Judge: Lee W. Tsao, Case: 22STCV04479, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV04479    Hearing Date: January 26, 2023    Dept: C

MARQUEZ v. DOWNEY POST ACUTE

CASE NO.:  22STCV04479

HEARING:  01/26/23

#8

TENTATIVE ORDER

     I.        Defendant RIO HONDO HEALTHCARE, INC.’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.

    II.        Defendant RIO HONDO HEALTHCARE, INC.’s Motion to Strike Portions of Plaintiff’s Complaint is MOOT.

Moving Party to Give Notice.

This elder abuse/neglect action was filed by Plaintiff JOSE LUIS CARRASCO MARQUEZ (“Plaintiff”) on February 4, 2022. Plaintiff alleges that “[o]n or about January through to February 2020, DOWNEY POST ACUTE failed to effectively prevent a staff member(s), from neglecting decedent LUISA COSIO CARRASCO by failing to respond to her needs (physical, emotional, social needs, etc.)” (Complaint ¶16.)

The Complaint asserts the following causes of action: (1) Elder Abuse/Neglect; (2) Negligence; and (3) Wrongful Death.

Defendant RIO HONDO HEALTHCARE, INC. (erroneously sued as DOWNEY POST ACUTE) (“Defendant”) specially and generally demurs to each cause of action.

First and Second Causes of Action – Standing

Unlike a claim for wrongful death which belongs to the heirs, a claim for damages incurred by the decedent before death, such as elder abuse/neglect belongs to the decedent and must be pursued on the Decedent’s behalf separately, by a personal representative or successor in interest via a “survivor cause of action.” (CCP §377.30.)

In Opposition, Plaintiff does not dispute that he lacks standing to sue in his individual capacity for claims of elder abuse and neglect that belong to his deceased mother. Rather, Plaintiff requests leave to amend.

Standing is a threshold issue that must be established prior to reaching the merits of the causes of action affected. The demurrer to the first and second causes of action is SUSTAINED with 30 days leave to amend based on Plaintiff’s lack of standing. The Court does not address the remainder of Defendant’s arguments pertaining to the substance of Plaintiff’s allegations.

Third Cause of Action – Wrongful Death

“The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death. [Citation.]” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) The statute of limitations on a wrongful death action is two years, and begins to run at the time of death, and not at the time of injury which caused the death, for it is only on the date of death that the action is complete in all of its elements. (CCP §335.1; Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 81.)

Plaintiff does not allege the date of Decedent’s death. Rather, Plaintiff alleges that Decedent’s alleged injuries occurred sometime between January and February 2020. The Complaint was filed on February 4, 2022. The Court cannot determine that this cause of action is barred by the statute of limitations, as pled.

However, Plaintiff’s allegations are based on Defendant’s alleged negligence and elder abuse. As indicated above, Plaintiff has not sufficiently alleged underlying claims for elder abuse and negligence. Consequently, the demurrer to the third cause of action is SUSTAINED with 30 days leave to amend.

The Motion to Strike is rendered MOOT by the Court’s ruling on the Demurrer above.