Judge Virginia Keeny, Case 21STCV31594 2022-08-15 Tentative Ruling

Judge: Virginia Keeny, Case: 21STCV31594, Date: 2022-08-15 Tentative Ruling

Case Number: 21STCV31594 Hearing Date: August 15, 2022 Dept: W

AIDA VARTANYAN v. CALIFORNIA HEALTHCARE AND REHABILITATION CENTER, et al.

DEFENDANT BARLOW RESPIRATORY HOSPITAL’s demurrer to the second amended complaint with motion to strike

Date of Hearing: August 15, 2022 Trial Date: None set.

Department: W Case No.: 21STCV31594

Moving Party: Defendant Barlow Respiratory Hospital

Responding Party: Plaintiff Aida Vartanyan, individually and as a successor-in-interest of Manouk Vartanyan

Meet and Confer: Yes. (Zavala Decl. ¶2.)

BACKGROUND

On August 26, 2021, plaintiff Aida Vartanyan (“Plaintiff”), individually and as a successor-in-interest of Manouk Vartanyan (“Decedent”) filed this action against defendants Normandie/Wilshire Retirement Hotel, Inc. dba California Healthcare Rehabilitation Center (“Defendant”) (erroneously sued as California Healthcare and Rehabilitation Center”) and Barlow Respiratory Hospital at VPH (“Valley Presbyterian”) (erroneously sued as “Valley Presbyterian Hospital”). Plaintiff is Decedent’s surviving wife and beneficiary who alleges that she was forced by Valley Presbyterian to admit Decedent to Defendant’s skilled nursing and rehabilitation facility on February 26, 2021. (Compl., ¶ 20.) Plaintiff states that she and her daughter were not allowed to visit Decedent at Defendant’s facility and was only able to see him on March 2, 2021 when Decedent was taken to a dialysis center. (Compl., ¶¶ 21 22.) At this visit, Plaintiff observed that he was neglected. (Compl., ¶¶ 23-24.) When she raised her concerns with Defendant’s staff, they stated that they would “talk to the nurses” and take care of it. (Compl., ¶ 25.) Defendant’s employee allegedly admitted they were not turning Decedent every few hours to prevent bed sores. (Compl., ¶ 26.) The neglect and mistreatment continued and Decedent told Plaintiff and their daughter, “They do not take care of me and they are very mean. They hit me.” (Compl., ¶ 28.) He also asked them to “please take [him] out of here” and informed them that Doe 1 (Defendant’s employee) would batter him and physically abuse him. (Compl., ¶¶ 28-29.) Plaintiff managed to have Decedent transferred to another facility around March 12, 2021, but Decedent died on April 12, 2021 due to the alleged neglect and abuse he experienced at Defendant’s facility. (Compl., ¶¶ 32-33.)

Plaintiff asserts causes of action against Defendant for: (1) battery, (2) negligence, (3) vicarious liability, (4) negligent hiring, retention, and supervision, (5) violation of the Bane Act, (6) intentional infliction of emotional distress (“IIED”), and (7) negligent infliction of emotional distress.

[Tentative] Ruling

Defendant Barlow Respiratory Hospital’s Demurrer is OVERRULED.

Defendant Barlow Respiratory Hospital’s Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND.

DISCUSSION

Demurrer

Defendant Barlow Respiratory Hospital demurs to the Second Amended Complaint on the grounds the claim for negligence improperly seeks damages for the decedent’s pain and suffering. Specifically, Defendant argues that because the complaint was filed on August 26, 2021, before the amendment to Code of Civil Procedure section 377.34, these damages are not recoverable.

Plaintiff’s SAC alleges damages suffered by the decedent, included pain, shock, severe emotional distress, physical manifestation of emotional distress, damage to his dignity and self-esteem, stress, frustration, inconvenience, embarrassment, mental anguish, grief, and anxiety.

Defendant notes the California legislature recently amended Section 377.34 to allow recovery for damages for pain, suffering, or disfigurement for actions filed on or after January 1, 2022. (CCP §377.34(b).) However, because this action was filed August 26, 2021, Defendant argues the recently enacted exception would not apply and the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement. (CCP §377.34.)

In opposition, Plaintiff argues contends as a general rule, “an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) Plaintiff contends because Defendant was not named in the instant action until March 2022, an amended complaint naming Barlow in 2022 should be considered a new action against Defendant Barlow. Plaintiff also argues under the recently enacted law signed by Governor Newsome on October 1, 2021, a decedent's personal representative or successor in interest may seek recovery of damages for pain, suffering, or disfigurement.

The court disagrees. “As a general rule, ‘an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.’ (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, 89 Cal.Rptr.2d 20, italics added.) But where an amendment does not add a ‘new’ defendant, but simply corrects a misnomer by which an ‘old’ defendant was sued, case law recognizes an exception to the general rule of no relation back. (E.g., Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470–1471, 6 Cal.Rptr.2d 563; Kerr–McGee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d 594, 599 & fn. 3, 206 Cal.Rptr. 654; Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 491, 159 Cal.Rptr. 557; Stephens v. Berry (1967) 249 Cal.App.2d 474, 479, 57 Cal.Rptr. 505.)” (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503.)

While Defendant was not properly named until March 2022, Plaintiff first named Defendant on November 19, 2021. (See Amendment to Complaint, 11/19/21.) There, Plaintiff sought to correct Valley Presbyterian Hospital to Barlow Respiratory Hospital VPH. However, this was still the incorrect name for Defendant. Plaintiff finally correctly named Defendant Barlow Respiratory Hospital on March 11, 2022. (See Amendment to Complaint, 3/11/22.) This is unlike Woo where Plaintiff was adding a new Defendant. Instead, it appears Plaintiff was merely making attempts to properly name the right party. There has not been an entire change of parties or claims against the Defendant. (See Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470.)

Moreover, the newly enacted law by Governor Newsome states “the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.” (CCP §377.34(b).) Here, there has been no preference granted pursuant to Section 36 and the complaint was not filed after January 1, 2022, as the original complaint against Barlow was filed prior to that date.

Accordingly, the court finds Plaintiff’s SAC improperly alleges damages suffered by the decedent, including pain, shock, severe emotional distress, physical manifestation of emotional distress, damage to his dignity and self-esteem, stress, frustration, inconvenience, embarrassment, mental anguish, grief, and anxiety. However, a demurrer does not lie to a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83.)

Therefore, Defendant’s demurrer is OVERRULED.

Motion to Strike

Defendant moves to strike p.20, lines 23-26; p.20, line 27 – p.21, line 1; and p.26, lines 9-10 on the grounds they seek damages that are not recoverable. Specifically, because the complaint was filed on August 26, 2021, which was before the amendment to Code of Civil Procedure section 377.34 allowing damages for the decedent’s pain and suffering became effective on January 1, 2022.

As discussed above, the amendments do not relate back and therefore, the exception recently enacted by the legislature does not apply. Accordingly, Defendant’s motion to strike is GRANTED WITHOUT LEAVE TO AMEND.