Tentative Ruling: Lindsey Day vs American Medical Response et al

Case Number

23CV02707

Case Type

Hearing Date / Time

Wed, 10/28/2026 - 10:30

Nature of Proceedings

Demurrer

Tentative Ruling

            The motion pending before the court is defendant’s demurrer to the first amended complaint, challenging the first cause of action for survival (i.e., a survivor cause of action.) In a tentative order posted before and adopted at the July 1, 2026 hearing, the court distilled the issue to be decided as this for purposes of the demurrer:  Does the survivor cause of action relate back to the first cause of action in the original complaint (advanced as medical malpractice) for statute of limitations purposes? The court anticipated this very issue at the time it determined defendant’s summary judgment motion, as reflected in the posted tentative adopted by the court on October 30, 2024. The parties had ignored this in their briefing, with plaintiff simply contending that throughout “the pendency of this matter, Plaintiff’s counsel has always maintained this matter is both a survivor and a wrongful death action. This fact has been discussed on multiple occasions between counsel for the parties in the court of settlement.”

 It was unclear to the court whether the parties discussed this issue with the court as raised in the October 30, 2024 order, and what had been decided. Accordingly, the court in the July 1, 2026, posted tentative adopted by the court concluded as follows: If  the parties discussed the matter, and plaintiff agreed that only a wrongful death cause of action was intended, then plaintiff will be estopped from advancing a survivor cause of action in the first amended pleading, as the court will take judicial notice of the transcript in which plaintiff’s counsel made this concession, and thereafter will sustain the demurrer without leave to amend. If on the other hand plaintiff at that time instead indicated that a survivor cause of action was intended, or if the issue was not discussed at all, the court will determine the survivor cause of action relates back to the first cause of action for medical malpractice, meaning the cause of action is not barred by the statute of limitations, and the demurrer will be overruled. 

In the minute order from the July 1, 2026 hearing, October 30, 2024 hearing, plaintiff’s counsel requested a continuance to allow “Darin Spiegel, Plaintiff’s counsel, to be present to address the issues in the tentative rule.  Defendant’s counsel, Lee Moulin, is in agreement.”  The matter was continued to August 12, 2026.  In a stipulation and order filed on July 27, 2026, because attorney Darin K. Spiegel was out of town, the parties agreed to move the demurrer and CMC  to August 26, 2026.  In a signed order, the court moved the hearing date to October 28, 2026. 

The court’s resolution of this matter has not changed. The parties should come prepared to discuss with the court whether there was or was not an agreement about a survivor cause of action as reflected in the court’s October 30, 2024 order.  If plaintiff agreed that only a wrongful death cause of action would be advanced, the court will sustain the demurrer without leave to amend. If plaintiff noted that it was planning to advance a survivor cause of action, the court will overrule the demurrer, based on the rationales articulated. No new briefing was contemplated or authorized.