This case was last updated from Los Angeles County Superior Courts on 10/20/2020 at 19:22:32 (UTC).

RITA M CABEZA ET AL VS HUNTINGTON MEMORIAL HOSPITAL ET AL

Case Summary

On 09/14/2017 RITA M CABEZA filed a Personal Injury - Medical Malpractice lawsuit against HUNTINGTON MEMORIAL HOSPITAL. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI and HOLLY E. KENDIG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5841

  • Filing Date:

    09/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JON R. TAKASUGI

HOLLY E. KENDIG

 

Party Details

Plaintiffs

CABEZA PERFECTO I

CABEZA RITA M.

Defendants and Respondents

SAAD AYMAN M.D.

STEVENS PERRY M.D.

QUTUBIDDIN DR. M.D.

PEARLMAN BORIS M.D.

FISCHEL DAVID D.O.

GRAMMATICO SHEILA M.D.

HUNTINGTON MEMORIAL HOSPITAL

BEDROSIAN ARMEN M.D.

MINAEIAN M.D. ARTIN

ZHEN N.P. SHUMIN

LEE M.D. WOK SOK

HEALTH CARE PARTNERS INC.

LIN D.O. TIMOTHY C.

ARANAS D.O. MARITESS

DOES 1-25 INCLUSIVE

KOWALSKI M.D. ADAM

ROSS M.D. IAN

RASHTIAN M.D. DR.

1 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

ONTIVEROS AIDE CRISTINA

ONTIVEROS AIDE CRISTINA ESQ.

Defendant and Respondent Attorneys

ONTIVEROS AIDE C. ESQ.

BRANDMEYER KENT T.

GRASS JEFFERY WAYNE

BLESSEY RAYMOND LESLIE

TROTTER MICHAEL J.

BRANDMEYER KENT THOMAS

MCCOLGAN KATHLEEN

LIGORSKY BRENDA

MAYER PATRICK WILLIAM

 

Court Documents

Declaration - DECLARATION OF JEFFREY SALBERG, M.D., IN SUPPORT OF DEFENDANT HEALTHCARE PARTNERS AFFILIATES MEDICAL GROUP'S MOTION FOR SUMMARY JUDGMENT

9/18/2020: Declaration - DECLARATION OF JEFFREY SALBERG, M.D., IN SUPPORT OF DEFENDANT HEALTHCARE PARTNERS AFFILIATES MEDICAL GROUP'S MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION OF RUSSELL C. KLEIN, M.D. IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

8/25/2020: Declaration - DECLARATION OF RUSSELL C. KLEIN, M.D. IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Separate Statement

8/25/2020: Separate Statement

Declaration - DECLARATION OF MICHAEL GOLD, M.D. IN SUPPORT OF DEFENDANT ARTIN MINAEIAN, M.D.'S MOTION FOR SUMMARY JUDGMENT

8/25/2020: Declaration - DECLARATION OF MICHAEL GOLD, M.D. IN SUPPORT OF DEFENDANT ARTIN MINAEIAN, M.D.'S MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION OF EXPERT, MICHAEL EILBERT, MD IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

8/18/2020: Declaration - DECLARATION OF EXPERT, MICHAEL EILBERT, MD IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

7/21/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Case Management Statement

7/9/2020: Case Management Statement

Answer - ANSWER TO THIRD AMENDED COMPLAINT

3/11/2020: Answer - ANSWER TO THIRD AMENDED COMPLAINT

Order - ORDER COURT'S ORDER RE: DEMURRER

1/17/2020: Order - ORDER COURT'S ORDER RE: DEMURRER

Case Management Statement

12/18/2019: Case Management Statement

Demurrer - without Motion to Strike

10/17/2019: Demurrer - without Motion to Strike

Answer

10/10/2019: Answer

Notice of Posting of Jury Fees

8/7/2019: Notice of Posting of Jury Fees

Demand for Jury Trial

8/7/2019: Demand for Jury Trial

Demurrer - without Motion to Strike

8/2/2019: Demurrer - without Motion to Strike

Minute Order - MINUTE ORDER (COURT ORDER)

5/20/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (COURT ORDER RE TRANSFER TO INDEPENDENT CALENDAR COURT AS A CO...) OF 05/02/2019

5/2/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (COURT ORDER RE TRANSFER TO INDEPENDENT CALENDAR COURT AS A CO...) OF 05/02/2019

Notice - NOTICE OF TAKING DEFENDANT ARTIN MINAEIAN, M.D.'S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT OFF CALENDAR

4/23/2019: Notice - NOTICE OF TAKING DEFENDANT ARTIN MINAEIAN, M.D.'S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT OFF CALENDAR

152 More Documents Available

 

Docket Entries

  • 01/08/2021
  • Hearing01/08/2021 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 01/08/2021
  • Hearing01/08/2021 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 01/08/2021
  • Hearing01/08/2021 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 01/08/2021
  • Hearing01/08/2021 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 01/08/2021
  • Hearing01/08/2021 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 11/12/2020
  • Hearing11/12/2020 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Case Management Conference

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  • 10/16/2020
  • Docketat 08:30 AM in Department B; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer (filed by Attorney for Defendant Maria T. Aranas D. O.) - Not Held - Taken Off Calendar by Party

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  • 10/15/2020
  • Docketat 08:30 AM in Department B; Hearing on Motion for Summary Judgment (filed by Attorney for Defendants Mayer Rashtian M.D. and Shumin Zhen N. P.) - Not Held - Continued - Party's Motion

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  • 10/09/2020
  • Docketat 08:30 AM in Department B; Hearing on Motion for Summary Judgment (filed by Attorney for Defendants Mayer Rashtian M.D. and Shumin Zhen N. P.) - Not Held - Advanced and Continued - by Court

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  • 09/30/2020
  • Docketat 08:30 AM in Department B; Hearing on Ex Parte Application (Plaintiff's Ex Parte Application for an Order Continuing Defendants Mayer Rashtian, M.D., Shumin Zhen, N.P., Maria Aranas, D.O., Ayman Saad, M.D., and Artin Minaean, M.D.'s Motion for Summary Judgment and Opposition Deadlines) - Held - Motion Granted

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196 More Docket Entries
  • 10/03/2017
  • DocketORDER ON COURT FEE WAIVER (SUPERIOR COURT)

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  • 09/27/2017
  • DocketRequest for Hearing About Court Fee Waiver Order (Superior Court); Filed by RITA M. CABEZA (Plaintiff)

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  • 09/15/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 09/15/2017
  • DocketORDER ON COURT FEE WAIVER (SUPERIOR COURT)

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  • 09/15/2017
  • DocketORDER ON COURT FEE WAIVER (SUPERIOR COURT)

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  • 09/15/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 09/14/2017
  • DocketRequest to Waive Court Fees; Filed by PERFECTO I CABEZA (Plaintiff)

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  • 09/14/2017
  • DocketRequest to Waive Court Fees; Filed by RITA M. CABEZA (Plaintiff)

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  • 09/14/2017
  • DocketComplaint; Filed by PERFECTO I CABEZA (Plaintiff); RITA M. CABEZA (Plaintiff)

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  • 09/14/2017
  • DocketCOMPLAINT FOR: (1) NEGLIGENCE, ETC

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Tentative Rulings

Case Number: BC675841    Hearing Date: January 17, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: BC675841

Hearing Date: January 17, 2020

[TENTATIVE] order RE:

demurrer

BACKGROUND

A. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted, she was left unattended, and they did not give her appropriate care and medication.

The second amended complaint (“SAC”), filed September 17, 2019, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; (2) NIED by Mrs. Cabeza and Mr. Cabeza; and (3) loss of consortium by Mr. Cabeza.

B. Demurrer

On October 22, 2019, Defendant Mayer Rashtian, MD (“Dr. Rashtian”) filed a demurrer to 2nd cause of action for NIED in the SAC.

The Court is not in receipt of an opposition brief from Plaintiff regarding Dr. Rashtian’s demurrer. (However, the Court is in receipt of an opposition brief from Plaintiff regarding Defendant Maria T. Aranas’ demurrer to the SAC, stating in the caption that the hearing date is January 17, 2020. However, the demurrer of Ms. Aranas is currently on calendar for January 31, 2020.)

On January 10, 2020, Dr. Rashtian filed a reply. In the reply, Dr. Rashtian also states that he is not in receipt of an opposition in response to his demurrer.

DISCUSSION

A. NIED (2nd cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) 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 emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)

Dr. Rashtian argues that the 2nd cause of action as alleged by Mr. Cabeza only fails to allege sufficient facts to constitute a cause of action against Dr. Rashtian.

In the 2nd cause of action, Plaintiffs allege that Defendants knew or should have known that their failure to exercise due care in performing their duties would cause Plaintiffs severe emotional distress. (SAC, ¶37.) They allege that Defendants’ conduct and inaction constituted a breach of duty, which proximately resulted in Mrs. Cabeza suffering as a patient and direct victim of Defendants’ negligence, and Mr. Cabeza (Mrs. Cabeza’s spouse) suffering as a bystander when he was present during Mrs. Cabeza’s stroke and had contemporary sensory awareness of the causal connection between Defendants’ negligence and Mrs. Cabeza’s resulting injury. (Id., ¶¶38-39.)

The parties do not dispute that Mr. Cabeza has a close relationship with Mrs. Cabeza (a patient of Defendants at the Hospital) as her spouse. The allegations also allege that Mr. Cabez was at the scene of Mrs. Cabeza’s stroke.

However, Dr. Rashtian argues that Plaintiffs have not alleged sufficient facts showing that he had a contemporaneous sensory awareness of a causal connection between Defendants’ negligent conduct and the resulting injury—i.e., that Defendants’ negligence caused Mrs. Cabeza’s stroke. In the 2nd cause of action, Plaintiffs allege that “Plaintiff PERFECTO I. CABEZA alleges he was present during RITA M. CABEZA’s stroke, and during the aforementioned negligent acts and omissions of Defendants, Plaintiff PERFECTO I. CABEZA further alleges that he had the requisite contemporaneous sensory awareness of the causal connection between Defendants’ negligent conduct and RITA M. CABEZA’s resulting injury, and that the acts and omissions of Defendants were wrongful and caused injuries.” (SAC, ¶39.)

In its demurring papers, Dr. Rashtian cites to Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926. In Morton, the Court of Appeal affirmed the trial court’s holding sustaining the demurrer without leave to amend on the NIED claim. The plaintiffs (children of the patient-mother, at the time of their mother’s post-operative treatment, had alleged that they were “experienced in the medical field and understood and appreciated the dangers faced by their mother” in the event remedial action was not taken. (Morton, supra, 187 Cal.App.4th at 928.) The Court of Appeal found that this allegation was insufficient to establish that the plaintiffs knew and appreciated the medical circumstances affecting their mother, and thus failed to establish the second element of NIED. (Id. at 928-29.)

Based on the Morton case cited by Dr. Rashtian, the Court now finds that the allegations of the NIED claim have not been sufficiently alleged with supporting facts. This case is similar with regard to the specificity of the alleged facts in the NIED claim as the Morton claim, whereby the Court of Appeal did not find that such allegations were sufficient to meet the threshold of alleging such a claim.

The demurrer to the 2nd cause of action is sustained with 20 days leave to amend as to Mr. Cabeza.

CONCLUSION AND ORDER

Dr. Rashtian’s demurrer to the 2nd cause of action for NIED in the SAC is sustained with 20 days leave to amend as to Mr. Cabeza.

Dr. Rashtian shall provide notice of this order.

Case Number: BC675841    Hearing Date: December 27, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: BC675841

Hearing Date: December 27, 2019

[TENTATIVE] order RE:

demurrer

BACKGROUND

  1. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted, she was left unattended, and they did not give her appropriate care and medication.

The second amended complaint (“SAC”), filed September 17, 2019, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; (2) NIED by Mrs. Cabeza and Mr. Cabeza; and (3) loss of consortium by Mr. Cabeza.

  1. Demurrer

On September 17, 2019, Defendants Woo Sok Lee, M.D. (“Dr. Lee”), Boris Pearlman, M.D. (“Dr. Pearlman”), and HealthCare Partners Affiliates Medical Group (“HealthCare Partners”). They demur to each cause of action alleged in the SAC.

On December 13, 2019, Plaintiffs filed an opposition.

On December 19, 2019, Defendants filed a reply brief.

DISCUSSION

  1. Allegations Against Dr. Lee

Defendants demur to the SAC, arguing that the allegations of the SAC fail to allege any conduct on the part of Dr. Lee.

In the SAC, Dr. Lee is alleged to be employed by HealthCare Partners. (SAC, ¶5.) While Dr. Lee is not mentioned specifically in the SAC or the causes of action, the Court overrules the demurrer. Plaintiffs allege that on June 16, 2016, Mrs. Cabeza sought urgent medical attention at HealthCare Partners of symptoms of impending stroke and she informed the staff of her symptoms prior to being transported to Huntington Memorial Hospital. (Id., ¶10.) She alleges that the physicians and nursing staff of HealthCare Partners failed to administer the appropriate anti-stroke medications during a critical 3-hour window after Mrs. Cabeza was admitted. (Id., ¶13.)

Although the HealthCare Partner defendants are referred together, the allegations of the SAC are not so vague or ambiguous such that Dr. Lee is unable to respond. Plaintiffs allege that the events (or inactions) occurred at HealthCare Partners on June 16, 2016 and that Mrs. Cabeza suffered a stroke on June 17, 2016. (SAC, ¶¶10, 14.) The harm complained of in the SAC is regarding Mrs. Cabeza’s care in the span of these two days—and in particular, the June 16 day when she was under HealthCare Partners’ care.

At the pleading stage, the Court will find that this is sufficient to put Defendants on notice of the medical malpractice claim alleged against them.

Thus, the demurrer on the basis that the SAC lacks sufficient allegations to constitute a cause of action against Dr. Lee is overruled.

  1. NIED (2nd cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) 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 emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)

Defendants argue that Mrs. Cabeza’s 2nd cause of action is essentially a cause of action in negligence, and not emotional distress. In turn, they argue that because she already has a medical malpractice cause of action, this 2nd cause of action (which is essentially a negligence claim) is duplicative and should be sustained without leave to amend.

While NIED is not an independent tort, an NIED claim is a tort of negligence such that the traditional elements of negligence must be satisfied and that there were 2 theories of NIED—bystander and direct victim cases. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) However, the Supreme Court did not state that an NIED claim was subsumed in or duplicative to a professional negligence claim. Thus, so long as Plaintiffs have established the elements of an NIED claim, this is a viable cause of action that may be alleged separate from professional negligence.

Next, Defendants demur to the NIED cause of action, arguing that Plaintiffs fail to allege facts showing that Mr. Cabeza was a bystander victim.

In the 2nd cause of action, Plaintiffs allege that Defendants knew or should have known that their failure to exercise due care in performing their duties would cause Plaintiffs severe emotional distress. (SAC, ¶37.) They allege that Defendants’ conduct and inaction constituted a breach of duty, which proximately resulted in Mrs. Cabeza suffering as a patient and direct victim of Defendants’ negligence, and Mr. Cabeza (Mrs. Cabeza’s spouse) suffering as a bystander when he was present during Mrs. Cabeza’s stroke and had contemporary sensory awareness of the causal connection between Defendants’ negligence and Mrs. Cabeza’s resulting injury. (Id., ¶¶38-39.)

Here, the allegations are sufficient to allege that Mrs. Cabeza was a patient of Defendants at the Hospital and thus there was a duty that arose by nature of a doctor-patient relationship. With regard to Mr. Cabeza, the SAC sufficiently alleges that Mr. Cabeza has a close relationship with Mrs. Cabeza as her spouse, and that he was at the scene of the stroke and was aware that Defendants’ negligence caused both Cabezas to suffer emotional distress. At the pleading stage, the allegations are sufficient to allege NIED. Putting the plausibility of the allegations aside, “[w]hether the plaintiff[s] will be able to prove the pleaded facts is irrelevant to ruling upon a demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.)

The demurrer to the 2nd cause of action is overruled.

3. Loss of Consortium (3rd cause of action)

The Court notes that though the notice of the demurrer states that Defendants were demurring on the 3rd cause of action, there are no substantive arguments or discussions on this cause of action in the demurrer papers. Thus, the demurrer to the 3rd cause of action is overruled for the same reasons stated above.

CONCLUSION AND ORDER

Dr. Lee, Dr. Pearlman, and HealthCare Partners’ demurrer to the SAC is overruled. Defendants are directed to answer within 10 days of this order.

Plaintiffs shall provide notice of this order.

Case Number: BC675841    Hearing Date: November 15, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

rita cabeza, et al.,

Plaintiffs,

v.

huntington memorial hospital, et al.,

Defendants.

Case No.: BC675841

Hearing Date: November 15, 2019

[TENTATIVE] order RE:

demurrer; motion to strike

BACKGROUND

  1. Allegations

Plaintiffs Rita M. Cabeza (“Mrs. Cabeza”) and Perfecto I. Cabeza (“Mr. Cabeza”) commenced this action against various medical Defendants, alleging that on June 16, 2016, Mrs. Cabeza sought urgent medical attention from Defendant Health Care Partners Urgent Care aka Health Care Partners, Inc. (“Health Care Partners”) for symptoms of impending stroke. They allege that Mrs. Cabeza informed Defendants of her symptoms and was transported to Defendant Huntington Memorial Hospital (“Hospital”) by ambulance, but Hospital’s physicians and nursing staff failed to properly evaluate, screen, test, and detect her stroke symptoms and thereby failed to provide adequate medical treatment. They allege that the physicians and nurses failed to administer appropriate anti-stroke medication during a critical 3-hour window after Mrs. Cabeza was admitted, she was left unattended, and they did not give her appropriate care and medication.

The second amended complaint (“SAC”), filed September 17, 2019, alleges causes of action for: (1) medical malpractice by Mrs. Cabeza; (2) NIED by Mrs. Cabeza and Mr. Cabeza; and (3) loss of consortium by Mr. Cabeza.

  1. Demurrer and Motion to Strike

On October 16, 2019, Defendant Ayman Saad, M.D. (“Dr. Saad”) and Artin Minaein, M.D. (“Dr. Minaein”) filed a demurrer to the 1st and 2nd causes of action in the SAC. They also filed a motion to strike portions of the SAC.

On November 5, 2019, Plaintiffs filed an untimely opposition to the demurrer. The opposition was due by November 1, 2019, pursuant to CCP §1005(b). However, the Court will consider this late filed paper. (CRC Rule 3.1300(d).)

On November 7, 2019, Dr. Saad and Dr. Minaein filed a reply brief.

DISCUSSION RE DEMURRER

  1. Medical Malpractice (1st cause of action)

Dr. Saad and Dr. Minaein demur to the 1st cause of action on the ground of uncertainty. They argue that the 1st cause of action is uncertain because it is unclear which defendants treated Mrs. Cabeza, the extent of the treatment, and their role in her care, particularly when there are 18 named defendants.

Pursuant to CCP § 430.10(f), “uncertainty” is a proper demurrer ground where the pleading is ambiguous and unintelligible. Demurrers for uncertainty will only be sustained where the complaint is so bad that the defendant cannot reasonably respond—i.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her. (Khoury v. Maly’s Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Generally, demurrers for uncertainty are overruled and counsel is expected to clear up any ambiguities through discovery or stipulations. Demurrers for uncertainty will almost certainly be overruled where they are: (1) directed to inconsequential matters; (2) the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable through discovery; or (3) not dispositive of one or more causes of action. (Id.; Gressley v. Williams (1961) 193 Cal.App.2d 636, 643.)

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:85.) Regarding uncertainty, “[t]here is no need to require specificity in the pleadings because 'modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.'“ (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.)

Defendants argue that the allegations of the operative complaint essentially lump all the defendants together. Plaintiffs name the individual defendants as Mrs. Cabeza’s treating physicians while she was at Hospital. (SAC, ¶11.) The doctor defendants are then referred to as “Huntingtin Memorial Hospital Practitioners” in the SAC. Although the doctor defendants are referred together, the allegations of the SAC are not so vague or ambiguous such that Dr. Saad and Dr. Minaein are unable to respond. Plaintiffs allege that the events (or inactions) occurred at the Hospital on June 16, 2016 and that Mrs. Cabeza suffered a stroke on June 17, 2016. (SAC, ¶¶10, 14.) The harm complained of in the SAC is regarding Mrs. Cabeza’s care in the span of these two days.

At the pleading stage, the Court will find that this is sufficient to put Defendants on notice of the medical malpractice claim alleged against them. The demurrer to the 1st cause of action is overruled on the basis of uncertainty.

  1. NIED (2nd cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) 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 emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)

First, Dr. Saad and Dr. Minaein argue that the 2nd cause of action is duplicative of the medical malpractice cause of action because the medical malpractice/professional negligence claim would potentially cover emotional distress, as well as physical pain and suffering. They argue that NIED is not an independent tort and is simply considered a part of her medical malpractice claim, citing to Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.

While the Supreme Court discussed in Burgess that NIED is not an independent tort, it explained that NIED is a tort of negligence such that the traditional elements of negligence must be satisfied and that there were 2 theories of NIED—bystander and direct victim cases. The Supreme Court did not state that an NIED claim was subsumed in or duplicative to a professional negligence claim. Thus, so long as Plaintiffs have established the elements of an NIED claim, this is a viable cause of action that may be alleged separate from professional negligence.

Second, Dr. Saad and Dr. Minaein demur to the NIED cause of action, arguing that Plaintiffs fail to allege facts showing that Mrs. Cabeza was a direct victim of Defendants’ negligence, and that Mr. Cabeza was a bystander victim.

In the 2nd cause of action, Plaintiffs allege that Defendants knew or should have known that their failure to exercise due care in performing their duties would cause Plaintiffs severe emotional distress. (SAC, ¶37.) They allege that Defendants’ conduct and inaction constituted a breach of duty, which proximately resulted in Mrs. Cabeza suffering as a patient and direct victim of Defendants’ negligence, and Mr. Cabeza (Mrs. Cabeza’s spouse) suffering as a bystander when he was present during Mrs. Cabeza’s stroke and had contemporary sensory awareness of the causal connection between Defendants’ negligence and Mrs. Cabeza’s resulting injury. (Id., ¶¶38-39.)

Here, the allegations are sufficient to allege that Mrs. Cabeza was a patient of Defendants at the Hospital and thus there was a duty that arose by nature of a doctor-patient relationship. With regard to Mr. Cabeza, the SAC sufficiently alleges that Mr. Cabeza has a close relationship with Mrs. Cabeza as her spouse, and that he was at the scene of the stroke and was aware that Defendants’ negligence caused both Cabezas to suffer emotional distress. At the pleading stage, the allegations are sufficient to allege NIED. Putting the plausibility of the allegations aside, “[w]hether the plaintiff[s] will be able to prove the pleaded facts is irrelevant to ruling upon a demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.)

The demurrer to the 2nd cause of action is overruled.

DISCUSSION RE MOTION TO STRIKE

Dr. Saad and Dr. Minaein move to strike a portion of paragraph 24 (at page 10, lines 2-4), paragraph 34, and certain claims for damages.

First, Defendants move to strike loss of consortium damages sought under the NIED cause of action, arguing that loss of consortium was already alleged as a separate cause of action. (See Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [elements of loss of consortium].) The Court grants the motion to strike the phrase “loss of consortium” from page 14, line 7.

Second, Defendants move to strike Plaintiffs’ attempt to seek prejudgment interest pursuant to CCP §998 and Civil Code, §3291, arguing that there has been no statutory offer of compromise as of yet in this action. As such, the request for such types of prejudgment interest is prematurely sought. The Court grants the motion to strike as to paragraph 34.

With regard to the allegation that Mr. Cabeza was present and suffered emotional distress (paragraph 24), and the requests for medical and related expenses (page 15, prayer at lines 2-3), Defendants have not discussed these allegations in the memorandum of points and authorities. Thus, the Court will deny the motion as to these allegations.

CONCLUSION AND ORDER

Dr. Saad and Dr. Minaein’s demurrer to the 1st and 2nd causes of action in the SAC overruled.

The motion to strike is granted in part as to: (a) the phrase “loss of consortium” from page 14, line 7; and (b) paragraph 34. The motion is denied as to the remainder.

Defendants shall provide notice of this order.