Judge Ralph C. Hofer, Case Number: 23GDCV02613, Date: 2024-07-12 Tentative Ruling

Judge: Ralph C. Hofer, Case: 23GDCV02613, Date: 2024-07-12 Tentative Ruling

Case Number: 23GDCV02613 Hearing Date: July 12, 2024 Dept: D

TENTATIVE RULING

Calendar: 12

Date: 7/12/2024

Case No: 23 GDCV02613 Trial Date: None Set

Case Name: Sadhegian v. Adventist Health Glendale, et al.

DEMURRER

MOTION TO STRIKE

Moving Party: Defendants Glendale Adventist Medical Center dba Adventist Health Glendale and Adventist Health Foundation

Responding Party: Plaintiff Silva Sadhegian

RELIEF REQUESTED:

Sustain demurrer to complaint

Strike improper prayer for damages

CAUSES OF ACTION: from Complaint

1) Professional Malpractice

1) Wrongful Death

(There are two “First” Causes of Action)

SUMMARY OF FACTS:

Plaintiff Silva Sadhegian alleges that on or about the year 2022 and to the current date, and prior thereto and thereafter, Esraeil Ghadimi engaged for compensation the services of defendants Adventist Health Glendale and Adventist Health Foundation, and defendants undertook to examine, diagnose, prescribe medicine and drugs, and handle and control the care and treatment of Ghadimi. The complaint alleges that defendant failed to possess and exercise that degree of knowledge and skill ordinarily possessed and exercised by other physicians, surgeons, hospitals, nurses, attendants and the like, failed to comply with the applicable legal standard, and neglected to adequately select a competent medical staff or periodically review the competency of the medical staff. The complaint also alleges that defendants failed to obtain the informed consent of Ghadimi.

The complaint alleges that as a result of the acts and omissions of defendants, Ghadimi suffered severe, serious and permanent injury to his person, and suffered loss of earnings and earnings capacity.

Plaintiff alleges in the second “First” cause of action that the damages and injuries alleged that were caused by defendants resulted in the death of decedent Ghadimi, resulting in plaintiff being deprived of decedent’s presence, companionship, protection, affection and comfort, and also being deprived of decedent’s future support and maintenance, and expectancy in the estate of Ghadimi. Plaintiff also alleges plaintiff has incurred funeral and burial expenses.

ANALYSIS:

Procedural

Untimely

The declaration submitted with the demurrer indicates that the complaint was served on moving defendants pursuant to an acknowledgment of receipt which counsel executed on or about January 4, 2024. [Wells Decl., para. 4]. Proof of service has evidently not yet been filed with the court.

Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.”

Under CCP §435, a party may serve and file a notice of motion to strike “within the time allowed to respond to a pleading…”

Under CCP §430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”

CRC Rule 3.110(d) provides:

“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”

As noted above, counsel has represented that counsel executed an acknowledgment of receipt on January 4, 2024. Under CCP section 415.30(c), where service is by mail made by acknowledgment of receipt,

“Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.”

Here, the service was therefore complete on January 4, 2024. Thirty days after this service would have been February 3, 2024. On February 2, 2024, defendants’ counsel filed a declaration to invoke the automatic extension of time within which to file a responsive pleading under CCP sections 430.41(a)(2) and 435.5(a)(2), acknowledging that the responsive pleadings would now be due on March 4, 2024. Those sections provide that “Any further extensions shall be obtained by court order upon a showing of good cause.”

The demurrer and motion to strike were filed on June 4, 2024, and served on June 3, 2024. This filing is months late, and well beyond the fifteen-day extension to which the parties were permitted to agree. There is no court order permitting such a lengthy extension of time for responses to the pleading. The motion could be denied, and the demurrer overruled on this ground alone, but the court elects not to do so.

However, the declaration filed in support of the demurrer shows that plaintiff permitted defendants several extensions of time to respond during meet and confer communications, with the final extension being to June 3, 2024. [Wells Decl., paras. 4-7]. The motion and demurrer were in fact served by that date (although not filed until the following day, one day late).

The court accordingly reluctantly has considered the very untimely motion to strike and demurrer, but the parties are cautioned that in the future the court may refuse to consider papers not filed in conformity with the statutes, rules, and procedures governing this action.

Substantive

Demurrer

Statute of Limitations

Defendants Glendale Adventist Medical Center dba Adventist Health Glendale and Adventist Health Foundation argue that the complaint is barred by the applicable statute of limitations, CCP section 340.5, which provides:

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or should have discovered, the injury, whichever occurs first.”

As acknowledged by defendants, under CCP section 364 (d), this statutory period may be extended upon the service of a notice of intent to sue within 90 days of the applicable statute of limitations.

Defendants argue that although the complaint does not specify a date of malpractice or death, the complaint was filed on December 8, 2023, and it can be inferred from the allegation that the acts occurred, “on or about the year(s) 2022 to the current date” that the death occurred prior to December 8, 2022, so that complaint was filed more than one year after the purported events in question.

The problem with this argument is that the complaint does not in fact allege facts from which it can be reasonably inferred that the death occurred prior to December 8, 2022, as the only timeframe alleged in the pleading is that defendants were engaged for their services, “on or about the year(s) 2022 and to the current date, and prior thereto and thereafter.” [Complaint, para. 16]. This allegation is general enough to encompass a time period within the one-year statute, and the pleading also does not affirmatively foreclose the possibility that the statute has been extended under CCP section 364.

As argued in the opposition, to sustain a demurrer based on a statute of limitations defense, the running of the statute must appear “clearly and affirmatively” from the face of the complaint; it is not enough that the complaint may be time-barred. Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4ths 32, 42, citing and quoting Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781:

“We conclude the demurrer in the present case should have been overruled. ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, 44 Cal.Rptr.2d 339.).”

Geneva Towers, at 781.

The pleading does not include any facts or allegations from which it appears clearly and affirmatively that the action is necessarily barred. The demurrer on this ground accordingly is overruled.

Standing

Defendants argue that a primarily insufficiency in the pleading is that it is nowhere pled how plaintiff Silva Sadhegian has standing to pursue the claims in the pleading, which appear to belong to decedent or decedent’s estate or to wrongful death plaintiffs who stand in a particular relationship to the decedent.

The complaint does not indicate how this plaintiff has standing to pursue the claims that defendants engaged in professional negligence toward decedent Esraeil Ghadimi. In addition, the complaint is confusing, as it refers throughout to “plaintiffs” when only one plaintiff is named.

The opposition indicates that defense counsel has been informed that plaintiff Silva Sadhegian is decedent’s daughter, and that these issues can be cleared up in discovery.

These facts should be alleged in the pleading. With respect to the wrongful death claim, the second “first” cause of action, defendants rely on CCP section 377.60, under which a wrongful death cause of action “may be asserted by any of the following persons, or by the decedent’s personal representative on their behalf: (a) The decedent’s surviving spouse,...children...” Plaintiff must clearly allege facts which show that plaintiff has standing to pursue the wrongful death cause of action.

Defendants also point out that, with respect to a wrongful death claim, all necessary parties must be joined. Defendants rely on CCP section 430.10(d), which provides that the grounds for demurrer include, “There is a defect or misjoinder of parties.” Defendants also argue that the repeated references to plaintiffs in the pleading suggest that there are other parties in existence.

It is held that a wrongful death cause of action is a single cause of action, and that the heirs bringing such an action have a “mandatory duty to join all known omitted heirs in the ‘single action’ for wrongful death,” as the omitted heirs are “necessary parties.” Ruttenberg v. Ruttenberg (2000) 53 Cal.App.4th 801. Under Ruttenberg, where an heir was not joined in the original proceeding, the omitted heir has a remedy against the other heirs, not a right to bring the wrongful death claim again.

In any case, plaintiff has not responded to these arguments. Hence, the demurrer is sustained on this ground with leave to amend to permit plaintiff to allege facts supporting her standing, as well as to establish the joinder of necessary parties or the existence or non-existence of any other wrongful death claimants and any reasons for non-joinder. On amendment, if there is more than one plaintiff, the pleading must clearly allege and differentiate the capacities in which each plaintiff is pursuing each claim.

To the extent the first “first” cause of action for professional negligence appears to be a survival claim, it is also not clearly alleged how plaintiff has standing.

CCP § 377.20 (a), provides that “a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable statute of limitations period.”

Under CCP § 377.30:

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of the Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”

It is not alleged here that plaintiff is decedent’s successor in interest, or decedent’s personal representative, and the opposition does not address this issue. The demurrer is sustained, and plaintiff is required on amendment to clearly allege the basis for any standing to pursue a claim on behalf of decedent on a survival theory, and if necessary, allege compliance with all procedures required for the pursuit of such a claim in that representative capacity. See, e.g. CCP § 377.32 (requiring affidavit or declaration of successor in interest).

To the extent defendants seem to argue that certain damages cannot be recovered in a wrongful death cause of action, the pleading appropriately states each respective claim.

CCP § 377.30 provides for the pursuit of a cause of action that survives the death of a decedent. CCP § 377.34 limits damages in such an action to loss or damage sustained before death.

CCP § 377.60 provides for the pursuit of a wrongful death cause of action. Under CCP § 377.61, damages in a wrongful death proceeding “may not include damages recoverable under Section 377.34.” This statute suggests that two claims may be necessary to recover both pre and post-death damages, and possibly by plaintiffs in differing capacities.

Under the Code, a survival action and wrongful death action may be brought together:

“An action under Section 377.30 may be joined with an action under Section 377.60 arising out of the same wrongful act or neglect.”

CCP § 377.62(a).

The pleading does not separate out which damages are being sought in connection with each cause of action, which creates some uncertainty with respect to the appropriateness of the causes of action stated. Plaintiff must on amendment state separate prayers for relief as to each separate cause of action and ensure that the damages sought are recoverable under the above statutes.

Separate Causes of Action

Defendants argue that the two causes of action should be consolidated and alleged as only a single cause of action, as with respect to allegations of professional negligence a defendant has only one duty, measured by one standard of care.

Defendants cite briefly to Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, in which the California Supreme Court held:

“The Court of Appeal thus erred in finding plaintiff's pleadings ‘broad enough’ to state a cause of action for ordinary negligence as well as professional negligence. This analysis necessarily implies that the same factual predicate can give rise to two independent obligations to exercise due care according to two different standards. But this is a legal impossibility: a defendant has only one duty, measured by one standard of care, under any given circumstances.”

Flowers, at 1000, italics in the original.

This situation is not a case where plaintiff is attempting to allege an ordinary negligence claim in addition to a professional negligence claim. As discussed above, and acknowledged in the moving papers, the causes of action arise out of the same alleged professional negligence but are brought separately because they seek different relief on behalf of differently positioned plaintiffs: one claim being made as a survivor action as a representative of decedent, and one being made as a wrongful death claim on behalf of plaintiff directly as an individual suffering different harm. As set forth above, the Code recognizes that the two distinctly postured claims can be brought in the same action. CCP § 377.62(a).

Hence, stating these theories separately could prove beneficial to all parties as the litigation proceeds, particularly if further facts alleged raise further standing or necessary party issues.

The demurrer on this ground accordingly is overruled.

Plaintiff on amendment, however, is ordered to identify a first and second cause of action, rather than two “first” causes of action.

Motion to Strike

The motion to strike is deemed moot in light of the sustaining of the demurrer with leave to amend.

RULING:

Defendants Glendale Adventist Medical Center dba Adventist Health Glendale and Adventist Health Foundation’s Demurrer to Plaintiff’s Complaint:

The Court has reluctantly considered the demurrer and motion to strike despite the fact that they are extremely untimely, because they were filed and served several months beyond the applicable statutory deadline. Defendants are cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

Demurrer is OVERRULED as to the argument that the complaint is barred by the applicable statute of limitations, as it does not appear from the face of the pleading that the complaint must necessarily be barred.

Demurrer is SUSTAINED WITH LEAVE TO AMEND on the grounds the complaint fails to allege the standing of the only named plaintiff, Silva Sadhegian, to pursue each of the causes of action, either a survival cause of action on behalf of decedent Esraeil Ghadimi, or a wrongful death cause of action, and has failed to sufficiently allege that all wrongful death plaintiffs have been joined in the action. The pleading is also uncertain and confusing to the extent it refers repeatedly to “plaintiffs,” when only one plaintiff is named. Plaintiff on amendment must clearly allege the basis for any standing to pursue a claim on behalf of decedent on a survival theory, and if necessary, allege compliance with all procedures required for the pursuit of such a claim in that representative capacity. Plaintiff must also allege the basis for any standing to pursue a claim for wrongful death and allege the inclusion of all necessary parties to that claim. On amendment, if there is more than one plaintiff, the pleading must clearly allege and differentiate the capacities in which each plaintiff is pursuing each claim. The pleading is also uncertain as it does not separate out which damages are being sought in connection with each cause of action, which creates uncertainty with respect to the appropriateness of the causes of action stated. Plaintiff must also on amendment state separate prayers for relief as to each separate cause of action and ensure that the damages sought are recoverable. Plaintiff on amendment must also identify a “first” and “second” cause of action, rather than two “first” causes of action.

Demurrer on all other grounds is OVERRULED.

Defendants Glendale Adventist Medical Center dba Adventist Health Glendale and Adventist Health Foundation’s Motion to Strike Plaintiff’s Complaint is MOOT in light of the sustaining of the demurrer with leave to amend.

Ten days leave to amend.

The parties are ordered to meet and confer in full compliance with CCP §§ 430.41 and 435.5 before any further demurrer or motion to strike may be filed.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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