrees that the exact same deficiencies remain. For example, all Plaintiffs—Wayne Brent and Najila Brent continue to assert each cause of action against all Defendants, despite that only the Decedent’s heir (i.e., Najila Brent) is entitled to recover under the first cause of action. By way of another example, Plaintiffs allege that “Defendants misdiagnosed him…”  Given that the Regents Defendants include Defendants Fairooz Kabbinavar, MD, Chinsuk Kim, NP, Jenny J. Kim, MD, the Regents of the University of California, Paul Watkins, Administrator, Manuel Eskildsen, M.D., and Jonsson Comprehensive Cancer Center and Foundation/UCLA, Plaintiffs’ allegations clearly create uncertainty. If Plaintiffs are alleging that each of these entities engaged in the diagnostic process of Mr. Brent, Plaintiffs needed to allege facts which could show this, given that the context strongly suggests that the conduct could not have been committed by all Defendants. The fact that these clearly noted deficiencies remain after two rounds of demurrers suggest to the Court that Plaintiffs are either unwilling or unable to plead a legally sufficient, code-compliant complaint.  As such, the Court has no reason to believe that Plaintiff could assert a legally sufficient claim against Defendants if afforded a third opportunity to amend.

            Based on the foregoing, Defendants’ demurrer is sustained, without leave to amend.            

Motion to Strike

            In light of the ruling set forth above, Defendants’ motion to strike is moot.

It is so ordered.

Dated:  April    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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