Case Number: SC117555    Hearing Date: April 25, 2014    Dept: O

SC117555
WINTHROP ET AL v. ESTATE OF MACDONALD

MSJ/MSA
Defendant fails to meet its burden as moving party. Triable issues of fact remain as to whether decedent suffered physical harm or pain or mental suffering due to MacDonald’s failure to properly care for and monitor him. The mere fact that he suffered fatal injuries upon impact with the sidewalk does not establish as a matter of law that he suffered no physical harm pain or suffering prior to death. Defendant presents no expert medical evidence that would establish this fact. Defendant’s MSA is DENIED.

ANALYSIS: Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code of Civil Procedure §437c(c).) From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to a judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. See Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.

Pursuant to Code of Civil Procedure §437c(f)(1), a party may properly seek summary adjudication of one or more causes of action, one or more affirmative defenses, the issue of punitive damages or the issue of duty. See Code of Civil Procedure §437c(f)(1). “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages or an issue of duty.” Id.

Defendant moves for summary adjudication of Plaintiff’s claim under the Elder and Dependent Adult Civil Protection Act. Defendant argues decedent suffered no pre-death pain and suffering damages because he fell to his death and died on impact.

Plaintiff opposes on grounds that Defendant presents no medical evidence to support the claim that decedent died on impact. Plaintiff also argues that there is nothing to support the inference that decedent felt no physical pain and suffering. Moreover, Plaintiff points out that the Act (W&IC 15610.07) defines abuse as physical harm, pain or mental suffering resulting from neglect or deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Defendant fails to establish that decedent did not experience any physical harm, pain or mental suffering prior to death. The mere fact that his mother’s boyfriend did not observe any obvious traumatic injury is not probative of decedent’s lack of physical harm, pain or mental suffering prior to death. The boyfriend is not an expert in causes of death or a medical doctor who could opine on whether the decedent felt any pain or suffering prior to death.

Moreover, Plaintiff correctly points out that actionable “abuse” under W&IC 15610.07 includes “Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” and “The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Defendant is moving on the assumption that the absence of physical harm is obvious under the circumstances of decedent’s death. In addition to being an unsupported assumption, Defendant’s showing does not address Plaintiff’s claim that decedent suffered pain and mental suffering due to the MacDonald and her household’s failure to properly supervise him.

Plaintiff submits evidence that MacDonald and her boyfriend failed to administer the psychiatric drugs decedent required and that he was severely agitated just prior to jumping from the window. To the extent Defendant is relying upon reasonable inferences based on the circumstances of decedent’s death, Plaintiff’s evidence sufficiently raises an inference that decedent was undergoing extreme mental suffering resulting in his suicide.

Defendant fails to meet its burden as moving party. Triable issues of fact remain as to whether decedent suffered physical harm or pain or mental suffering due to MacDonald’s failure to properly care for and monitor him. The mere fact that he suffered fatal injuries upon impact with the sidewalk does not establish as a matter of law that he suffered no physical harm pain or suffering prior to death. Defendant presents no expert medical evidence that would establish this fact.

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
Plaintiff’s Motion for Leave to File First Amended Complaint is DENIED. Plaintiff fails to submit a declaration explaining the reason for the amendment and why it was not made earlier. Given the proximity of the trial date and the factual overlap between the new and existing claims, such an explanation is absolutely necessary.

ANALYSIS: The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend; and, where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” See Morgan v. Sup.Ct.(1959) 172 Cal.App.2d 527, 530 (emphasis added). Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.

Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488. Delay alone is insufficient grounds for denial of leave of amend. If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.

Ordinarily, the validity of the proposed amended pleading will not be considered in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are premature. See Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 Cal.App.3d 1045, 1048. However, leave to amend may be denied where a proposed amendment fails to state a valid cause of action or defense. See California Casualty General Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 Cal.App.3d 274, 280–281 (disapproved on other grounds). Such denial is ‘most appropriate‘ where the pleading is deficient as a matter of law and the defect could not be cured by further appropriate amendment. Id.; see also Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 23 (proposed amendment barred by statute of limitations and no basis for ‘relation back’).

However, despite the general policy of liberally allowing amendment of pleadings, the court is not required to accept an amendment that is frivolous, a sham or in bad faith. See American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 878. “The well-established rule is that a proposed amendment which contradicts allegations in an earlier pleading will not be allowed in the absence of ‘very satisfactory evidence’ upon which it is ‘clearly shown that the earlier pleading is the result of mistake or inadvertence.’” Id. (affirming trial court’s decision to deny leave to amend based on finding that (1) attorney declaration explaining delay in amendment was not credible and (2) request for amendment was prompted by looming summary judgment that would have disposed of plaintiff’s case).

Plaintiff asks for leave to file a FAC adding two causes of action for negligent performance of an express undertaking and negligent performance of an implied undertaking. The trial date is approximately one month away, the action has been pending for nearly two years and Plaintiff fails to provide a satisfactory explanation for failing to bring these claims sooner.

The new causes of action overlap almost entirely with Plaintiffs’ wrongful death and dependent adult abuse claims. Both the existing and proposed claims are based on the same allegations of MacDonald’s negligent undertaking and performance of her promise to care for decedent. The distinction between the negligence and wrongful death claims lies in the recoverable damages. The recoverable damages in a negligence claim are those the decedent sustained or incurred before death, while a wrongful death claim compensates specified heirs of the decedent for losses they suffered as a result of the decedent’s death. Both causes of action will require the same legal showing, however, as the wrongful death claim is based on negligence.

With regard to decedent’s pre-death damages, the Dependent Care Abuse claim overlaps in that respect entirely with the negligence claim. The Dependent Care Abuse claim allows for recovery of any pre-death damages suffered by the decedent due to the Defendant’s abuse or neglect.

Defendant argues the negligence claims are barred because Plaintiffs never submitted a creditor’s claim to MacDonald’s estate for them. “An action may not be commenced against a decedent’s personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part.” Prob. C. §9351. “As a general proposition it is true that recovery cannot be had upon a cause of action which varies materially from that set forth in the written claim, and it must be conceded that there is a wide divergence in the authorities as to what constitutes a material variance in such cases.” Tabata v. Murane (1944) 24 Cal.2d 221, 229-230. The probate claim is based on the exact same nucleus of facts as the negligence claims, the death of decedent due to MacDonald’s negligence. The damages sought in the negligence claim would overlap with the Dependent Adult abuse claim for pre-death damages. There is therefore no fatal variance between the claim and the proposed negligence actions.

However, as presented, the request for leave to file FAC must be denied due to Plaintiff’s failure to provide a CRC Rule 3.1324(b) declaration. Most importantly, Plaintiff fails to explain his failure to plead these negligence claims earlier, given that all necessary facts to do so were within his knowledge when the complaint was filed. Moreover, the trial date would have to be continued and discovery reopened to address Defendant’s due process concerns.