Judge William A. Crowfoot, Case Number: 23AHCV01453, Date: 2024-05-01 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01453, Date: 2024-05-01 Tentative Ruling

On June 26, 2023, plaintiffs Maribel Arreola-Gonzalez (“Plaintiff”), Saul Gonzalez Arreola, and Eva Gonzalez Arreola filed this action against defendant Li Cui (“Defendant”), among other medical professionals, arising from the death of Jorge Gonzalez (“Decedent”). On January 10, 2024, Defendant filed this demurrer to Plaintiff’s Third Cause of Action for negligent infliction of emotional distress (“NIED”). Defendant argues that the NIED claim fails to state facts sufficient to constitute a cause of action and is time-barred by the statute of limitations.

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.) 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.)

First, Defendant argues that Plaintiff’s NIED claim is untimely because the injury-producing event occurred on January 27, 2022, and Plaintiff had to have brought her claim within 1 year. Defendant cites to Campanano v. California Medical Center (1995) 38 Ca.App.4th 1322), in which the parties had stipulated that the applicable statute of limitations would be 1 year pursuant to CCP § 340(3), which no longer exists. Instead, the applicable statute is CCP § 335.1, which provides a 2-year statute of limitations period which applies to an action for injury to an individual caused by the neglect of another. Accordingly, Defendant’s demurrer on this ground is OVERRULED.

Second, Defendant argues that Plaintiff fails to state sufficient facts to constitute a cause of action. To plead an NIED claim pursuant to a bystander theory, the plaintiff must allege facts demonstrating that he or she “(1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-68.)

Defendant argues that Plaintiff fails to allege she was aware of the fact that Decedent was in need of immediate medical attention or had knowledge that Defendant had failed to provide the necessary care. (Demurrer, pp. 6-7.) Defendant argues that there are no allegations that he was involved with the patient’s care after 2:00 p.m. and emphasizes that Decedent’s face had allegedly turned black at 5:18 p.m. and another doctor had asked Plaintiff to initiate a Code Blue. (Demurrer, p. 7.)

Plaintiff only alleges that her NIED claim is based on “[t]he rapid and grave deterioration of [Decedent]’s health.” (Compl., ¶ 24.) In her opposition brief, Plaintiff cites to allegations describing her observations of Decedent’s deteriorating condition, Defendant’s suspicion of sepsis, and Decedent’s increased paralysis. (Opp., 2, citing to Compl., ¶¶ 13, 14, and 16.) Plaintiff also cites to allegations that Defendant failed to provide immediate attention and instead told her that Decedent was “tired and had been prescribed strong pain medication.” (Ibid.) While these allegations would adequately support Plaintiff’s NIED claim and defeat Defendant’s demurrer, those allegations are part of the Complaint’s medical malpractice claim and are not incorporated into Plaintiff’s NIED claim. Accordingly, the demurrer is SUSTAINED with leave to amend.

Defendant’s demurrer to the NIED cause of action is sustained with 20 days’ leave to amend.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.