Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG09449175
Bruiniers, J.
Appellant John W. Jones sued Alta Bates Summit Medical Center (Alta Bates) and other health care providers for the wrongful death of his mother, Bessie Mae Jones. His mother died on April 26, 2006. He filed his complaint on April 27, 2009. The trial court sustained Alta Bates’s demurrer, without leave to amend, on the basis that Jones’s action was barred by the applicable statute of limitations. He appeals. We affirm.
All subsequent references to Jones refer only to the appellant. All other persons with the surname Jones are identified by full name.
I. Background and Procedural History
Bessie Mae Jones was admitted to Alta Bates’s medical center in Berkeley in January 2006, for treatment of stomach and colon problems. She had surgery and was subsequently transferred to Shattuck Health Care, doing business as Elmwood Care Center (SHC) for post-treatment monitoring. In April 2006, she was transferred to McClure Convalescent Hospital (McClure), where she stayed for about a week. She was then readmitted to the hospital, in the intensive care unit at Alta Bates’s medical center in Oakland. She died on April 26, 2006, from blood poisoning resulting from “diverticulosis” that was untreated and concealed from Bessie Mae Jones and her family members.
Because a demurrer admits the truth of all material facts properly pled (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439–440), we set forth the facts as alleged in Jones’s complaint.
The First Complaint
On April 23, 2007, Al Davis Jones (Jones’s sibling) attempted to file, in propria persona, a complaint against Alta Bates, McClure and “Elmwood Nursing and Rehab Center, ” asserting that Bessie Mae Jones died of “Septism” and alleging medical malpractice and wrongful death. (Jones v. Alta Bates et al. (Super. Ct. Alameda County, 2007, No. RG07322140).) The complaint was dismissed for failure to submit filing fees or to obtain a fee waiver.
The Second Complaint
On August 9, 2007, Al Davis Jones filed another wrongful death/medical malpractice and negligence complaint, again in propria persona, against the same defendants with essentially the same pleading allegations. (Jones v. Alta Bates et al. (Super. Ct. Alameda County, 2007, No. RG07339885).) Although not part of this record, a first amended complaint (FAC) was apparently filed at some point thereafter, alleging that Bessie Mae Jones died as a result of “diverticulosis, ” and that this fact had been concealed from her children. In that action, Jones filed a declaration, dated September 15, 2007, indicating his desire to join in the FAC. On April 1, 2008, the court sustained a demurrer to the FAC, without leave to amend, on the grounds that the complaint was subject to the one year statute of limitations provided under Code of Civil Procedure section 340.5 and that plaintiff had failed to file the action within one year of discovery of the injury. An appeal was taken, but it was dismissed on June 25, 2008, after Al Davis Jones twice failed to pay the filing fee or obtain a fee waiver. (Jones v. Alta Bates Summit Medical Center et al. (June 25, 2008, A121314).)
Nothing in the record before us, however, shows that he actually did so.
All subsequent code references are to the Code of Civil Procedure unless otherwise indicated.
The Present Complaint
Jones, in propria persona, filed the complaint at issue here in the Alameda Superior Court on April 27, 2009. In addition to a claim for medical malpractice, Jones alleged causes of action for “Fraudulent Concealment, ” “Breach of Fiduciary Duty to Disclose Information to Patient/Heirs, ” “Negligence, ” and “Conspiracy.” Jones pled that the “heirs” had been unaware that their mother had suffered from an abscess in her colon until September 2006, when his brother Al Davis Jones obtained his mother’s medical records.
Alta Bates demurred on the grounds that the complaint was time barred under section 340.5, that Jones had no standing to pursue any claims on behalf of other family members or his mother’s estate, and that each of the claims he attempted to plead failed to state a cause of action. SHC demurred, also contending that the complaint was barred by the statute of limitations, failed to state a cause of action, and that the final judgment in the second complaint filed by Al Davis Jones was res judicata. On September 9, 2009, the court sustained both demurrers without leave to amend. The court found that the allegations of Jones’s pleading established that he and other “heirs” learned of facts sufficient to put them on inquiry notice of alleged professional negligence by September 2006, and that this action was therefore untimely under section 340.5. The court further found that even if the action were not time barred, it would be barred by res judicata and collateral estoppel. The court further noted that Jones, acting in propria persona, had no ability to pursue claims on behalf of anyone other than himself, and that he had failed to demonstrate standing to pursue claims on behalf of his decedent mother (citing §§ 377.30, 377.32).
The caption of the complaint identified the “plaintiff” as “JOHN W. JONES, Co-heir of JONES FAMILY (Deceased: BESSIE MAE JONES).”
McClure’s default had been taken by Jones, and the default was not set aside until after the motion proceedings at issue here. McClure accordingly is not a party to this appeal. Alta Bates and SHC are collectively referred to as Defendants.
As stated in section 377.30, “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”
Jones filed a notice of appeal on September 18, 2009.
II. Discussion
“On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. [Citations.] [¶] We do not, however, assume the truth of contentions, deductions, or conclusions of law. [Citation.]” (Stearn v. County of San Bernardino, supra, 170 Cal.App.4th at pp. 439–440.)
“[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) The burden of showing a reasonable possibility that a complaint’s defects can be cured by amendment is on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) On appeal from a demurrer we search the facts to see if they make out a claim for relief under any theory, regardless of whether the theory was raised before the trial court. (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629–630.)
A. Jones’s Medical Negligence and Wrongful Death Causes of Action are Time Barred
We address the merits of Jones’s claims despite the many patent defects in his briefing. Jones’s opening brief contains almost no citations to the record in his recitation of the “facts.” Rule 8.928 of the California Rules of Court provides in relevant part that all appellate briefs must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.928(a)(1)(B).) Further, an appellant’s opening brief must “[p]rovide a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.928(a)(2)(C).) “ ‘The appellate court is not required to search the record on its own seeking error.’ (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Thus, ‘[i]f a party fails to support an argument with the necessary citations to the record, ... the argument [will be] deemed to have been waived. [Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Jones is not exempt from the foregoing rules because he is representing himself on appeal in propria persona. While a party may choose to act as his or her own attorney, “ ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.]” (Id. at pp. 1246–1247.)
An action for injury or death against a health care provider based upon alleged professional negligence must be brought within three years after the date of injury “or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first....” (§ 340.5, italics added.) “[S]ection 340.5 establishes two hurdles, not one, to the timely maintenance of a medical malpractice claim. Thus, if a malpractice litigant brings her action within three years from the date of injury, she must still satisfy the one-year limitations period or the action is time barred. Conversely, if the action is properly brought within one year of reasonable discovery, the action is nevertheless barred if the three-year period is not also satisfied.” (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 758 (Hills), fn. omitted.)
The one year period commences once the patient is reasonably aware of the physical manifestation of the injury and also of its negligent cause. (Hills, supra, 152 Cal.App.3d at p. 759; see also Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101 (Sanchez).) “Possession of ‘presumptive’ as well as ‘actual’ knowledge will commence the running of the statute.... ‘[W]hen the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation... the statute commences to run.’ [Citation.]” (Sanchez, at p. 101.) “ ‘Thus, when the patient’s “reasonably founded suspicions [have been aroused], ” and she has actually “become alerted to the necessity for investigation and pursuit of her remedies, ” the one-year period for suit begins. [Citation.]’ [Citation.]” (Artal v. Allen (2003) 111 Cal.App.4th 273, 279.)
Jones’s own pleadings, as well as the prior complaints filed by his sibling that are referenced in those pleadings, conclusively demonstrate that Jones had notice from his mother’s medical records of “information of circumstances to put a reasonable person on inquiry” more than one year before commencement of his action. In his complaint, Jones alleged that he had obtained the medical records and learned of his mother’s untreated colon infection in “September of 2006.” In a declaration submitted under penalty of perjury accompanying his opposition to the demurrers, Jones alleges that “[I]n September, 2007, it was revealed to me by brother Al Davis Jones that our mother died at the negligence of the hospital and doctors because they concealed from their mom and heirs that she had an infection (abscess-Diverticulosis) in the colon which spreaded [sic] throughout the blood stream because the doctors negligently failed to remove the infected tissue during surgery.” (Italics added.) Jones makes the same admission in his opening brief and in his reply brief. In fact, in his reply brief, Jones alleges that his brother not only obtained and reviewed the medical records in September 2007, but that his brother also researched caselaw concerning medical malpractice. The complaint is therefore clearly time barred and the demurrer was properly sustained without leave to amend.
Jones clearly misapprehends the import of the tolling provisions of section 340.5, which provide for extension of the three-year limitations period in cases of fraud or intentional concealment. He contends that since his discovery of the medical negligence was delayed until September 2007, by what he has alleged to be Defendants’ fraud and intentional concealment, he was only required to bring his action within three years of discovery and has done so. As discussed ante, Jones is simply wrong. Section 340.5 clearly requires that the action be brought within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first....” (§ 340.5, italics added.)
Jones, however, alleged a September 2006 discovery date in his verified complaint and the April 2007 complaint filed by Jones’s brother also confirms an earlier discovery date.
The tolling provisions apply to the three-year limitations period, not the one-year period, because the one-year term is only triggered once “ ‘the patient’s “reasonably founded suspicions [have been aroused], ” and she has actually “become alerted to the necessity for investigation and pursuit of her remedies[]”....’ ” (Artal v. Allen, supra, 111 Cal.App.4th at p. 279; see also Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 405, fn. 5 (Norgart) [§ 340.5 “incorporates both the general rule for defining the accrual of a cause of action and also the discovery rule as an exception thereto, ” with a limitations period of either three years from the date of death, or one year after the date on which “the plaintiff comes at least to suspect, or have reason to suspect, a factual basis therefor, depending on which of the two dates is the earlier”].) None of the cases Jones cites hold otherwise, and some cases hold quite the opposite of the proposition for which they are cited. For example, he cites Sanchez, supra, 18 Cal.3d 93, in support of his position that the limitations periods of section 340.5 were tolled. Sanchez in fact reiterated the rule that, while “a defendant’s fraud in concealing a cause of action against him tolls the applicable statute of limitations, [it does so] only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it. [Citations.] Notwithstanding a defendant’s continuing efforts to conceal, if plaintiff discovers the claim independently, the limitations period commences.” (Sanchez, at p. 99.) The court went on to specifically address the application of the tolling provisions (under a prior 1970 version of section 340.5 with a four-year outside limitations period) and held that the tolling provisions of section 340.5 applied only to the four-year, and not to the one-year limitations period contained in that statute. (Id. at p. 101.) “It follows accordingly that nondisclosure, for purposes of tolling, did not affect the one-year limitations period at issue herein.” (Ibid., italics added; accord Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 [three-year period to bring suit under section 340.5 tolled by fraud or intentional concealment; “one-year period is not similarly extended”].)
Jones cites cases throughout his briefs without any analysis of how they apply under the facts of this case, and without any direction to pages within the opinions addressing the issues he believes are relevant. Accordingly, he provides no meaningful legal analysis. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 [“[t]o demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error”]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 [when an appellant raises an issue “but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)
Jones also seems to argue here that, even if his derivative claim for medical malpractice as an heir is time barred, he is entitled to nevertheless pursue a direct wrongful death claim under section 377.60. Section 377.60 provides: “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by... [¶]... [t]he decedent’s... children....” A cause of action for wrongful death is thus a statutory claim. (§§ 377.60–377.62.) It is a new cause of action that arises on the death of the decedent. (Grant v. McAuliffe, supra, 41 Cal.2d at p. 864.) “Its purpose is to compensate specified persons-heirs-for the loss of companionship and for other losses suffered as a result of a decedent’s death. (Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 335.)” (Quiroz v. Seventh Ave. Center, supra, 140 Cal.App.4th at p. 1263.) One of the many problems with Jones’s argument is that even with the two-year limitations period now applicable to bring the claim (§ 335.1), his claim is barred. The date of accrual of a wrongful death cause of action is no later than “the date on which the plaintiff comes at least to suspect, or have reason to suspect, a factual basis for its elements.” (Norgart, supra, 21 Cal.4th at p. 405, fn. omitted.) Any wrongful death claim therefore also accrued not later than September 2006-the date set forth in his verified complaint-and is likewise time barred.
“Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. (Grant v. McAuliffe[(1953)] 41 Cal.2d [859, ] 864.)” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.) A cause of action that survives the death of a person passes to the decedent’s successor in interest and is enforceable by the “decedent’s personal representative or, if none, by the decedent’s successor in interest.” (§ 377.30.) As the trial court observed, Jones also failed to comply with the statutory requirements to pursue a survivor action on behalf of his mother’s estate under section 377.32.
Jones protests that he should be entitled to present his claims to a jury because they are meritorious. “[T]he statute of limitations ‘necessarily fix[es]’ a ‘definite period[] of time’ [citation], and hence operates conclusively across-the-board. It does so with respect to all causes of action, both those that do not have merit and also those that do. That it may bar meritorious causes of action as well as unmeritorious ones is the ‘price of the orderly and timely processing of litigation’ [citation]-a price that may be high, but one that must nevertheless be paid.” (Norgart, supra, 21 Cal.4th at p. 410, fn. omitted.)
B. Jones’s Claims are Barred by Res Judicata and Collateral Estoppel Principles
As an alternative ground for sustaining the demurrers, the court found the claims to be barred by res judicata and collateral estoppel. “ ‘As generally understood, “[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” [Citation.]’ ” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken).)
“Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citation.]... [¶]... A predictable doctrine of res judicata benefits both the parties and the courts because it ‘seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.’ [Citation.]” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896–897, fn. omitted.)
“The doctrine ‘has a double aspect.’ [Citation.] ‘In its primary aspect, ’ commonly known as claim preclusion, it ‘operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]’ [Citation.] ‘In its secondary aspect, ’ commonly known as collateral estoppel, ‘[t]he prior judgment... “operates” ’ in ‘a second suit... based on a different cause of action... “as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.” [Citation.]’ [Citation.]” (People v. Barragan (2004) 32 Cal.4th 236, 252–253; Boeken, supra, 48 Cal.4th at p. 797.)
Jones does not deny that his brother previously brought suit against the same defendants, alleging claims for wrongful death of their mother based on medical negligence, and for breach of fiduciary duty. He does not dispute that the trial court sustained Defendants’ demurrers without leave to amend, ruling that the claims were time barred under section 340.5 for failure to file within one year of discovery of the injury. Nor does he deny that the termination of his brother’s appeal in that case resulted in a final judgment adjudicating the statute of limitations issue. The trial court’s dismissal on the merits of this issue, now final, has res judicata effect. (Lockwood v. Sheppard, Mullin, Richter & Hampton (2009) 173 Cal.App.4th 675, 682.) Rather, Jones contends that that res judicata principles do not apply because his lawsuit is not “identical” to his brother’s, and he alleges cause of action for fraudulent concealment and civil conspiracy in addition to those pled in the prior complaint. Once again, Jones misunderstands or miscites applicable law. The fact that he now seeks to advance additional claims or new theories of recovery does not save his complaint.
Jones ignores this decision entirely in his opening brief, and only mentions it in passing in his reply brief.
“[R]es judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. Moreover, because the estoppel need not be mutual, it is not necessary that the earlier and later proceedings involve the identical parties or their privies. Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.] [¶] Accordingly, the collateral estoppel doctrine may allow one who was not a party to prior litigation to take advantage, in a later unrelated matter, of findings made against his current adversary in the earlier proceeding.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828–829.)
The requirements for invoking collateral estoppel are the following: “1) the issue to be precluded must be identical to that decided in the prior proceeding; 2) the issue must have been actually litigated at that time; 3) the issue must have been necessarily decided; 4) the decision in the prior proceeding must be final and on the merits; and 5) the party against whom preclusion is sought must be in privity with the party to the former proceeding. [Citations.]” (People v. Garcia (2006) 39 Cal.4th 1070, 1077.)
In this instance, the wrongful death/medical negligence claims presented in both actions are identical, and premised on identical facts. The issue was actually litigated in the first demurrer hearing, and was necessarily decided in grant of that demurrer without leave to amend. Dismissal of the appeal in the earlier matter renders that judgment final. Jones here seeks to bring this action as one of the decedent’s “heirs, ” as did his brother, and he sought to participate in his brother’s earlier action. “Privity is essentially a shorthand statement that collateral estoppel is to be applied in a given case....” (Lynch v. Glass (1975) 44 Cal.App.3d 943, 947.) “ ‘The concept refers “to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is ‘sufficiently close’ so as to justify application of the doctrine of collateral estoppel.” ’ [Citations.]” (Executive Risk Indemnity, Inc. v. Jones (2009) 171 Cal.App.4th 319, 325, fn. 7.) Jones is in privity with his brother as to these claims. Whether viewed as res judicata claim preclusion, or collateral estoppel issue preclusion, Jones is barred in either instance from pursuing his wrongful death and medical negligence claims.
Again, the cases Jones relies upon fail to support his position. In Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292 (Frommhagen), the court rejected a res judicata claim on disputed tax charges for years different than those previously litigated, but held that much of the second action was barred under collateral estoppel principles. (Id. at p. 1300.) “Thus, where two lawsuits are brought and they arise out of the same alleged factual situation, and although the causes of action or forms of relief may be different, the prior determination of an issue in the first lawsuit becomes conclusive in the subsequent lawsuit between the same parties with respect to that issue and also with respect to every matter which might have been urged to sustain or defeat its determination. [Citation.]” (Id. at p. 1301.)
Frommhagen also emphasized that “[i]f all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. [Citation.]” (Frommhagen, supra, 197 Cal.App.3d p. 1299.)
In Lucido v. Superior Court (1990) 51 Cal.3d 335, a criminal defendant charged with indecent exposure sought to bar his prosecution on the ground that a court had found evidence insufficient to establish that offense in an earlier probation revocation hearing. (Id. at p. 339.) Singularly unhelpful to Jones’s position was the court’s holding that “[t]he ‘identical issue’ requirement [of res judicata or collateral estoppel] addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.” (Id. at p. 342.) The court found that the elements of collateral estoppel were established, but that, on a policy basis, application of collateral estoppel under the circumstances of that case “would ill serve the integrity of the criminal justice system as a whole, even in cases in which the first proceeding resulted in a final judgment addressing the issue sought to be barred from relitigation.” (Id. at p. 347.)
C. Jones’s Complaint Fails to State a Cause of Action
In addition to the medical negligence and wrongful death claims, Jones sought to plead personal causes of action for fraud, breach of fiduciary duty, and “civil conspiracy, ” and he contends that he may still pursue these claims. Even assuming they are not otherwise barred, Jones fails to state viable causes of action. Claims that Defendants failed to disclose information to his mother, or that they withheld information from her relevant to her treatment, are medical negligence claims, regardless of how Jones seeks to frame them. (See Arato v. Avedon (1993) 5 Cal.4th 1172, 1186 [discussing physician’s legal duty to disclose to the patient all material information needed to make an informed decision regarding a proposed treatment.].) A claim that Defendants failed to disclose or concealed information regarding his mother’s diagnosis or treatment from him fail because he has failed to advance any theory, either in the trial court or here, that would establish any duty on the part of Defendants to do so.
Res judicata principles preclude subsequent action involving the same “primary right” asserted in a prior proceeding terminated by a final judgment. (Boeken, supra, 48Cal.4th at p. 792.) “ ‘Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. “Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.” [Citations.]’ ” (Id. at pp. 797–798.)
The principal case on which Jones relies is again unhelpful to his position, and again actually undermines his argument. In Hahn v. Mirda (2007) 147 Cal.App.4th 740 (Hahn), a husband brought an action for loss of consortium for failure of his wife’s doctors to disclose that she did not have cancer, despite an earlier contrary diagnosis and treatment. (Id. at p. 743.) The trial court sustained Defendants’ demurrer without leave to amend. (Id. at p. 744.) This court reversed, holding that the doctors had a duty of disclosure to the wife, and that the husband was a forseeable plaintiff to whom the doctors owed a separate duty of care. He could therefore pursue an independent action for loss of consortium. (Id. at p. 746.) A loss of consortium claim is, however, a separate species of tort, requiring among other elements a valid and lawful marriage between the plaintiff and the person injured. (Id. at p. 746 & fn. 2, citing 4 Levy et al., California Torts (2006) Loss of Consortium, § 56.02[2], p. 56-4].) “A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Hahn, at p. 746, italics added.)
In Hahn, the court also discussed the essential element of causes of action for negligence and fraudulent concealment-duty. “To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff. [Citation.] The complaint in this case alleges that respondents acted negligently toward Ms. Hahn and that they failed to disclose certain facts to her. While respondents may well have owed duties of care and disclosure to Ms. Hahn, their patient, appellant has not cited and we are not aware of any authority that would impose similar duties toward him as a patient’s spouse.” (Hahn, supra, 147 Cal.App.4th at p. 745.) Jones likewise fails to provide any authority for the proposition that Defendants stood in a fiduciary relationship to him, or that any defendant had a duty of disclosure to him. Jones’s claim for “conspiracy” likewise fails, since “[c]onspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.]” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511.)
Jones makes no showing, and makes no effort to show, that he could amend his pleadings to cure any of these multiple fatal defects. The demurrers were therefore properly sustained without leave to amend.
III. Disposition
The judgment is affirmed. Defendants shall recover their costs on appeal.
We concur: Simons, Acting P. J., Needham, J.
Section 377.32 provides in relevant part that “[a] person who seeks to commence an action or proceeding... as the decedent’s successor in interest... shall execute and file an affidavit or a declaration under penalty of perjury... stating all of the following: [¶] (1) The decedent’s name. [¶] (2) The date and place of the decedent’s death. [¶] (3) ‘No proceeding is now pending in California for administration of the decedent’s estate.’ [¶] (4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest. [¶] (5) Either of the following, as appropriate, with facts in support thereof: [¶] (A) ‘The affiant or declarant is the decedent’s successor in interest (as defined in [section 377.11]) and succeeds to the decedent’s interest in the action or proceeding.’ [¶] (B) ‘The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in [section 377.11]) with respect to the decedent’s interest in the action or proceeding.’ [¶] (6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’ [¶]... [¶] (c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.”