Judge Kerry Bensinger, Case Number: 22STCV13136, Date: 2024-04-04 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

CASE: Nancy Cardenas, Individually and as Representative to the Estate of Maura Cardozo v. County of Los Angeles

On April 19, 2022, Plaintiff Nancy Cardenas (“Plaintiff” or “Cardenas”), individually and as representative to the Estate of Maura Cardozo (“Decedent” or “Cardozo”) filed this wrongful death action against Defendant County of Los Angeles (“Defendant” or “County”). On August 21, 2023, Plaintiff filed the operative First Amended Complaint (FAC) alleging causes of action for:

As alleged in the FAC, Cardenas and Maura were sisters. Maura was a dependent adult with Down Syndrome. On July 24, 2021, Maura died after being severely neglected by her father, Cruz Cardozo (“Cardozo”). In January 2021, Cardenas made the first of several reports of neglect to the County’s Adult Protective Services (“APS”). APS ignored the reports. During that time, and up until her death, Cardenas and Ms. Hall, Maura’s distance learning teacher, noticed uncharacteristic behavior from Maura and physical signs of neglect. Cardozo’s behavior was also suspicious. Cardozo elected to continue distance learning from Maura rather than send her to in-person learning once the option became available. Cardozo also elected to terminate Maura’s respite care and drove Maura’s in-home support services (IHSS) staff to quit over his abusive behavior. On July 14, 2021, Maura was rushed to the hospital. Maura had no cognitive function and was placed on a ventilator. Cardozo showed up to the hospital drunk. Medical staff reported the incident as suspicious circumstances. Ten days later, Maura was declared dead. Cardozo is currently under investigation in connection to Maura’s death.

On November 29, 2023, the County filed this Demurrer to each cause of action in the FAC.

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.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿If the cause of action is based in statute, the facts supporting each statutory requirement must be specifically pled. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”¿(Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ 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 pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”¿ (Code Civ. Proc., § 430.41, subd. (a).)¿ Defense counsel has complied with the meet and confer requirement. (See Declaration of Margaret Byrne Ikeda, ¶¶ 4-6.)

The County demurs to the FAC on the grounds that (1) Cardenas does not have standing to bring this action and (2) each cause of action is insufficiently pleaded. Because the court concludes Cardenas does not have standing (at this time), the court does not address the County’s remaining arguments.

The FAC alleges that Cardenas “has petitioned the Probate Court to be appointed Representative of the Estate of Maura Cardozo as the criminal investigation into Cardozo is ongoing.” (FAC, ¶¶ 76, 82.) This allegation demonstrates that Cardenas does not have standing to maintain any cause of action.

For example, Cardenas cannot maintain the First Cause of Action for Neglect (Dependent Adult) or her Second Cause of Action for Negligence because she is not Decedent’s personal representative, successor in interest, or an interested person as defined by the Probate Code.

“Welfare and Institutions Code section 15657.3, subdivision (d), delineates who has standing to bring an elder abuse lawsuit after the death of an elder or dependent adult.” (Estate of Lowrie (2004) 118 Cal.App.4th 220, 227.) Welfare and Institutions Code section 15657.3, subdivision (d) provides that upon petition, “after the death of the elder or dependent adult, the right to maintain an action shall pass to the personal representative of the decedent,” or if none, to an intestate heir whose interest is affected by the action, the decedent’s successor in interest, or an interested person, if the requirements of Section 377.32 of the Code of Civil Procedure are met. Section 377.32 of the Code of Civil Procedure requires that a person who seeks to commence or continue a pending action or proceeding as the decedent’s successor in interest must execute and file an affidavit or declaration under penalty of perjury.

Here, the FAC indicates only that Cardenas has petitioned to be appointed representative of Decedent’s Estate. (See FAC, ¶¶ 76, 82.) Cardenas is therefore not currently Decedent’s personal representative. Additionally, Cardenas has not established she is Decedent’s successor in interest. Cardenas has not filed an affidavit or declaration under a penalty of perjury pursuant to Section 377.32 of the Code of Civil Procedure. Cardenas is not an interested person as defined by Probate Code section 48.

Cardenas’s Third Cause of Action for Wrongful Death and Fourth Cause of Action for Survival Action also suffer from the same or similar defects.

Section 377.60 of the Code of Civil Procedure requires that a wrongful death action may be asserted by a decedent’s personal representative, or a list of enumerated individuals. As discussed above, Cardenas has not been appointed as Decedent’s personal representative. Further, Cardenas does not fall into any class of individuals enumerated under section 377.60 that would permit Cardenas to maintain a wrongful death claim.[1]

Section 377.30 of the Code of Civil Procedure similarly requires that a survival action may be commenced by the decedent’s personal representative, or if there is not personal representative, by the decedent’s successor in interest. As discussed above, Cardenas is neither Decedent’s personal representative nor successor in interest.

As alleged, Cardenas cannot presently maintain this action. The possibility that Cardenas may be appointed as the personal representative of Decedent’s Estate in the future is insufficient.

If and/or when the Probate Court appoints Cardenas as Decedent’s personal representative, Cardenas may at that time serve and file her Second Amended Complaint. The court will discuss with counsel various other concerns regarding the current version of the complaint

Kerry Bensinger

Judge of the Superior Court

[1] This claim is defective for the additional reason that Cardenas improperly brings it in her individual and representative capacity. Only one person may maintain a claim for wrongful death.