13-684097

Tentative ruling:

1) Defendant Dr. Mahon’s demurrer to the Katz plaintiffs’ first amended complaint is sustained in part and continued in part for further briefing. As to plaintiffs’ first cause of action for wrongful death based on medical negligence, defendant Dr. Mahon’s demurrer is SUSTAINED, without leave to amend, as to plaintiffs Steven D. Katz, Marion L. Katz and Michelle L. Burgos because as siblings of decedent Samuel R. Katz, with decedent’s parents still living, the siblings are not heirs of decedent. See, C.C.P. § 377.60(a) and Probate Code § 6402(b). Also, decedent’s parents cannot assign or disclaim their interest and thereby create standing in the siblings of decedent Samuel R. Katz. See, Mayo v. White (1986) 178 Cal.App.3d 1083, 1090 to 1091. As to plaintiffs Allen Katz and Ann Katz, defendant Mahon’s demurrer is  CONTINUED to 5-16-14, at 1:30 p.m., in Department C-11, for supplemental briefing on the issue of whether when an (ineffective) assignment of a cause of action, is set forth on the face of the complaint, and the statute of limitations later runs, the law, permits the filing of an amended complaint by the assignors that relates back to the original complaint. Plaintiffs to file a supplemental brief on no more than 10 pages to be filed and served by e-mail on or before 5:00 p.m. on 5-2-14, and defendant Dr. McMahon to file and serve a supplemental brief of no more than 10 pages by e-mail on or before 5:00 p.m. on Friday, 5-9-14.

As to plaintiffs’ second cause of action for survival claim, defendant Dr. Mahon’s demurrer is SUSTAINED with leave to amend. The Katz plaintiffs’ second cause of action for survival claim is procedurally defective for failure to comply with C.C.P. §§ 377.30 and 377.32. Also, unlike Quiroz, the Katz plaintiffs’ original caption included a survival claim and plaintiffs also alleged some facts as to arguable neglect in the provision of medical care to decedent Samuel R. Katz. Moving party to give notice.

2) Defendant Dr. Mahon’s motion to strike is granted in part and is otherwise moot. Defendant’s motion to strike is GRANTED a to the phrases “ and possible unlawfulness,” “emotional distress,” and Prayer Item 3 for decedent Samuel R. Katz’s medical expenses as these allegations are unsupported or do not state recoverable damages. As to the phrases asserted in conjunction with plaintiffs’ second cause of action for survival claim based on medical negligence, defendant Dr. Mahon’s demurrer is sustained as to this cause of action so his motion to strike phrases in conjunction with plaintiffs’ survival action is MOOT. Finally, the Katz Plaintiffs are granted leave to amend only as to the phrase “unlawfulness” if they can plead facts as to some allegedly unconsented to treatment by defendant Dr. Mahon. See, C.C.P. § 472c(d). Moving party to give notice.            

3) The demurrer by defendants Dr. Moro and Dr. Palafox to the Katz plaintiffs’ first amended complaint is sustained in part and continued in part for further briefing as set forth in the ruling on the Mahon demurrer.

As to plaintiffs’ second cause of action for survival claim, the demurrer by defendants Dr. Moro and Dr. Palafox is SUSTAINED with leave to amend. The Katz plaintiffs’ second cause of action for survival claim is procedurally defective for failure to comply with C.C.P. §§ 377.30 and 377.32. Also, unlike Quiroz, the Katz plaintiffs’ original caption included a survival claim and plaintiffs also alleged some facts as to arguable neglect in the provision of medical care to decedent Samuel R. Katz. Moving party to give notice.

4) Defendant St. Joseph’s joinder in Dr. Mahon’s demurrer is granted in part and continued for further briefing in part for the reasons set forth on Motion No. 1. Moving party to give notice.

5) Defendant St. Joseph’s joinder in Dr. Mahon’s motion to strike is granted in part and otherwise moot for the reasons set forth on Motion No. 2. Moving party to give notice.

6) Defendant Dr. Mittal’s joinder in Dr. Mahon’s demurrer is granted in part and continued for further briefing in part for the reasons set forth on Motion No. 1. Moving party to give notice.

7) Defendant Dr. Mittal’s joinder in Dr. Mahon’s motion to strike is granted in part and otherwise moot for the reasons set forth on Motion No. 2. Moving party to give notice.

Defendant Dr. Mahon’s Request for Judicial Notice: Defendant Dr. Mahon requested that the court take judicial notice of the following documents: Exhibit A, the Original Complaint in Katz, et al. v. St. Joseph Hospital, et al., O.C.S.C. Case No. 30-2013-00684097 filed on 10-28-13 and Exhibit B, the First Amended Complaint in Katz, et al. v. St. Joseph Hospital, et al., O.C.S.C. Case No. 30-2013-00684097 filed on 1-17-14. GRANTED as to Exhibits A and B, but such notice is limited to the filing of these pleadings with this court and not as to the truth of any claims or contentions set forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904, 914.