Quiroz v. Seventh Avenue Center

140 Cal.App.4th 1256, 45 Cal.Rptr.3d 222 (2006)

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Nature of the Case

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Facts

The original complaint alleged that Gilbert Quiroz (P) died while in the 'medical and psychological care' of Seventh Avenue (Ds), each of whom 'negligently, recklessly, unlawfully and carelessly treated Gilbert so as to proximately cause [his] wrongful death ...' by, among other things, overmedicating him. Ps alleged that as a proximate result of Ds' negligence, they 'were hurt and injured in their health, strength, and activity, sustaining injury to their nervous systems and persons, all of which said injuries have caused and continue to cause plaintiffs great mental and physical nervous pain and suffering.' D demurred to the complaint on the grounds that 'P was not a proper plaintiff' statutorily entitled to pursue a wrongful death claim and that the complaint further failed to state facts sufficient to constitute a cause of action for negligent infliction of emotional distress. An amended pleading stated two separate and distinct causes of action-one entitled 'Negligence and one entitled 'Wrongful Death Action. The specific allegations of the two causes of action clearly distinguished the negligence claim as a pure survivor action brought on behalf of Gilbert in which P's capacity was representative only, from the wrongful death cause of action, in which P sought recovery on her own behalf and for her own injuries. The wrongful death cause of action was a mere restatement of the single cause of action that had been timely asserted by P on her own behalf in the original complaint. Ds moved for summary adjudication of the survivor cause of action as the bar of the one-year statute of limitations was a complete defense, and one or more elements of the claim could not be established. The trial court ruled that the allegations that relate to Elder Abuse and Dependent Adult Civil Protection Act do not relate back to the original complaint and are barred by the statute of limitations. P eventually appealed.