Case Number: BC552640 Hearing Date: April 26, 2016 Dept: 46

Case Number: BC552640
NADIA CAMPBELL ET AL VS EISNER PEDIATRIC & FAMILY MED CENTER
Filing Date: 07/23/2014
Case Type: Other PI/PD/WD (General Jurisdiction)

04/26/2016
Hearing on Demurrer to Second Amended Complaint (“SAC”)

NOTICE OF TENTATIVE RULING AND PROCEDURE FOR SUBMISSION WITHOUT HEARING

This tentative ruling is posted at 11:36 a.m. on 4/22/2016.

If there are no parties who have appeared in the action other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:00 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 633-0646 or by sending an e-mail to SMCDEPT46@lacourt.org copied to all parties indicating all parties submit to the tentative and the identity of the person or firm giving notice, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, the moving parties, or if none a representative of the parties, may call the clerk or send an e-mail (as referenced above) and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

TENTATIVE RULING

Lia Labrant, M.D’s Request for Judicial Notice is GRANTED.

Lia Labrant, M.D’s demurrer is sustained without leave to amend as to both counts in the First Cause of Action of the SAC – – – for negligence—medical malpractice and 2nd “Count” for Wrongful Death as to Anjani Patridge on the basis that they fail to state facts sufficient to constitute a cause of action pursuant to CCP §430.10(e) and as to the 2nd Count for wrongful death as to all plaintiffs since the counts fails to state facts sufficient to constitute a cause of action for wrongful death pursuant to CCP §430.10(e). See discussion.

This ruling is consistent with the rulings issued in response to the demurrer by the Eisner Pediatric et al. defendants.

DISCUSSION

Plaintiff Anjani Patridge’s medical negligence/malpractice claims fail as he does not allege that defendants ever provided him with any care and treatment; as such, no duty was owed. The demurrer to the first count for medical negligence—medical malpractice as to Plaintiff Nadia Campbell is appropriate since she alleges that the defendants provided her with medical care and treatment and Defendant Lia Labrant, M.D. therefore owed her a duty of care which she allegedly breached by failing to meet the required standard of care. (SAC, ¶¶24-27.)

Defendant’s demurrer to Plaintiff Anjani Patridge’s second count for wrongful death is SUSTAINED without leave given to amend. Anjani Patridge’s wrongful death claim constitutes a sham pleading. “’While a demurrer admits all material and issuable facts, properly pleaded, it does not admit contentions, deductions or conclusions of law.’ (Ibid.) And ‘where an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity.’ (Ibid.) The court may take judicial notice of such records as appellant’s affidavits (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 C.A.3d 593, 604 and prior complaints in the same action (Perdue v. Crocker National Bank [(1985)] 38 C.3d 913, 923, fn. 5). Although ‘[g]enerally, after an amended pleading has been filed, courts will disregard the original pleading’ (Kenworthy v. Brown (1967) 248 C.A.2d, 302), they will not do so ‘where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ (Ibid.).” Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 C.A.3d 1383, 1387.

“Generally, ‘[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.] Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. [Citation.]’ (Cantu v. Resolution Trust Corp. [(1992)] 4 C.A.4th [857,] at p. 877, italics omitted.).” McClain v. Octagon Plaza, LLC (2008) 159 C.A.4th 784, 799.

Plaintiffs previously alleged in the Complaint that “[t]his case involves a pregnancy of Nadia Campbell that tragically resulted in the death of a female fetus on April 28, 2013. This fetus death occurred at the California Hospital Medical Center…” (Complaint, p. 4, ¶ GN-1; emphasis added). Plaintiffs subsequently alleged in the First Amended Complaint, in relevant part, that “Defendants… breached th[eir] duty and standard of care by failing to properly supervise and provide adequate and immediate medical attention to Plaintiff with foreseen medical complaints when Plaintiff, NADIA CAMPBELL presented herself to the hospital, the baby’s vital signs were healthy, active and moving. Due to the hospital sending Plaintiff home with her fluid still leaking the baby died prior to birth.” (FAC, ¶ 7, 4:16-24; emphasis theirs).

In the Second Amended Complaint, Plaintiffs now allege that the baby was, in fact, born alive, but that Defendants left the baby “unattended without care after delivery,” “gasping for air.” (SAC, ¶¶13-15). Since Plaintiffs fail to adequately explain the discrepancies with respect to this material factual allegation which contradict the Complaint and First Amended Complaint, Plaintiffs’ wrongful death cause of action is rejected as a sham pleading. Since a fetal death does not support a wrongful death cause of action pursuant to Justus v. Atchison (1977) 19 C. 3d 564, 565, the demurrer to the Second Amended Complaint as to this count for wrongful death is sustained as to all Plaintiffs without leave to amend.