Judge: Peter A. Hernandez, Case: 24PSCV00128, Date: 2024-06-06 Tentative Ruling
Case Number: 24PSCV00128 Hearing Date: June 6, 2024 Dept: K
1. Defendant Gary G. Sandhu, M.D.’s
(erroneously sued and served herein as “Gary Sandu, M.D.”) Demurrer to the
Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to
whether leave to amend is requested, and as to which cause(s) of action, and will
require an offer of proof if so.
2. Defendant Gary G. Sandhu, M.D.’s (erroneously sued and served herein as “Gary Sandu, M.D.”) Motion to Strike Portions of the Complaint is DENIED as MOOT.
Background
Plaintiffs Doris Pierson, Joseph E. Pierson, III and Ronald Pierson, individually and as successors-in-interest to decedent, Joseph E. Pierson, II (“Plaintiffs”) allege as follows:
Joseph E. Pierson, II (“Joseph II”) was
admitted to Pomona Vista Care Center on February 28, 2023. On May 1, 2023,
Joseph II “suddenly stopped breathing” during his lunch and suffered
preventable death.
On January 12, 2024, Plaintiffs filed a complaint, asserting causes of action against MJB Partners, LLC dba Pomona Vista Care Center, Kyle Selvia, Nancy Esperanza, Gary G. Sandhu, M.D. (erroneously sued and served herein as “Gary Sandu, M.D.”) (“Sandhu”) and Does 1-100 for:
1.
Elder Abuse and Neglect
2.
Negligence Based Upon Medical Malpractice
3.
Violation of Patient Rights
4.
Wrongful Death
A Case Management Conference is set for June 6, 2024.
1. Demurrer
A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)
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
Sandhu demurs, per Code of Civil Procedure § 430.10, subdivision (e), to the first through fourth causes of action in Plaintiffs’ complaint, on the basis that they each fail to state facts sufficient to constitute causes of action. Sandhu also demurs, per subdivision (f), to the first and second causes of action on the basis of uncertainty. The court will order the dismissal of the first and third causes of action, with prejudice, pursuant to the stipulation filed on June 4, 2024. As a result, the court will only address the second and fourth causes of action (for Negligence Based Upon Medical Malpractice and Wrongful Death, respectively).
Sandhu first asserts that Plaintiffs’ second and fourth causes of action are uncertain on the basis that Plaintiffs’ complaint lacks charging allegations. The court agrees. “A complaint. . . shall contain both of the following: (1) A statement of the facts constituting the cause of action, in ordinary and concise language. (2) A demand for judgment for the relief to which the pleader claims to be entitled. . .” (Code Civ. Proc., § 425.10, subd. (a). “The purpose of a complaint is to furnish the defendants with certain definite charges which can be intelligently met. Mere general assertions by way of conclusion or those indefinite in character. . . cannot be deemed sufficient compliance with the long-established rules of pleading.” (Derrick v. Ontario Community Hospital (1975) 47 Cal.App.3d 145, 153.)
As Sandhu points out, there are only two allegations about Sandhu in Plaintiff’s complaint (i.e., in ¶ 8 [“Defendant, GARY SANDU, M.D. and DOES 51-60 were the treating physicians of Decedent while he was admitted to POMONA VISTA”] and ¶ 14 [“At admission to Defendant's facility, it was anticipated Decedent would be discharged home following a short period of rehabilitation while under the care of attending physician, Defendant, GARY SANDU, M.D.”].)
Plaintiffs have not pled any facts in the complaint putting Sandhu on notice of what he is alleged to have done wrong. The court sustains Sandhu’s demurrer on this basis.
Sandhu next asserts that Plaintiffs’ second and fourth causes of action are duplicative of one another. A demurrer may be sustained when a cause of action is duplicative of another and thus adds nothing to the complaint by way of fact or theory. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290).
“The cause of action for wrongful death belongs not to the decedent [or prospective decedent], but to the persons specified by statute. It is a new cause of action that arises on the death of the decedent and it is vested in the decedent’s heirs. . . Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in their heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. The survival statutes do not create a cause of action. Rather, they merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263-1264 [quotations and citations omitted].)
Plaintiffs seek damages as decedent’s successors in the second cause of action and individually in the fourth cause of action. Sandhu’s demurrer is overruled on this ground.
2. Motion to Strike
Based upon the stipulation and order, the motion to strike is denied as moot as to the first ten requests. However, the court will inquire as to request Nos. 11 (“...recklessly…” [Comp. 17:23]) and 12 (“… malicious, intentional and reckless …” [Comp. 18:1]). It appears that both of these requests concern cause of action No. 2.