Judge: Peter A. Hernandez, Case: 20STCV20426, Date: 2022-10-06 Tentative Ruling

Case Number: 20STCV20426    Hearing Date: October 6, 2022    Dept: O

Defendants Thomas Reynolds, M.D.’s and The Oncology Institute of Hope and Innovation’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED.

Background   

Plaintiffs Daniela Herrera, Alma Carachure Ashley Herrera and Angie Herrera, individually and as successors in interest of Daniel Herrera (“Plaintiffs”) allege as follows:

Plaintiffs are the wife and children, respectively, of Daniel Herrera (“Daniel”). Defendants misdiagnosed Daniel and failed to provide him with proper treatment which resulted in Daniel’s stage 4 cancer. Daniel subsequently died.

On March 9, 2022, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants Thomas Reynolds, M.D. (“Reynolds”), The Oncology Institute of Hope and Innovation (“Institute”) and Does 1-50 for:

1.                  Wrongful Death

2.                  Professional Negligence

3.                  Professional Negligence

On June 15, 2022, this case was transferred from Department 29 of the Personal Injury Court to this instant department.

A Trial Setting Conference/Status Conference is set for October 6, 2022.

Legal Standard

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Reynolds and Institute demur to the first cause of action in Plaintiffs’ FAC, on the basis that it is time-barred.

“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 [citation omitted].)

Reynolds and Institute assert that Daniel Herrera died on April 10, 2020 (i.e., prior to the May 29, 2020 filing of the original complaint), that the original complaint did not contain a wrongful death cause of action, that the FAC, which added a wrongful death cause of action, was not filed until March 9, 2022, that a wrongful death cause of action is governed by a one year statute of limitations set forth in Code of Civil Procedure § 340.5 and that the relation back doctrine does not apply.

Plaintiffs’ FAC, however, does not reference Daniel Herrera’s date of death anywhere therein, nor is his date of death contained in any judicially noticeable document. Again, a demurrer attacks defects contained on the face of the complaint or via proper judicial notice.

The demurrer is overruled.