Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
Plaintiffs’ second cause of action fails to state a cause of action because it is brought by one who has no standing to assert it.
Plaintiffs’ First Amended Complaint fails to state facts showing that an affidavit or declaration under penalty of perjury required by §377.32 was executed. Plaintiffs also failed to comply with Probate Code section 58, discussed supra. As a result, plaintiffs failed to allege any facts showing that Robyn Lee, as the representative of decedent’s estate, has standing to assert the second cause of action for medical malpractice – survival action. Because Robyn Lee cannot assert the second cause of action individually due to lack of standing, and because plaintiffs have failed to state sufficient facts to show that Robyn Lee is decedent’s successor-in-interest or the personal representative of decedent’s estate, plaintiffs’ second cause of action fails to state a cause of action. Therefore, pursuant to C.C.P. §438(B)(ii), the court should grant defendant’s motion for Judgment on the Pleadings. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The Court Should Grant Defendant’s Motion For Judgment On The Pleadings As To Plaintiffs’ Third Cause Of Action.
C.C.P. §377.60 identifies who may bring a wrongful death cause of action. It provides that a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons, or by the decedent’s personal representative on their behalf: (a) the decedent’s surviving spouse, domestic partner, children, and issue of decedent’s children. Each such heir has a personal and separate cause of action for decedent’s wrongful death.
Each such heir has a personal and separate cause of action for decedent’s wrongful death. However, as a procedural matter, the actions are deemed joint, single and indivisible. There cannot be a series of suits against the defendant, instead, the one action rule, requires that all heirs must join or be joined in a single action. Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 807. In Cross v. Pacific Gas & Electric Company (1964) 60 Cal.2d 690, 694, the court defined joint, single and indivisible, as follows. In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought whether, in fact, it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that the action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeaser for their individual damages. Plaintiffs’ failure to adhere to the statute represents a defect in the cause of action, and a reasonable basis upon which the court should grant this motion for judgment on the pleadings.
(See Part 8 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.