The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/brain injury case and its proceedings.)
Plaintiff Must Join All Persons Necessary for Just Adjudication
A complaint shall state the names, if known to the pleader, of any person(s) who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).
If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The plaintiff clearly has at least one sibling, Paul White, who is listed as the son and next of kin of the decedent in the Coroner’s report. It is unknown by defendant if the plaintiff has other siblings or if there are other persons with standing to bring suit in this wrongful death action.
In any event, the plaintiff should be ordered to identify all such persons who have standing to bring this wrongful death action. If such persons do not wish to join as plaintiffs, plaintiff Nancy White should be order to join the involuntary plaintiffs as defendants pursuant to C.C.P. §382.
Further, plaintiff should be ordered to file and serve the complaint because a party is not properly joined unless properly served with summons and complaint. Ruttenberg v. Ruttenbera (1997) 53 Cal.App.4th 801, 808.
CONCLUSION
Based on the expiration of the statute of limitations, defendant Universal Medical Center respectfully requests this court sustain its demurrer to the complaint without leave to amend.
If the court is inclined to allow plaintiff to amend her complaint to address the expiration of the statute of limitations, defendant requests the court also order plaintiff to amend the complaint within ten days of notice of entry of order to clarify that she is alleging a single cause of action for professional negligence resulting in the wrongful death of plaintiff’s mother.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.