Judge: Sandy N. Leal, Case: 2022-01245837, Date: 2023-08-10 Tentative Ruling

Motion for Summary Judgement and/or Adjudication

Defendant Alaa Afifi, M.D.’s Motion for Summary Judgment is DENIED.

Plaintiffs’ request for judicial notice of the complaint and special verdict form in the case of Sonny Seneca v. Anaheim Global Medical Center, Inc., OCSC Case No. 2017-00921766 (hereafter “Prior Lawsuit”), attached to the Polinquin Declaration as Exhibits A and C, is granted.

Plaintiff’s objections to evidence are overruled.

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

In the Prior Lawsuit, Sonny Seneca and Leilani Seneca alleged causes of action for (1) medical negligence and (2) loss of consortium against Defendant Alaa Afifi, M.D. and others. The Special Verdict Form in the Prior Lawsuit reflected that on 12/12/19, the jury found Defendant Afifi was negligent in the medical care and treatment of Sonny Seneca, and that such negligence was a substantial factor in causing harm to Sonny Seneca. The jury awarded $220,000 to Sonny Seneca for past medical expenses and non-economic loss. The jury found that Sonny Seneca’s life expectancy was 15 years but declined to award any damages for future economic or non-economic losses.

Plaintiffs, Sonny Seneca’s surviving children, filed the present lawsuit on 2/16/22 alleging Sonny Seneca died on 3/1/21. They allege a single cause of action for wrongful death against Defendant Afifi and seek damages including “non-economic damages, pain, physical and emotional distress that relates to the death of their father.” (Complaint, ¶ 13.) The prayer for damages seeks general and special damages according to proof.

“[A] cause of action for wrongful death exists only by virtue of legislative grace. The statutorily created wrongful death cause of action does not effect a survival of the decedent's cause of action. Instead, it gives to the representative a totally new right of action, on different principles. 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. [¶] A cause of action for wrongful death is thus a statutory claim. Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 [cleaned up].)

“Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir. A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent's financial support, services, training and advice, and (2) the pecuniary value of the decedent's society and companionship—but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss. The damages recoverable in [wrongful death] are expressly limited to those not recoverable in a survival action under Code of Civil Procedure section 377.34. (Id. at 1264 [cleaned up].)

Here, Defendant contends issue preclusion bars Plaintiffs’ wrongful death claims because the jury in the Prior Lawsuit declined to award damages to Sonny Seneca for future economic or non-economic loss.

“[I]ssue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.)

Defendant has failed to show the Prior Lawsuit involved adjudication of an identical issue in his favor. The Prior Lawsuit did not adjudicate the issues of (1) whether Defendant’s negligence caused Sonny Seneca’s death, or (2) the damages available to Sonny Seneca’s heirs in the event of his death. The jury in the prior lawsuit expected Sonny Seneca to live for 15 years and declined to award damages for future economic or non-economic loss. However, Sonny Seneca died 15 months after the verdict was issued. Plaintiffs are not barred from litigating the issues of (1) whether Defendant’s negligence caused Sonny Seneca’s death, and (2) the damages available to Sonny Seneca’s heirs in the present lawsuit.

Defendant cites Brown v. Rahman (1991) 231 Cal.App.3d 1458 (Brown), which held the decedent’s heirs were in privity with decedent and were bound by a prior jury’s finding that the defendant doctor was not liable for the decedent’s damages.

However, Brown also states the following: 

“Code of Civil Procedure section 377, California's wrongful death statute, confers a cause of action on the heirs of an injured person independent of that person's claim for personal injuries. (Earley v. Pacific Electric Ry. Co. (1917) 176 Cal. 79, 81-82 [167 P. 513]). In Blackwell v. American Film Co. (1922) 189 Cal. 689, 693-694 [209 P. 999], our Supreme Court held that section 377 did not bar an heir from pursuing a wrongful death claim even when the decedent had already recovered for personal injuries in a prior action. The court explained that the purpose of a wrongful death suit is ‘not to recover damages for the injuries and consequent suffering and loss to the decedent, but to recover as an heir or personal representative the damages she [or he] has sustained by reason of the decedent's death. [Citations.]’ (Id. at p. 694.)

The ‘life’ of the wrongful death action is dependent upon the outcome of the original personal injury suit. If the injured party prevailed, the heirs are not precluded from seeking their own damages. Where the judgment was adverse to the decedent, however, the contemporary view, and the one to which we subscribe, is that the heirs are collaterally estopped from relitigating the issue.” (Brown, supra, 231 Cal.App. 3d at 1460-1461, footnotes omitted.)

Brown is distinguishable because in the present case, the jury found Defendant Afifi was liable for medical negligence. Although the jury declined to award future damages to Sonny Seneca, it did not specifically determine whether Defendant’s negligence may cause Sonny Seneca’s death or what damages would be available to Sonny Seneca’s surviving heirs. Under Brown, Plaintiffs are not precluded from pursuing their own damages under California’s wrongful death statutes. Therefore, the motion for summary judgment is denied.