Judge Stephen Morgan, Case Number: 23AVCV00370, Date: 2023-09-26 Tentative Ruling

This is a wrongful death action. Plaintiffs Susan Ekdahl, individually, and as Administrator of the Estate of Edward A. Ekdahl (“Susan”[1]); and Edward A. Ekdahl, by and through his Successor in Interest, Susan Ekdahl (“Decedent” and collectively “Plaintiffs”), allege that on (1) January 02, 2022, Decedent was transported to Defendant Lancaster Hospital Corporation dba Palmdale Regional Medical Center, erroneously sued as Palmdale Regional Medical Center (“PRMC”)’s Emergency Department by ambulance for chest main and shortness of breath; (2) Decedent was admitted shortly after midnight on January 03, 2022, with Defendant Sonia P. Sethi, M.D. (“Dr. Sethi”) as his attending physician; (3) while in the patient room Decedent was connected to an intravenous line, heated high-flow oxygen, and some vital sign monitoring cables; (4) at around 6:00 pm on January 03, 2022, as a result of failure to provide medial and non-medical services, including supervision, Decedent was able to remove various lines and cables from his body and proceeded to the bathroom unattended without supervision; (5) there was no alerting device in place or protocol to alert Dr. Sethi and attending medical staff in real-time that a patient was exiting the bed alone without supervision; (6) Decedent collapsed and went into cardiac arrest while in the bathroom; (7) when medical staff discovered Decedent, they were unable to retrieve him because the bathroom door was locked; (8) Decedent was unresponsive when medical staff reached him; (9) Decedent was transferred to PRMC’s Intensive Care Unit (“ICU”); and (10) Decedent never came back to consciousness and passed away on January 13, 2022, as a result of Defendants’ acts and omissions.

On April 05, 2023, Plaintiffs filed their Complaint alleging three causes of action against PRMC.

On July 21, 2023, before the Demurrer with Motion to Strike was heard, Plaintiffs filed their First Amended Complaint (“FAC”). The FAC added Dr. Sethi as a defendant and alleged three causes of action for: (1) Wrongful Death against all defendants; (2) Survivor Cause of Action – Medical Negligence against all defendants; and (3) Survivor Cause of Action – Negligence: Premises Liability against PRMC.

On September 19, 2023, PRMC filed its Reply. “. . .[A]ll reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) Here, the hearing is set for September 26, 2023. There is a holiday on September 22, 2023. Accordingly, five court days before the date of the hearing is Monday, September 18, 2023. PRMC’s Reply is untimely. “No paper may be rejected for filing on the ground that it was untimely submitted for filing.” (Cal. Rules of Court, Rule 3.1300(d).) The Court, in its discretion, does not consider the untimely Reply. (See Cal. Rules of Court, Rule 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”].)

Standard for Demurrer – 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 by proper judicial notice.¿ (Cal. Code Civ. Proc. § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal.App.3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Ibid.)¿¿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 747.)¿¿¿¿¿¿¿¿¿¿¿

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿¿¿¿¿¿

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿

Meet and Confer Requirement– Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Cal. Code Civ. Proc. §§ 430.41 and 435.5.) The Court notes that counsel for PRMC, Amenda K. Crawley (“Crawley”), has provided that the requirement was satisfied. (See Decl. Crawley ¶ 6.)

Application – PRMC demurs only to the Third Cause of Action (Survivor Cause of Action – Negligence: Premises Liability).

PRMC presents that the Third Cause of Action (Survivor Cause of Action – Negligence: Premises Liability) is duplicative of Plaintiffs’ Second Cause of Action (Survivor Cause of Action – Medical Negligence) and fails to add any additional facts or theories of recovery, subjecting it to a Demurrer. PRMC cites to Bellamy v. Central Valley General Hospital (1996) 50 Cal.App.4th 797 (“Bellamy”) for the holding that the same set of facts cannot give rise to separate and distinct claims for negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstance and argues that, as both of Plaintiffs’ survival causes of actions are premised on the same general allegations, the Bellamy holding applies. PRMC asserts that the only difference between the two survival causes of action are legal conclusions and “buzzwords” that reference an unreasonable and/or dangerous condition on the premises. PRMC further presents that Plaintiffs fail to plead sufficient facts to support this cause of action as the allegations speak solely to the hospital’s duties to care for and supervise Decedent while he was a patient in the hospital and the breach of which would subject the hospital to a claim for medical negligence at most. PRMC further presents: (1) Plaintiffs’ FAC does not contain any facts demonstrating that there was a dangerous and/or defective condition to all persons at the premises, but rather, as plead, Plaintiffs allege that PRMC staff failed to supervise him and/or failed to retrieve him while he was locked inside the bathroom; (2) it is uncertain as to what exact defective condition Plaintiffs are alleging existed on the premises; and (3) no information is given as to notice of the alleged dangerous condition.

Plaintiffs argue that the Third Cause of Action (Survivor Cause of Action – Negligence: Premises Liability) is a separately pled claim that allows for an alternative claim for relief. Plaintiff emphasizes that e Premises Liability Claim asserts negligence for failure “provide a safe, suitable, and adequate premises for the health and safety of all persons (visitors, guests, medical and non-medical staff, and patients) lawfully on said Premises.” (FAC ¶¶ 69-73). Specifically, Plaintiffs argue that this cause of action is an attempt to hold PMRC liable for ordinary and not professional negligence. (Opp. 6:13-15.) Plaintiffs direct the Court to Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153 (“Johnson”), arguing that a separate claim for ordinary negligence is allowed and that this case is analogous to that of Johnson. Plaintiffs re-emphasize that this cause of action does not implicate a professional duty of care and that it is an alternative theory. Plaintiffs further argue that the Third Cause of Action (Survivor Cause of Action – Negligence: Premises Liability) states a cause of action as it specifically pleads all elements required of a premises liability claim; that nowhere in the CACI No. 1000, Premises Liability is the pleading of a “faulty, dangerous or defective” condition required as a pleading requisite; and whether a the bathroom door, which did not have a keypad/key and whether PRMC knew about this dangerous condition are issues for discovery.

First, the Court notes that CACI, the Judicial Council of California Civil Jury Instructions, is neither statute nor binding case precedent.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. Premises liability ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’; accordingly, ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. In determining whether a premises owner owes a duty to persons on its property, we apply the Rowland [Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561]] factors. Indeed, Rowland itself involved premises liability.’ ” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159 [internal citations omitted].)

It appears that the FAC is alleging that the lack of protocols or preventative measures, such as a keypad and/or a ready access key is what constitutes the dangerous condition. (See FAC ¶¶ 74-75.)

Johnson is distinguished from the action at hand as: (1) it is a discussion of the trial court's application of the Medical Injury Compensation Reform Act's (“MICRA”) (Code Civ. Proc., § 340.5) one-year statute of limitations for professional negligence; and (2) at issue was a scale, considered medical equipment used for treatment, in a public hallway outside of a treatment room that caused a trip and fall incident. (See Johnson, supra, 15 Cal. App. 5th 153 [generally].) The Court notes that the appellate court in Johnson stated: “Unlike the plaintiff Flores, who was injured during the provision of medical care, through the breach of a duty owed only to patients, Johnson was injured after her care was completed, allegedly as a result of a breach of duties owed generally to all visitors to the Open Door clinic.” (Id. at 160.) This is yet another distinguishing factor as, here, Decedent was injured while receiving his treatment. A reading of Johnson leads to a conclusion that this is a case for professional negligence and not ordinary negligence.

Bellamy recites California Supreme Court ruling which provides: “a plaintiff cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances.” (Bellamy, supra, 50 Cal.App.4th 797 [citing Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, 1000].) Bellamy is cautioned only as to Johnson, discussed ante, and as to Estate of Curtis v. S. Las Vegas Med. Inv’rs, LLC (Nev. 2020) 466 P.3d 1263, a Nevada state court case, which has no bearing on this Court.

Here, the cases cited by both parties support an interpretation that the claim Plaintiffs seek to recover on is one of professional negligence, not ordinary negligence.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685).¿ “A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿¿The pleadings, in conjunction with the case law presented by both parties, show that an amendment would not rectify the deficiencies within this cause of action.

[1] Plaintiffs Susan Ekdahl and Edward A. Ekdahl share the same surname. The Court refers to Plaintiff Susan Ekdahl by her first name for the purpose of clarity. No disrespect is meant.