Judge: Martha K. Gooding, Case: 23-01301212, Date: 2023-08-28 Tentative Ruling

1) Demurrer to Amended Complaint – OVERRULED

2) Case Management Conference – Parties to appear for trial setting

Defendant AHMC Anaheim Regional Medical Center, LP (“Defendant”) demurs generally to the second cause of action for medical negligence alleged in the First Amended Complaint (“FAC”) filed by Plaintiffs Javier Gutierrez, Javier Gutierrez, Jr., Carmelita Gutierrez, Laura Gutierrez Pena, Adrian Gutierrez, Isaac Gutierrez by and through his guardian ad litem Javier Gutierrez, Fernando Gutierrez, deceased, by and through his successor in interest Javier Gutierrez (collectively, “Plaintiffs”).

For the reasons set forth below, the demurrer is overruled.  Defendant is ordered to file an answer within 10 days.  The parties are ordered to appear for the CMC to set a trial date.

In any medical malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.  (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) 

Defendant contends Plaintiffs cannot establish a duty owed by Defendant to Plaintiffs, relying on Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208 and Aguirre-Alvarez v. Regents of University of California (1998) 67 Cal.App.4th 1058. 

“Whether a defendant owes a duty of care is a question of law. A defendant may be liable in tort for negligently inflicting emotional distress on persons to whom the defendant owes a duty of care. That duty can have three alternative origins: (1) a duty imposed on the defendant by law, (2) a duty assumed by the defendant, or (3) a duty arising out of a preexisting relationship between plaintiff and defendant.”  (Aguirre-Alvarez v. Regents of University of California, 67 Cal.App.4th at 1063.) 

“[A] special relationship between parties may give rise to a duty which would not otherwise be imposed.”  (Draper Mortuary v. Superior Court (1982) 135 Cal.App.3d 533, 537.)  “The basis for analysis of whether or not there is a duty is the relationship of the parties. For if the conduct of the one who is to be charged with the duty brings him into a human relationship with another where social policy requires that either affirmative action or precaution be taken on his part to avoid harm, then a duty to act or to take the precaution should be imposed by law.”  (Id.)  “Once a mortuary such as petitioner herein undertakes to accept the care, custody and control of the remains, a duty of care must be found running to the members of decedent's bereaved family.”  (Id. at 538.)  Although the defendant in Draper was a mortuary, the Court does not limit the analysis to only mortuaries.  (Id. at 537.) 

Plaintiffs alleged Defendant undertook the responsibility to care for Decedent’s remains and owed a duty to Plaintiffs to properly store, maintain, preserve, and refrigerate Decedent’s remains.  (FAC ¶¶ 16, 25, 26, 27, 31-34, and 37.) 

The Court concludes Plaintiffs alleged sufficient facts to state this cause of action.  (FAC ¶¶ 16, 18, 19, 25, 26, 27, 31-35, 37, and 38.) 

Accordingly, the demurrer is overruled.  Defendant is ordered to file an answer within 10 days.

Plaintiff is ordered to give notice.