Judge Upinder S. Kalra, Case Number: 24STCV21244, Date: 2025-05-14 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.

MOVING PARTY: Defendant The Regents of the University of California; Defendants NAHS Southwest, Inc. and Coastal Health Care, Inc. dba Brentwood Health Care Center (erroneously used and served as Brentwood Health Care Center); Joinder by Defendant Manuel Eskildsen, M.D.

1. Regents Demurrer to the First and Third Causes of Action in the FAC as barred by the statute of limitations, Demurrer to the First, Second, and Third Causes of Action in the FAC for uncertainty;

2. NAHS Demurrer to the FAC as time barred, failing to state sufficient facts, and uncertainty;

3. Regents & NAHS motion to strike various portions of the FAC pertaining to punitive damages.

On August 20, 2024, Plaintiff Jamie Evan Shapiro (Plaintiff) filed a Complaint against Defendants NAHS Southwest, Inc., Brentwood Health Care Center, Regents of the University of California, Manuel Eskildsen, Adelita T. Cabagnot, and Delis Makhanu (Defendants) with causes of action for: (1) Willful Misconduct; (2) Negligence; (3) Elder Abuse; and (4) Wrongful Death.

According to the Complaint, Defendants were medical professionals who treated Plaintiff’s mother, Estelle. Plaintiff alleges that Estelle contracted COVID-19 on Defendants’ watch and passed on as a result one day after Defendants released her to his care. Plaintiff further alleges that Defendants had given Estelle medications that they ceased without reason.

On February 18, 2025, Defendant Regents of the University of California (Regents) filed the instant demurrer with motion to strike.

On February 20, 2025, Defendants NAHS Southwest, Inc. and Brentwood Health Care Center (collectively NAHS) filed the instant demurrer with motion to strike.[1]

On March 10, 2025, Defendant Manuel Eskildsen filed a joinder to the Regent’s demurrer and motion to strike.

On April 23, 2025, Plaintiff moved ex parte for an Order granting leave to amend the FAC which the court DENIED.

On April 24, 2025, the court advanced the hearing on NAHS’ demurrer with motion to strike to May 14, 2025 to be heard with the Regents’ demurrer and motion to strike.

On May 1, 2025, Plaintiff filed oppositions to the Regent’s demurrer and motion to strike.

On May 8, 2025, Plaintiff filed untimely oppositions to NAHS’ demurrer and motion to strike.[2]

The court DENIES NAHS’ request for judicial notice as irrelevant to the court’s ruling.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). ¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, the parties all met and conferred telephonically on February 13, 2025. (Packer Decl. ¶ 5; Harrison Decl. ¶ 4.) This requirement is therefore met.

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.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. 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¿147 Cal.App.4th at 747.)¿¿¿

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)¿¿¿¿

Defendants Regents and NAHS each contend that Plaintiff’s FAC is barred by the statute of limitations for each claim: one year from Estelle’s death for the First and Third Causes of Action and two years from Estelle’s death for the Second Cause of Action. Defendants further contend that Plaintiff’s allegations clearly indicate he knew or should have known that Estelle had been harmed by professional medical negligence when she died. Plaintiff argues that he subjectively did not believe Estelle’s death was caused by wrongdoing until October 2023 and so his FAC is timely. Regents replies that Plaintiff misapplies the law and that an objective reasonable person would be prompted to investigate Estelle’s death based on the facts Plaintiff alleged.[3]

CCP § 340.5 (MICRA) provides that a plaintiff must file suit “within 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. (CCP § 340.5; Carrillo v. County of Santa Clara (2023) 89 Cal.App.5th 227, 231 (Carrillo).) There are two tests for triggering the one year limitations period: “(1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing.” (Carrillo, supra, 89 Cal.App.5th at 232.) “Once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, has one year to bring his suit. (Id. at pp. 234-235.) “A patient is charged with presumptive knowledge of his negligent injury, and the statute commences to run, once he has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to investigation.” (Id. at p. 235.) “It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying the cause of action.” (Ibid.)

Upon reviewing the FAC, Plaintiff’s claim is time barred. First, Plaintiff alleges that by August 2022, he was not confident that Defendants could “handle health care emergencies,” “were slow to offer any information about Estelle,” and believed that “Estelle was being ignored by employees and nurses of NAHS, BHCC and the Regents, and that they were not providing Estelle with adequate care, including necessary medical treatment.” (FAC ¶¶ 26[4], 27[5], 28[6], 29[7].) Then, just before her passing, Plaintiff learned that Estelle contracted COVID-19 and that there was no doctor supervising her medical care. (FAC ¶ 30[8].) Notably, the absence of a doctor supervising Estelle’s care led Plaintiff to believe “that such an absence posed a significant risk to Estelle’s safety and life” and, furthermore, demonstrated to Plaintiff that Defendants were exhibiting “a conscious disregard for Estelle’s safety and life.” (FAC ¶31.)[9] Thereafter, on August 18, 2022, Plaintiff “took steps to get her released” to his care. (FAC ¶¶ 32, 33.) Plaintiff alleges that “Estelle arrived [to his home] in a weakened state . . . appeared . . . to have lost weight and to be dehydrated.” (FAC ¶ 35.) What is more, plaintiff alleges that Defendants “discharged Estelle with medication” and a medication list that Plaintiff “quickly looked at” and determined he did not need to give her any more medication that night. (FAC ¶¶ 36, 37.) Estelle passed on the next morning, August 19, 2022. (FAC ¶¶ 38, 39.) Taken together, these allegations show that the limitations period began running no later than August 19, 2022. As the Court of Appeal noted in Carrillo, “the alleged timing of when [the plaintiff] began to suspect the nurse’s actions caused his injury is not dispositive of the time when the statute of limitations began to run on his medical negligence claim.” (Carrillo, supra, 89 Cal.App.5th at p. 234.) Indeed, the Court found no error with the trial court’s conclusion that a reasonable person under the circumstances of the plaintiff’s foot amputation “would necessarily be on notice that something was wrong and . . . would have acted diligently to discover the cause of his injury at that time.” (Id. at p. 235.) Here, a reasonable person would notice “something was wrong” when Estelle passed on within 24 hours of discharge to home after history of insufficient communication and belief of lack of medical care. Moreover, Plaintiff’s a belief that Defendants had engaged in conduct that Plaintiff believed was reckless and in conscious disregard for her life also demonstrated that he subjectively entertained these beliefs as of August 19, 2022. Thus, both the objective and subjective tests articulated in Carillo are therefore met here.

Accordingly, the court SUSTAINS Defendants’ demurrer to the First Cause of Action.[10]

“Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” (CCP § 335.1.)

For similar reasons articulated above, this claim is time barred. Estelle’s death on August 19, 2022 started the limitations period. Plaintiff filed the original Complaint on August 20, 2024 – one day late.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Second Cause of Action.

In light of the aforementioned ruling, the court DENIES the motion to strike as moot.

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.¿ (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)¿ The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).

Here, Plaintiff requested leave to amend based on documents produced in discovery. However, it is not reasonably possible that Plaintiff can cure the aforementioned limitations period defect with additional evidence.

Pursuant to CCP § 581d, this written order of dismissal constitutes a judgment and shall be effective for all purposes. The Clerk shall note this judgment in the register of actions in this case

[1] The court’s file does not include NAHS’ motion to strike.

[2] The court exercises its discretion to refuse to consider this second untimely opposition. (Cal. Rules of Court, rule 3.1300(d); Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210.) The opposition was due on or before May 1, 2025. (CCP § 1005(b).) Here, Plaintiff filed the opposition four court days before the hearing and after NAHS filed a notice of non-opposition received on May 7, 2025, which is the date their reply would have been due. NAHS would be prejudiced because they would not have an opportunity to properly review and respond to the opposition before the hearing date. Plaintiff, conversely, is not prejudiced because they did timely file an opposition to the Regents’ demurrer. Thus, the court considers the NAHS demurrer as if it were unopposed.

[3] The court has not received a reply from NAHS but this is likely do to Plaintiff’s failure to file an opposition on time.

[4]¶26. It appeared to Plaintiff, based on his visits to BHCC, that the facility was overwhelmed by COVID-19, understaffed, and disorganized regarding the handling of COVID-19 cases. The attitude that predominated there at the time was that NAHS, BHCC and their staff should not have to deal with the COVID-19 pandemic, that the facility was a rehabilitation center not prepared to handle health emergencies.

[5]¶27. On or around August 15, 2022, a person affiliated with BHCC and NAHS contacted Plaintiff to inform him that Estelle had contracted COVID-19. NAHS and BHCC informed Plaintiff that Estelle was in isolation due to her COVID-19 status. When he asked about visiting Estelle, Plaintiff was informed by NAHS and BHCC that he would not be allowed to visit Estelle while she had COVID-19.

[6]¶28. Distressed about not being able to visit Estelle, who had dementia and would therefore be confused about why Plaintiff’s visits had stopped, Plaintiff attempted to obtain updated by telephone frequently. However, NAHS and BHCC were slow to offer any information about Estelle. Often the person who answered the phone at BHCC when Plaintiff phoned could not provide any update on Estelle’s condition or her care. Employees of NAHS/BHCC did not provide Plaintiff with an opportunity to speak with Estelle by phone. At times, the individuals with whom Plaintiff spoke were belligerent with him, expressing the attitude that Plaintiff had no right to expect any updates on Estelle’s condition.

[7]¶29. The lack of communication from NAHS and BHCC to Plaintiff, and the attitude expressed by the nurses or other personnel at BHCC with whom Plaintiff spoke during August 15 through August 18, 2022, indicated to Plaintiff that Estelle was being ignored by employees and nurses of NAHS, BHCC and the Regents, and that they were not providing Estelle with adequate care, including necessary medical treatment. It further suggested to Plaintiff that Dr. Eskildsen, Cabagnot, Makhanu, the Regents, NAHS, BHCC and additional nurses and employees of NAHS and BHCC were acting with recklessness and a conscious disregard toward Estelle’s safety and life.

[8]¶30. During the week prior to the date Estelle was diagnosed with COVID-19, Cabagnot informed Plaintiff that Dr. Eskildsen was at that time taking his summer vacation for a two week period. She advised Plaintiff that she was the medical officer in charge of Estelle’s care during his absence. On information and belief, at that time, and during the remaining time Estelle was at BHCC, with COVID-19, there was no doctor supervising Estelle’s medical care. Neither the NAHS/BHCC employees Plaintiff spoke with over the phone, nor Cabagnot, provided Plaintiff with the name of a doctor that was overseeing Estelle’s care.

[9]¶31. On information and belief, employees of NAHS, BHCC and the Regents (the UCLA Department of Geriatrics) with management responsibilities during August 2022 knew that there was no doctor supervising Estelle’s medical care at a time when she had COVID-19, and understood that such an absence posed a significant risk to Estelle’s safety and life. However such employees did nothing to address that risk. This failure to act by NAHS, BHCC and the Regents showed recklessness, oppression, malice and a conscious disregard for Estelle’s safety and life.

[10]Defendant’s reliance on Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-1236 (Perez), is misplaced. Perez involved whether the pleading requirements under the Government Claims Act may be satisfied with a general allegation asserting compliance. Plaintiff’s failure to comply with the applicable statute of limitations here has nothing to do with failing to comply with the Government Claims Act.