(1) Demurrer of Southern California Specialty Care dba Kindred Hospital San Gabriel Valley to plaintiffs’ first amended complaint;
(2) Southern California Specialty Care dba Kindred Hospital San Gabriel Valley’s motion to strike;
(3) Demurrer of The Regents of the University of California to plaintiffs’ first amended complaint;
(4) The Regents of the University of California’s motion to strike;
(5) Demurrer of Los Robles Hospital and Medical Center to plaintiffs’ first amended complaint;
(6) Demurrer of Dignity Health dba St. John’s Pleasant Valley Hospital to plaintiffs’ first amended complaint;
(7) Dignity Health dba St. John’s Pleasant Valley Hospital’s motion to strike

Moving Party: Defendants Southern California Specialty Care dba Kindred Hospital San Gabriel Valley (“Kindred”); The Regents of the University of California (“Regents”); Los Robles Hospital and Medical Center (“Los Robles”); and Dignity Health dba St. John’s Pleasant Valley Hospital (“Dignity”) (collectively “defendants”)

Resp. Party: Plaintiffs Earl R. Johnson and Shannon Holguin

The demurrers of defendants Southern California Special Care dba Kindred Hospital San Gabriel Valley, The Regents of the University of California, Los Robles Hospital and Medical Center, and Dignity Health dba St. John’s Pleasant Valley are SUSTAINED, with leave to amend.

Because the demurrers are sustained with leave to amend, the motions to strike are MOOT.

BACKGROUND:

Plaintiffs Earl R. Johnson and Shannon Holguin commenced this action against various defendants on 5/22/13. Plaintiffs filed a first amended complaint on 7/18/13 against defendants for: (1) medical negligence; (2) elder abuse; (3) wrongful death; and (4) survival action.

Plaintiffs, brother and sister, are surviving adult children of decedent Ramona May Johnson (“decedent”). (FAC ¶¶ 3-4.) Plaintiffs allege that defendants provided medical treatment to the decedent. (Id., ¶¶ 20, 26-28.) Plaintiffs allege that this treatment led to the decedent’s death. (Id., ¶¶ 30-42.)

ANALYSIS:
Demurrers

Defendants Dignity and Regents demur to the entire FAC and the four causes of action asserted therein on the grounds that plaintiffs fail to allege sufficient facts and the pleadings are uncertain. Kindred demurs to the first three causes of action on the ground that plaintiffs fail to allege sufficient facts. Los Robles demurs to the entire complaint on the ground that plaintiffs fail to allege sufficient facts, and for uncertainty as to the second and fourth causes of action.

Uncertainty

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 2008) 7:85.) “Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, 7:85 [citing Khoury, 14 Cal.App.4th at p. 616].)

To the extent that defendants’ demurrers are based on uncertainty, the demurrers are well taken. Plaintiffs allege that the decedent was admitted to various hospitals between April 17, 2009, and May 20, 2009. (See FAC ¶¶ 26-28.) Decedent was admitted to Regent’s hospital in August 2011 and plaintiffs allege that a surgical instrument was left inside of decedent. (Id., ¶ 32.) In January 2012, decedent was admitted to Los Robles for a medical procedure related to her colon. (Id., ¶ 36.) Decedent also had a blood transfusion at Los Robles in late January 2012. (Id., ¶ 39.) Decedent was admitted at the Regent’s hospital in late January 2012 for an infection and kidney function related medical procedures and service. (Id., ¶ 40.) Decedent thereafter died on February 23, 2012. (Id., ¶ 42.)

It is unclear from these allegations exactly which defendant or what conduct caused decedent’s injuries or death. It is unclear if plaintiffs are alleging that the death was caused by the surgical instrument allegedly left in the decedent after the August 2011 procedure, the blood transfusion, the January/February 2012 procedures, some other conduct by other defendants, or some combination thereof.

Accordingly, the demurrers on the grounds of uncertainty are SUSTAINED.

Plaintiffs’ standing

Defendants Kindred, Regents, and Los Robles argue that plaintiffs have not established that they have standing to assert the causes of action on behalf of the decedent, i.e., the first, second, and fourth causes of action. Though plaintiffs allege that they are successors-in-interest of the decedent, they appear to be bringing the action in their individual capacities and not as successors. (See FAC ¶ 4; Code Civ. Proc., § 377.30.) More importantly, plaintiffs do not appear to have filed an affidavit or declaration in compliance with Code of Civil Procedure section 377.32. (See Code Civ. Proc., § 377.32(a).)

Accordingly, the demurrers of Kindred, Regents, and Los Robles to the first, second, and fourth causes of action are SUSTAINED because plaintiffs have not established that they have standing to assert these causes of action on behalf of the decedent.

First Cause of Action for Medical Negligence

“[I]n any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’ [Citation.]” (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)

Defendants Kindred and Los Robles argue that this cause of action is untimely.
Code of Civil Procedure section 340.5 states that in an action for injury against a health care provider based on alleged professional negligence, the action must be commenced within three years of the injury or one year of discovery of the injury, whichever occurs first. (Code Civ. Proc., § 340.5.) Code of Civil Procedure section 364 extends the statute of limitations by 90 days upon serving a notice of intent to bring an action, but this extension only applies when such notice is served within 90 days of the expiration of the applicable statute of limitations. (Code Civ. Proc., § 364(d).) Plaintiffs allege that decedent’s death occurred on 2/23/12. This is the latest that the statute of limitations could have commenced. The FAC does not allege whether plaintiffs served a notice of intent within 90 days of the expiration of the applicable statue of limitations. If such a notice were served on the last possible day, 2/22/13, this would have extended the statute of limitations to 5/23/13. Plaintiffs commenced the instant action on 5/22/13. Therefore, it is possible that the action is timely. The running of the statute must appear “clearly and affirmatively” from the dates alleged; it is not enough that the complaint might be barred. (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 7:50 [citing Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403].) Because the running of the statute of limitations does not appear “clearly and affirmatively” on the face of the FAC, defendants’ statute of limitations argument is not persuasive.

For several of the defendants, plaintiffs fail to allege facts supporting a purported breach of duty. For defendants Kindred and Dignity, all that is alleged is that the decedent was admitted to their facilities at some point. (See FAC ¶¶ 26, 28.) There are no allegations as to what these defendants may have done to breach their duties to decedent. Though there are more allegations as to Los Robles, at most these allegations establish that Los Robles treated decedent; there are no facts alleged which establish that Los Robles breached a duty. (See id., ¶¶ 36, 39.)

Plaintiffs appear to allege that defendant Regents breached a duty by leaving a surgical instrument in decedent following a procedure there in August 2011. (See FAC ¶ 32.) Plaintiffs fail to clearly allege facts which establish a connection between the defendant’s conduct and decedent’s harm. As discussed above, it is unclear from the FAC exactly what conduct performed by which defendant is the purported cause of decedent’s death. Plaintiffs do not allege facts which establish that this surgical instrument caused or contributed to decedent’s death.

Accordingly, defendants’ demurrers to the first cause of action are SUSTAINED.

Second Cause of Action for Elder Abuse

The elements of elder abuse include: (1) physical abuse or neglect by the defendant; (2) plaintiff was 65 years old or older at the time of the conduct; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing the harm. (CACI 3106.) Because causes of action for elder abuse are governed by a statute, the elements must be alleged with particularity. (See Welf & Inst. Code, §§ 15600, et seq.; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82 [elder abuse elements are statutory]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [in general statutory claims must be alleged with particularity].)

Mere negligence is not sufficient to support a claim for elder abuse.

In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. [Citations.]

Section 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Thus, amici curiae argue, causes of actions within the scope of section 15657 are not “cause[s] of action … based on … professional negligence” within the meaning of section 15657.2. Defendants claim that such an interpretation would render section 15657.2 surplusage because section 15657 already on its face excludes actions based on professional negligence strictly construed. We disagree. The Legislature could have reasonably decided that an express statement excluding professional negligence from section 15657 was needed because the language of section 15657, and in particular the terms “neglect” and “recklessness,” may have been too indefinite to make sufficiently clear that “professional negligence” was to be beyond the scope of section 15657.

(Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)

Plaintiffs do not allege sufficient facts to establish that defendants acted with “deliberate disregard” to a “high degree of probability” that decedent would be harmed, or that defendants made a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” (See Delaney, 20 Cal.4th at p. 31.) As discussed above, plaintiffs only allege vague facts as to the treatment defendants provided to the decedent. Plaintiffs allege no facts which show that defendants engaged in reckless conduct or consciously disregarded danger of harm. Plaintiffs make conclusory allegations that defendants deprived decedent of oxygen while they had care and custody of her, but fail to provide any facts to support this allegation. (See FAC ¶ 51.) It is unclear if the deprivation of oxygen was the result of reckless conduct or mere negligence.

Accordingly, defendants’ demurrers to the second cause of action are SUSTAINED.

Third Cause of Action for Wrongful Death

“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) Wrongful death is not a common law action and is instead based in statute. (See Mayerhoff v. Kaiser Foundation Health Plan Inc. (1977) 71 Cal.App.3d. 803, 806.) As such, it must be pleaded with particularity. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

As discussed above, plaintiffs fail to allege facts supporting the underlying claims of negligence or elder abuse. Therefore, plaintiffs have not alleged the first element of their wrongful death claim.

Accordingly, defendants’ demurrers to the third cause of action are SUSTAINED.

Fourth Cause of Action for Survival Action

In this cause of action, plaintiffs merely seek recovery as successors in interest on behalf of decedent. (See FAC ¶ 57.) As discussed above, plaintiffs have not established that they have standing to assert claims on behalf of the decedent. Moreover, plaintiffs fail to allege sufficient facts to support the underlying claims.

Accordingly, defendants’ demurrers to the fourth cause of action are SUSTAINED.

Motions to strike

Defendants Kindred, Regents, and Dignity have filed motions to strike portions of the first amended complaint. Because the Court sustains defendants’ demurrers to the first amended complaint, these motions to strike are MOOT.

At a February 6, 2012 informal discovery conference, plaintiffs indicated that they might be dismissing their case. The court would like to hear from plaintiffs as to whether they wish leave to amend to file a second amended complaint and if so, how much time they would need to do so.

(1) Motion to compel plaintiff Earl R. Johson. to provide responses to form interrogatories (set one);
(2) Motion to compel plaintiff Shannon Holguin to provide responses to form interrogatories (set one);
(3) Motion to compel plaintiff Earl R. Johnson to provide further responses to special interrogatories (set one);
(4) Motion to compel plaintiff Shannon Holguin to provide further responses to special interrogatories (set one);
(5) Motion to compel plaintiff Earl R. Johnson to provide further responses to requests for production of documents (set one);
(6) Motion to compel plaintiff Shannon Holguin to provide further responses to requests for production of documents (set one)

Moving Party: Defendant Southern California Special Care Inc. dba Kindred Hospital San Gabriel Valley (“defendant”)

Resp. Party: None

Defendant’s motions to compel plaintiffs’ verified responses to form interrogatories, without objections, are GRANTED. The Court imposes sanctions against plaintiffs, jointly and severally, in the amount of $452.00 for these motions.

Defendant’s motions to compel plaintiffs’ further responses to special interrogatories (set one) and requests for production (set one) are GRANTED. The Court imposes sanctions against plaintiffs’, jointly and severally, in the amount of $452.00 for these motions.

BACKGROUND:

Plaintiffs Earl R. Johnson and Shannon Holguin commenced this action against various defendants on 5/22/13. Plaintiffs filed a first amended complaint on 7/18/13 against defendants for: (1) medical negligence; (2) elder abuse; (3) wrongful death; and (4) survival action.

Plaintiffs, brother and sister, are surviving adult children of decedent Ramona May Johnson (“decedent”). (FAC ¶¶ 3-4.) Plaintiffs allege that defendants provided medical treatment to the decedent. (Id., ¶¶ 20, 26-28.) Plaintiffs allege that this treatment led to the decedent’s death. (Id., ¶¶ 30-42.)

ANALYSIS:
Motions to compel initial responses

Defendants move to compel plaintiffs’ responses to form interrogatories (set one). California Code of Civil Procedure requires a response from the party to whom interrogatories are propounded within 30 days after service of the interrogatories. (Code Civ. Proc., § 2030.260(a).) If a party fails to serve timely responses, “the party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc. § 2030.290(b).) By failing to respond, the offending party waives any objection to the interrogatories. (Code Civ. Proc. § 2030.290(a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) “Once [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Defendant served the form interrogatories on plaintiffs by mail on 10/31/13. (Mehta Decl., ¶ 2, Exh. 1.) Plaintiffs failed to serve responses by the 12/5/13 due date. (Id., ¶ 3.) Defendant attempted to meet and confer with plaintiffs as to the lack of a response, but plaintiffs had not served responses as of the 1/14/14 date of the motion. (Id., ¶¶ 4-5.)

Accordingly, defendant’s motion to compel plaintiffs’ verified responses, without objections, to defendant’s first set of form interrogatories is GRANTED.

Motions to compel further responses

Defendants also seek to compel plaintiffs’ further responses to special interrogatories (set one) and requests for production (set one).

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Code Civ. Proc., §§ 2031.310(b)(2), 2030.300(b).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.) Defendant here provides meet and confer declarations. (See Mehta Decls, ¶ 11, Exh. 8.)

Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. Defendant provides separate statements.

This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax (see Code Civ. Proc., § 1013)); otherwise, the demanding party waives the right to compel any further response to the Code of Civil Procedure § 2031.010 demand. (Code Civ. Proc., §§ 2030.300(c), 2031.310(c), 2033.290(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45 day time limit is mandatory and jurisdictional. (Sexton v. Sup.Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410.) However, the parties can also agree in writing on a specific later date by which to file the motion to compel. (Code Civ. Proc., §§ 2030.300(c), 2031.310(c), 2033.290(c).)

Plaintiffs served their most recent responses by mail on 11/29/13. (See Mehta Decl. [motion re RFPs], Exh. 7 [attached proof of service].) Defendant’s motions were timely served 48 days later, on 1/16/13.

Interrogatories

Defendant seeks to compel further responses from plaintiff Shannon Holguin as to the first set of special interrogatories.

A propounding party may move for an order compelling further responses to interrogatories if the responding party produced an evasive or incomplete answer or a meritless or overly general objection in response to an interrogatory. (Code Civ. Proc., § 2030.300(a).)

A motion to compel lies where the party to whom the interrogatories were directed gave responses deemed improper by the propounding party; e.g., objections, or evasive or incomplete answers. (Code Civ. Proc., § 2030.300.) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (California Rules of Court, rule 3.1020(c).) “The statement of reasons is required to help the judge prepare for the hearing. But this does not change the burden of persuasion at the hearing i.e, the responding party still has the burden of justifying at the hearing each objection raised to discovery.” (Weil & Brown, Cal. Prac. Guide: Civil Pro. Before Trial (The Rutter Group 2011) ¶¶ 8:1157, 8:1179.) “The ruling usually is based on consideration of the following factors: the relationship of the information sought to the issues framed in the pleadings; the likelihood that disclosure will be of practical benefit to the party seeking discovery; the burden or expense likely to be encountered by the responding party in furnishing the information sought.” (Id., ¶ 8:1181.)

California Code of Civil Procedure section 2017.010 provides that ” any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending acting . . . [d]iscovery may be obtained of the identity and the location of persons having knowledge of discoverable matter . . . .” (Code Civ. Proc. § 2017.010.)

Plaintiffs responded to the interrogatories with objections and brief responses that they reserve the right to amend the responses. (See Mehta Decl., Exh. 7.) Because Plaintiffs have not submitted oppositions to the instant motions, they fail to meet their burden of justifying their objections to the interrogatories or establishing the sufficiency of their responses.

Accordingly, defendant’s motion to compel plainitffs’ further responses to special interrogatories is GRANTED. Plaintiffs must provide further responses to defendant’s first set of special interrogatories.

Requests for Production

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1) [emphasis added].) To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial. The fact that there is no alternative source for the information sought is an important factor in establishing “good cause” for inspection, but it is not essential in every case.). (Weil & Brown, Civ. Pro. Before Trial, Discovery (The Rutter Group 2011) ¶ 8:1495.6 (hereinafter Weil & Brown).)

“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Declarations are generally used to show the requisite “good cause” for an order to compel production. The declarations must contain “specific facts” rather than mere conclusions. (Weil & Brown, ¶ 8:1495.7.) The declarations may be on information and belief, if necessary. However, in such cases, the “specific facts” supporting such information and belief (the sources of the information) must also be alleged. (Id. at ¶ 8:1495.8.) If “good cause” is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions.). (Id. at ¶ 8:1496.)

Defendant argues that it seeks to compel further responses to RFPs that bear directly on the issues in this action. Defendant argues that the documents requested concern plaintiff’s allegations, injuries, and damages. (See Mehta Decl., ¶ 6.) This is sufficient to establish good cause.

Plaintiffs responded to the RFPs with objections and brief responses that they reserve the right to amend the responses. (See Mehta Decl., Exh. 7.) Because Plaintiffs have not submitted oppositions to the instant motions, they fail to meet their burden of justifying their objections to the requests or establishing the sufficiency of their responses.

Accordingly, defendant’s motion to compel plaintiffs’ further responses to requests for production is GRANTED. Plaintiffs must provide further responses to defendant’s first set of requests for production.

Sanctions

For the motions to compel responses to form interrogatories, defendant seeks sanctions in the amount of $1,803.00 against each plaintiff.

Defendant makes the requests for sanctions in the notices and supports them in the memoranda and declarations. Defendant’s request is based on 5.5 hours spent preparing each motion, an anticipated 2 hours preparing a reply, and 3 hours to appear at the hearing, all at an hourly rate of $166.00, plus filing fees. (Mehta Decls., ¶ 7.) The amount requested is excessive and unreasonable. The motions are nearly identical, relatively brief, and do not involve complex legal issues. Moreover, plaintiffs have not filed oppositions, and replies are not necessary. Both motions will be heard on the same day as other motions, and thus will not necessitate any further time or expense for attending the hearing. The Court will award 2 hours to prepare the motions, plus $120.00 for filing fees, for a total of $432.00.

Defendant also seeks $1,969.00 in sanctions for each of the motions to compel further responses. The sanctions amounts are based on 6 hours to prepare each motion, an anticipated 2 hours to prepare a reply, and 3 hours to attend the hearing, all at an hourly rate of $166.00, plus filing fees. (See Mehta Decl., ¶ 14.) The amount of sanctions requested is excessive and unreasonable. The motions do not involve complex legal issues and it should not have taken 6 hours to prepare each motion. Plaintiffs have not filed an opposition and a reply is unnecessary Both motions will be heard on the same day as other motions, and thus will not necessitate any further time or expense for attending the hearing. The Court will award 2 hours to prepare the motions, plus $120.00 for filing fees, for a total of $432.00.

Further responses and payment of sanctions are due within 30 days.

Case Number: BC509646