MARIA v. SEVENTH AVENUE CENTER

Filed 6/27/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Story continue from Part II ………

In support of her argument that Lowrie aids her cause, appellant blurs the notion of standing beyond its conceptual borders to the point of distortion. In this, she obscures the legal distinction between survivor and wrongful death claims. She also overlooks the fact that these respective claims are brought by or on behalf of different parties and that the Elder Abuse Act, which provides for specified claims and remedies only to victims of the abuse, does not change this fundamental legal principle. A survivor claim, by definition, is asserted on behalf of such a victim--here, the decedent, Gilbert Quiroz--whereas a wrongful death claim is asserted by a decedent's heir, on his or her own behalf. Simply put, a broadly construed standing provision under the Elder Abuse Act does not morph an ordinary wrongful death claim into a statutory survivor claim for dependent adult abuse--or vice versa. Nor does it change the separate character of the injuries that are compensable through these distinct claims that are brought by different parties. Nor does it alter the application of the statute of limitations or expand the circumstances under which the doctrine of relation back operates to spare a tardy cause of action from that bar. For these reasons, Lowrie is of no help to appellant here.

It is true, as appellant contends, that it is improper for a court to strike a whole cause of action of a pleading under Code of Civil Procedure section 436. As we have said, what the court essentially did here with respect to the entire survival claim was to strike it. While under section 436, a court at any time may, in its discretion, strike portions of a complaint that are irrelevant, improper, or not drawn in conformity with the law, matter that is essential to a cause of action should not be struck and it is error to do so. (Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d. 227, 242.) Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike. (Triodyne, Inc. v. Superior Court (1966) 240 Cal.App.2d 536, 542.)

But in this case in which the cause of action was susceptible to summary adjudication on the very motion that the defendants had brought, the court's error in employing the wrong procedural vehicle with which to dispose of the claim was not prejudicial. Accordingly, we will not disturb the court's disposition of the survivor claim on the basis of this error. That disposition in the end amounted to a grant to defendants of judgment on the pleadings, a correct result in this case.

Appellant did seek leave in the trial court to file an amended pleading, but the bar of the statute of limitations affecting the survivor cause of action was not cured by the proposed amendment. Nor could it have been by further amendment. Accordingly, upon our review of the trial court's denial of appellant's request for leave to amend, we find no abuse of discretion, which is the applicable standard governing our review of this issue. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1011.)

While the bar of the statute of limitations may be considered a harsh result where there is an otherwise meritorious cause of action, as a matter of policy, this defense â€