Judge Virginia Keeny, Case 20STCV37024 2022-08-25 Tentative Ruling

Judge: Virginia Keeny, Case: 20STCV37024, Date: 2022-08-25 Tentative Ruling

Case Number: 20STCV37024 Hearing Date: August 25, 2022 Dept: W

THE ESTATE OF SOSSY AYVAZIAN v. HOSPITAL CORPORATION OF AMERICA, et al.

MOTION TO ABATE THE PRESENT ACTION

Date of Hearing: August 25, 2022 Trial Date: March 13, 2023

Department: W Case No.: 20STCV37024

Moving Party: Defendant Daniel J. Furoy, M.D.

Responding Party: None

BACKGROUND

This is an action for elder abuse and negligence arising from a stroke and ultimately the death of Sossy Ayvazian (“Decedent”) on March 22, 2019. Plaintiffs Tamar Ayvazian, Lena Ayvazian, and Carmen Ayvazian-Khotsikian are the heirs and children of Decedent.

Plaintiffs The Estate of Sossy Ayvazian, Tamar Ayvazian, Lena Ayvazain, and Carmen Ayvazian-Khotsikian (collectively “Plaintiffs”) filed the complaint on September 28, 2020 against Defendants Hospital Corporation of America dba West Hills Hospital and Medical Center (“West Hills Hospital”), Daniel J. Furoy, M.D. (“Dr. Furoy”), Robert K. Hanson, M.D. (“Dr. Hanson”), and Does 1 through 100 alleging: (1) elder/dependent adult abuse and (2) medical negligence – wrongful death. Plaintiffs corrected the name from “David” to “Daniel” by filing an amendment on July 7, 2021.

Defendant Dr. Furoy now moves for a court order abating this action. No opposition has been filed.

[Tentative] Ruling

Defendant Daniel J. Furoy, M.D.’s Motion to Abate the Present Action is GRANTED.

LEGAL STANDARD

CCP section 377.60 provides for the individuals who have the right to bring wrongful death actions. (Code Civ. Proc., § 377.60; Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 188.) These persons include “[t]he decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession”; “the putative spouse, children of the putative spouse, stepchildren, or parents” if they were dependent on the decedent; and a minor who resided in the decedent’s household for the previous 180 days and was dependent on the decedent for one-half or more of the minor’s support. (Code Civ. Proc., § 377.60(a)-(c); Soto, supra, 239 Cal.App.4th at 188 [quoting CCP section 377.60].) “‘The category of persons eligible to bring wrongful death actions is strictly construed.’ [Citation.]” (Soto, supra, 239 Cal.App.4th at 188 [quoting Phraner v. Cote Mart, Inc. (1997) 55 Cal.App.4th 166, 169].) Probate Code section 6402 provides, in relevant part, that the intestate estate if there is no surviving spouse passes to (1) the issue of the decedent, (2) the decedent’s parents if there is no surviving issue, (3) the issue of the parents if there is no surviving issue or parent. (Prob. Code, § 6402.)

“The wrongful death statute is ‘a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action.’” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 807 [quoting Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 692].) While a nonjoined heir is not an ‘indispensable party’ to a wrongful death action, omitted heirs are ‘necessary parties’ such that “plaintiff heirs have a mandatory duty to join all known omitted heirs in the ‘single action’ for wrongful death.” (Id. at 808.) “If an heir refuses to participate in the suit as a plaintiff, he or she may be named as a defendant so that all heirs are before the court in the same action.” (Id.) “Defendants facing a wrongful death action in which all the heirs should have, but have not, been joined are entitled to move to abate the action.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 77.) Heirs need not be joined if the wrongful death action is brought by the personal representative of the decedent. (Id. at 77-78.)

DISCUSSION

Defendant Dr. Furoy moves for a court order abating this action on grounds that necessary parties have been omitted from this action. Defendant contends that Decedent’s heir, Sarkis Ayvazian, is not a party to this action such that this action should be stayed until Sarkis is added as a plaintiff or added and served as a nominal defendant. Defendant argues that he will be exposed to duplicate lawsuits if Sarkis is not joined.

According to the complaint, the wrongful death claim is being asserted by Tamar Ayvazian, Lena Ayvazian, and Carmen Ayvazian-Khotsikian, Decedent’s daughters, heirs, and successors-in-interest. (Complaint, ¶¶ 2, 15.) While the complaint alleges Tamar, Lena, and Carmen are Decedent’s sole heirs, according to Defendant’s counsel, each of these plaintiffs testified during their deposition that they have a brother, Sarkis Ayvazian. (Motion, Khaine, ¶ 3, Ex. A, Deposition of Lena Ayvazian, p. 12: 22-25; id., Ex. B, Deposition of Tamar Ayvazian, p. 13.) It thus appears Sarkis is Decedent’s son and an omitted heir. Plaintiffs have not filed an opposition contending otherwise. Under these circumstances, Defendant Dr. Furoy is entitled to an order staying this action until Sarkis is joined as a plaintiff or a nominal defendant.

Accordingly, the motion to abate this action is granted.