Defendants, County of Los Angeles and Alexander Zider’s Demurrer to the First Cause of Action is Sustained Without Leave to Amend. The Demurrer to the Third Cause of Action is Overruled. The Motion to Strike is Moot. Defendants are ordered to file an answer to the complaint, with the first cause of action deemed stricken, within ten days.

1. Allegations of the Complaint
Plaintiffs, Odilia Arriaza, an individual and Jimmy Barrientos, through his biological mother Odilia Arriaza, filed this action against numerous defendants for medical malpractice, wrongful death, and NIED. Plaintiffs allege Defendants negligently cared for and treated Jimmy, leading to his untimely death.

2. Demurrer
Defendants, County of Los Angeles and Alexander Zider, M.D. demur to the first cause of action (medical malpractice) and third cause of action (NIED).

a. Medical Malpractice
Plaintiff’s first cause of action is brought by Plaintiff, “Jimmy Barrientos, through his biological mother Odilia Arriaza.” Defendants argue that the first cause of action is barred because (a) Barrientos is not a proper plaintiff, and (b) Plaintiffs did not comply with the Government Code.

Defendants’ first argument is that Decedent is not a proper plaintiff. A cause of action that survives the decedent’s death may be commenced by the decedent’s personal representative. If no representative has been appointed, suit may be commenced by the decedent’s “successors in interest” (persons entitled to inherit claim). [CCP § 377.30] This allows the decedent’s heirs to pursue claims belonging to the decedent where there are no assets to be probated or after the probate proceedings are closed. Parsons v. Tickner (1995) 31 CA4th 1513, 1523–1524.

Defendants argue the first cause of action is being maintained by Decedent personally. This is clearly not what the complaint states. It states the cause of action is being maintained by Decedent, by and through his successor-in-interest, his mother. Notably, Decedent’s mother had not filed the required CCP §377.32 declaration prior to commencement of the action. She has, however, filed the declaration at this time. The Court finds Decedent’s mother is entitled to pursue the cause of action as a survival action, and Defendants have not shown anything to the contrary.

Defendants’ second argument is that Decedent cannot maintain the cause of action because he did not file the required Government Tort Claim. The Government Tort Claim is attached as Exhibit 1 to the complaint. It shows that it was filed by Odilia Arriaza, mother of Jimmy Barriantos. Defendants rely on Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 796-798 to support their position that the government tort claim can support Arriaza’s personal cause of action only, but not her survival cause of action.

Because Nelson is directly on point, the Court quotes the opinion at length herein. The court held (citations omitted):
The other issue raised on Mrs. Nelson’s cross-appeal concerns the trial court’s adverse summary adjudication of the survival causes of action (negligence, assault, and battery for the injuries Dwayne suffered before his death) asserted on behalf of Dwayne’s estate by Mr. and Mrs. Nelson as his personal representatives. Mrs. Nelson contends her government tort claim—which shows her as the only claimant—substantially complied with the claim filing requirements. 9 We disagree.

FOOTNOTES
9 Mrs. Nelson’s claim identified her as the claimant (“Lottie Nelson”) and did not suggest her claim was made in any sort of representative capacity. Where the claim form asks for a list of the damages incurred to date, Mrs. Nelson listed “loss of son, economic losses, emotional and mental injuries, all subject to proof.”

An injured party may not maintain an action against a public entity unless a claim has been presented to the entity. (Gov. Code, §§ 911.2, 945.4.) Where two or more persons suffer separate and distinct injuries from the same act or omission, each person must submit a claim, and one cannot rely on a claim presented by another. (citations).

Because this rule is based on the purpose of the claim statutes—which is to provide sufficient information to enable the entity to adequately investigate claims and to settlement, if appropriate, without the expense of litigation (citations)

Since Dwayne’s estate did not file a claim, and since there is nothing in Mrs. Nelson’s claim to suggest it was filed in anything other than her individual capacity, and since the damages described in the claim were for “the loss of a son” (with no mention of any damage incurred by Dwayne before his death), the trial court properly resolved the survivorship claims against Mrs. Nelson. We note also that Mrs. Nelson has not explained the prejudice suffered as a result of her inability to pursue a claim on behalf of Dwayne’s estate, and there is nothing in the record to suggest there were any expenses (medical or otherwise) that could have been recovered by Mrs. Nelson in her role as Dwayne’s personal representative. Without prejudice, we would not in any event reverse.

Similar to the claim at issue in Nelson, Plaintiff’s claim herein listed only her as a claimant. Also similar to the Nelson claim, the claim herein lists only “death” as the claimed damage. The claim is therefore not sufficient to permit Plaintiff to pursue a survival claim on behalf of her son’s estate. The demurrer to the first cause of action is therefore sustained. Because this is a purely legal issue, leave to amend is denied. Notably, Plaintiff’s opposition does not address the holding of Nelson, and fails to distinguish the facts of this case from the facts before the Nelson court.

b. Third Cause of Action, NIED
Plaintiff’s third cause of action is for negligent infliction of emotional distress. Plaintiff alleges she was aware her son’s condition was deteriorating while she was visiting him in the hospital, and was aware that testing that could be done but was not being done. She also alleges she was aware Defendants were not providing adequate care and treatment, and was aware that her son was the victim of amusement for staff due to his weight. She also alleges she was aware of blood coming from the nose and mouth of her son, and lack of action on the part of Defendants in this regard. She therefore seeks to recover damages for negligent infliction of emotional distress. Notably, Plaintiff’s complaint expressly indicates that she is making a claim “pursuant to Burgess.” Burgess, however, upheld a claim for NIED under a direct victim theory. Defendant’s moving papers adequately show that Plaintiff cannot make a claim under a direct victim theory, and Plaintiff appears to concede as much in opposition. Plaintiff’s opposition argues only that she can make a claim under a bystander theory.

“The law of negligent infliction of emotional distress in California is typically analyzed … by reference to two ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071). Under the bystander theory, the plaintiff seeks to recover damages for serious emotional distress suffered as a result of an injury to a close family member. Recovery is limited as a matter of public policy to those cases where the plaintiff was present at the scene of the injury-producing event and was aware that the event was causing injury to the victim. (Id. at pp. 1072-1073.)

In Thing v. LaChusa, 48 Cal.3d at pages 667, the Supreme Court held to recover for negligent infliction of emotional distress as a bystander the plaintiff must plead and prove he or she “(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” The Thing Court expressly disapproved suggestions in prior cases that a negligent actor is liable to all those “who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct,” rather than on viewing the injury-producing event itself. (Id. at p. 668). “Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.” (Id., at p. 666).

Plaintiff argues that she was aware of her son’s suffering. The Court finds Plaintiff’s allegations are sufficient to meet the standard for NIED pursuant to Ochoa v. Superior Court (1985) 39 Cal.3d 159. In Ochoa, the plaintiffs were the parents of a juvenile who witnessed the defendant juvenile detention center’s ongoing failure to treat the child, ultimately leading to his death. Similarly here, Plaintiff alleges she witnessed and was aware of Defendants both failing to treat her son and also taunting her son during his life. Notably, neither party discusses the holding of Ochoa in the moving or opposition papers. If the parties wish to brief the applicability of Ochoa, the Court will continue the hearing to permit the parties to do so, as the Court is raising the case on its own accord.

The demurrer to the third cause of action for NIED is overruled.

3. Motion to Strike
Defendants move to strike Plaintiff’s prayer for general damages in favor of Decedent and for $250,000 for medical malpractice. Plaintiff failed to file opposition to the motion to strike.

The motion to strike is moot in light of the Court’s ruling on the demurrer, above. Both of the subject requests for damages are made in connection with the first cause of action, which does not survive demurrer.

Dated this 17th day of March, 2014

Hon. Elia Weinbach
Judge of the Superior Court