Estate of Timothy Lynch vs. Orange Coast Memorial Center For Obesity

Demurrer to Complaint

Cal. Super. - 4th Dist.May 24, 2018

L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 10 11 12 13 14 15 16 17 18 19 20 Al 22 23 24 25 26 27 28 ELECTROMICALLY FILED Superior Court of California, County of Orange 08/09/2018 at 03:22:00 FM Clark of the Superior Court By Jeanette Torres-Mendoza, Deputy Clerk MICHAEL D. GONZALEZ [SBN 115684] HAIG ARABIAN [SBN 289861] LAW OFFICES OF MICHAEL D. GONZALEZ 101 North Brand Boulevard, Suite 1880 Glendale, CA 91203 Telephone (818) 844-0188 Facsimile (818) 844-0181 Attorneys for Defendants, PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES and SMART DIMENSIONS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE ESTATE OF TIMOTHY LYNCH, by and through CASE NO. 30-2018-00995032-CU-PO-CJC hi 1 tative, ) ANGELIQUE LYNCH, ANGELIQUE LYNCH [Assigned to Department "C12" the Honorable af infivideel, BREANNA LYNCH, an individual, | Liban Scott; Jilge Presiding] TIANA GARNER, an individual, Complaint Filed: 05/24/18 JACQUELL YN GARNER, an individual, Trial Date: unassigned ANDRE GARNER, an individual, Plaintiffs, NOTICE OF DEMURRER AND DEMURRER Vs. OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and ORANGE COAST MEMORIAL CENTER FOR | SMART DIMENSIONS, TO PLAINTIFFS’ OBESITY, a business entity, form COMPLAINT FOR DAMAGES unknown, ORANGE COAST MEMORIAL . i . . MEDICAL CENTER, a business entity, form [Filed Concurrently with Motion to Strike] unknown, PETER C. LEPORT, M.D, an individual, SMART DIMENSIONS, a business entity, form unknown, LEPORT SURGICAL ASSOCIATES, a business entity, form unknown, DATE: October 29, 2018 i i TIME: 2:00pm and DOES 1 to 100, nclusive, ress 5 Defendants. RESID: 72867589 TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 29, 2018, at 2:00 p.m., or as soon thereafter as the matter may be heard, in Department “C15” of the above-entitled court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendants, PETER C. LEPORT, M.D, LEPORT SURGICAL 1 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z OO ©& 00 NN O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES, for themselves and for no other Defendants, will and hereby do Demur to Plaintiffs’ Complaint for Damages pursuant to Code of Civil Procedure § 430.10 on the grounds that Plaintiffs’ Complaint and said causes of action are uncertain, ambiguous, unintelligible, duplicative and fail to state facts sufficient to constitute a cause of action against this defendant. This Demurrer is based upon this written notice, the attached Memorandum of Points and Authorities, the pleadings and other records on file herein, and on such other and further argument as may be presented at the time of the hearing. DATED: August 9, 2018 LAW OFFICES OF MICHAEL D. GONZALEZ Attorneys for Defendants, PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES and SMART DIMENSIONS 2 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z H W ~N O N W n 10 11 12 13 14 15 16 I? 18 19 20 21 22 23 24 25 26 ZF 28 DEMURRER TO COMPLAINT 1. The Second Cause of Action for Survival fails to state facts sufficient to constitute a cause of action. Code of Civil Procedure §430.10(¢). 2. The Second Cause of Action for Survival fails to comply with Code of Civil Procedure §377.32. 3 The Third Cause of Action for Negligent Infliction of Emotional Distress fails to state facts sufficient to constitute a cause of action. Code of Civil Procedure §430.10(e). 4. The Third Cause of Action for Negligent Inflict ion of Emotional Distress is uncertain. Code of Civil Procedure §430.10(f). Pe The Third Cause of Action for Negligent Infliction of Emotional Distress is duplicative. WHEREFORE, Defendants pray: 1. That this Demurrer be sustained without leave to amend; 2 That the accompanying motion to strike be granted; and 3. For such other and further relief as the Court may deem just and proper. DATED: August 9, 2018 LAW OFFICES OF MICHAEL D. GONZALEZ MICHAEL D\GONZALEZ™ HAIG ARABIAN Attorneys for Defendants, PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES and SMART DIMENSIONS 3 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 10 11 12 13 14 15 16 I'é 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Defendants, PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, (hereinafter sometime referred to as “the Moving Defendants”), presents the following Memorandum of Points and Authorities in support of their Demurrer to Plaintiffs’ Complaint. L INTRODUCTION This is an action for Wrongful Death brought by Plaintiffs, the ESTATE OF TIMOTHY LYNCH, by and through his personal representative, ANGELIQUE LYNCH (spouse), and individuals, ANGELIQUE LYNCH, BREANNA LYNCH, TIANA GARNER, JACQUELLYN GARNER, and ANDRE GARNER (“Plaintiffs”), against Moving Defendants and other healthcare providers. Plaintiffs filed a Complaint on May 24, 2018, alleging three causes of action including: (1) Wrongful Death; (2) Survival; and (3) Negligent Infliction of Emotional Distress on behalf of Plaintiff Angelique Lynch. (See Complaint). Plaintiffs’ causes of action all stem from the medical care and treatment provided to Decedent, Timothy Lynch, by healthcare providers including these Moving Defendants, stemming from a surgery performed on April 10, 2017. (See Complaint). As to Plaintiffs’ Third Cause of Action for “Negligent Infliction of Emotional Distress,” Plaintiff alleges that “Plaintiff Angelique Lynch was shown the body of the Deceased while his body was splayed open on the operating table,” (Complaint §62.) and as a result “Plaintiff Angelique Lynch suffered severe emotional distress upon seeing the body of her husband splayed open on the operating table,” thereby “causing Plaintiff Angelique Lynch's severe emotional distress.” (Complaint §63-64.) Moving Defendants Demur to the Third Cause of Action for “Negligent Infliction of Emotional Distress,” (“NIED”) on the ground that such cause of action is duplicative, vague, ambiguous, uncertain and fails to state facts sufficient to sustain the cause of action. Furthermore, Plaintiffs’ Second Cause of Action for Survival is vague, ambiguous and uncertain, since Plaintiffs have failed to execute an affidavit or declaration pursuant to Code of Civil Procedure, section 377.32. II. ~~ AUTHORITY FOR DEMURRER Code of Civil Procedure Section 430.10 states in pertinent part: The party against whom a complaint ... has been filed may object by demurrer or answer as provided in §430.30 to the pleading on the following grounds: 4 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 fn 26 27 28 (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. ... (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. Moreover, Code of Civil Procedure Section 430.50 provides: (a) A demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein.... Not only does the demurrer test the sufficiency of the actual allegations in the first amended complaint, but it also tests whether those facts are pled with sufficient certainty and particularity. Banerian v. O’Malley (1974) 42 Cal.App.3d 604. If no liability exists under substantive law, a demurrer is proper, and it is not an abuse of discretion for the judge to deny plaintiff leave to amend his complaint. Berkeley Police Assn. v. City of Berkeley (1978) 76 Cal. App.3d 931. A demurrer admits all material facts that are properly pled. However, a demurrer does not admit the truth of unsupported contentions, deductions, conclusions of fact, or conclusions of law alleged in the complaint. Serrano v. Priest (1971) 5 Cal. App.3d 584, 591; Dar v. Yellow Cab Co. (1967) 67 Cal.2d. 695, 713; Roberts v. Ball. Hunt, Hart, Brown & Baerwitz (1976) 57 Cal. App.3d 104, 107. Therefore, Plaintiff must plead sufficient facts to support each element of her claims. Plaintiff is not allowed to plead legal conclusions or conclusions of fact. Id. General assertions by way of conclusion are deemed insufficient to state a claim for relief. Metzenbaum v. Metzenbaum (1948) 86 Cal. App.2d 750, 754. III. PLAINTIFF FAILS TO STATE FACTS SUFFICIENT TO SUPPORT THE THIRD CAUSE OF ACTION FOR “NIED” BECAUSE SAID CAUSE OF ACTION IS VAGUE, AMBIGUOUS, UNCERTAIN AND DUPLICATIVE Plaintiffs’ cause of action for Negligent Infliction of Emotional Distress is duplicative of Plaintiffs’ cause of action for Wrongful Death. “Negligent Infliction of Emotional Distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply.” Marlene F. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3rd 583. As both causes of action 5 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 center around an allegation of negligence, Plaintiffs’ claims are duplicative and would be tantamount to a double recovery. As such Moving Defendants’ Demurrer should be sustained without leave to amend. Emotional distress is a component of damages in Plaintiffs’ negligence causes of action (medical malpractice/wrongful death and NIED), so they are both duplicative of each other. Where two separate claims are redundant and duplicative, the superfluous claim is properly dismissed. Guz v. Bechtel Nat. Inc. (2002) 24 Cal. 4th 317, 352-352 (claim for breach of implied covenant of good faith and fair dealing is superfluous to breach of contract claim and was properly dismissed); Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1392 (same). Specifically, the California Supreme Court has held that as to any given medical malpractice Defendant, “only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability.” Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998. The Court characterized the notion that rendering medical treatment gives rise to “two independent obligations” as a “legal impossibility.” Id. at 1000. According to the Court, “a defendant has only one duty, measured by one standard of care, under any given circumstances.” Id. Thus, two causes of action bringing forth different “forms” of medical negligence based on the same set of facts, is “a legal impossibility” and the demurrer to the duplicative causes of action should be sustained, without leave to amend. To state that Plaintiff is entitled to a double recovery simply because she uses different names for a single negligence claim would be a violation of California law. As such, Plaintiffs’ Negligent Infliction of Emotional Distress cause of action cannot survive a demurrer, as it is duplicative of the Wrongful Death cause of action. Furthermore, pursuant to Code of Civil Procedure section 430.10(f), a demurrer is appropriate where a pleading is uncertain. “Uncertain” includes “ambiguous and unintelligible”. As the court noted in Ankeny v. Lockheed Missiles & Space Company, (1979) 88 Cal. App.3d 531: “A Pleading must allege facts and not conclusions and material facts must be alleged directly and not by way of recital...in pleadings the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise. Those recitals, references to, or allegations of material facts left to surmise are subject to special demurrer for uncertainty.” 6 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS” COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z NO 0 3 Dd 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the instant matter, Plaintiffs’ claim for negligent infliction of emotional distress is not substantiated by sufficient facts to sustain the cause of action. Instead, Plaintiff provides mere statements (e.g. she was shown the body of the Deceased) and legal conclusions (e.g. she suffered severe emotional distress). Accordingly, Plaintiffs’ cause of action is unsubstantiated by factual support. IV. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AS A BYSTANDER To recover for negligent infliction of emotional distress, Plaintiff must assert his/her claim as a “bystander” (i.e. the percipient witness to the injury of another), or a “direct victim” of the wrongful conduct. Burgess v. Superior Court, 2 Cal. 4th 1064, 1071-1072, 9 Cal. Rptr.2d 615 (1992). In order to maintain a cause of action for negligent infliction of emotional distress as a bystander witness, Plaintiff must demonstrate that she had contemporaneous awareness of the alleged medical negligence causing injury to her spouse, Decedent Timothy Lynch. Dillon v. Legg (1968) 68 Cal.2d 728. As the Supreme Court noted in Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668: “[A] plaintiff may recover for emotional distress caused by observing the negligently inflicted injury of a third person if, and only if, 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 which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” Thing, 48 Cal.3d at 667-68 (emphasis added). In the instant matter, Plaintiff Angelique Lynch, asserts her claim under a bystander theory. Specifically, Plaintiff claims sometime after the surgery she was “shown the body of the Deceased [Mr. Lynch] while his body was splayed open on the operating table,” (Complaint 62.) However, although Plaintiff may survive the first requirement of Thing (e.g. she was closely related to the injured victim), Plaintiff fails to state facts sufficient to survive or comply with the second requirement of Thing. In Thing, the Court commanded a “stringent definition of the requirements of contemporaneous observance of the event and injury”. Goldstein v. Superior Court (1990) 223 Cal. App.3d 1415, 1427. Mere presence at an injury-producing event is patently insufficient. Therefore, a bystander witness must have experienced “a contemporaneous sensory awareness of the causal connection between the ¥ NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 0 ~~ O N \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 negligent conduct and the resulting injury.” Goldstein v. Superior Court, supra, at 1427. In the absence of such evidence, a Plaintiff cannot recover damages for negligent infliction of emotional distress. Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329, 1342. Furthermore, “Courts have not found a layperson's observations of medical procedures to satisfy the requirement of contemporary awareness of the injury-producing event.” Bird v. Rolando Saenz (2002) 51 P.3d 324. In Goldstein v. Superior Court, supra, 223 Cal.App.3d at 1417, a 9-year-old boy died as a result of the negligent administration of an overdose of radiation while undergoing cancer treatment. His parents sued for NIED based on a bystander theory. Id. Due to the nature of the treatment, the actual injury (over-radiation) was not immediately visible and incapable of perception. Although the parents were present to witness the results of the negligent over-radiation, they did not witness the ‘causal connection’ between the accident and the injury. Id. At 1425. As such, their claim was not viable. In Meighan v. Shore (1995) 34 Cal. App.4th 1025, the Plaintiff (wife) was a trained nurse who feared that her husband was experiencing a heart attack and believed he was not being treated appropriately in the emergency room. Id. Although he was suffering a heart attack, initial test results indicated otherwise, and physicians incorrectly misdiagnosed his condition. Citing Goldstein, supra 223 Cal.App.3d 1415. 1427, the court concluded Plaintiff’s claim for NIED was not viable. “Understanding perception of the injury-causing event is essential, and if it cannot be perceived, recovery cannot be allowed.” Meighan v. Shore, supra, at p. 1046. In Breazeal v. Henry Mayo Newhall Memorial Hospital, supra, at p.1329, plaintiff (mother) filed a claim for NIED after observing unsuccessful attempts to restore her son's breathing with a tracheostomy and endotracheal tube. While she witnessed physician-defendants “bent over her son” ... “with blood on both of them”, there was no evidence that the acts of the physicians at that moment constituted ‘an injury-producing event’, rather than an unsuccessful attempt to address a pre-existing injury. Id, at 1342. Moreover, the court found that Plaintiff was not ‘contemporaneously aware’ that any event caused injury to her son. As such, her claim was not viable. In Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, a relative who watched a paramedic conduct a medical examination that failed to detect signs of sickle cell shock was allowed to 8 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 sue for wrongful death but not negligent infliction of emotional distress. “While the relative was ‘present at the scene at the time the injury-producing event occurred,” there was no evidence ‘he was then aware that the decedent was being injured by the paramedic's negligent conduct.” Bird, 28 Cal.4th at 919. Lastly in Bird v. Saenz (2002) 28 Cal.4th 910, Plaintiff daughters brought an action against Defendant physicians for negligent infliction of emotional distress under a bystander theory. One daughter brought her mother to the hospital for a surgical procedure. Sometime later, both daughters heard a call for a surgeon, received a report that their mother may have had a stroke and witnessed their mother in distress, being rushed by medical personnel to a room. They were then advised that their mother had a nicked artery and was consequently rushed to surgery. The court held the daughters failed to show that they were aware of the transection of their mother's artery when it occurred and that they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hall. Thus, since they could not show that they were ‘present at the scene of the injury-producing event’ at the time it occurred and that they were aware that it was injuring their mother, their claim failed. Id, at 324. “Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate.” 1d. Similar to the above, Plaintiff Angelique Lynch’s claim for Negligent Infliction of Emotional Distress is not viable. Here, Plaintiff alleges that on April 10, 2017, Decedent underwent surgery and was then taken to the recovery room. (Complaint 424.) While in the recovery room, Decedent developed hypotension and blood tests showed decreasing hemoglobin and hematocrit levels. (Complaint 425.) “After examination, it was discovered that Decedent was bleeding internally from a cut in his short gastric vessel” ... and “despite attempts to stop the bleeding, Decedent went into cardiac arrest and died.” (Complaint 926-27.) Furthermore, Plaintiff alleges that she “was allowed to enter Decedent’s room at a time when his body had been splayed open,” (Complaint 928.) and she “was shown the body of the Deceased” thus resulting in her suffering severe emotional distress” (Complaint 962-63.) However, although Plaintiff alleges to have witnessed the body of her husband splayed open on the operating table after the surgery and after any post-surgical attempts to remedy purported blood loss, 9 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has failed plead any facts, nor is able to demonstrate knowledge of the injury-producing event and a contemporaneous awareness that it caused injury at that moment. While Plaintiff may have been present in the hospital or surrounding area, it is not enough to witness another suffer injury, absent knowledge of the injury-producing event and a contemporaneous awareness that it is causing injury at the moment. Here, Plaintiff was incapable of perceiving the purported cause of death and Plaintiff had no way of knowing that her spouse was injured as a result of medical negligence. In other words, Plaintiff did not witness anything; rather, at best she witnessed the effects of the alleged negligence (i.e. entering the operating room post-surgery and seeing Decedent’s body). Plaintiff certainly does not allege that she was present for the surgery or witnessed any purported medical negligence. In fact, the only alleged negligence that she was seemingly a witness to was after-the-fact e.g. postoperatively and after post-surgical attempts to remedy blood loss. As California Courts have held, witnessing a worsening of condition is not an injury-producing event, and NIED claims have been consistently rejected based upon this claim. Goldstein v Superior Court, 223 Cal Ap. 3" 1415. | Similar to the situation in Bird, Plaintiff had no reason to know that the care Decedent received to diagnose and correct the cause of the problem post-surgery was inadequate. Bird, 28 Cal.4th at 919. As the court held in Bird, “The problem with defining the injury-producing event as defendants’ failure to diagnose and treat the damaged artery is that plaintiff could not meaningfully have perceived such failure.” Id. “Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.” Id. As such, in this case, Plaintiff was incapable of perceiving the purported cause of death. Based on the above, Moving Defendants’ Demurrer against Plaintiff’s Third Cause of Action for NIED should be granted without leave to amend. V. PLAINTIFFS' SECOND CAUSE OF ACTION FOR SURVIVAL IS VAGUE. AMBIGUOUS, UNCERTAIN AND FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION. Pursuant to the language of Plaintiffs’ Complaint, Plaintiffs’ brings this second cause of action for Survival. Based on the reasons stated above, this cause of action is barred, since Plaintiffs have failed to demonstrate standing. However, assuming that Plaintiffs have standing, the cause of action for 10 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES L A W O F F I C E S OF M I C H A E L D. G O N Z A L E Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Survival still fails under Code of Civil Procedure §430(e), since Plaintiffs’ failed to comply with Code of Civil Procedure §377.32. Specifically, section 377.32 provides that an individual seeking to commence an action as a decedent's successor in interest must execute and file an affidavit or declaration, under the penalty of perjury, with specific information required under the code. Based on the facts set forth in Plaintiffs’ Complaint, Plaintiffs seemingly lack standing to bring this survival action because they have failed to comply with the requirements of section 377.32. Plaintiffs fail to state sufficient facts to sustain their cause of action for Survival, as there is no indication that a declaration was executed and filed under penalty of perjury. Consequently, in failing to comply the mandatory provisions of this section, Plaintiffs do not have standing to bring a survival action. VI. CONCLUSION For the foregoing reasons as set forth herein, Defendants, PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, respectfully request that this Court sustain Moving Defendants’ Demurrer to Plaintiffs’ Second Causes of Action, and Third Cause of Action without leave to amend since the defects within Plaintiffs’ Complaint are incurable. DATED: August 9, 2018 LAW OFFICES-OF MICHAEL D. GONZALEZ HAIG ARABIAN Attorneys for Defendants, PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES and SMART DIMENSIONS "MICHAEI}D. AVE 11 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES OO 0 NN O N Ww» BA W N = N O N N N N N N N O N mm e k e m e m e d e d p e p e 00 N N N B A L I N = O V O N O D N R W N D = Oo PROOF OF SERVICE Lynch v. Orange Coast Memorial Center for Obesity et al. Case No. 30-2018-00995032-CU-PO-CJC STATE OF CALIFORNIA, COUNTY OF LOS ANGELES | am employed in the County of Los Angeles State of California. | am over the age of 18 and not a party to the within action; my business address is: LAW OFFICES OF MICHAEL D. GONZALEZ, 101 N. Brand Avenue, Suite 1880, Glendale CA 91203. . On August 9, 2018, | served the foregoing document(s) described as NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS PETER C. LEPORT, M.D, LEPORT SURGICAL ASSOCIATES, and SMART DIMENSIONS, TO PLAINTIFFS’ COMPLAINT FOR DAMAGES on the interested parties in this action X by placing a true copy thereof enclosed in the sealed envelopes addressed as follows: ATTORNEY FOR ANGELIQUE LYNCH Koorosh K. Shahrokh NATIONAL CHOICE LAWYERS 6345 Balboa Blvd., Building Ill, Suite 273 Encino, CA 91316 T: 818-996-7301 F: 818-996-7302 E: Mr.K@NationalChoiceLawyers.com [X] (BY U.S. MAIL) | enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed above and placed the envelope or package for collection and mailing, following our ordinary business practices. | am readily familiar with the firm's practice for collection and processing correspondence for mailing. Under that practice, on the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, in a sealed envelope of package with the postage fully prepaid. Executed on August 9, 2018, at Glendale, CA. [1 (BY FAX TRANSMISSION) | caused said document(s) to be transmitted by facsimile machine to the number indicated after the address(es) noted herein. [1 (BY OVERNIGHT DELIVERY) | enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed above. | placed the envelope or package for collection and delivery at an office or a regularly utilized drop box of the overnight delivery carrier. [1 (BY E-MAIL OR ELECTRONIC TRANSMISSION) | caused the documents to be sent to the persons at the e-mail addresses listed above. | did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [X] (State) | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on August 9, 2018, at Glendale, CA. PATRICIA ANDALUZ : a Type or print name Signature 1 PROOF OF SERVICE