Case Number: BC477556 Hearing Date: June 13, 2014 Dept: NCD

TENTATIVE RULING
#2
BC 477556
LO v. METHODIST HOSPITAL OF SOUTHERN CALIFORNIA

Motion of Defendant Methodist Hospital of Southern California to Abate Plaintiffs’ Action Until All Potential Plaintiffs are Joined as Parties

Defendant Michael W. Yeh’s Motion Regarding Posting of an Undertaking

TENTATIVE:
Motion of Defendant Methodist Hospital of Southern California to Abate Plaintiffs’ Action. The court finds that plaintiffs have failed to join all wrongful death plaintiffs in this action, and thereby ORDERS plaintiffs to join such parties in this action. Plaintiffs are ordered to file an amended complaint by __________________. The matter will not be stayed pending service on the new parties, but the circumstances will be considered in setting a new trial date and for case management purposes.

With respect to the posting of an undertaking, the court notes the court order of March 21, 2014, in which plaintiff Cheng N. Keuncer was ordered to post an undertaking of $10,000 within 60 days pursuant to CCP §1030 to secure costs. The court has permitted plaintiff until June 17, 2014 to post the subject bond.

This undertaking has not been posted and remains due by no later than June 17, 2014. Unless the undertaking is posted no later than June 17, 2014, plaintiff Cheng N. Keuncer’s action will be dismissed as to defendant Michael Yeh, M.D., pursuant to CCP § 1030(d).

FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiffs, the husband and adult children of decedent Chi-Fun Lo, bring this wrongful death action against defendants Methodist Hospital and Dr. Michael W. Yeh, alleging that on December 4, 2010, decedent presented to Dr. Yeh at the Methodist Hospital emergency room with hypotension, but defendants, instead of treating her for hypotension, administered to her a fatal dose of medication for hypertension, which essentially stopped her heart and caused her death.

The file shows that defendant Dr. Yeh brought a motion for an order that plaintiffs post an undertaking to secure costs pursuant to CCP section 1030, which was heard on March 21, 2014, Judge Jessner presiding. The motion was granted and plaintiff Keuncer was ordered to post bond of $10,000 within 60 days. No bond has yet been posted.

At a hearing on May 15, 2014, the court, Judge Doyle presiding, required that the bond be posted by June 17, 2014.

ANALYSIS:
Motion to Abate
Defendant Methodist Hospital seeks an order abating this action until plaintiffs have added as parties two other adult children of decedent, who should be added as parties to this wrongful death claim.

Under CCP section 377.60, a wrongful death cause of action “may be asserted by any of the following persons, or by the decedent’s personal representative on their behalf:” including a surviving spouse, children, or, “the persons…who would be entitled to the property of the decedent by intestate succession…” The complaint in this action alleges that Lo died intestate, so there is evidently no personal representative. [Para.8].

Sections 6401 and 6402 of the Probate Code govern intestate succession, providing for community property to a surviving spouse, and succession of property not passing to a surviving spouse to the issue of decedent, then to surviving parents, and then to the issue of parents. Section 6402(c). There is no dispute here that there are two other “issue” of decedent, siblings of the adult children plaintiffs, brothers in Taiwan, who are not parties to this action.

It is held that a wrongful death cause of action is a single cause of action, and that the heirs bringing such an action have a “mandatory duty to join all known omitted heirs in the ‘single action’ for wrongful death,” as the omitted heirs are “necessary parties.” Ruttenberg v. Ruttenberg (2000) 53 Cal.App.4th 801. Under Ruttenberg, where an heir was not joined in the original proceeding, the omitted heir has a remedy against the other heirs, not a right to bring the wrongful death claim again. See also Weil & Brown, Civ. Proc. Before Trial sections 2.168, 2.168.1. In such situations, Weil & Brown note that that the omitted heirs are not indispensable parties, so that the court may proceed to adjudicate the action.

However, both sides here agree that there is precedent under which a defendant settling a wrongful death action cannot avoid a subsequent action by the other heirs where the defendant knew or should have known of the existence of the other heirs prior to the settlement. See Gonzales v. Southern California Edison Co. (1999) 77 Cal.App.4th 485, 489. Since defendants indisputably are aware of the other heirs here, it therefore appears highly preferable that all plaintiffs entitled to bring the wrongful death claim be added here.

The opposition argues that serving the other parties in Taiwan would be difficult, time-consuming and expensive, and that if defendant is concerned about protecting itself, defendant can incur the expense and trouble to join these parties. This is not the standard under Ruttenberg, under which the heirs bringing the action have the mandatory duty to join the other potential plaintiffs. The opposition does not cite any precedent under which plaintiffs can abdicate this duty to defendants being sued for wrongful death.

However, there appears to be no clear precedent under which this case must be stayed or completely abated while the appropriate parties are being pursued. The concern here is a practical one, as this action was filed in January 2012, has already veered off the fast track, and this should not be a situation where the matter is completely derailed while the parties are being added. The court therefore orders that the subject parties shall be joined but shall not otherwise stay this matter.

Motion concerning undertaking
The motion was granted pursuant to CCP § 1030, under which the court may require a plaintiff residing out of this state to post an undertaking to secure an award of costs and attorneys’ fees which may be awarded in the action. As noted above, the court on March 21, 2014, Judge Jessner presiding, granted a motion by Dr. Yeh for an order requiring plaintiff Kuencer to post an undertaking of $10,000 within 60 days.

Under CCP § 1030:
“(c) If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court’s order as security for costs and attorney’s fees.

(d) The plaintiff shall file the undertaking not later than 30 days after service of the court’s order requiring it or within a greater time allowed by the court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.”

Here, there is no reason why the undertaking should not have been timely posted, as the undertaking is to secure costs, the court has found that Dr. Yeh is entitled to an undertaking, and any potential stay of this action, even if granted, does not eliminate the need for the undertaking to secure costs. In fact, if plaintiff were to dismiss this action forthwith, defendant would be entitled to seek costs, and would still need an undertaking to secure pursuing such costs against a nonresident plaintiff. The court hereby reiterates the prior Order that the $10,000 bond be posted on or before June 17, 2014.