Case Number: BC638363 Hearing Date: June 01, 2018 Dept: A

Stettner v Pasadena Meadows Nursing Center

MOTION FOR JUDGMENT ON THE PLEADINGS

Calendar: 3

Case No: BC638363

Hearing Date: 6/1/18 (continued from 3/23/18)

Action Filed: 10/24/16

Trial: 8/6/18

MP: Defendants Huntington Memorial Hospital

RP: None

ALLEGATIONS IN COMPLAINT:

Plaintiff Brett Stettner (“Plaintiff”) alleges he is the surviving child of decedent Norman Stettner (“Decedent”). Plaintiff brings this wrongful death action against various defendants (nursing homes, hospitals, and medical professionals) for their alleged failure to provide proper treatment to Decedent, resulting in his death.

The operative Second Amended Complaint (“SAC”) filed June 30, 2017, alleges causes of action for: (1) wrongful death (medical malpractice) against all Defendants; and (2) elder abuse against Defendant Pasadena Meadows Nursing Center.

Plaintiff attempted to file a Third Amended Complaint on November 16, 2017. However, Plaintiff did not have leave of Court to file the Third Amended Complaint. Thus, the Third Amended Complaint was stricken on December 15, 2017.

RELIEF REQUESTED:

Defendant Huntington Memorial Hospital moves for judgment on the pleadings as to the SAC.

This motion was set for hearing on March 23, 2018, but per the parties’ stipulation, the motion was continued to June 1, 2018.

DISCUSSION:

Legal Standard

A motion for a judgment on the pleadings has the purpose and effect of a general demurrer and is filed after the time to file a demurrer has expired. (Smiley v. Citibank (S.D.), N.A. (1995) 11 Cal.4th 138, 145-46.) Accordingly, just as on a demurrer, the Court examines the allegations in order to determine whether they contain the essential facts necessary to plead a valid cause of action and accepts as true all material facts alleged therein. (Id.)
CCP §438(c)(B) provides that the grounds for a judgment on the pleadings in favor of the defendant are the following: ( 1) the court has no jurisdiction of the subject of the cause of action alleged in the complaint; and (2) the complaint does not state facts sufficient to constitute a cause of action against that defendant. The grounds for the judgment on the pleading must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (CCP §438(d).)

After a judgment on the pleadings is granted, the same standards apply in granting leave to amend as for demurrers and leave is routinely granted. (See CCP §438(h); Virginia G. v. ABC Unified Sch. Dist. (1993) 15 Cal. App. 4th 1848, 1852 [holding that when a motion for judgment on the pleadings is granted, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment].)

Request for Judicial Notice

Defendant Huntington Memorial Hospital (“Huntington”) requests judicial notice of the notice of ruling regarding Defendant Pasadena Meadows Nursing Center’s (“PMNC”) demurrer filed in this action. The request is granted pursuant to Evidence Code, §452(d).

Discussion

Defendant Huntington Memorial Hospital (“Huntington”) moves for judgment on the pleadings on the SAC on the ground that it does not state sufficient facts against it to constitute a cause of action. The only cause of action alleged against Huntington is the first cause of action for wrongful death (medical malpractice).

“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.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 [internal quotation marks omitted].) “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.” (Id.)

In the SAC, Plaintiff alleges that beginning July 7, 2015 until July 27, 2015, each of the Defendants negligently provided treatment and care for Decedent. (SAC, ¶¶17-19.) Specifically, Plaintiff alleges that on July 24, 2015, Decedent was admitted to PMNC on or about July 24, 2015. (Id., ¶20(a).) Upon information and belief, Plaintiff alleges that on July 25 and 26, 2015, Decedent experienced vomiting, a high temperature, and a fever. (Id., ¶20(b)-(c).) Upon information and belief, Plaintiff alleges that on July 26, 2015, PMNC called an EMS vehicle to transfer Decedent to Huntington, but PMNC failed to disclose Decedent’s medical conditions. (Id., ¶20(d).) Decedent then passed away on July 27, 2015. (Id.)

The allegations in the first cause of action are insufficient to allege a cause of action against Huntington. The only facts alleged against Huntington are that Decedent was transferred to Huntington and he died the day after. There are no allegations regarding how Huntington was negligent in its care and treatment of Decedent.

Further, a plaintiff “may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th 1149, 1158.) Thus, a pleading made on information and belief is insufficient if it “merely assert[s] the facts so alleged without alleging such information that ‘lead[s] [the plaintiff] to believe that the allegations are true.’ ” (Id. at 1158-59.) Here, Plaintiff fails to allege any facts that led him to believe that the aforementioned facts are true. In the first cause of action for wrongful death (medical malpractice), Plaintiff also alleges a series of allegation upon information and belief only, including that Defendants negligently cared for Decedent, breached their duty, and caused Decedent’s death. (SAC, ¶¶25-27.) Since there are no facts that identify Huntington’s acts that constituted a breach, these legal conclusions do not plead that Huntington’s acts caused the death of Decedent.

The Court will grant the motion for judgment on the pleadings. As the motion is unopposed, Plaintiff has not provided any offer of proof that he is able to amend the operative complaint to add allegations to supplement paragraph 20 in the SAC.

RULING:

Grant the motion for judgment on the pleadings without leave to amend unless Plaintiff can make an offer of proof showing how this cause of action can be amended to allege a viable claim against Huntington.