This case was last updated from Los Angeles County Superior Courts on 04/28/2022 at 02:09:52 (UTC).

LOUIS FRIEDMAN VS TOPANGA TERRACE REHABILITATION

Case Summary

On 11/09/2020 LOUIS FRIEDMAN filed a Personal Injury - Medical Malpractice lawsuit against TOPANGA TERRACE REHABILITATION. This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judges overseeing this case are AUDRA MORI and STEPHEN P. PFAHLER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2909

  • Filing Date:

    11/09/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

AUDRA MORI

STEPHEN P. PFAHLER

 

Party Details

Plaintiff

FRIEDMAN LOUIS

Defendants

TOPANGA TERRACE REHABILITATION

TOPANGA TERRACE REHABILITATION AND SUBACUTE

Attorney/Law Firm Details

Plaintiff Attorneys

CONTOS JOHN

NAZARI SHAWNA S.

TORRES-SIEGRIST DAVID G.

Defendant Attorney

WALKER KATHLEEN MARIE

 

Court Documents

Amended Complaint - FIRST AMENDED COMPLAINT

8/4/2021: Amended Complaint - FIRST AMENDED COMPLAINT

Association of Attorney

9/1/2021: Association of Attorney

Proof of Personal Service

9/7/2021: Proof of Personal Service

Demurrer - with Motion to Strike (CCP 430.10)

10/1/2021: Demurrer - with Motion to Strike (CCP 430.10)

Motion to Strike (not initial pleading)

10/1/2021: Motion to Strike (not initial pleading)

Request for Judicial Notice

10/1/2021: Request for Judicial Notice

Declaration - DECLARATION DECLARATION OF TRIAL ATTORNEY FOR DEFENDANT, 22125 ROSCOE CORP

10/5/2021: Declaration - DECLARATION DECLARATION OF TRIAL ATTORNEY FOR DEFENDANT, 22125 ROSCOE CORP

Demand for Jury Trial

10/5/2021: Demand for Jury Trial

Notice of Posting of Jury Fees

10/22/2021: Notice of Posting of Jury Fees

Association of Attorney

11/10/2021: Association of Attorney

Association of Attorney

11/10/2021: Association of Attorney

Declaration - DECLARATION DECLARATION OF LOUIS FRIEDMAN, PURSUANT TO CODE OF CIVIL PROCEDURE 377.11 AND 377.60

11/18/2021: Declaration - DECLARATION DECLARATION OF LOUIS FRIEDMAN, PURSUANT TO CODE OF CIVIL PROCEDURE 377.11 AND 377.60

Opposition - OPPOSITION PLAINTIFF'S OPP TO DEMURRER

11/18/2021: Opposition - OPPOSITION PLAINTIFF'S OPP TO DEMURRER

Opposition - OPPOSITION PLAINTIFF'S OPP TO MOTION TO STRIKE

11/18/2021: Opposition - OPPOSITION PLAINTIFF'S OPP TO MOTION TO STRIKE

Reply - REPLY DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF TIFFANY A. LE MELLE

11/22/2021: Reply - REPLY DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF TIFFANY A. LE MELLE

Reply - REPLY DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; DECLARATION OF TIFFANY A. LE MELLE

11/22/2021: Reply - REPLY DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; DECLARATION OF TIFFANY A. LE MELLE

Request for Judicial Notice

11/22/2021: Request for Judicial Notice

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ORDER TRANSFERRING COMPLICATED PERSONAL INJUR...) OF 11/24/2021

11/24/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ORDER TRANSFERRING COMPLICATED PERSONAL INJUR...) OF 11/24/2021

26 More Documents Available

 

Docket Entries

  • 02/27/2023
  • Hearing02/27/2023 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Non-Jury Trial

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  • 02/16/2023
  • Hearing02/16/2023 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Final Status Conference

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  • 04/28/2022
  • Hearing04/28/2022 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Hearing on Motion for Judgment on the Pleadings

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  • 04/25/2022
  • Docketat 10:00 AM in Department 31, Audra Mori, Presiding; Final Status Conference - Not Held - Rescheduled by Court

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  • 04/13/2022
  • DocketRequest for Judicial Notice; Filed by Louis Friedman (Plaintiff)

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  • 04/13/2022
  • DocketOpposition to Defendant's Motion of Judgment on the Pleadings; Filed by Louis Friedman (Plaintiff)

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  • 04/04/2022
  • DocketMotion for Judgment on the Pleadings; Filed by 22125 Roscoe Corp dba Topanga Terrace Rehabilitation and Subacute Erroneously Sued As Topanga Terrace Rehabilitation and Subacute (Defendant)

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  • 03/11/2022
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by 22125 Roscoe Corp dba Topanga Terrace Rehabilitation and Subacute Erroneously Sued As Topanga Terrace Rehabilitation and Subacute (Defendant)

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  • 03/02/2022
  • DocketNotice (OF ERRATA RE PROPER NAMES OF THE DEFENDANT); Filed by 22125 Roscoe Corp dba Topanga Terrace Rehabilitation and Subacute Erroneously Sued As Topanga Terrace Rehabilitation and Subacute (Defendant)

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  • 03/02/2022
  • DocketAnswer; Filed by 22125 Roscoe Corp dba Topanga Terrace Rehabilitation and Subacute Erroneously Sued As Topanga Terrace Rehabilitation and Subacute (Defendant)

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26 More Docket Entries
  • 10/01/2021
  • DocketMotion to Strike (not initial pleading) (TO STRIKE PORTIONS OF PLAINTIFF?S COMPLAINT FOR DAMAGES;); Filed by 22125 Roscoe Corp dba Topanga Terrace Rehabilitation and Subacute Erroneously Sued As Topanga Terrace Rehabilitation and Subacute (Defendant)

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  • 09/07/2021
  • DocketProof of Personal Service; Filed by Louis Friedman (Plaintiff)

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  • 09/01/2021
  • DocketAssociation of Attorney; Filed by Louis Friedman (Plaintiff)

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  • 08/04/2021
  • DocketFirst Amended Complaint; Filed by Louis Friedman (Plaintiff)

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  • 12/08/2020
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Date); Filed by Clerk

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  • 12/08/2020
  • DocketPI General Order; Filed by Clerk

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  • 11/09/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 11/09/2020
  • DocketComplaint; Filed by Louis Friedman (Plaintiff)

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  • 11/09/2020
  • DocketSummons (on Complaint); Filed by Louis Friedman (Plaintiff)

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  • 11/09/2020
  • DocketCivil Case Cover Sheet; Filed by Louis Friedman (Plaintiff)

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Tentative Rulings

Case Number: *******2909 Hearing Date: December 1, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

LOUIS FRIEDMAN, ET AL.,

Plaintiff,

v.

TOPANGA TERRACE REHABILITATION

AND SUBACUTE, ET AL.,

Defendants.

Case No.: *******2909

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

INITIAL NOTE: This is not a tentative ruling. It is being posted with the tentative rulings to give Counsel notice not to appear. This is a final order and the case is being transferred.

AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE NORTH VALLEY DISTRICT, JUDGE STEPHEN P. PFAHLER presiding in DEPT. F49 of the Chatsworth Courthouse, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.

COUNSEL ARE TO NOTE THAT EVEN IF THE CASE SUMMARY STILLS SHOWS DEPARTMENT 31 WITH FUTURE HEARINGS, COUNSEL ARE TO CONSIDER THEM TO BE OFF CALENDAR UNTIL RESET IN THE NEW DEPARTMENT ASSIGNED EITHER BY THE COURT STAFF OR THROUGH THE COURT’S RESERVATION SYSTEM BY MOVING PARTY.

DATED: December 1, 2021 ___________________________

Hon. Audra Mori

Judge of the Superior Court


Case Number: *******2909 Hearing Date: February 18, 2022 Dept: F49

Dept. F-49

Date: 2-18-22 c/f 2-1-22 c/f 12-1-21

Case #*******2909

Trial Date: 5-9-22

DEMURRER/MOTION TO STRIKE

MOVING PARTY: Defendant, Topanga Terrace Rehabilitation and Subacute

RESPONDING PARTY: Plaintiff, Louis Friedman

RELIEF REQUESTED

Demurrer to the First Amended Complaint

1st Cause of Action: Medical Malpractice/Wrongful Death

2nd Cause of Action: Reckless and/or Willful Neglect of Dependent Adult

3rd Cause of Action: Negligent Hiring and Supervision

4th Cause of Action: Violation of Patient’s Rights

Motion to Strike

Allegations in support of, and claim for, punitive damages, including ratification

Claim for General and Non-Economic Damages,

Claim for Pain and Suffering Damages

Statutory Civil Penalties, Attorneys Fees, and Costs of Suit

SUMMARY OF ACTION

On June 20, 2019, Delores Friedman was admitted as patient of a skilled nursing facility owned and/or operated by Topanga Terrace Rehabilitation and Subacute. On August 10, 2019, Delores passed away. Plaintiff, surviving spouse, Louis Friedman alleges insufficient care provided at the facility led to a severe foot injury as well as a stage IV pressure ulcer on her coccyx.

On November 9, 2020, Plaintiff filed a complaint for Medical Malpractice/Wrongful Death. On August 4, 2021, Plaintiff filed a first amended complaint for Medical Malpractice/Wrongful Death, Reckless and/or Willful Neglect of Dependent Adult, Negligent Hiring and Supervision, and Violation of Patient’s Rights. The action was transferred from Department 31 to Department 49 on November 24, 2021.

RULING

Demurrer: Overruled.

Request for Judicial Notice: Granted.

Defendant Topanga Terrace Rehabilitation and Subacute submits the subject demurrer on grounds that the complaint insufficiently articulates facts supporting the claim that the services provided by Defendant caused the death of Delores Friedman, and otherwise only cites statutory provisions without any factual support. Defendant also challenges the lack of any death certificate attached to the complaint.

Plaintiff in opposition contends the defect in the successor interest declaration is not cured with the filing of the death certificate. Plaintiff additionally states that the operative complaint sufficiently articulates the claims and puts defendant “on notice.”

Defendant in reply reiterates the lack of sufficient factual allegations argument, including causation, and other unsupported conclusions.

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

1st Cause of Action: Medical Malpractice/Wrongful Death

A successor-in-interest must file a declaration with specified elements and a death certificate (Code Civ. Proc., 377.32). The court accepts the representation of Plaintiff’s counsel that the death certificate is now filed with the declaration. (See Req. Jud. Not.)

As for the lack of facts on the actual medical malpractice claim, Plaintiff apparently seeks to plead both medical negligence and elder abuse. The operative complaint specifically articulates the provision of medical care, and death caused by the negligent provision of said care. While the operative complaint lacks any specific facts on the type of care or failures in care leading to death, the court finds the allegations sufficient for purposes of alleging medical negligence/wrongful death. The demurrer is overruled.

2nd Cause of Action: Reckless and/or Willful Neglect of Dependent Adult

Welfare and Institutions code defines dependent abuse as “physical abuse, neglect, abandonment, isolation, abduction,” or other treatment with resulting physical harm or pain or mental suffering,” (Welf. & Inst. Code, 15610.07.)

“[N]eglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from ‘professional negligence’ in section 15657.2: “neglect” as defined in former section 15610.57 and used in section 15657 does not refer to the performance of medical services in a manner inferior to ‘“the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing”’ (citation), but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. It is instructive that the statutory definition quoted above gives as an example of ‘neglect’ not negligence in the undertaking of medical services but the more fundamental ‘[f]ailure to provide medical care for physical and mental health needs.’ (Citation.) ‘Physical abuse’ and ‘fiduciary abuse’ in section 15657, as defined (citations), are forms of intentional wrongdoing that also differ from ‘professional negligence.’”

(Delaney v. Baker (1999) 20 Cal.4th 23, 34.)

The complaint relies on a claim that understaffing at the facility led to an unspecified foot injury and a stage IV pressure ulcer. The court finds while the operative complaint is heavy with conclusions, the allegations regarding the agreed upon provision of care, resulting injuries caused from insufficient staffing levels thereby constituting neglect, and failure to timely treat said injuries sufficiently supports the elder abuse claim. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)

The operative complaint also sufficiently alleges elder abuse via ratification for purposes of ruling on the subject demurrer. (Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1067-1068; C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110-1111.) The demurrer is overruled.

3rd Cause of Action: Negligent Hiring and Supervision

“Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)

The first amended complaint sufficiently articulates insufficient employee screening and monitoring, thereby allowing staff “unfit” for their job duties. The demurrer is overruled.

4th Cause of Action: Violation of Patient’s Rights

“Except where the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class “A” or “B” violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. An action for…civil damages…may be prosecuted by the Attorney General …or upon the complaint of a…person acting for the interests of itself, its members, or the general public. ” (Health & Saf. Code, 1430(a).)

“A current or former resident or patient of a skilled nursing facility…may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Code of Regulations, or any other right provided for by federal or state law or regulation. … The licensee shall be liable for the acts of the licensee's employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue.” (Health & Saf. Code, 1430(b).)

The plain language of the statute supports plaintiff’s right to state a private cause of action. Plaintiff sufficiently alleges both elder abuse and employer ratification, and therefore supports the subject cause of action as well. The demurrer is overruled.

Motion to Strike: Denied.

Allegations in support of, and claim for, punitive damages, including ratification: Denied.

The operative complaint sufficiently articulates the basis for punitive damages and ratification based on the provision of intentional understaffing of the facility and/or inadequately qualified employees, thereby leading to injuries caused from neglect and/or abandonment of patient care. The motion to strike is denied.

Claim for General and Non-Economic Damages

Claim for Pain and Suffering Damages

To the extent the subject items are subsumed within the other claims, the motion is denied. The motion otherwise lacks any independently supported argument for the identified claims. The court declines to make the argument. The motion to strike is therefore denied.

In summary, the demurrer is overruled, and the motion to strike denied. Defendant is ordered to answer the first amended complaint within 10 days. Trial remains set for May 9, 2022.

Defendants to provide notice.


Case Number: *******2909 Hearing Date: April 28, 2022 Dept: F49

Dept. F-49

Date: 4-28-22

Case #*******2909

Trial Date: 2-27-23 c/f 5-9-22

JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant, Topanga Terrace Rehabilitation and Subacute

RESPONDING PARTY: Plaintiff, Louis Friedman

RELIEF REQUESTED

Demurrer to the First Amended Complaint

1st Cause of Action: Medical Malpractice/Wrongful Death

2nd Cause of Action: Reckless and/or Willful Neglect of Dependent Adult

3rd Cause of Action: Negligent Hiring and Supervision

4th Cause of Action: Violation of Patient’s Rights

SUMMARY OF ACTION

On June 20, 2019, Delores Friedman was admitted as patient of a skilled nursing facility owned and/or operated by Topanga Terrace Rehabilitation and Subacute. On August 10, 2019, Delores passed away. Plaintiff, surviving spouse, Louis Friedman alleges insufficient care provided at the facility led to a severe foot injury as well as a stage IV pressure ulcer on her coccyx.

On November 9, 2020, Plaintiff filed a complaint for Medical Malpractice/Wrongful Death. On August 4, 2021, Plaintiff filed a first amended complaint for Medical Malpractice/Wrongful Death, Reckless and/or Willful Neglect of Dependent Adult, Negligent Hiring and Supervision, and Violation of Patient’s Rights. The action was transferred from Department 31 to Department 49 on November 24, 2021.

RULING: Denied/Granted

Request for Judicial Notice: Granted.

The court takes judicial notice of the prior order and pleadings but declines to take judicial notice of the content of the pleading for purposes of the truth of the matter asserted. (Barri v. Workers' Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 437; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) The court can take judicial notice of the order for purposes of any prior conclusions of law. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)

Defendant Topanga Terrace Rehabilitation and Subacute submits the subject motion on grounds that the complaint insufficiently articulates facts supporting the claim that the services provided by Defendant caused the death of Delores Friedman, and otherwise only cites statutory provisions without any factual support. Defendant also challenges the lack of any death certificate attached to the complaint.

Plaintiff in opposition submits both procedural and substantive arguments. Plaintiff first challenges the timing of the motion in that it was brought within the 30-day window of the original May 9, 2022 trial date. Plaintiff also challenges the propriety of the motion in that Defendant again raises arguments brought in the demurrer.

Plaintiff substantively contends the defect in the successor interest declaration is not cured with the filing of the death certificate. Plaintiff additionally states that the operative complaint sufficiently articulates the claims and puts defendant “on notice.”

The court electronic filing system shows no reply on file prior to the tentative ruling publication cutoff.

“A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint… [ ] The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061.) In considering a motion for judgment on the pleadings, courts consider whether the factual allegations, assumed true, are sufficient to constitute a cause of action. (Fire Insurance Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452-453.)

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Code Civ. Proc., 438, subdivision (e).)

The November 24, 2021 transfer order provides the court with the authority to reset, vacate or continue the trial date. The parties stipulated to continue the trial date, which included an extension of discovery and motion cutoffs. While the stipulation fails to account for the subject motion, and Plaintiff makes a reasonable argument that the extension still left the original trial date intact, the court in its discretion considers the motion.

“The motion provided for in this section may be made even though either of the following conditions exist: (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.”

(Code Civ. Proc., 438, subd. (g)(1).)

The prior demurrer was brought on grounds of uncertainty, and lack of standing, due to the missing death certificate. The subject motion raises a new statute of limitations argument, uncertainty, and statutory standing regarding Plaintiff as both an individual and on behalf of decedent. The uncertainty based on causation in the first cause of action was previously raised in the demurrer, including the exact same paragraph in the first amended complaint (paragraph 21), and will therefore not be considered in the subject motion. [Demurrer, 7:9-8:9.] Defendant also again challenges the factual specificity of the elder abuse cause of action, which again will not be considered. [Demurrer, 8:12-15:28.] Defendants also redeliver a factual challenge to the third cause of action previously overruled [Demurrer, 16:4-17-17] and fourth cause of action [Demurrer 17:2318:2].

1st Cause of Action: Medical Malpractice/Wrongful Death

Defendant challenges the first amended complaint on grounds that it is barred by the statute of limitations. Delores passed away on August 10, 2019, and the complaint was filed on November 9, 2020.

The wrongful death statute of limitations is two years. (Code Civ. Proc., 335.1.) Notwithstanding the filing of the complaint within two years of the date of death, Defendant contends Plaintiffs were aware of the injury causing event, thereby requiring the filing of the complaint within one year from the date Plaintiffs discover the cause of death. (Code Civ. Proc., 340.5.) Defendant specifically cites to paragraph 21 of the first amended complaint, whereby it is alleged that the injuries were both discovered and emergency medical care requested.

Plaintiff apparently concedes to the argument and instead cites to the 90 day notice of intent to commence an action against medical provider requirement. The statute extends the statute of limitations for 90 days. (Code Civ. Proc., 364.) The complaint was filed exactly on year, two months and 30 days after the death of Dolores. The first amended complaint alleges the filing of notice under section 364. [First Amend. Comp., 9.] The motion is denied on grounds of the statute of limitations.

Defendant next challenges the operative complaint on grounds of insufficiently articulated causation. The motion is denied, due to a repeat of the argument. (Code Civ. Proc., 438, subd. (g)(1).)

2nd Cause of Action: Reckless and/or Willful Neglect of Dependent Adult

Defendant challenges standing on grounds that the elder abuse claim should be brought on behalf of Dolores through a representative. Plaintiff maintains the complaint is brought as a successor under Code of Civil Procedure section 377.60.

“Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent.” (Welf. & Inst. Code, 15657.3 subd. (d)(1).) Plaintiff appearing in his individual capacity insufficiently addresses the necessity to bring the claim on behalf of Dolores. The opposition lacks any substantive response to this argument.

The motion is therefore granted as to the second cause of action only and exclusively on standing.

As addressed above, all challenges to the elder abuse claim based on factual sufficiency of the claim are otherwise denied. (Code Civ. Proc., 438, subd. (g)(1).)

3rd Cause of Action: Negligent Hiring and Supervision

Defendant’s factual challenge to the subject cause of action is denied, as previously addressed. (Code Civ. Proc., 438, subd. (g)(1).)

The challenge on the basis of standing simply refers to the elder abuse statutory argument. The court declines to determine and articulate the unmade arguments for Defendant. The motion is denied on this basis too.

4th Cause of Action: Violation of Patient’s Rights

Defendant’s factual challenge to the subject cause of action is denied, as previously addressed. (Code Civ. Proc., 438, subd. (g)(1).)

The challenge on the basis of standing simply refers to the elder abuse statutory argument. The court declines to determine and articulate the unmade arguments for Defendant. The motion is denied on this basis too.

In summary, the motion for judgment on the pleadings is granted as to the second cause of action for elder abuse on grounds of standing, and denied as to the remainder of the motion. Plaintiff is granted 30 days leave to amend to address the standing issue. Plaintiff may not add any causes of actions or claims. Trial now set for February 27, 2023.

Defendant to provide notice.


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