Judge: Mark C. Kim, Case: 21STCV47583, Date: 2023-02-28 Tentative Ruling
Case Number: 21STCV47583 Hearing Date: February 28, 2023 Dept: S27
On December 30, 2021, Plaintiff
Courtney Brooks (“Plaintiff”) filed a Complaint against defendants Long Beach
Memorial Medical Center (“LBMMC”), Mundi Attinasi, M.D. (“Dr. Attinasi”),
Amjuli Kumar, M.D. (“Dr. Kumar”), Glenn Levine, M.D. (“Dr. Levine”), and Does 1
through 20, alleging a cause of action for wrongful death from professional
negligence. On August 25, 2022, Plaintiff filed the First Amended Complaint adding
new causes of action and Sarah Dabagh M.D. (“Dabagh”) and Ramin Javahery, M.D. (“Javahery”)
as named defendants.
Following the Court’s order sustained
LBMMC’s demurrer to the First Amended Complaint, Plaintiff filed the operative
Second Amended Complaint (“SAC”) alleging the following causes of action: (1)
wrongful death resulting from professional negligence against all defendants;
(2) fraud against Levine; (3) aiding and abetting in fraud against Javahery; (4)
fraudulent concealment against Dabagh; and (5) vicarious liability against
LBMMC.
On December 22, 2022, Dabagh filed
a demurrer to the SAC on the grounds that it is time barred and the fourth
cause of action for fraudulent concealment has not been sufficiently alleged.
On December 23, 2022, Javahery and Levine filed a demurrer to the SAC on the ground
that the second and third causes of action have not been sufficiently alleged
against them. Plaintiff opposes each 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.
Dabagh’s Demurrer
As a preliminary matter, Dagagh has
complied with the meet and confer requirement pursuant to Code of Civil
Procedure § 430.40 based on the he Declaration of Rachael C. Koga, which
adequately shows Counsel attempted to meet and confer prior to bringing this
demurrer. (Koga Decl. ¶¶ 2-4.)
i.
Statute of Limitations
First, Dabagh argues that Plaintiff’s
SAC is subject to demurrer on the ground that it is time barred.
The statute of limitations for a
medical malpractice is “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 occur first.” (Code Civ. Proc. § 340.5.) “Once
a patient knows, or by reasonable diligence should have known, that [he] has
been harmed through professional negligence, [he] has one year to bring [his] suit.”
(Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.) “[W]here the dates
alleged in the complaint show the action is barred by the statute of
limitations, a general demurrer lies.” (Saliter v. Pierce Bros. Mortuaries
(1978) 81 Cal.App.3d 292, 300.)
Per Code of Civil Procedure §
340.5, “In an action for injury or death against a health care provider based
upon such person's alleged professional negligence, the time for the
commencement of action 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 occurs first.” (Code Civ. Proc. §
340.5.) Under Code of Civil Procedure § 364, “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.” (Code Civ. Proc. § 364(a).) “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.” (Code Civ. Proc. § 364(d).)
Here, Dabagh argues that the
statute of limitations began to run on July 18, 2020, which was the date when
Plaintiff’s daughter passed away. (Demurrer re: Dabagh at pg. 4.) Thus, Dabagh reasons
that the statute of limitations ran on July 19, 2021. (Ibid.) Dabagh further
argues that an amendment adding a defendant after the statute of limitations
has run is a violation of due process. (Demurrer re: Dabagh at pp. 5-6.)
In opposition, Plaintiff argues that
her claims against Dabagh were filed within the applicable statute of limitations.
(Opposition re: Dabagh at pg. 4.) To this extent, Plaintiff asserts that she
did not become aware of any professional negligence until November 2, 2020 when
she received her daughter’s autopsy results. (Ibid.) Additionally,
Plaintiff asserts that the reason why Dabagh was initially included in the complaint
and thus served with a Section 364 letter is because of the lack of documentation
of her presence during the days that her daughter was intubated. (Id. at
pp. 4-5.) Further, Plaintiff contends that she did not discover her claims
against Dabagh until after identifying Levine’s alleged fraudulent non-disclosure
of her daughter’s cause of death. (Id. at pg. 5.)
Upon review of the SAC, the Court
finds that it lacks allegations as to when Plaintiff discovered her claims
against Dabagh. Based on Plaintiff’s representations in her opposition, it is
possible that her claims against Dabagh have been timely brought. However,
further allegations must be alleged to support this possibility. Plaintiff further
concedes that her fraudulent concealment claim against Dabagh is based on
Dabagh alleged professional negligence, and as a result, the statute of
limitation specified under MICRA applies to the fraud claim. (Larson v. UHS
of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347.)
Accordingly, the Court sustains
Dabagh’s demurrer to the SAC on the ground that it is time barred with leave to
amend.
ii.
Fourth Cause of Action for Fraudulent Concealment
Dabagh also demurs to the Fourth
cause of action for fraudulent concealment on the ground that it has not been
sufficiently alleged with the requisite specificity.
Fraud based on concealment requires that “(1) the defendant must have
concealed or suppressed a material fact, (2) the defendant must have been under
a duty to disclose the fact to the plaintiff, (3) the defendant must have
intentionally concealed or suppressed the fact with the intent to defraud the
plaintiff, (4) the plaintiff must have been unaware of the fact and would not
have acted as he did if he had known of the concealed or suppressed fact, and
(5) as a result of the concealment or suppression of the fact, the plaintiff
must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 310-311.) An essential element of intentional
concealment includes the duty to disclose, which must be based upon a
transaction, or a special relationship, between plaintiff and defendant.
(Id. at p. 314.) “There are ‘four circumstances in which
nondisclosure or concealment may constitute actionable fraud: (1) when the
defendant is in a fiduciary relationship with the plaintiff; (2) when the
defendant had exclusive knowledge of material facts not known to the plaintiff;
(3) when the defendant actively conceals a material fact from the plaintiff;
and (4) when the defendant makes partial representations but also suppresses
some material facts.’” (Id. at p. 311.) Less specificity is
required to plead fraud by concealment. (Ibid.) “Even under the strict
rules of common law pleading, one of the canons was that less particularity is
required when the facts lie more in the knowledge of the opposite party.” (Alfaro
v. Community Housing Improvement System & Planning Assn., Inc. (2009)
171 Cal.App.4th 1256, 1384.)
Here, the SAC alleges that Dabagh,
along with Levine and Javahery, were aware of the misplacement of her daughter’s
intubation, and Dabagh was aware of this information from July 15 to 17, 2020
without informing Plaintiff. (SAC ¶ 57.) It is further alleged that there was a
fiduciary relationship created between Plaintiff and Dabagh two months before
Plaintiff’s daughter’s birth. (SAC ¶ 58.) Additionally, it is alleged that
Dabagh made references intending to defraud Plaintiff into believing that it
was likely that her daughter would pass away due to her pre-existing condition
of holoprosecephaly. (SAC ¶¶ 59-60.)
Dabagh argues that Plaintiff’s
fraud claim against her is simply a recasting of her professional negligence
claim. (Demurrer re: Dabagh at pp. 7-8, relying on Goldrich v. Natural Y
Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782-783.) However,
the Court does not find this persuasive. Upon review of Plaintiff’s
professional negligence claim it is based on the allegation that the Defendants
failed to exercise the proper level of care in providing medical services to
her daughter, which resulted in a preventable death. (SAC ¶¶ 47-48.) Whereas,
Plaintiff’s fraud claim against Dabagh is that Dabagh concealed the true cause
of Plaintiff’s daughter’s death, which is distinguishable from her professional
negligence claim. (SAC ¶¶ 57-60.) Thus, Dabagh’s reliance on Goldrich is
misplaced.
Accordingly, Dabagh’s demurrer to
the fourth cause of action for fraudulent concealment is overruled.
b. Levine
and Javahery’s Demurrer
i.
Second Cause of Action for Fraud by
Non-Disclosure
Levine argues that the fraud claim
asserted against him is subject to demurrer on the ground that it has not been sufficiently
alleged with the requisite specificity.
In the interest of judicial
efficiency, the Court incorporates by reference the legal standard for
fraudulent concealment as stated above. (See supra 2(a)(ii).)
As alleged
in the TAC, after Plaintiff’s daughter was intubated, it was revealed by x-ray
that the endotracheal tube was misplaced. (TAC ¶ 51.) However, Levine failed to
reveal this information to Plaintiff, and in the patient’s chart, it is indicated
that Levine corrected the placement, but a subsequent chest x-ray indicated
that Plaintiff’s daughter’s health declined significantly. (Ibid.) Additionally, Plaintiff alleges that Levine’s
denial of an autopsy suppressed pertinent details as to how her daughtered died,
which permitted the endotracheal tube to be removed before proper inspection. (TAC
¶ 52.)
Here, Levine
argues that the following allegations do not support a fraud claim: (1) that he
falsely documented an x-ray to confirm a correct tube placement at 2:11 p.m.;
(2) that he falsely represented that he made the adjustment to the tube; (3)
that his duty to disclose is disconnected from a fraud claim; and (4) that he
denied Plaintiff’s autopsy request. (Demurrer 11-14.) Based on Levine’s arguments
it appears that he is improperly requesting the Court to make a factual determination
based on the Plaintiff’s allegations. However, this is an inappropriate request
on demurrer. If Levine seeks to challenge the factual merits of Plaintiff’s fraud
claim, then it would be more appropriate to move for summary judgment or
summary adjudication.
Accordingly,
the Court overrules the demurrer to the second cause of action.
ii.
Third Cause of Action for Aiding and Abetting
Fraud
Javahery demurs to the third cause
of action for aiding and abetting fraud on the ground that it has not been
pleaded with the requisite factual specificity. (Demurrer at pp. 14-16.)
However, rather than raising argument as to the insufficiencies of the allegations,
Javahery seeks the Court to make factual determinations that are beyond the
scope of this demurrer. As stated above, a motion for summary judgment would be
the more appropriate avenue if Javahery seeks to dispose of this cause of
action.
Accordingly,
the Court overrules the demurrer to the third cause of action.
c. Conclusion
Defendant Sarah Dabagh, M.D.’s demurrer
is sustained in part with leave to amend as to the SAC being time barred and overruled
in part as to the Fourth cause of action alleging Fraudulent Concealment. Defendants Glenn Levine, M.D. and Ramin
Javahery, M.D.’s demurrers are overruled in their entirety.
Plaintiff is ordered to file an amended
complaint within 30 days explaining when she discovered her claims against
Defendants Sarah Dabagh, M.D. to establish that those claims were timely
brought pursuant to Code of Civil Procedure § 340.5.
Plaintiff is ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative.