Judge: William A. Crowfoot, Case: 21STCV47583, Date: 2022-07-26 Tentative Ruling

Case Number: 21STCV47583    Hearing Date: July 26, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           On December 30, 2021, Plaintiff Courtney Brooks (“Plaintiff”) filed a Complaint against defendants Long Beach Memorial Medical Center (“Defendant”), Mundi Attinasi, M.D. (“Attinasi”), Amjuli Kumar, M.D. (“Kumar”), Glenn Levine, M.D. (“Levine”), and Does 1 through 20, alleging a cause of action for wrongful death from professional negligence. Defendant demurs to Plaintiff’s Complaint on the grounds that the action is barred by the statute of limitations and thus fails to state facts sufficient to constitute a cause of action. 

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.) 

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  However, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond.  (Code Civ. Proc., § 430.10, subd. (f).) 

In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)  Where the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control.  Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief.  Special demurrers are not allowed in limited jurisdiction courts.  (Code Civ. Proc., § 92, subd. (c).) 

“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.)  Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)  

A demurrer must be made within 30 days of service of the complaint (Code Civ. Proc., § 430.40, subd. (a)) and all moving and supporting papers must be served and filed at least 16 court days before the hearing (Code Civ. Proc., § 1005, subd. (b)).  The Complaint was served on December 18, 2018.  This demurrer was filed more than 30 days after service of the Complaint.  However, the Court has discretion to consider an untimely demurrer.  (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.) 

III.     DISCUSSION

Meet and Confer Requirement

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

On June 6, 2022, Defendant sent Plaintiff a meet and confer letter; however, Plaintiff did not respond to the letter. (Firth Decl. ¶ 2.)

Statute of Limitations

Defendant argues that the sole cause of action for wrongful death is time barred arguing that under Code of Civ. Pro. § 340.5 and Larcher v. Wanless (1976) 18 Cal.3d 646, the action needed to be commenced within one year of the decedent’s death. Section 340.5 provides, in pertinent part, as follows:

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.  In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

(Code Civ. Proc., § 340.5.)

Defendant asserts that a one-year the statute of limitations began to run upon the death of the decedent and that the complaint was filed more than five months after that year-long period had run. Defendant cites Larcher, which held that the “injury” commencing the statute of limitations in an action for wrongful death is the date of the death itself.  Larcher, 18 Cal.3d 646, 656.  In this case that date was July 18, 2020.  The complaint giving rise to the action was filed December 30, 2021.

The Complaint

This is a wrongful death action. On April 8, 2020, Plaintiff gave birth to her daughter, Marlee Sage Butler, who was born with holoprosencephaly and cleft lip.  (Comp. ¶ 10.) On July 8, 2020, Marlee was admitted to Defendant hospital by defendant Kumar for further evaluation under attending provider defendant Levine (Id. ¶ 12.) During her hospitalization, Marlee underwent gastroenterology consultation, testing, and was later diagnosed with hypernatremia. (Id. ¶ 13-14.)  It wasn’t until July 12, 2020, four days into Marlee’s admission, that one of Marlee’s physicians addressed Marlee’s increasingly worse hypernatremia. (Id. ¶ 15.)

At approximately 1:00 p.m. on July 15, 2020, Defendant’s staff began discharge planning for Marlee, with instructions to Plaintiff to follow up with her physicians on an outpatient basis. Shortly thereafter, as Marlee and Plaintiff were awaiting the final discharge orders, Marlee’s oxygen saturations rapidly dropped, and she stopped breathing. (Id. ¶ 17.) Marlee’s mother identified the apneic condition and immediately called for Defendant’s staff for assistance. (Id.) Defendant’s nursing staff provided Marlee with supplemental oxygen and suctioned her nasal secretions and suggested that Marlee choked on her own secretions. (Id.) Following this treatment, her oxygen saturations recovered to normal but Marlee remained unresponsive. (Id.) Following this treatment, her oxygen saturations recovered to normal, but Marlee remained unresponsive. (Id.) Marlee was intubated at 1:26 p.m. and an x-ray taken at 2:27 showed that the tube had been misplaced, resulting in a complete lung collapse. (Id. ¶ 21-24.) After receiving the actual X-ray results, defendant Levine indicated it was necessary to withdraw the endotracheal tube out of Marlee’s right bronchus 1.5 cm. (Id. ¶ 25.) At no time after his order was made did defendant Levine order a follow-up X-ray to confirm that the endotracheal tube was finally properly placed. (Id.) Marlee remained unresponsive for the remainder of her life. (Id. ¶ 29.) After two tests for brain death were performed by defendant Levine, on July 18, 2020, Marlee was pronounced dead at 11:56 a.m. by defendant Levine.  (Id. ¶ 30.) Defendant Levine certified that Marlee’s death was a result of hydrocephalus and holoprosencephaly. (Id.) He made no mention of any concerns relating to Marlee’s respiratory system. (Id.) Thereafter, on a date unspecified in the complaint, Plaintiff obtained an autopsy, “which found that her death was also contributed to [sic] acute respiratory distress. Her lungs were significantly different in size (right at 61.6 grams and left at 41.5 grams) and the surfaces of the lungs showed black mottling. The cut sections of the lungs were congested.” (Id. ¶ 31.)

The Demurrer

          As discussed above, the demurrer is based entirely on the assertion that the complaint is barred by the statute of limitations and, therefore, fails to state facts sufficient to sustain a cause of action for wrongful death. 

Larcher made clear that the limitations period in a medical negligence wrongful death action would not begin to run any time before the date of death, which was the issue specifically addressed in Larcher.  But it did not address whether the limitations period might begin to run after the date of injury based on a later date of discovery of the wrongful act giving rise to the injury, within the three-year absolute limitations period.  Nonetheless, absent authority to the contrary, Defendant’s interpretation of Larcher is reasonable.

Plaintiff does not contend, of course, that the date of decedent’s death is other than as stated in the complaint.  Nor does Plaintiff specifically address Defendant’s argument that Larcher interpreted Section 340.5 as providing for a one-year limitation period from the decedent’s date of death, irrespective of when Plaintiff may have determined the nature of the wrongful act that gave rise to the injury. 

          Plaintiff’s opposition to the demurrer asserts that from July 15 to July 18, 2020, the defendants “created a false illusion, that Marlee was recovering . . .”  While the opposition does not explicitly connect this assertion back to Paragraph 31 of the complaint, that paragraph states that, at some time unspecified in the complaint, Plaintiff obtained an autopsy of decedent, with the apparent implication that it was only then that Plaintiff learned of the wrongful act that caused the death. 

Plaintiff suggests the possible existence of facts that might require a further consideration of the holding in Larcher as it applies to this case.  But Plaintiff does not assert those facts or argue the holding in Larcher and, thus, provides no basis for the Court to overrule the demurrer.

IV.     CONCLUSION

Accordingly, the demurrer to the sole cause of action for wrongful death resulting from professional negligence is SUSTAINED with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.