Judge: Stephen P. Pfahler, Case: 23CHCV00846, Date: 2023-11-16 Tentative Ruling

Case Number: 23CHCV00846    Hearing Date: November 16, 2023    Dept: F49

DEMURRER

MOVING PARTY: Defendant, Child and Family Center

RESPONDING PARTY: Plaintiffs, Jacek and Barbara Lodl

RELIEF REQUESTED

Demurrer to the Complaint

·         1^st Cause of Action: Survival Action

·         2^nd Cause of Action: Wrongful Death

·         3^rd Cause of Action: Professional Negligence

·         4^th Cause of Action: Negligence

SUMMARY OF ACTION

The parents of Michal Lodl, plaintiffs Jacek and Barbara contend their child Michal suffered from post traumatic stress disorder as a result of the 2019 shooting at Saugus High School.  Michal subsequently began therapeutic treatment with defendant Child and Family Center.

On July 7, 2020, Michal Lodl stepped into traffic on the 405 Freeway, and died from a vehicle on pedestrian collision. Plaintiffs allege defendant failed to adequately treat and/or intervene the acknowledged suicidal thoughts and ideations expressed by Michal.

On March 23, 2023, Plaintiffs filed their complaint for Survival Action, Wrongful Death, Professional Negligence, and Negligence. On March 28, 2023, Plaintiffs filed a 170.6 challenge to Department 47, thereby leading to the reassignment of the action to Department 49. On October 11, 2023, Plaintiffs dismissed individual defendant Araceli Hirtle.

RULING: Sustained with Leave to Amend in Part/Overruled in Part

Defendant Child and Family Center submits a demurrer to the entire complaint on grounds of a statute of limitations bar, and failure to state sufficient facts. Plaintiffs contend the complaint is not barred by the statute of limitations and articulates sufficient facts establishing liability. The subject case is preceded by a July 5, 2022, filed prior action in District Court, which Plaintiffs dismissed on March 2, 2023. Defendant first challenges the action under the one year medical malpractice statute of limitations, and denies any application of the three year standard. Plaintiffs in opposition contend the demurrer misinterprets the applicable statute of limitations and maintains the action was timely filed. Defendant in reply also asserts a misinterpretation of the Code of Civil Procedure section 340.5, reiterates the one year statute of limitations for medical malpractice claims, and the duplicity of the medical negligence and negligence claims.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

The demurrer begins with characterization of the action as one entirely governed by professional negligence, in that decedent received medically based treatment. Defendant therefore describes the action as governed by the professional negligence statute under Code of Civil Procedure section 340.5. Plaintiffs offer no challenge to the categorization of the action under the professional negligence standard, but counter that the negligence claims are brought on behalf of the Michal, and therefore the three year statute of limitations applies on the negligence claims in that Michal died as a 17-year old minor.

The age of Michal at the time of death remains undisputed, especially for purposes of the demurrer. “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 through the use of reasonable diligence should have discovered, the injury, whichever occurs first. ... Actions by a minor shall be commenced within three years from the date of the alleged wrongful act ...” (Code Civ. Proc., § 340.5.)

The complaint itself however identifies the action as a “combined survival and wrongful death” pleading brought both by the parents and on behalf of the estate of Michal. [Comp., ¶ 2.] While the complaint lacks specific articulation of which causes of action are brought individually versus on behalf of the estate, the negligence claims appear to belong to the estate, and wrongful death action is clearly brought by the parents.

Given Michal was 17 years old at the time of death on July 7, 2020, the claims brought on behalf of the estate of Michael, and the filing of the complaint on March 23, 2023, the court finds the negligence based claims timely under the three year statute of limitations. Nothing in the demurrer distinguishes the application of the three year statute of limitations brought on behalf of a minor as opposed to the minor bringing the claim while still alive. The claims belong to Michael. The court otherwise declines to consider unmade argument.

The court also declines to consider any distinction on a scenario not presented in the complaint—a wrongful death claim brought by a minor. “In view of the express statutory language and controlling Supreme Court precedents, we hold that, absent applicability of one of the tolling provisions, section 340.5 gives a minor a minimum of three years within which to bring a medical malpractice action. For reasons we set forth below, this three-year period applies whether the minor is herself the victim of medical malpractice or brings a wrongful death action as the heir of one whose death was caused by medical malpractice.” (Ferguson v. Dragul (1986) 187 Cal.App.3d 702, 707–708.)

On the redundancy of the causes of action between the professional negligence and negligence causes of action, the court finds both causes of action in fact allege claims based on the provision of professional services. The court declines to make factual distinctions at the demurrer stage. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.) The court otherwise declines to consider the demurrer on the basis of facially duplicative claims. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889.) Plaintiff may plead alternative, even inconsistent causes of action within the same pleading. (Third Eye Blind, Inc. v. Near North Entertainment Insurance Services, LLC (2005) 127 Cal.App.4th 1311, 1323; Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.)

Nevertheless, neither party addresses the wrongful death claim. Wrongful death is a separate cause of action belonging to the surviving heirs, and not derivative of the negligence claims. (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1550–1551 [“A cause of action for wrongful death is a statutory claim (§§ 377.60–377.62) that compensates specified heirs of the decedent for losses suffered as a result of a decedent's death]; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1274 (footnote 21).) Wrongful death is governed by a two year statute of limitations. (Code Civ. Proc., § 335.1.) “[T]he statute of limitations on a wrongful death action begins to run at the time of death, and not at the time of injury which caused the death, for it is only on the date of death that the action is complete in all of its elements.” (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 80–81.)

Again, the demurrer lacks any actual address of this particular aspect of the complaint, but to the extent adult Plaintiffs maintain both an action on behalf of the estate and separate wrongful death claim, an argument can be made for an untimely filed wrongful death cause of action by the adults, but (as addressed above) not on behalf of the minor. (Ferguson v. Dragul, supra, 187 Cal.App.3d 707-708.) The court therefore sustains the demurrer with leave to amend on the wrongful death cause of action in order to allow the parties an opportunity to address the claim.

The demurrer is therefore sustained with 30 days leave to amend as to the wrongful death cause of action, and overruled as to the remainder of the complaint brought on behalf of Michael. If Plaintiffs decline to file a first amended complaint, Defendant is ordered to answer the remaining causes of action within 10 days of the lapse of the amendment deadline.

Defendant to give notice.