Judge: Lee W. Tsao, Case: 23NWCV01686, Date: 2024-03-19 Tentative Ruling
Case Number: 23NWCV01686 Hearing Date: March 19, 2024 Dept: C
Carlos Barraza, et al. vs Norwalk Community
Hospital, et al.
Case No.: 23NWCV01686
Hearing Date: March 19, 2024 @ 10:30 AM
#10
Tentative Ruling
I.
The Chadha Defendants’ Demurrer as to the
Third Cause of Action for Negligent Infliction of Emotional Distress is OVERRULED
as to Plaintiff Carlos Barraza and SUSTAINED as to Plaintiff Martha Cowan with
30 days leave to amend.
II.
The Motion to Strike is DENIED
as to Plaintiff Carlos Barraza and GRANTED as to Plaintiff Martha Cowan.
Plaintiffs to
give notice.
This is a wrongful death action arising out of the death of
Decedent Sofia Barraza (“Decedent”) on June 11, 2022. Plaintiffs Carlos Barraza
and Martha Cowan are the Children of Sofia Barraza.
On August 15, 2023, Plaintiffs Carlos Barraza and Martha
Cowan, and the Estate of Sofia Barraza (“Plaintiffs”) filed their First Amended
Complaint (“FAC”) against Defendants Norwalk Community Hospital, Los Angeles
Community Hospital, Arinder S. Chadha, M.D., Arinder Chadha, M.D., Inc., Glenn
T. Hifumi, M.D., Moustafa Alamy, M.D., Inc. (“Defendants”). The FAC alleges three separate causes of
action for: (1) medical malpractice – wrongful death, (2) medical malpractice –
survival action, and (3) negligent infliction of emotional distress.
Defendants Arinder S. Chadha, M.D. and Arinder Chadha,
M.D., Inc. (“Chadha Defendants”) demur to the Third Cause of Action for
Negligent Infliction of Emotional Distress on the grounds that it fails to
state facts sufficient to constitute a cause of action.
1. Demurrer
Legal Standard
The party against whom a complaint has been filed may
object to the pleading, by demurrer, on several grounds, including the ground
that the pleading DOEs not state facts sufficient to constitute a cause of
action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any
causes of action stated therein. (CCP § 430.50(a).)
Analysis
“[N]egligent
causing of emotional distress is not an independent tort but the tort of
negligence. The traditional elements of duty, breach of duty, causation, and
damages apply.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)
The elements for a claim of
negligent infliction of emotional distress are: (1) Defendant engaged in
negligent conduct; (2) Plaintiff suffered serious emotional distress; and (3)
Defendant’s conduct was a cause of the serious emotional distress. (CACI No.
1620.)
The Chadha
Defendants contend the language of the Plaintiffs’ FAC precludes a cause of
action for negligent infliction of emotional distress because Plaintiffs do not
differentiate where the alleged negligent action occurred, to whom the
Plaintiff Carlos Barraza demanded immediate surgical intervention, and when the
awareness of the negligent act and resulting injury occurred.
The FAC
alleges that on June 10, 2022, Decedent employed Defendants to treat stomach
pain. (FAC, ¶ 14.) Plaintiff CARLOS BARRAZA was an Emergency
Department nurse. (FAC, ¶ 29.) Plaintiff accompanied the decedent to the
Defendant’s hospital and personally observed the defendants’ lack of adequate
care and treatment of decedent and witnessed decedent deteriorate because of
the lack of care while hospitalized. (Ibid.) As just one example, in the
hospital, Plaintiff CARLOS BARRAZA at one point personally observed decedent’s
pain level vastly increase and saw decedent’s abdomen distend to the size of a
basketball without a surgical consultation despite his demands …” (Ibid.)
Plaintiff CARLOS BARRAZA knew that the negligent failure to provide immediate
surgical care to treat the cause of the problem was inadequate and was killing
her. He contemporaneously observed malpractice of the defendants and was aware
of the medical negligence as it was happening, thus observing the injury
producing event.” (Ibid.)
In reply, the Chadha Defendants argue that Plaintiffs fail to
identify the injury producing event. The Chadha Defendants also contend that Martha
Cowan has failed to plead sufficient facts that she was in the presence of the
injury and therefore she has not sufficiently plead the negligent infliction of
emotional distress claim.
The California Supreme Court has held “… when there is
observation of the Defendant’s conduct and the [decedent’s] injury and
contemporaneous awareness the Defendant’s conduct or lack thereof is causing
harm to the [decedent], recovery is permitted. (Ochoa v. Superior Court
(1985) 39 Cal.3d 159, 170.) Here, Plaintiff Carlos Barraza witnessed his mother
“deteriorate” and her “pain level vastly increase” while in Defendants’
care. More specifically, he saw her
abdomen “distend to the size of a basketball.”
The Court determines that Plaintiff Carlos Barraza sufficiently alleges
he was present during the injury and had the requisite awareness that Decedent
was not being adequately treated. However,
the FAC lacks any such allegations by Plaintiff Martha Cowan.
Accordingly, the Chadha Defendants Demurrer is OVERRULED as to Plaintiff
Carlos Barraza and SUSTAINED as to Plaintiff Martha Cowan with 30 days leave to
amend.
2. Motion
to Strike
Motions to strike are used to reach defects or objections
to pleadings which are not challengeable by demurrer (i.e., words, phrases,
prayer for damages, etc.). (CCP §§ 435, 436 & 437.) A motion to strike lies
only where the pleading has irrelevant, false or improper matter, or has not
been drawn or filed in conformity with laws. (C.C.P. § 436.) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (C.C.P. § 437.)
The Chadha Defendants move to strike: 1) Paragraphs 29
through 32 of the FAC and the Third Cause of Action in its entirety, and 2)
Plaintiffs’ prayer for damages no. 3, for costs of suit and interest, on the
grounds that Plaintiffs have failed to adequately plead a valid cause of action
for Negligent Infliction of Emotional Distress.
As discussed above, the Court determines that Plaintiff Carlos Barraza has
sufficiently alleged a cause of action for Negligent Infliction of Emotional
Distress, but Plaintiff Martha Cowan has not.
Accordingly, the Chadha Defendants’ Motion to Strike is DENIED
as to Plaintiff Carlos Barraza and GRANTED as to Plaintiff Martha Cowan.