RADIK KHACHATRYAN VS ADVENTIST HEALTH GLENDALE A CA HOSPITAL OR ADVENTIST HEALTH, ET AL.

Tentative Rulings

Case Number: *******7179 Hearing Date: November 14, 2022 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: November 14, 2022 TRIAL DATE: No dates set

CASE: RADIK KHACHATRYAN, an individual, v. ADVENTIST HEALTH GLENDALE A CA HOSPITAL OR ADVENTIST HEALTH, et al; DOCTOR SAM F DANESHVARI’s administrative team, a medical office in LA, California; and DOES 1 through 25.

CASE NOS.: *******7179 (lead case); 22STCV07502 (related case)

DEMURRERS WITH MOTIONS TO STRIKE

MOVING PARTY: Glendale Adventist Medical Center dba Adventist Health Glendale, erroneously sued as Adventist Health Glendale a CA Hospital or Adventist Health (“AGHL”)

Notice of Joinder filed by Sam D. Daneshvari, M.D. (“Dr. Daneshvari)

RESPONDING PARTY: Plaintiff Radik Khachatryan

SERVICE: Related Case demurrer and motion to strike filed September 2, 2022

Lead Case demurrer and motion to strike filed October 25, 2022

OPPOSITION: Related Case oppositions filed September 19, 2022

Lead Case oppositions filed filed October 28, 2022

REPLY: Related Case reply filed September 22, 2022

Lead Case reply filed November 9, 2022

RELIEF REQUESTED

AGHL demurrers to the FACs in both of Plaintiff’s cases (*******7179 (lead case); 22STCV07502 (related case)).

AGHL moves to strike portions of both of the FACs.

BACKGROUND

This case arises out of Plaintiff Radik Khachatryan’s (“Plaintiff”) claim for medical malpractice against AGHL and DR. Daneshvari. Plaintiff alleges that his mother, Sesil Aleksanyan, was admitted to AGHL in February 2021, after contracting COVID-19. Plaintiff alleges that Defendants failed to properly provide his mother with the food necessary to meet her special diet and prevented him from seeing his mother. Plaintiff alleges that based on Defendants’ negligent care, his mother passed away while admitted to AGHL.

Plaintiff has filed two separate cases regarding the same underlying facts. The first case – case number *******7179 (“lead case”) – was filed on February 28, 2022, with a first amended complaint filed on August 19, 2022. The second case – case number 22STCV07502 (“related case”) was filed on February 25, 2022, with a first amended complaint filed on October 17, 2022. Both actions involve the same Plaintiff and the same Defendants.

TENTATIVE RULING

Defendants’ demurrer to Plaintiff’s lead case, case number *******7179, is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant’s motion to strike portions of the FAC in Plaintiff’s lead case is DENIED as moot.

Defendants’ demurrer to Plaintiff’s related case, case number 22STCV07502, is OVERULED.

Defendant’s motion to strike portions of the FAC in Plaintiff’s related case is DENIED.

LEGAL STANDARD

Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. section 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

“Since the rule of exclusive concurrent jurisdiction and the statutory plea in abatement are mandatory and not discretionary judicial actions, these issues should be raised by demurrer where the issue appears on the face of the complaint and by answer where factual issues must be resolved.” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 771.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof. (Code Civ. Proc., 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., 437.)

DISCUSSION

Demurrer to Plaintiff’s Lead Case

AGHL demurrers to Plaintiff’s lead case, case number *******7179, pursuant to Code of Civil Procedure section 430.10, subdivision (c), which provides that a party may demurrer to a pleading on the grounds that “[t]here is another action pending between the same parties on the same cause of action.”

“A single cause of action cannot be the basis for more than one lawsuit. [Citation.] A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that ... the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ ” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856.) “It has been said that ‘ “[a]n order of abatement issues as a matter of right” ’ where the conditions for its issuance exist, whether the right to abate exists under statutory abatement or the judicial rule of exclusive concurrent jurisdiction. [Citation.]” (Shaw v. Superior Court of Contra Costa County (2022) 78 Cal.App.5th 245, 256-57.)

As a preliminary matter, the Court notes that although both original complaints were signed by Plaintiff on February 25, 2022, the lead case was filed on February 28, 2022, three days after the related case. However, the lead case has the lower case number of the two cases. The concurrent cases have created further procedural confusion. AGHL has demurred to the case that is designated as the lead case on the grounds that the related case is a duplicative action. According to the record, Plaintiff’s lead case, although it has a lower case number than the related case, was filed after the related case.

Further, it is undisputed that the parties are identical. In his opposition, Plaintiff contends that the causes of action are not identical in both cases. In the related case, Plaintiff purports to allege causes of action for medical malpractice, medical negligence, and wrongful death. In the lead case, Plaintiff purports to allege “medical, emotional negligence”. In opposition, Plaintiff argues that he is alleging “emotional negligence” in his lead case. He further argues that the allegations regarding medical negligence are contextual.

Plaintiff’s arguments are unavailing, and he simply creates a distinction without a difference. Plaintiff’s allegations in his related case mirror the allegations in his lead case. Plaintiff contends that Defendants acted negligently in caring for his mother while she was admitted with COVID-19. Plaintiff’s two cases involve the same Plaintiff, the same two defendants, and the same underlying facts. Despite his contentions otherwise, Plaintiff’s lead case is simply alleging a medical malpractice case, which is the same cause of action alleged in his related case.

California Rules of Court, Rule 2.112 provides: “Each separately stated cause of action, count, or defense must specifically state: [ ] (1) Its number (e.g., ‘first cause of action’); (2) [ ] Its nature (e.g., ‘for fraud’); [ ] (3) The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and [ ] (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).” The only listed cause of action in the body of the lead case is for “medical negligence” which is the same text that appears in the related case. Thus, both cases seek to allege the same, singular cause of action, and Plaintiff’s lead case is therefore duplicative.

Defendants’ demurrer to Plaintiff’s lead case, case number *******7179, is sustained without leave to amend.

Defendants’ motion to strike portions of the FAC in the related case is denied as moot because the demurrer is sustained, and the case is ordered abated.

Demurrer to Plaintiff’s Related Case

AGHL argues that Plaintiff’s fails to allege facts sufficient to state any cause of action.

In his related case, Plaintiff provides in the caption that it is a first amended complaint for medical malpractice, medical negligence, wrongful death, and damages. However, as previously stated, California Rules of Court, Rule 2.112 provides: “Each separately stated cause of action, count, or defense must specifically state: [ ] (1) Its number (e.g., ‘first cause of action’); (2) [ ] Its nature (e.g., ‘for fraud’); [ ] (3) The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and [ ] (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).”

The body of the related case simply alleges one cause of action for “medical negligence”. Therefore, Plaintiff’s related case only seeks to allege one cause of action for “medical negligence” and the Court will evaluate the arguments as to that sole cause of action.

AGHL asserts that Plaintiff fails to allege a duty owed to his mother by Defendants and Defendants’ breach of that duty.

“ ‘A cause of action for wrongful death is ... a statutory claim. (Code Civ. Proc., 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.’ ” (Quiroz v. Seventh Ave. Center (20016) 140 Cal.App.4th 1256, 1263.)

Code of Civil Procedure section 377.60, subdivision (a), provides that a wrongful death cause of action may be brought by “[t]he decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.”

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

AGHL points out that Plaintiff alleges that Defendants “owed a duty to Plaintiff” (related case FAC 68), who is not alleged to be a patient of or receive any medical treatment from Defendants. However, the related case alleges that “Defendants owed Plaintiff’s Mother a duty of care as a patient”. (Id. 66.) Plaintiff has alleged Plaintiff owed his mother a duty.

Plaintiff alleges that Defendants failed to provide his mother with food necessary for her “special nutrition diet”. (related case FAC 28 and 31.) Plaintiff alleges that Defendants failed to allow his mother the opportunity to walk around. (Id. 40.) Plaintiff alleges Defendants prevented him from visiting his mother. (Id. 43.) He alleges his mother did not receive her dialysis. (Id. 54.) He alleges that Defendants failed to move his mother to the ICU after repeated requests. (Id. 57-59.) He alleges that instead of moving his mother to the ICU, Defendants moved his mother in order to change her sheets, which resulted in her death. (Id. 60.) He also alleges causation and damages. (Id. 66.)

At the demurrer stage, Plaintiff’s related case pleads facts sufficient to allege a cause of action for medical malpractice on behalf of his decedent mother. Further, although Plaintiff’s complaint is rife with error, the allegations are not so uncertain that AGHL cannot respond.

AGHL’s demurrer to Plaintiff’s related case is overruled.

Motion to Strike Portions of Plaintiff’s Related Case

AGHL moves to strike portions of the FAC in Plaintiff’s related case for being untimely.

“[Code of Civil Procedure section 436, subdivision (b),] authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)

AGHL argues that Plaintiff was ordered to amend his complaint by August 12, 2022, but did not file the FAC until August 19, 2022. Plaintiff provides that he attempted to file the complaint on August 12, 2022, but a technical glitch prevented him from doing so.

AGHL’s motion to strike the entirety of the FAC is denied.

AGHL also moves to strike portions of the FAC that include conclusory language related to punitive damages and irrelevant allegations.

AGHL argues that Plaintiff’s use of conclusory language asserting that Defendants acted “recklessly” or “wantonly” are suggestive of punitive damages and must be stricken. While AGHL is correct that those terms could be suggestive of a prayer for punitive damages, Plaintiff has not expressly alleged he is entitled to punitive damages, so AGHL’s arguments are unnecessary because there is no claim for punitive damages to strike.

Further, AGHL’s assertions that Plaintiff’s complaint contains immaterial allegations that must be stricken is rejected. AGHL specifically argues that Plaintiff’s allegations related to his mother’s care prior to admission at AGHL must be stricken. However, those allegations can provide context for the allegations pertinent to Plaintiff’s claim.

AGHL’s motion to strike portions of the FAC in Plaintiff’s related case is denied.

CONCLUSION

Defendants’ demurrer to Plaintiff’s lead case, case number *******7179, is sustained without leave to amend.

Defendant’s motion to strike portions of the FAC in Plaintiff’s lead case is denied as moot.

Defendants’ demurrer to Plaintiff’s related case, case number 22STCV07502, is overruled.

Defendant’s motion to strike portions of the FAC in Plaintiff’s related case is denied.

Moving party to provide notice.

Dated: November 14, 2022

Joel L. Lofton

Judge of the Superior Court

Case Number: *******7179 Hearing Date: October 17, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I. INTRODUCTION

On February 28, 2022, plaintiff Radik Khachatryan filed this action against defendants Glendale Adventist Medical Center dba Adventist Health Glendale (“GAMC”) (erroneously sued as “Adventist Health Glendale, a CA Hospital or Adventist Health”) and Sam F. Daneshvari, M.D. (“Dr. Daneshvari”). On May 25, 2022, GAMC filed a demurrer to Plaintiff’s complaint. On June 27, 2022, at the hearing on GAMC’s demurrer, the Court continued the hearing to August 8, 2022, and ordered Plaintiff to file an amended Complaint or opposition papers no later than July 22, 2022.

On July 22, 2022, Plaintiff served a First Amended Complaint (“FAC”) on GAMC. The FAC was not filed. On August 4, 2022, GAMC filed a demurrer to the FAC. However, as no FAC was on file, the Court took the demurrer off calendar as premature.

On September 9, 2022, GAMC filed this motion to dismiss on the grounds that Plaintiff failed to abide by the Court’s ruling on June 27, 2022, and file the amended Complaint on time.

II. LEGAL STANDARD

GAMC brings this motion pursuant to Code of Civil Procedure section 581(f)(2) and CRC 3.1320(b). Code of Civil Procedure section 581(f)(2) permits a court to dismiss a complaint after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court, and either party moves for dismissal.

III. DISCUSSION

GAMC argues that Plaintiff’s action should be dismissed because no amended complaint or opposition was filed as ordered by the Court on June 27, 2022. However, the Court has not sustained any demurrer, therefore, the cited statutory provisions do not support GAMC’s request for relief. Additionally, Plaintiff avers in his opposition that he filed the FAC on July 22, 2022, and served it on GAMC the same day. The Court’s records also reflect that Plaintiff’s FAC was electronically received on September 2, 2022. Accordingly, the Court deems the FAC filed as of October 17, 2022, and places GAMC’s demurrer and motion to strike back on calendar for hearing on November 7, 2022.

CONCLUSION

GAMC’s motion to dismiss is DENIED.

GAMC’s demurrer and motion to strike are set for a hearing on November 7, 2022, at 1:30 p.m. Opposition papers are due as required by the Code of Civil Procedure.

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.

Case Number: *******7179 Hearing Date: August 31, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 4, 2022, Defendant Glendale Adventist Medical Center filed the instant demurrer to the First Amended Complaint (“FAC”) and motion to strike portions of the FAC.

Although it appears that Plaintiff on July 22, 2022, served a FAC on Defendant, upon review of the Court file, no FAC has been filed.

Accordingly, the motion is premature as there is no FAC to demur to or strike portions of.

The motion is OFF CALENDAR.

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.