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 case and its proceedings.)
It is worth noting that situations similar to those described in this medical negligence action could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.
Plaintiff Must Join All Persons Necessary for Just Adjudication
A complaint shall state the names, if known to the pleader, of any persons 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 San Jose personal injury lawyer, Moseley Collins.
Plaintiff alleges that he is the “surviving heirs (sic) at law” of decedent. It is unclear whether there are other persons with standing to bring suit in this wrongful death action.
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 should be ordered to join the involuntary plaintiffs as defendants pursuant to C.C.P. §382 and to serve the complaint upon any such defendants.
Based on the clear expiration of the statute of limitations, defendant NMC respectfully requests that this court sustain its demurrer to the complaint without leave to amend as to the medical negligence allegations.
Based on the undisputable lack of facts supporting a cause of action for violation of Business & Professions Code §17200, defendant NMC respectfully requests that this court sustain its demurrer to the complaint without leave to amend as to this allegation as well.
Accordingly, defendant requests the court sustain its demurrer and dismiss this action in its entirety.
For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.