Filed 4/30/20 Trotter v. Multani CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DENISE TROTTER et al.,

Plaintiffs and Appellants,

v.

PRAMOD MULTANI et al.,

Defendants and Respondents.

B293911

(Los Angeles County

Super. Ct. No. BC657804)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael P. Vicencia, Judge. Affirmed.

Oscar R. Roesler for Plaintiffs and Appellants.

Cole Pedroza, Kenneth R. Pedroza, Kristin M. Tannler; Kjar McKenna & Stockalper and Ryan Patrick Deane for Defendant and Respondent Pramod Multani, M.D.

Law Office of Anju Multani and Anju Multani for Defendant and Respondent Anju Multani.

No appearance by Defendant and Respondent Revena Acosta.

_________________________

Appellants Denise Trotter and Tina Flinn filed a complaint against respondents Pramod Multani, Anju Multani, and Revena Acosta for the wrongful death of their aunt, Alma Kathryn Walker. The trial court sustained respondents’ demurrers to appellants’ fourth amended complaint without leave to amend, dismissed the complaint, and entered judgment in favor of respondents.

Although Trotter and Flinn have not provided us with an adequate record on appeal, we nonetheless address the only argument they raise: whether they have standing to bring the wrongful death action. Under the statutes governing such actions, only heirs with the highest priority under the intestate succession laws having standing. Trotter and Flinn, as Walker’s nieces, were among her kin, but they were not heirs with the highest priority. Walker had two sisters with priority to inherit her estate over Trotter and Flinn. Those sisters, who did not file suit, were the only heirs with standing.

We affirm the judgment in favor of respondents.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2016 Alma Walker (decedent) died at the age of 89. Decedent is survived by her two sisters, Ruth Kirkpatrick and Ann Lewis; two nieces, appellants Trotter and Flinn; and a step-grandchild, Ted Walker.

On April 11, 2017, Trotter and Flinn filed a complaint against the Pramod and Anju Multani and Revena Acosta. The complaint alleged causes of action for wrongful death/professional negligence, battery, financial elder abuse, and undue influence. The trial court sustained demurrers to several successive amended complaints with leave to amend.

On June 6, 2018, Trotter and Flinn filed their fourth amended complaint. This is the operative complaint. They alleged causes of action for wrongful death, battery, and undue influence based on the following factual allegations.

In December 2014 decedent met with Anju to discuss decedent’s contract rights in a parcel of land in Long Beach she had sold many years before. At the time, decedent was exhibiting signs of dementia. In an attempt to gain financially from decedent, Anju convinced decedent to change her 2007 trust and to agree to initiate conservatorship proceedings over herself. Anju persuaded decedent to hire her to do this legal work. In addition, Anju convinced decedent to let Pramod (Anju’s husband) become her primary care physician.

During this time, Anju hired respondent Acosta to visit decedent, befriend her, and transport her to Anju’s office. Anju executed an amendment to decedent’s trust naming one of her own clients as decedent’s conservator; the conservatorship petition Anju prepared was denied but decedent paid Anju for filing the “wrongful conservatorship.” In July and August 2015, Anju wrongfully took and retained checks from decedent, made payable to Anju in the amounts of $3,000 and $5,000, for legal services never rendered or excessively billed. In September, November, and December 2015, Acosta also took and retained checks made out to her without decedent’s knowledge in amounts totaling at least $3,300. Acosta also used decedent’s credit card without her consent to make personal purchases.

The Multanis and Acosta falsely represented to decedent that her long-time primary care physician had retired. They convinced decedent to become Pramod’s patient. Acosta used decedent’s car for her personal needs and spent the night at decedent’s home. Decedent soon began relying on Acosta for all her basic needs; Anju and Acosta fired decedent’s home health agency, which had been visiting her weekly for several years. Anju and Acosta told decedent her family wanted nothing to do with her. Pramod misrepresented to decedent that she was terminally ill and admitted decedent to hospice without her knowledge or consent. Pramod prescribed decedent lethal dosages of Fentanyl and morphine, which led to her premature death on January 20, 2016.

In the operative fourth amended complaint, Trotter and Flinn alleged they were decedent’s biological nieces and each had a personal and separate cause of action as “next of kin.” They alleged neither of decedent’s sisters, Kirkpatrick nor Lewis, had initiated any legal action for medical negligence or wrongful death, non-joined heirs are not indispensable parties to a wrongful death action brought by other heirs, and no other person had a superior right to commence the action.

In June and July of 2018, respondents filed demurrers to the operative complaint. Pramod alleged Trotter and Flinn lacked standing under Code of Civil Procedure sections 377.60 and 377.30 to prosecute the causes of action; the cause of action for battery failed to plead sufficient facts and was duplicative of the first cause of action for professional negligence; and the cause of action for undue influence was impermissibly uncertain and lacked sufficient facts to substantiate the claim.

On August 28, 2018, the trial court heard argument on the demurrers. On September 6, 2018, the trial court sustained the demurrers without leave to amend “[a]fter full consideration of the evidence, the authorities submitted by counsel, all oral argument, and good cause having been shown.” The court dismissed the complaint and entered judgment in favor of respondents.

Trotter and Flinn timely appealed.

DISCUSSION

I. The Record and Briefing on Appeal is Inadequate.
II.
Initially we note the sole issue discussed by Trotter and Flinn on appeal is whether they have standing to bring their wrongful death cause of action. Therefore we do not discuss the remaining arguments made to the trial court or the causes of action against respondents, including Acosta. The judgment as to those causes of action stands unchallenged. Nor do we discuss whether leave to amend was properly denied as appellants have not argued they can amend their complaint to correct its deficiencies in the event this appeal does not go their way.

The order and judgment do not set forth the court’s reasoning for sustaining the demurrers; rather, they merely state the court considered the evidence, authorities, and oral argument and found good cause for the court’s decision. Trotter and Flinn do not provide us with a reporter’s transcript of this hearing, nor do they include the court’s orders sustaining the demurrers to the second or third amended complaints. Although the court’s orders on the predecessor amended complaints would not be evidence upon which we could infer the court’s reasoning for dismissing the fourth amended complaint, they could nonetheless shed some light on the court’s thinking. Indeed, in our experience, appellants include all orders sustaining previous demurrers, even though they are not challenged on appeal. In any event, we do not know the grounds upon which the court sustained the demurrers to the operative complaint.

An appellant must provide an adequate record of every contested issue to enable meaningful review. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) If the record is inadequate, the appellant defaults and the trial court’s decision should be affirmed. (Ibid.) The absence of any record of a hearing “precludes a determination that the court abused its discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.) And, “ ‘[i]t is elementary and fundamental that on a clerk’s transcript appeal the appellate court must conclusively presume that the evidence is ample to sustain the findings.’ ” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 522.) Our review is limited to determining whether any error “appears on the face of the record.” (Id. at p. 521.) California Rules of Court, rule 8.163 provides: “The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter’s transcript, this presumption applies only if the claimed error appears on the face of the record.”

Trotter and Flinn’s briefing is as inadequate as the appellate record they present to us. Rather than set forth the legal standard of review appropriate to their claims, they simply provide the following two sentences under a heading entitled “The Standard of Review”: “The court erred in sustaining the demurrers and dismissing the fourth amended complaint finding that Appellants did not have standing to pursue tort claims against Respondents as they were not the next of kin.” Furthermore, Trotter and Flinn do not even attempt to argue why the court’s ruling against them was incorrect; nor do they attempt to show how they could cure the deficiencies the court obviously found in their complaint. Trotter and Finn merely repeat – word-for-word – the argument they supplied in their opposition to the demurrer. They then provide three sentences stating the other heirs chose not to pursue any claims or did not have the capacity to assert any claims, and that Anju and Pramod demurred on the grounds that Trotter and Flinn did not have the legal capacity or standing to sue. Nowhere in their opening brief do they address whether the factual allegations were sufficient to support the causes of action or whether their complaint was uncertain, ambiguous, or unintelligible. Nor did Trotter and Finn file a reply brief.

Anju’s respondent’s brief is also inadequate. She provided no citations to the record in her discussion of the facts or procedural history. All appellate briefing must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) We are not required to “ ‘search the record to determine whether or not [it] supports’ ” a respondent’s argument. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) “It is the duty of counsel to refer the reviewing court to the portions of the record which support” a party’s position. (Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835.) Appellate arguments unsupported by any citation to the record are therefore properly disregarded. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1053.) We therefore decline to address arguments presented in Anju’s brief.

Ultimately, however, Anju will suffer no disadvantage for her mistake. Despite the deficiencies in the record and in the briefing, our review of the materials before us tends to show that the most salient point of argument between the parties was whether Trotter and Flinn had standing to bring their causes of action. Because we review a court’s order sustaining a demurrer de novo, we will address whether Trotter and Flinn had standing. As discussed below, our answer is no.

III. The Trial Court Properly Sustained the Demurrers Without Leave to Amend
IV.
A. Standard of review
B.
We independently review the ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) “ ‘We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.’ ” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 833(Tenet Healthsystem Desert).)

If a trial court sustains a demurrer without leave to amend, we determine whether there is a reasonable possibility appellant could cure the defect by amendment. If so, we conclude that the trial court abused its discretion and we reverse. (Tenet Healthsystem Desert, supra, 245 Cal.App.4th at p. 833.). The appellant has the burden of proving that an amendment would cure the defect. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)

C. Trotter and Flinn did not have standing to bring their causes of action
D.
A cause of action for wrongful death is a statutory claim. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) The right to bring such an action is limited to only those persons described by the Legislature in section 377.60. (Stennett v. Miller (2019) 34 Cal.App.5th 284, 290.) Absent a constitutional basis for departure from legislative intent, the courts of this state are bound by the statute’s provisions. (Id. at p. 297.) The category of persons eligible to bring wrongful death actions is strictly construed. (Id. at p. 290.)

Section 377.60 confers standing on the 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.” (§ 377.60, subd. (a).) It is undisputed decedent had no surviving spouse, domestic partner, children or issue of deceased children and no will. Because Trotter and Flinn were decedent’s nieces, we must look to the law of intestate succession to determine whether they have standing to sue for decedent’s wrongful death.

Probate Code section 6402 governs who has priority to inherit a decedent’s property when it does not pass to a surviving spouse or there is no surviving spouse. The statute prioritizes heirs as follows: first, to surviving children; second, to the decedent’s surviving parents; third, to the issue of the parents; fourth, to any surviving grandparents or issue of grandparents; fifth, to the issue of a predeceased spouse; sixth, to the next of kin; and last, to the parents of a predeceased spouse or to the issue of those parents. Appellants argue they are “next of kin” which would put them in the sixth category of priority to inherit.

Here, decedent’s sisters, Kirkpatrick and Lewis, as “issue of the parents,” had sole priority under Probate Code section 6402, subdivision (c) to inherit Walker’s property via intestate succession. They are the only family members with standing to sue for wrongful death.

Trotter and Flinn acknowledge Probate Code section 6402 categorizes beneficiaries in terms of priority. They do not argue they have priority. Instead, they point out that the statute does not address the issue of an heir who does not pursue a “timely” claim for wrongful death. They rely on Andersen v. Barton Memorial Hospital, Inc. (1985) 166 Cal.App.3d 678 (Andersen) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 (Ruttenberg) for the propositions that (1) any heir may sue for wrongful death if an heir with priority does not timely file a cause of action because each heir has a personal and separate cause of action; and (2) any heir may sue for wrongful death regardless of their priority because non-joined heirs, although “necessary” parties, are not “indispensable” parties.

Appellants’ reliance on these cases is misplaced. In Andersen, decedent’s husband and two of her children filed a wrongful death action. (Andersen, supra, 166 Cal.App.3d at p. 680.) More than three years after decedent’s death, another biological child filed a motion for leave to intervene and, on appeal, argued her motion was not time barred by the applicable three-year statute of limitations because it related back to the filing of the complaint by the husband and other two children. (Ibid.) Noting that each heir has a personal and separate cause of action for wrongful death, the court disagreed and determined that the third child could not overcome the statute of limitations by attempting to relate back to a timely filed complaint. (Id. at pp. 681, 685.)

Trotter and Flinn seek to usurp the sisters’ priority position as sole heirs. In Andersen, the biological child who filed an untimely motion to intervene was not attempting to skip over another class of relatives with higher priority. Rather, standing was easily established for the parties in Andersen because there was no dispute the children were issue of the decedent and therefore had an equal right to their mother’s property via intestate succession. Andersen does nothing to undermine the cardinal rule that next of kin cannot recover a decedent’s property unless all other family members with priority fail to survive the decedent.

Trotter and Flinn argue heirs without priority should be able to sue for wrongful death whenever heirs with priority fail to do so. This argument ignores the fact that a cause of action for wrongful death is personal to those persons with priority authorized to maintain the suit under the statute and may not be assigned, disclaimed, or renounced so that others with less priority can prosecute the action. (Lewis v. Regional Center of the East Bay (1985) 174 Cal.App.3d 350, 354–355 [waiver by surviving relatives with priority cannot confer standing on heirs in a lower position]; Mayo v. White (1986) 178 Cal.App.3d 1083, 1090 [renunciation of heirship by parents does not confer standing to sue on brothers and sisters].) An action for wrongful death is brought by the persons with priority or it is not brought at all. The mere failure of decedent’s sisters to file an action for wrongful death is insufficient to confer standing on decedent’s nieces.

Neither does Ruttenberg compel us to rule in favor of Trotter and Flinn. In Ruttenberg certain family members brought a wrongful death action. Although the family members named one of decedent’s daughters as a nominal plaintiff they failed to serve her with the compliant. (Ruttenberg, supra, 53 Cal.App.4th at p. 804.) The court held that omitted heirs are not indispensable parties to a wrongful death action because the superior court has jurisdiction to try a wrongful death action even absent joinder of one or more heirs. (Id. at p. 808.) Omitted heirs are, however, necessary parties, and heirs who file wrongful death actions have a mandatory duty to join all known omitted heirs. (Ibid.) The court determined the daughter, as a necessary party, could properly sue the family members for failing to join her in their wrongful death complaint. (Id. at p. 809.)

Again, there was no dispute that the daughter in Ruttenberg had standing to participate in the wrongful death action because she was decedent’s issue. The distinction between necessary and indispensable parties explained in Ruttenberg does not support the conclusion that multiple heirs have a right to bring a wrongful death action regardless of their priority under the intestacy laws. The issue here is not whether Kirkpatrick and Lewis are necessary or indispensable parties; the issue is that they are decedent’s surviving sisters with priority over Trotter and Flinn, decedent’s nieces, and they alone have standing to sue for wrongful death. The trial court properly sustained the demurrers without leave to amend.

DISPOSITION

The judgment is affirmed. Only Respondents Pramod and Anju Multani are awarded costs on appeal as Respondent Revena Acosta did not appear.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.