Judge: Martha K. Gooding, Case: 2020-01164696, Date: 2022-10-10 Tentative Ruling
Demurrer to Amended Complaint
The Demurrer of Defendants Christopher T. Lane, M.D., Elite Neurology of Orange County, Inc., John W. Chen, M.D., and Mohsin Shah, M.D. (collectively, “Defendants”) to the Plaintiffs’ Third Amended Complaint (“TAC”) is overruled in part and sustained in part.
The Court will hear from Plaintiffs at the hearing on the issue of whether further leave to amend should be granted, given that this is the third amended complaint, including what specific additional allegations Plaintiffs propose to add to cure the defects noted below.
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)
On demurrer, a complaint must be liberally construed. (Civ.Proc.Code [“CCP”] § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences drawn from them, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)
A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, there is no need for specificity in pleading evidentiary facts. However, bare conclusions of law are insufficient. (CCP §§ 425.10(a), 459; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Doheny Park Terrace HOA v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098-99; Berger v. California Insurance Guarantee Assn (2005) 128 Cal.App.4th 989, 1006.)
Special demurrers based on uncertainty are rarely sustained. They are sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.)
1st Cause of Action for Wrongful Death/Medical Negligence
This cause of action is asserted only by Plaintiff Joshua Joseph Conley (the son of decedent Peter Finocchi), against all defendants.
Defendants specially demur to this cause of action, arguing that because Plaintiffs allege only that the “prior plaintiffs” are relatives of the Decedent, and do not allege their specific relationship to Decedent, it is unknown if they are statutory heirs with the required standing to sue for Decedent’s alleged wrongful death. (See CCP §377.60.) Defendant contends that omitted heirs are “necessary parties,” and therefore Joshua has a mandatory duty to join all known omitted heirs in the “single action” for wrongful death.
The Court finds Defendants’ argument unpersuasive.
None of the legal authority relied on by Defendants stands for the proposition that a wrongful death complaint is subject to a special demurrer where all heirs have not been joined as parties.
In fact, in Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, the court stated that “Plaintiffs may bring a wrongful death action without joining all known heirs, and the court may try that action, but in such a case plaintiffs proceed at their peril.” (Id. at 809 [emphasis added].) And in Gonzales v. Southern California Edison Co. (1999) 77 Cal.App.4th 485, the court explained that if a settlement is reached in a wrongful death action, “heirs who were neither voluntarily nor involuntarily joined in it must instead seek a remedy against the settling heirs, not the defendant.” (Id. at 489.)
CCP section 377.60 provides in relevant part:
A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:
(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent's parents.
(Emphasis added.)
There is no requirement that all heirs be joined for the case to proceed.
As a result, Defendants’ special demurrer to the first cause of action is
overruled.
2nd Cause of Action for Intentional Infliction of Emotional Distress (“IIED”)
This cause of action is asserted by all Plaintiffs – Rose Mary George-Ann Finocchi, Joshua Joseph Conley, Daniel Paul Finocchi, Travis Finocchi, and Angela Finocchi – against all Defendants.
“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) Extreme or outrageous conduct is defined as beyond all bounds of decency; ordinary rude or insulting behavior is not enough to justify an award of damages. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593; Bogardv. Employers Cas. Co. (1985) 164 Cal.App.3d 602, 616.)
Defendants generally demur to this cause of action on the ground that the factual allegations in the TAC do not rise to the level of extreme and outrageous conduct required to support an IIED claim.
In this cause of action, Plaintiffs allege that, as family members of the decedent, they were distressed by his life-threatening injuries and expressed to Defendants that they wanted them to exercise all medically possible life supporting and life-saving medical intervention. (TAC, ¶ 57.) They allege that despite Defendants’ knowledge of this, Defendants intentionally made false representations to Plaintiffs, including that Decedent was already brain dead beyond any possible medical treatment, in order to use his organs for harvesting and donation. (TAC, ¶ 58) Plaintiffs allege that Defendants actively hastened Decedent’s death by withholding critical care and support and improperly administering a large dosage of morphine to accelerate his brain death. (TAC, ¶ 60.) As a result of these actions, Plaintiffs allege they suffered severe emotional distress including deep sadness, sleeplessness, desperation, and an overall dread that Peter's death could have been prevented. (TAC, ¶ 61.)
On demurrer, the Court is required to accept all of the allegations in the complaint as true. With that in mind, the Court holds that Plaintiffs have alleged sufficient facts to support a claim for intentional infliction of emotional distress. Specifically, Plaintiffs’ allegations that Defendants lied to them about Decedent’s “brain dead” state to justify pulling the plug so they could harvest his organs arguably amounts to extreme and outrageous conduct.
Therefore, the Court overrules the general demurrer to this cause of action.
3rd Cause of Action for Fraudulent Deceit and Concealment
The elements of fraud are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Allegations of fraud must be alleged with specificity. (See Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109-110.)
“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar, supra, 12 Cal.4th 631, 645, citing Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74.) “This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.” (Id.) In cases against corporate employers, “the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” (Id., citing Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
The TAC does not state which Plaintiffs are asserting this cause of action, and which Defendants the claim is being asserted again, as required by CRC, Rule 2.112. Failure to comply with CRC 2.112 renders a complaint subject to a motion to strike or a special demurrer for uncertainty (Code Civ. Proc., § 430.10(f); see Grappo v. McMills (2017) 11 Cal.App.5th 996, 1014.)
For this reason, the special demurrer to the Third Cause of Action is sustained.
In this cause of action, Plaintiffs allege that unknown to them and "intentionally not disclosed to Peter's family members present by Defendants or any of them, was that Defendants were, in fact, on information and belief, motivated to intentionally hasten Peter's "brain death" as of June 28, 2019 and through July 6, 2019, inter alia, for” a number of stated reasons, including the harvesting of Decedent’s organs. (TAC, ¶ 65.)
The only times that Plaintiffs specifically reference the Defendants by name in the TAC are in ¶¶ 24, 28, 31, 32, 67, and 68, where Plaintiffs allege they were told that Decedent was essentially “brain dead.” And, in ¶ 40, Plaintiffs describe how Dr. Lane removed Peter Finocchi from the ventilator.
Plaintiffs’ TAC does not meet the heightened pleading standard for fraud, as set forth in Lazar v. Superior Court (1996) 12 Cal.4th 631. As a result, the Court sustains Defendants’ general demurrer to the Third Cause of Action.
Defendants are ordered to give notice.