Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
THE PLAINTIFFS HAVE SET FORTH A PRIMA FACIE CASE FOR SURVIVORSHIP AGAINST THE DEFENDANT, PAUL SMITH, M.D.
Although the moving party was correct in stating the law that under California Code of Civil Procedure § 377.34, the damages recoverable by the successor in interest of the decedent are limited to the loss or damages that the decedent sustained or incurred before death, and does not allow for the recovery of the decedent’s pain and suffering, Welfare & Institutions Code § 15657(b) does allow for the recovery of postmortem pain and suffering of the decedent where it is proven by clear and convincing evidence that a defendant is liable for elder abuse.
Welfare & Institutions Code § 15657 states in pertinent part:
Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term costs includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
Pursuant to Welfare & Institutions Code § 15657(b), the limitations imposed by C.C.P. § 377.34 for the non-recovery of postmortem pain and suffering of the decedent shall not apply where there is a cause of action for Elder Abuse, as in the case against Dr. Smith.
Therefore, pursuant to C.C.P. § 377.34, in conjunction with Welfare & Institutions Code § 15657, the Plaintiff, Robert Hernandez, may recover on behalf of his deceased father, all losses or damages the decedent sustained before death, including any penalties, punitive or exemplary damages the decedent would have been entitled to recover had the decedent lived, and all postmortem pain and suffering.
Based on the foregoing, Defendant’s Demurrer to Plaintiffs’ Sixth Cause of Action for Survivorship should be overruled.
9. CONCLUSION
Based on the foregoing, it is respectfully requested that Defendant’s Demurrer to the Plaintiffs’ cause of action for Elder Abuse (first cause of action), Willful Misconduct (fifth cause of action), and Survivorship (sixth cause of action) be overruled and its concurrent Motion to Strike punitive damages be denied. The Plaintiffs agree with the Defendant that a Demurrer as to the Plaintiffs’ second cause of action for Negligence would be appropriate as it is duplicative of the Plaintiff’s eighth cause of action for Professional Negligence as against Dr. Smith. Further, should the Court require that the Plaintiffs include the statutes and regulations applicable to the Defendant, Dr. Smith, at this time in the pleading stage, the Plaintiffs respectfully request that the Court allow the Plaintiffs to seek leave to amend the Complaint to set forth the applicable statutes and regulations applicable to the Defendant.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.