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.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Defendant Universal Medical Center’s Memorandum of Points and Authorities in Support of Its Demurrer To Plaintiff’s Complaint
The demurrer of Universal Medical Center (“UMC”) to plaintiff’s complaint and its five causes of action should be sustained without leave to amend for the following reasons:
Plaintiff’s decedent died on September 27, 2007. Plaintiff’s complaint was filed on April 27, 2009. Plaintiff’s complaint is thus outside the statute of limitations for wrongful death cases based upon medical negligence, as set forth in C.C.P. §340.5.
Plaintiff’s complaint sets forth five causes of action, all of which seem to be alleging various theories supporting the same tort; i.e., all five causes of action appear to be restated causes of action for wrongful death based upon medical negligence. Yet, all five causes of action are set out on the Judicial Council forms for General Negligence. Plaintiff cannot claim general negligence under the circumstances presented by the facts of this case.
If the complaint survives a statute of limitations challenge, the complaint should be reduced to a single cause of action for medical negligence/wrongful death which would encapsulate all of the plaintiff’s theories. If the plaintiff has a different tort or torts in mind, they should be pled unambiguously so that a summary judgment motion can be written with a clear understanding of the plaintiff’s claims.
The plaintiff clearly has a brother, Paul White, who is set forth and named in the Coroner’s Report as the decedent’s son and next of kin. Paul White is not named as a plaintiff, nor has plaintiff named and served Mr. White as a defendant pursuant to C.C.P. §382. (See Part 2 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.