Judge: Teresa A. Beaudet, Case: 23STCV11890, Date: 2023-10-06 Tentative Ruling

Case Number: 23STCV11890    Hearing Date: October 6, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

            Plaintiffs Santiago Ramirez, a minor, by and through his Guardian ad Litem, Martha Ramirez Moreno (“Santiago Ramirez”) and Martha Ramirez Moreno (“Martha Ramirez”) (jointly, “Plaintiffs”) filed this action on May 25, 2023 against Defendants CHA Hollywood Presbyterian Medical Center (“CHA”) and Arus Zograbyan, M.D. (“Zograbyan”) (jointly, “Defendants”). The Complaint alleges causes of action for (1) general negligence and (2) negligent infliction of emotional distress. 

Zograbyan now demurs to the second cause of action of the Complaint. CHA joins in the demurrer. Martha Ramirez opposes.

Zograbyan’s Demurrer

A.    ¿ Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

B.     Allegations of the Complaint

In the Complaint, Plaintiffs allege that on or around June 5, 2022, Martha Ramirez was admitted to CHA for labor and delivery. (Compl., p. 4, ¶ 1.) Santiago Ramirez was delivered at CHA on June 5, 2022 by Zograbyan. (Ibid.)  

Plaintiffs allege that “[d]espite a high-risk pregnancy, failure to adequately progress, macrosomia, and impending shoulder dystocia, plaintiff Martha Ramirez Moreno’s delivery was performed vaginally as opposed to via caesarian section. As a result, minor plaintiff Santiago Ramirez suffered a brachial plexus paralysis and other neurologic injuries. Plaintiff Martha Ramirez Moreno suffered vaginal and other physical injuries in addition to emotional distress.” (Compl., p. 4, ¶ 2.)

Plaintiffs further allege that “Defendants, and each of them, were so negligent in all phases of their diagnosis, care and treatment of plaintiffs before, during and after delivery, that plaintiffs were injured. Said negligence includes, but is not limited to, failure to obtain informed consent, failure to perform caesarian section, mismanagement of labor and delivery, mismanagement of shoulder dystocia and mismanagement of newborn care.” (Compl., p. 4, ¶ 3.)

C.     Second Cause of Action for Negligent Infliction of Emotional Distress

In the second cause of action for negligent infliction of emotional distress, Plaintiffs allege that Martha Ramirez “is entitled to recover damages for her emotional distress occasioned by the injuries sustained by her newborn child, Santiago Ramirez.” (Compl., p. 5, ¶ 2.) In the second cause of action, Plaintiffs also allege that “Plaintiff, Martha Ramirez Moreno, repeats and re-alleges the First Cause of Action as if set forth in full herein.” (Compl., p. 5, ¶ 1.)

Zograbyan asserts that Plaintiffs’ second cause of action is duplicative of their first cause of action for general negligence. More specifically, Zograbyan argues that “it is improper for Ms. Moreno to allege two separate causes of action for negligence. Indeed, both the first and second causes of action are based on the same alleged facts, the same alleged harm, and the same primary right, namely: Ms. Moreno and her son’s right to be free from medical negligence in connection with the care they received during Ms. Moreno’s labor and delivery on June 5, 2022.” (Demurrer at p. 7:13-17.)

Zograbyan cites to Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, where the California Supreme Court noted that “[w]e have repeatedly recognized that [t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence…The traditional elements of duty, breach of duty, causation, and damages apply…Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” (Internal quotations omitted, emphasis in original.) Zograbyan asserts that accordingly, “under Burgess, Ms. Moreno’s second cause of action for NIED is improper as it is duplicative of her first cause of action for medical negligence.” (Demurrer at p. 7:20-21.)  

Zograbyan asserts that a demurrer may be sustained as to a duplicative cause of action, citing to Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1134-1135, where the Court of Appeal noted that “[d]espite the label of negligence, however, real party alleges in the first cause of action, in the language of section 4558, that petitioner negligently, knowingly removed and/or failed to install a point of operation guard on said power press, and that this removal or failure to install was specifically authorized by said Defendant under conditions known by said Defendant to create a probability of serious death or injury. Except for the conclusory allegation that petitioner acted negligently, these allegations are virtually identical to the allegations contained in the fifth cause of action for violation of section 4558. Petitioner concedes that the demurrer was properly overruled as to the fifth cause of action under the exception of section 4558, and it would follow that the similar allegations in the first cause of action should also survive the demurrer. But stating them in two causes of action, as real party has done, is merely duplicative pleading which adds nothing to the complaint by way of fact or theory. For that reason, the demurrer should have been sustained as to this cause of action insofar as it affects petitioner.” (Internal quotations omitted.)

In the opposition, Martha Ramirez asserts that the two causes of action of the Complaint are distinct. She asserts that “[e]ach cause of action pertains to emotional distress arising from a different injury to a different person. Martha’s First Cause of Action asserts each Defendant’s breach of a duty of care owed to Martha to avoid injuring Martha. Martha’s separate Second Cause of Action asserts each Defendant’s breach of a duty of care owed to Martha to avoid injuring Santiago.” (Opp’n at p. 3:14-18, emphasis omitted.) Martha Ramirez asserts that “[g]iven the different sources, the emotional distress that Martha asserts in her First Cause of Action to be occasioned by her own injuries may be substantially different than the emotional distress that Martha asserts in her Second Cause of Action to be occasioned by Santiago’s injuries. Martha accordingly asserts two non-duplicative causes of action.” (Opp’n at p. 6:1-4, emphasis omitted)

But Plaintiffs’ first cause of action is alleged by Santiago Ramirez and Martha Ramirez against Defendants. As set forth above, the first cause of action alleges that “Defendants, and each of them, were so negligent in all phases of their diagnosis, care and treatment of plaintiffs before, during and after delivery, that plaintiffs were injured. Said negligence includes, but is not limited to, failure to obtain informed consent, failure to perform caesarian section, mismanagement of labor and delivery, mismanagement of shoulder dystocia and mismanagement of newborn care.” (Compl., p. 4, ¶ 3, emphasis added.) Plaintiffs also allege that “[n]ursing employee agents of CHA were negligent in their nursing care and treatment of plaintiffs during labor and delivery that as a proximate result, plaintiffs were injured. Said negligence includes, but is not limited to, failure to utilize appropriate maneuvers to assist in safe delivery of shoulder dystocia and timely reporting to the physicians.” (Compl., p. 4, ¶ 4, emphasis added.) Thus, the first cause of action refers to “plaintiffs” jointly as opposed to just Martha Ramirez; and does not appear to be limited to Defendants’ alleged “breach of a duty of care owed to Martha to avoid injuring Martha,” as contended in Martha Ramirez’s opposition.

Plaintiffs’ second cause of action is alleged by Martha Ramirez against Defendants. As discussed, the second cause of action alleges that “[p]ursuant to Burgess v. Superior Court (1992) 2 Cal.4th 1064, Plaintiff, Martha Ramirez Moreno, is entitled to recover damages for her emotional distress occasioned by the injuries sustained by her newborn child, Santiago Ramirez.” (Compl., p. 5, ¶ 2.) Burgess v. Superior Court, supra, 2 Cal.4th at page 1069, provides, “[c]an a mother recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty. For public policy reasons that have been previously articulated by this court, however, these damages do not extend to emotional distress due to loss of affection, society, companionship or similar harm that the mother may incur in adjusting to and living with the child’s impairments.”

In the reply, Zograbyan asserts that “[a]lthough Plaintiffs argue Burgess supports the notion that Ms. Moreno is entitled to bring two different negligence causes of action (one for the emotional distress she suffered from her physical harm from delivery, and another for the emotional distress she suffered from her son’s physical harm from delivery), the principles established in Burgess belie this.” (Reply at p. 5:14-18, emphasis in original) Zograbyan notes that in Burgess, the Court found that “[a]s in Marlene F., once the scope of the duty of care assumed by Gupta to Burgess is understood, Burgess’s claim for emotional distress damages may simply be viewed as an ordinary professional malpractice claim, which seeks as an element of damage compensation for her serious emotional distress.” (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1077.) Zograbyan asserts that “[u]nder Burgess, it is…clear Ms. Moreno’s first cause of action for professional malpractice (arising out of the obstetrical care she received during her son’s delivery) already includes ‘as an element of damages compensation for her serious emotional distress’ due to her son’s injuries.’” (Reply at p. 5:22-25.) 

Zograbyan also reiterates that “[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence…The traditional elements of duty, breach of duty, causation, and damages apply.” (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072 [emphasis in original].) Zograbyan asserts that “[h]ere, that tort of negligence has already been asserted in Ms. Moreno’s first cause of action, which asserts the very ‘ordinary professional malpractice claim’ contemplated by the Court in Burgess. Thus, Ms. Moreno does not have a second or distinct cause of action for NIED in this case.” (Reply at p. 5:28-6:3.)

Based on a consideration of the foregoing, the Court finds that Zograbyan has the better argument that the second cause of action of the Complaint is duplicative of the first cause of action. Thus, the Court sustains Zograbyan’s demurrer, with leave to amend.[1]

CHA’s Joinder

CHA filed a joinder to Zograbyan’s demurrer to the Complaint. CHA’s joinder states that CHA demurs to the second cause of action on the grounds that “[t]he second cause of action for negligent infliction of emotional distress fails to state facts sufficient to constitute a cause of action and is duplicative of the damages claims made in Plaintiffs first cause of action for negligence.” (Joinder at p. 4:4-6.)

CHA cites to Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 656-657, where “[a]ppellant Frederick Barak filed a complaint for malicious prosecution against respondents Michael Larivee, the Quisenberry Law Firm, and certain members of the Quisenberry Law Firm…On July 16, 2004, the Quisenberry Law Firm filed and served a special motion to strike appellant’s complaint pursuant to section 425.16. It contended that the malicious prosecution action lacked merit and appellant would not be able to demonstrate a reasonable probability of prevailing on his claim. Hearing on the motion was noticed for August 17, 2004. Larivee filed a document joining in the motion.” The Barak Court noted that “Larivee’s joinder not only states that he joins in the motion brought by the Quisenberry Law Firm, he requests affirmative relief: ‘Defendant LARIVEE seeks an order striking Plaintiff’s Complaint as to Defendant LARIVEE and awarding Defendant LARIVEE his costs and attorney’s fees in bringing a special motion to strike.’ In the penultimate paragraph, he states why a ruling on the special motion to strike brought by the Quisenberry Law Firm would also be applicable to him: ‘Most significantly, Defendant LARIVEE is the client of attorney Defendants … . Accordingly, relief afforded to [the attorney] Defendants under a special motion to strike should also be afforded to Defendant LARIVEE because all the Defendants are in the same relative position with regards to Plaintiff’s claims set forth in the Complaint.’” (Id. at p. 661.) The Court of Appeal in Barak found that “the nature of appellant’s claim established the necessary foundation for application of section 425.16 and Larivee’s joinder sought affirmative relief on behalf of himself. We find no abuse of discretion by the trial court in entertaining the joinder. Nor is any prejudice demonstrated. Appellant failed to provide any opposition to the special motion to strike and presents no argument on appeal to demonstrate why the same result would not have been obtained had Larivee filed a similar motion instead of a joinder.” (Id. at pp. 661-662.)

CHA asserts that here, CHA is “similarly situated with Defendant Arus Zograbyan, M.D. regarding the issues presented in the Demurrer. Specifically, the allegations to the second cause of action are identical as to both Defendants.” (Joinder at p. 2:28-3:2.) The Court notes that Plaintiffs do not dispute this in the opposition. Plaintiffs’ opposition does not appear to contain any arguments opposing the joinder. In addition, CHA’s joinder states that CHA demurs to the second cause of action. (See Joinder at p. 4.) 

Based on the foregoing, the Court grants CHA’s joinder.

Conclusion

Based on the foregoing, the Court sustains Zograbyan’s demurrer to the second cause of action of the Complaint, with leave to amend. The Court grants CHA’s joinder in the demurrer.

The Court orders Plaintiffs to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, Zograbyan and CHA are ordered to file and serve their answers within 30 days of the date of this Order.¿ 

Zograbyan is ordered to give notice of this Order.¿ 

DATED:  October 6, 2023                              ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court