Judge: William A. Crowfoot, Case: 21STCV47583, Date: 2022-10-25 Tentative Ruling

Case Number: 21STCV47583    Hearing Date: October 25, 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. (“Dr. Attinasi”), Amjuli Kumar, M.D. (“Dr. Kumar”), Glenn Levine, M.D. (“Dr. Levine”), and Does 1 through 20, alleging a cause of action for wrongful death from professional negligence.  Plaintiff alleges that her daughter, Marlee Sage Butler (“Marlee”) was born on April 8, 2020, with holoprosencephaly.  (FAC, ¶ 12.)  Marlee was admitted to Defendant’s facility on July 8, 2020.  (FAC, ¶ 16.)  On July 15, Marlee stopped breathing and became unresponsive and required intubation.  (FAC, ¶ 22-23.)  On July 18, 2020, after two tests for brain death were performed, Marlee was pronounced dead.  (FAC, ¶ 44.) 

On July 26, 2022, the Court sustained Defendant’s demurrer to Plaintiff’s Complaint on the grounds that the action was barred by the statute of limitations.  The Court granted Plaintiff 30 days’ leave to amend. 

On August 25, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”).  On September 13, 2022, Defendant filed this demurrer to the FAC.  Defendant argues that the action is barred by the statute of limitations and Plaintiff’s cause of action for fraud fails to state sufficient facts and is uncertain. 

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).)  “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.)

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

Request for Judicial Notice

Plaintiff requests the Court judicially notice two documents relating to Marlee’s autopsy and her letters to Defendants dated October 1, 2021, providing them notice of her intent to sue.  These documents are not appropriate for judicial notice.  (Evid. Code, § 452.)  The Request is DENIED.

Statute of Limitations

Once again, Defendant argues that the sole cause of action for wrongful death is time barred.  Relying on Code of Civil Procedure section 340.5 and Larcher v. Wanless (1976) 18 Cal.3d 646, Defendant contends this 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 Marlee’s death on July 18, 2022, and that the complaint was filed more than f  ive months after that year-long period had run.  Plaintiff alleges there was a delay in obtaining an autopsy and gathering all medical records and films.  (FAC, 6:1-3.)  Plaintiff alleges that she received the autopsy results on November 2, 2020, and from November 2, 2020, to February 2021, tried three times to speak with Dr. Levine.  (FAC, 6:12-20.)  Plaintiff alleges Dr. Levine’s explanation of Marlee’s autopsy results did not coincide with her pre-existing conditions, voluntary hospital stay, or autopsy result, and Plaintiff suspected that Dr. Levine attempted to deceive, intentionally conceal and misrepresent information from Plaintiff.  (FAC, 6:21-27.) 

Plaintiff’s untimely opposition to the demurrer asserts that she served Defendant with her notice of intent to sue pursuant to Code of Civil Procedure section 364 on October 1, 2021.  CCP section 364 provides that “[i]If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.”  The notice of intent to sue, dated October 1, 2021, was served during the last 90 days of the one-year statute of limitations, meaning that the statute of limitations was tolled for 90 days, giving Plaintiff until January 31, 2022, to file her claim.  

However, this argument relies on factual allegations that do not exist in the FAC.  The date on which Plaintiff’s notice of intent to sue was sent is not a judicially noticeable matter.  Because Plaintiff does not allege in her FAC that she sent a notice of intent to sue, the Court cannot find that the statute of limitations period was tolled.  Accordingly, Defendant’s demurrer to Plaintiff’s First Cause of Action on the grounds that the statute of limitations has expired is SUSTAINED with 30 days’ leave to amend.

Fraud

Defendant demurs to Plaintiff’s newly-added second cause of action for fraud on the grounds that it fails to state sufficient facts.  The elements of intentional misrepresentation are, “(1) misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.”  (Conroy y v. Regents of Univ. of California (2009) 5 Cal.4th 1 1244, 1255.)  The plaintiff must plead facts that show the defendant knew the representation as false at the time it was made.  (Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 1667, 173-174.)  Similarly, the elements of a claim for concealment are: (1) the defendant concealed or suppressed material fact which he had a duty to disclose; (2) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (3) the plaintiff was unaware of the fact and would have acted differently if he had known of it, and (4) the plaintiff sustained damage as a result of the concealed or suppressed fact.  (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) 

Defendant argues that Plaintiff does not allege the particular representations that it allegedly made or concealed, other than it “represented it was a professional and licensed healthcare provider that represented it could provide Marlee with the necessary level of care, services, treatment she required.”  (FAC, ¶ 62b.)  This is not pleaded with sufficient specificity because Plaintiff does not identify who made this representation and how they were authorized to make that representation on Defendant’s behalf.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  In Plaintiff’s opposition, she mentions Dr. Levine and other physicians misrepresented Marlee’s cause of death to her, but then alleges the resulting damages were Marlee’s hypoxic injury, right main stem intubation, left lung collapse, and death.  The alleged misrepresentations could not have led to Plaintiff’s alleged reliance and damages, i.e., Marlee’s death, if they were made after Marlee died.

In light of the foregoing, Defendant’s demurrer to Plaintiff’s second cause of action for fraud is SUSTAINED with 30 days’ leave to amend.

IV.     CONCLUSION

Defendant’s demurrer to the FAC is SUSTAINED with 30 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.