Tentative Ruling: Susanna Vadas vs Jeffrey R. Polito, MD

Case Number

23CV02584

Case Type

Hearing Date / Time

Fri, 03/27/2026 - 10:00

Nature of Proceedings

Motion: Re Substitute Party; CMC

Tentative Ruling

For the reasons set forth herein, plaintiff’s motion for order continuing action by Erika E. Szell for deceased plaintiff Susanna Vadas is granted to the extent it seeks to substitute Erika E. Szell as successor in interest to decedent Susanna Vadas.

Background:

The first amended complaint (FAC), by plaintiff Susanna Vadas (Vadas) against defendant Jeffrey R. Polito, M.D. (Dr. Polito), filed on March 13, 2023, is the operative complaint. The FAC contains a single cause of action for medical negligence.

As alleged in the FAC:

Commencing in 2011, Vadas consulted with Dr. Polito for the purpose of examination, diagnosis, care, and treatment. (FAC, ¶ 9.) Commencing in 2019, Dr. Polito carelessly and negligently examined, diagnosed, treated, and cared for Vadas such that she was damaged. (Id. at ¶ 10.) The alleged negligence includes Dr. Polito breaching his duty of care following Vadas’ mammogram by failing to give her the option to follow the recommendations of the breast radiologist who recommended whole breast ultrasound in addition to the yearly mammogram, that Dr. Polito failed to inform Vadas regarding the risks and benefits of the extended use of estrogen, including alternative therapies as he was the one renewing her prescription, Dr. Polito failed to get a complete history which includes Vadas’ Jewish background which would indicate an increased chance of having breast cancer, Dr. Polito missed the fact that Vadas had dense breast tissue, and Dr. Polito failed to refer Vadas to a gynecologist. (Ibid.) As a result, Vadas was diagnosed with breast cancer in January 2022, and discovered Dr. Polito’s negligence in May 2022, when Vadas received her medical records. (Ibid.)

On March 14, 2024, Dr. Polito answered the FAC with a general denial and 23 affirmative defenses.

Vadas passed away on September 20, 2024. (Szell Decl., ¶ 3 & Exh. B.)

Szell was appointed administrator of Vadas’ estate on July 23, 2025. (Szell Decl., ¶¶ 4, 5 & Exh. A.)

On December 22, 2025, Vadas, through Szell, filed the present motion to substitute Szell as plaintiff. Szell is the daughter and legal heir of Vadas. (Szell Decl., ¶ 2.)

Dr. Polito opposes the motion.

Analysis:

“(a) Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.

“(b) This section applies even though a loss or damage occurs simultaneously with or after the death of a person who would have been liable if the person’s death had not preceded or occurred simultaneously with the loss or damage.” (Code Civ. Proc., § 377.20.)

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.)

“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)

“In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent’s cause of action are limited by statute to “ ‘the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.’ ” [Citation.]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264-1265.)

“[T]he right of a personal representative to be substituted for a deceased party is absolute if the cause of action survives death. [Citations.]” (Pepper v. Superior Court (1977) 76 Cal.App.3d 252, 260–261.)

Dr. Polito argues that the motion should be denied because: (1) Szell cannot legally represent Vadas’ estate; (2) Szell is legally barred by the applicable statute of limitations from bringing a wrongful death cause of action; (3) there is no viable wrongful death cause of action to currently pursue; and (4) Szell’s delay in bringing the motion caused undue prejudice against Dr. Polito.

It is worth noting that Szell filed the motion in a self-represented capacity. She clearly has some misconceptions regarding the differences between the survivor statutes and a wrongful death action. Some of the representations regarding what she expects to be able to do may not be legally possible. However, several assumptions would have to be made to determine that she will engage in improper representation or file unauthorized claims. For example, while she does use some language that suggests that she intends on representing Vadas’ estate, to allow her to substitute into the case as successor in interest does not automatically make it so. It does not appear to the court that Szell is attempting to substitute the estate into the case. She is attempting substitute herself into the case as successor in interest and, perhaps based upon a misunderstanding of law, discusses the estate’s interests.

Further, despite Szell indicating that she intends on pursuing a wrongful death claim, she has not yet attempted to do so. The medical negligence cause of action is all that is alleged in the FAC. That is the only cause of action that currently exists and will be the only cause of action until other events take place. Thus, any argument regarding the viability of a wrongful death cause of action is premature.

Finally, while the motion could certainly have been brought earlier, there is no showing of prejudice. There is currently no trial date.

Szell has met her burden of establishing that she is the successor in interest to Vadas.

None of Dr. Polito’s arguments would allow the court to deny Szell’s properly brought request.

The motion will be granted. To be clear: Szell is being substituted in place of Vadas. The estate is not being made a party to this action as a result of the present motion.