Judge: Michael Small, Case: 22STCV34211, Date: 2023-10-23 Tentative Ruling

Case Number: 22STCV34211    Hearing Date: January 31, 2024    Dept: 57

Sirena Hovagimyan is the daughter and heir of Mary Babayan, Hovagimyan alleges in her complaint that on or about October 15, 2021, Babayan was admitted to Defendant CHA Hollywood Presbyterian Medical Center (“Hollywood Presbyterian”), where she was denied adequate, reasonable medical care and treatment and, as a result, died on October 26, 2021. Hovagimyan’s operative pleading is her First Amendment Complaint (“the FAC”).   The FAC seeks relief for herself in her individual capacity and on behalf of Babayan’s estate in her capacity as Babayan’s successor in interest.  In addition to Hollywood Presbyterian, the FAC names several medical doctors as Defendants. Pending before the Court are the demurrer to the FAC and motion to strike portions of the FAC that were filed by three of those doctor Defendants, Nelson Owyoung, Joseph Nussbaum, and Khaldoun Sroujieh (“the Moving Defendants”). 

The first cause of action in the FAC, which is for wrongful death based on medical negligence, and the fifth cause of action, which is for wrongful death based on elder abuse, are brought by Hovagimyan in both her individual capacity and as successor in interest.  The Moving Defendants’ demurrer to the first and fifth causes of action is sustained without leave to amend to the extent that Hovagimyan is bringing those causes of action as successor in interest because she lacks standing to bring a wrongful death claim in that capacity.  She may bring those claims only in her individual capacity.   Even as to her individual capacity, however, the allegations in the FAC are insufficient to state a claim against the Moving Defendants for wrongful death based on medical negligence or elder abuse.   The Moving Defendants’ demurrer to the first and fifth causes of action is thus sustained with leave to amend to the extent that Hovagimyan is bringing those cause of action in her individual capacity.

The second cause of action is for medical malpractice/medical negligence and is brought by Hovagimyan as successor in interest.  The allegations in the FAC are insufficient to state a medical malpractice/medical negligence claim against the Moving Defendants.  Accordingly, the Moving Defendants demurrer to the second cause of action is sustained with leave to amend.

The third cause of action is for medical malpractice and is brought by Hovagimyan in her individual capacity.  That cause of action can only be brought by Hovagimyan as a successor in interest.   Therefore, the Moving Defendants’ demurrer to the third cause of action is sustained without leave to amend.   The second cause of action is the medical malpractice action that Hovagimyan can bring, for that cause of action is asserted in her capacity as successor in interest.

The fourth cause of action is for elder abuse and is brought by Hovagimyan as a successor in interest.  The allegations in the FAC are insufficient to state an elder abuse claim against the Moving Defendants.  Accordingly, the Moving Defendants’ demurrer to the fourth cause of action is sustained with leave to amend.

The sixth cause of action is for fraud and concealment and is brought by Hovagimyan as successor in interest.  The allegations in the FAC fail to satisfy the heightened pleading requirements for fraud claims.  Accordingly, the Moving Defendants’ demurrer to the sixth cause of action is sustained with leave to amend.

The eighth cause of action is for violations of Health and Safety Code Section 1430 and is brought by Hovagimyan in her individual capacity and as successor in interest.  The Moving Defendants’ demurrer to the eighth cause of action is sustained without leave to amend to the extent that Hovagimyan brings that cause of action in her individual capacity, which she cannot do.   The demurrer to the eighth cause of action is sustained with leave to amend to the extent that Hovagimyan brings that cause of action as successor in interest because the allegations in the FAC are insufficient to support the proposition that the Moving Defendants are licensees of a skilled nursing facility, which is essential for a Section 1430 claim.

The seventh cause of action is for unlawful and unfair competition under Business and Professions Code Section 17200 and is brought by Hovagimyan as successor in interest.  The Moving Defendants demurrer to the seventh cause of action is sustained with leave to amend because the allegations in the FAC are insufficient to establish a predicate act by the Moving Defendants that would support a claim under Business and Professions Code Section 17200.

In light of the Court’s ruling on the Moving Defendants’ demurrer to the FAC, their motion to strike targeting the FAC is denied as moot.