Judge Kerry Bensinger, Case 21STCV17384 2023-01-26 Tentative Ruling

On October 31, 2022, Plaintiffs Ronald Nevarez, Tricia Nevarez, Ronnie Nevarez, Steven Nevarez, and Richard Nevarez filed the operative First Amended Complaint (“FAC”) against Defendants Henry Mayo Newhall Memorial Hospital, et al. alleging wrongful death and negligence.

On December 29, 2022, Defendant Dr. Privett filed a demurrer to both causes of action. The demurer is made pursuant to Code of Civil Procedure §§ 430.10(e) and 430.10(f) in that Plaintiffs' claims fail to state facts sufficient to constitute a cause of action and is uncertain and ambiguous. Also, all causes of action are time barred by the statute of limitations set forth in C.C.P. §§ 340.5 and 364.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) The Court notes that Defendant Dr. Privett has complied with the meet and confer requirement. (Declaration of Raphael ¶ 9.)

Defendant Dr. Privett contends that the FAC is inadequately pled as to him because the first cause of action for wrongful death fails to state facts sufficient to constitute a cause of action and is uncertain and ambiguous per C.C.P § 430.10(e) and (f). Specifically, Defendant Dr. Privett contends that there are no facts that his acts or omissions caused or contributed to decedent’s death to constitute a cause of action for wrongful death.

“The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) Wrongful Death is a statutory claim sounding in negligence. (Code Civ. Proc., §§ 377.60– 377.62.) The purpose of Wrongful Death is “to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 (Quiroz).) “The elements of the cause of action for wrongful death are the [tort of Negligence], the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Ibid.) (internal quotations omitted).

Here, Plaintiffs’ FAC alleged sufficient facts that Defendant Dr. Privett caused or contributed to decedent’s death. Plaintiffs alleged Defendant Dr. Privett was in charge of decedents’ care when she was at the hospital and delayed seven hours before giving decedent an ECG. (FAC ¶¶ 11-16, 24.) Had Defendant Dr. Privett not delayed diagnosis of decedent, she may have been saved. (Id., ¶ 24.) The FAC alleged in pertinent part the following:

(1) “After Sylvia was ordered to be discharged home, a 12 lead ECG was obtained at 6:47 p.m., which was 7 hours after her arrival, due to her ongoing complaints of heartburn with nausea and previously undiagnosed hypertension and diabetes.” (FAC ¶ 11.)

(2) “The ECG showed ST elevations in the anterior and inferior leads along with anterior Q waves and no reciprocal changes.” (FAC ¶ 12.)

(3) “A troponin was sent and the on-call cardiologist, Dr. James Lee, was notified at 7:45 p.m. and recommended an emergency ECHO. The troponin came back at over 600 and Sylvia was taken to the cardiac catherization (“cath”) lab. In the cath lab Sylvia became unresponsive. She was aggressively resuscitated and the angiogram revealed a 100% occlusion of her LAD.” (FAC ¶ 13.)

(4) “Resuscitative efforts were unsuccessful and Sylvia died that evening at 9:55 p.m.” (FAC ¶ 14.)

(5) “An autopsy preformed on January 17, 2019, revealed that Sylvia had complete occlusion of her RCA with posterior MI and myocardial wall rupture with cardiac tamponade, which caused her death. While the autopsy explained how Sylvia died, it did not explain why she died. (FAC ¶ 15.)

(6) “On December 12, 2020, Dr. Marc Eckstein reviewed the medical records and autopsy report. He determined that the delayed diagnosis and treatment of Sylvia’s STEMI resulted in progression of her pathology, leading to rupture through the myocardial wall and fatal cardiac tamponade.” (FAC ¶ 16.)

(7) “After being served with the lawsuit, Plaintiff received a letter dated January 24, 2022, from the attorneys representing Dr. James Lee, stating that Dr. Lee was not called in until 7:45 p.m., seven hours after Sylvia was admitted to the hospital. By the time Dr. Lee was consulted, it was too late for him to help Sylvia. Plaintiff’s counsel was informed that the emergency room physician, Darren Privett, M.D., was in charge of Sylvia’s care for the entire time she was at the hospital. Dr. Privett delayed Sylvia’s diagnosis which resulted in her untimely death.” (FAC ¶ 24.)

Defendant Dr. Privett contends that the FAC is inadequately pled as to him because the second cause of action for wrongful death fails to state facts sufficient to constitute a cause of action and therefore is uncertain and ambiguous per C.C.P § 430.10(e) and (f). As with the first cause of action for wrongful death, Defendant Dr. Privett contends there are no facts as to the acts or omissions by him, or how those acts or omissions were the legal cause in causing decedent’s death to constitute a cause of action for negligence.

To state a claim for negligence, Plaintiffs must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, because the allegations are sufficient to state Plaintiffs’ cause of action for wrongful death, the allegations are also sufficient to state Plaintiffs’ cause of action for negligence.

Defendant Dr. Privett contends that the all causes of action are time barred by the statute of limitations per C.C.P §§ 340.5 and 364. Specifically, Defendant Dr. Privett contends that Plaintiffs did not send a C.C.P § 364 notice of intent to sue to Defendant Dr. Privett or name him as a Doe defendants in the case until more than three years after decedent’s death. According to Defendant Dr. Privett, the applicable statute of limitations began to run one year from December 26, 2018, or at the latest, December 12, 2020.

In opposition, Plaintiffs contend that under the discovery rule there were errors in the medical records which led to confusion as to which doctor was responsible for the delay in diagnosis.

In reply, Defendant Dr. Privett contends that when Dr. Eckstein reviewed the emergency room records on December 12, 2020, he unquestionably saw Defendant Dr. Privett’s name and knew he was the emergency room doctor involved in the decedent’s care. Thus, Defendant Dr. Privett argues that at the very latest, Dr. Eckstein’s review of the case put Plaintiffs on notice in December of 2020, which meant Plaintiff had to institute proceedings against Defendant Dr. Privett by no later than December 12, 2021. Plaintiffs sent their C.C.P § 340.5 notice to Dr. Privett on February 22, 2022.

C.C.P § 340.5 provides that the time to commence an action for injury based on alleged professional negligence by a health care provider shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever time period expires first.

The limitations period prescribed by C.C.P § 340.5 may be extended by 90 days under C.C.P § 364, which provides in pertinent part: "(a) No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action. [¶] . . . [¶] (d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice." (C.C.P § 364.)

“An important exception to the general rule of accrual is the “discovery rule,” which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc.(2005) 35 Cal.4th 797, 807.)

Where the dates alleged in the complaint show the action is barred by the statute of limitations, a demurrer lies. (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) ¿However, a demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. ¿(Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal. 4th 769, 781.) “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Id.)

Here, Plaintiffs demonstrate all causes of action are not barred by the statute of limitations because errors in the medical records coupled with the confusion over which Dr. Lee was involved[1], which was not caused by Plaintiffs, impacted discovery of Defendant Dr. Privett.

Dr. Eckstein’s review of the medical records and autopsy report on December 12, 2020 put Plaintiffs on notice that there was a doctor who might have caused the delayed diagnosis and treatment of decedent. (FAC ¶ 16.) However, the medical records impacted the discovery of Defendant Dr. Privett because the medical records showed that Dr. Charles Lee was the attending physician, not Defendant Dr. Privett. (FAC ¶ 17.) Further, Plaintiffs’ knowledge about Defendant Dr. Privett was impacted when Mayo’s counsel informed Plaintiffs’ counsel that Dr. Charles Lee was actually off that day, and that the attending doctor was Dr. James Lee. (FAC ¶ 20.) Still, there was more confusion because Dr. James Lee’s counsel informed Plaintiffs that Dr. James Lee was only called in after a seven hour delay of the diagnosis and treatment and Plaintiffs were informed that Defendant Dr. Privett was in charge the entire time. (FAC ¶ 24.) Once Plaintiffs learned of Defendant Dr. Privett as the treating doctor, Plaintiffs gave him his C.C.P § 364 90 days’ on February 22, 2022 and added him as a defendant. (FAC ¶¶ 26-27.)

Based upon the foregoing, the FAC states sufficient grounds for invocation of the delayed discovery rule. Should developments in the case demonstrate otherwise, e.g, that Plaintiffs were actually aware of Dr. Privett’s involvement at any earlier date, Plaintiffs may pursue their remedies. At the pleading stage and for purposes of a demurrer, Plaintiffs have adequately invoked the delayed discovery rule.

Accordingly, Defendant Dr. Privett’s demurrer to Plaintiffs’ FAC is OVERRULED.

For the reasons noted above, Defendant Dr. Privett’s Demurrer to Plaintiffs’ FAC is OVERRULED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] As discussed below there were two Drs. Lee –Dr. Charles Lee and Dr. James Lee.