Judge Lynette Gridiron Winston, Case Number: 23PSCV02245, Date: 2024-05-13 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV02245, Date: 2024-05-13 Tentative Ruling

Case Number: 23PSCV02245 Hearing Date: May 13, 2024 Dept: 6

CASE NAME: Nancy Page, an individual and as successor in interest for George Page v. Thai V. Le, M.D., et al.

Defendant Thai V. Le, M.D.’s Demurrer to Plaintiff’s Complaint

TENTATIVE RULING

The Court SUSTAINS Defendant Thai V. Le, M.D.’s Demurrer to the Second Cause of Acton for medical malpractice through a survival action. Consequently, the Second Cause of Action is held in abeyance until the Lead Action has concluded. Defendant shall submit the appropriate proposed order and interlocutory judgment.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a wrongful death/survival action stemming from an allegations of medical malpractice. On July 25, 2023, plaintiff Nancy Page, individually and as successor-in-interest for George Page, filed this action against defendant Thai V. Le, M.D. (“Le”) and Does 1 through 100, alleging causes of action for wrongful death based on medical malpractice and medical malpractice through a survival action.

On December 19, 2023, the Court deemed this action and case no. 20STCV18421 related within the meaning of California Rules of Court, rule 3.300(a), with 20STCV18421 being the lead case. In 20STCV18421 (the “Lead Case”), plaintiffs George Page and Nancy Page initiated a malpractice action on May 14, 2020 against defendants Myron Mariano, M.D., Le, Emanate Health Foothill Presbyterian Hospital, and Kindred Hospital San Gabriel Valley, alleging causes of action for medical malpractice and loss of consortium.

In the Lead Case, the plaintiffs alleged that George Page consulted with and/or retained the defendants to take care of his medical needs starting around May 17, 2019. (Compl. re: Lead Case at ¶¶ 6-7.) These defendants recommended a course of treatment that plaintiff George Page relied on, but it was to his detriment. (Id. at ¶ 8.) It was due to these defendants’ negligence that plaintiff George Page was harmed. As a result of plaintiff George Page’s injuries, plaintiff Nancy Page has suffered a loss of consortium. (Id. at ¶¶ 14-15.)

In the instant action, plaintiff Nancy Page alleges that George Page (“Decedent”) passed away on July 31, 2022 due to the negligent medical care that he received from Le. (Compl. re: 23PSCV02245 at ¶¶ 7-9.)

On April 8, 2024, Le filed a demurrer in the instant action pursuant to Code of Civil Procedure § 430.10(c). On April 30, 2024, Plaintiff filed an opposition the demurrer. On May 6, 2024, Le filed his reply.

LEGAL STANDARD – Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (¿¿Blank v. Kirwan (1985) 39 Cal.3d 311, 318¿¿.) “¿To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.¿” (¿¿C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872¿¿.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (¿Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967¿.) A demurrer “¿does not admit contentions, deductions or conclusions of fact or law.¿” (¿¿Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713¿¿.)

“A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action. In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only¿where a judgment in the first action would be a complete bar to the second action.¿Where a demurrer is sustained on the ground of another action pending, the proper order is not a dismissal, but abatement of further proceedings pending termination of the first action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787–788 (internal citations omitted).)

REQUEST FOR JUDICIAL NOTICE

The Court GRANTS Le’s request for judicial notice of Exhibit B, the Complaint filed in the Lead Case. The Court takes judicial notice only as to the existence, content, and authenticity of such document; it does not take judicial notice of the truth of the factual matters asserted therein. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

DISCUSSION – Demurrer

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Le was required to meet and confer with Plaintiff before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Le’s meet-and-confer efforts sufficient. (Greco Decl., ¶ 5.)

Special Demurrer for Abatement Pursuant to Code of Civil Procedure § 430.10(c)

Le demurs to the Second Cause of Action medical malpractice through a survival action on the ground that there is “another pending action between the same parties on the same cause of action.” (Code Civ. Proc. § 430.10(c).)

“Under the statutory plea in abatement, ‘[t]he pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.’ A statutory plea in abatement requires that the prior pending action be ‘between the same parties on the same cause of action.’” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770 (internal citation and italicization omitted).)

Here, Le contends that the medical malpractice claim asserted in the Lead Case is identical to plaintiff Nancy Page’s claim for medical malpractice through a survival action that is brought in her capacity as Decedent’s successor-in-interest. (Demurrer at pg. 5.) Le further asserts that the Lead Case can only proceed if plaintiff Nancy Page amends the complaint there to state a survival action. (Ibid.) Moreover, both actions allege that the harm incurred stems from Le’s alleged negligence. (Ibid.)

In opposition, plaintiff Nancy Page argues that Code of Civil Procedure section 377.34 establishes a distinct primary right separating her survival claim from Decedent’s personal injury claims, and as a result, Plaintiff asserts that the instant action should not be stayed pending the resolution of the Lead Case. (Opposition at pp. 5-8.) However, plaintiff Nancy Page fails to cite to any legal authority that supports this interpretation of Section 377.34. Upon a straight-forward reading of Section 377.34, the statue merely specifies what damages a decedent’s personal representative or successor-in-interest may recover from the decedent’s cause of action. (Code Civ. Proc. § 377.34(a), (b).) Furthermore, the purpose of a survival action is to “prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.” (Grant v. McAuliffe (1953) 41 Cal.2d 859, 864.)

Considering the Lead Case has been pending since May 14, 2020, the proper course of action would have been to amend the complaint to assert a survival action. It appears that plaintiff Nancy Page’s intention in filing the instant action in 2023 was to allow her to recover damages for pain and suffering pursuant to Section 377.34(b). (See Code Civ Proc. § 377.34 [disallowing the recovery of damages from pain, suffering or disfigurement unless the action “was granted a preference pursuant to Section 36 before January 1, 2022 or was filed on or after January 1, 2022 and before January 1, 2026.”].)

Because plaintiff Nancy Page’s medical malpractice survival claim in the instant action is the same as Decedent’s medical malpractice claims asserted in the Lead Case, a stay is necessary pursuant to Code of Civil Procedure section 430.10(c). Although different damages may be recovered, it is apparent from the face of the complaints that both claims involve substantially the same cause of action for medical negligence/malpractice and substantially the same issues. Indeed, a judgment in favor of Le in the Lead Case would certainly preclude the survival action in the instant case. In fact, Plaintiff states as much in the Opposition indicating that a resolution of the instant case would also resolve the Lead Case. (Opp. p. 6:22-24.)

Accordingly, Le’s demurrer to the Second Cause of Action is sustained on this ground.

CONCLUSION

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.