Judge: Peter A. Hernandez, Case: 20STCV33881, Date: 2022-08-09 Tentative Ruling
Case Number: 20STCV33881 Hearing Date: August 9, 2022 Dept: O
Defendant Pomona Valley Hospital Medical
Center’s Demurrer is SUSTAINED, with 20 days leave to
amend, as to Plaintiffs’ First and Third Causes of Action; and SUSTAINED,
without leave to amend, as to Plaintiffs’ Seventh and Eighth Causes of Action.
Defendant Pomona Valley Hospital Medical Center’s Motion to Strike is GRANTED, without leave to amend except through the filing of a motion made expressly under the authority of Section 425.13.
Defendant Kalpesh Bhavsar, M.D.’s Demurrer is SUSTAINED, with 20 days leave to amend, as to Plaintiffs’ First Cause of Action; and SUSTAINED, without leave to amend, as to Plaintiffs’ Seventh and Eighth Causes of Action.
Defendant Kalpesh Bhavsar, M.D.’s Motion to Strike is GRANTED, without leave to amend except through the filing of a motion made expressly under the authority of Section 425.13.
Judicial Notice
Pomona Valley Hospital Medical Center’s (“PVHMC”) Request for Judicial Notice Nos. 1-5 are GRANTED.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)
Discussion
PVHMC (hereinafter “Defendant”) demurs to the First, Third, and Eighth causes of action on the grounds that Plaintiffs do not have the legal capacity to sue. In addition , Defendant demurs to the Seventh cause of action on the grounds that Plaintiffs failed to state sufficient facts to constitute a cause of action.
As a preliminary matter, the court notes that Plaintiffs concede that the seventh and eighth causes of action are inapplicable to Defendant. Accordingly, Defendant’s Demurrer to Plaintiffs’ Seventh and Eighth Causes of Action is SUSTAINED, without leave to amend.
In addition, the Court finds that Plaintiff Estate of Taeli Mozzelle Galdamez (“Estate”) lacks the capacity to sue, and Plaintiff Silva Martinez (“Martinez”) has not been appointed as Decedent’s personal representative.
“A probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities.” (Smith v. Cimmet (2011) 199 Cal.App.4th 1381, 1390 (quoting Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344).) “As such, [the estate] has no capacity to sue or be sued, or to defend an action.” (Id.) “Any litigation must be maintained by, or against, the executor [or personal representative] of the estate.” (Id. (alteration in original).) “It is the personal representative of a probate estate that may ‘[c]ommence and maintain actions and proceedings for the benefit of the estate.” (Id. (quoting Probate Code § 9820(a).)
Code of Civil Procedure section 377.31 provides that “[o]n motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)
Section
377.32 provides that a person who seeks to commence such an action as the
decedent’s successor in interest must file an affidavit or declaration
providing the following:
1.
The decedent’s name
2.
The date and place of the decedent’s death
3.
“No proceeding is now pending in California for
administration of the decedent’s estate.”
4.
If the decedent’s estate was administered, a copy of
the final order showing the distribution of the decedent’s cause of action to
the successor in interest
5.
Either of the following, as appropriate, with facts in
support thereof:
A. “The affiant or declarant is the decedent’s successor
in interest (as defined in Section 377.11 of the California Code of Civil
Procedure) and succeeds to the decedent’s interest in the action or
proceeding.”
B. “The affiant or declarant is authorized to act on
behalf of the decedent’s successor in interest (as defined in Section 377.11 of
the California Code of Civil Procedure) with respect to the decedent’s interest
in the action or proceeding.”
6. “No other person has a superior right to commence the
action or proceeding or to be substituted for the decedent in the pending action
or proceeding.”
7. “The affiant or declarant affirms or declares under
penalty of perjury under the laws of the State of California that the foregoing
is true and correct.”
(Code Civ.
Proc., § 377.32(a).) A certified copy of the decedent’s death certificate
must also be attached to the affidavit or declaration. (Id., §
377.32(c).)
As set forth above, the Estate does not have the capacity to sue, and Martinez has failed to include allegations that she has been appointed the representative of Decedent’s estate. Martinez has also failed to file a motion seeking to be appointed as Decedent’s personal representative.
Accordingly, the Court finds that Plaintiffs may not maintain the First and Third Causes of Action against Defendant. Thus, Defendant’s Demurrer to Plaintiffs’ First and Third Causes of Action are SUSTAINED, with 20 days leave to amend.
PVHMC’s Motion to
Strike
Defendant moves the court to strike Plaintiffs claims for punitive damages because Plaintiffs failed to comply with Code of Civil Procedure Section 425.13.
“In any action for damages arising out the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The Court may allow the filling of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. . . .” (CCP § 425.13.) The provision applies whenever the gravamen of the action is professional negligence. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191 (injured party must comply with Section 425.13 when seeking punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such).)
Here, Plaintiffs’ causes of action arise out of the medical treatment and care (i.e., professional services) provided by Defendant to Decedent. Accordingly, Defendant’s motion to strike punitive damages is GRANTED, without leave to amend except through the filing of a motion made expressly under the authority of Section 425.13.
Bhavsar, M.D.’s Demurrer
Bhavsar (hereinafter referred to as “Defendant”) demurs to Plaintiffs’ first, seventh, and eighth causes of action, on the same grounds as PVHMC’s demurrer. Like in PVHMC’s demurrer, Plaintiffs concede that the Seventh and Eighth Causes of Action do not apply to Defendant.
For the reasons stated above, the court SUSTAINS, without leave to amend, Defendant’s Demurrer to Plaintiffs’ Seventh and Eighth Causes of Action. In addition, the Court SUSTAINS, with 20 days leave to amend, Defendant’s Demurrer to Plaintiffs’ First cause of action.
Bhavsar, M.D.’s Motion to Strike
Defendant moves the court to strike Plaintiffs claims for punitive damages because Plaintiffs failed to comply with section 425.13.
Here, Plaintiffs’ causes of action arise out of the medical treatment and care (i.e., professional services) provided by Defendant to Decedent. Accordingly, Defendant’s motion to strike punitive damages is GRANTED, without leave to amend except through the filing of a motion made expressly under the authority of section 425.13.