Filed 8/25/26 McCovery v. Moe CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DANA MCCOVERY, B338798
Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23LBCV00675)
v.
KYAW MOE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Reversed with directions.
Dana McCovery, in pro. per., for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza, Dana L. Stenvick;
Reback, McAndrews & Blessey, Raymond L. Blessey and Sean L. Cooper for Defendants and Respondents.
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INTRODUCTION
Dana McCovery appeals from a judgment dismissing her complaint against her mother’s doctors, Kyaw Moe and Julio Romero (collectively, respondents). McCovery alleges respondents’ negligence caused her mother’s death. The trial court sustained the respondents’ demurrer to the first amended complaint and gave her leave to file a second amended complaint within 20 days. The court also ordered McCovery to file a declaration pursuant to Code of Civil Procedure section 377.32 to establish standing as her mother’s successor in interest.1 Respondents moved to dismiss McCovery’s complaint when she did not file a timely second amended complaint or a section 377.32 declaration. McCovery, however, appended a proposed second amended complaint to the opposition to the motion to dismiss and requested leave of court to file it. The trial court granted respondents’ motion to dismiss and denied leave to amend. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On April 20, 2023, McCovery filed a form complaint in propria persona alleging malpractice, negligence, and wrongful death causes of action against respondents stemming from the death of her mother, Ella Jackson. McCovery alleged that, on January 19, 2022, Jackson’s blood pressure dropped precipitously
1 All further section references are to the Code of Civil Procedure unless otherwise specified.
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while undergoing dialysis treatment. The staff at Kindred Hospital stopped treatment. The next morning, respondents ordered a second dialysis treatment although Jackson appeared lethargic. Jackson “coded blue” during the second treatment and was revived. At approximately 8:30 p.m., the staff at Kindred Hospital advised McCovery’s brother of the event, and he called McCovery. At approximately 12:30 a.m. on January 21, 2022, Jackson again “coded blue” but could not be revived and died. McCovery alleged respondents should not have ordered a second dialysis treatment due to Jackson’s condition. McCovery also alleged she was never notified of the second dialysis treatment even though she was Jackson’s primary caregiver. Instead, she understood the doctors would take out the temporary dialysis catheter from Jackson’s chest and insert it into her right arm.
Respondents demurred to McCovery’s complaint. At the hearing, the court stated it was inclined to grant the demurrer in part, ordered the parties to meet and confer, and provided some guidance in connection with the demurrer. Specifically, the court explained McCovery was required to submit an affidavit under section 377.32 for her malpractice and negligence causes of action to demonstrate standing. The court noted that an affidavit was not required for the wrongful death cause of action because section 377.60 provides that a decedent’s child may sue for wrongful death and McCovery alleged in the complaint that Jackson was her mother. The parties agreed McCovery could file an amended complaint to cure the defects in the original complaint, including filing a declaration under section 377.32.
On November 6, 2023, McCovery filed a first amended complaint that alleged one cause of action for negligence. McCovery did not file a declaration under section 377.32.
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Respondents again demurred on November 27, 2023.2 On January 23, 2024, the court sustained the demurrer to the first amended complaint with leave to amend within 20 days. Quoting from its previous guidance to the parties, the court emphasized that “Plaintiff must provide a declaration or affidavit in compliance with §377.32 if she amends her complaint a second time.” The court also determined the first amended complaint failed to sufficiently allege the breach, causation, and damages elements of the negligence cause of action. The court explained, “Plaintiff alleges what happened, but does not allege that anything Defendants did violated the standard of care, which is the required allegation in a negligence action against a health care provider.” Thus, “[i]f Plaintiff amends the complaint, she must allege Defendants’ acts violated the standard of care applicable to medical providers under the circumstances of the case.” Respondents served McCovery with both the tentative order that was adopted by the court and the minute order that was issued after the hearing. McCovery did not file a second amended complaint or a section 377.32 declaration by the court’s 20-day deadline.
2 McCovery attempted to file a second amended complaint on November 29, 2023 (after the respondents filed their second demurrer but before the court ruled on it), but the trial court rejected the filing because it did not comply with section 473, subdivision (a), which permits the court “in furtherance of justice” to allow a party to amend any pleading by correcting any mistake or, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars.” McCovery does not challenge the court’s rejection of this filing.
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On February 21, 2024, respondents moved for an order to dismiss and enter judgment in their favor pursuant to section 581, subdivision (f)(2). They argued that McCovery did not file a second amended complaint that complied with the court’s January 23, 2024 order.
On February 26, 2024, McCovery opposed the motion to dismiss, appending a proposed second amended complaint and urging the court to allow her to file it under “California courts’ policy of liberality in allowing amendments.” The proposed complaint alleged substantially the same facts regarding the circumstances of her mother’s death that were alleged in the previous complaints, and it contained a heading labeled, “First Cause of Action Negligence.” Under that heading, McCovery cited the statutory provisions for a wrongful death cause of action and alleged: “California Code of Civil Procedure 377.60 grants the right to certain family members, or their personal representatives, to pursue legal action. In this case, the plaintiff, Dana McCovery, qualifies under this provision as the daughter of the deceased, Ella Jackson. . . . [¶] . . . The plaintiff, Dana McCovery, suffered severe mental, emotional, and financial injuries as a proximate result of Ella Jackson’s wrongful death, encompassing the loss of familial relationships, comfort, companionship, care, and affection. Pursuant to California Code of Civil Procedure §§377.60 and 377.61, the plaintiff seeks rightful compensation for the emotional distress and tangible losses incurred.” McCovery did not allege any other causes of
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action. McCovery did not attach or file a section 377.32 declaration.3 On March 5, 2024, the court held a “hearing on motion for leave to file second amended complaint; hearing on motion to dismiss.” It granted respondents’ motion to dismiss. On March 21, 2024, the court entered a judgment of dismissal and awarded costs to respondents. Neither the judgment nor the minute order granting respondents’ motion to dismiss explained the court’s reasons for its ruling. McCovery timely appealed.
DISCUSSION
A. Governing Law and Standard of Review “ ‘A cause of action for wrongful death is . . . a statutory claim. (Code Civ. Proc., §§ 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent’s death.’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 (Lattimore); accord Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) Thus, a wrongful death action may be asserted by the decedent’s surviving children, among other specified persons, “for the death of a person caused by the wrongful act or negl[igence] of another.” (§ 377.60, subd. (a).) “ ‘ “The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the
3 The register of actions shows McCovery filed a document entitled “affidavit of death certificate” on February 13, 2024. That document is not in the record on appeal, and McCovery does not contend it complies in part or in whole with section 377.32.
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heirs.” ’ ” (Lattimore, at p. 968.) The cause of action is based upon the plaintiff’s own independent pecuniary injury suffered by loss of the decedent and is distinct from any action that the decedent might have maintained if he or she survived. (See §§ 377.22, 377.60; Horwich v. Superior Court (1999) 21 Cal.4th 272, 283.)
“[U]nlike a wrongful death action, a survival action is a cause of action that existed while the decedent is alive and survives the decedent.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78–79.) A person who seeks “to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating,” among other things, that “ ‘No proceeding is now pending in California for administration of the decedent’s estate’ ” and that “ ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’ ” (§ 377.32.) “[T]his provision does not require that the affidavit be filed as a condition precedent to commencing or continuing the action. However, failure to file the affidavit could possibly subject the action to a plea in abatement.” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523–1524 (Parsons); accord Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614 (Aghaian).)
As relevant here, section 581, subdivision (f), provides:
“The court may dismiss the complaint as to that defendant when: . . . [¶] . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” “[A]n order dismissing an action pursuant to section 581,
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subdivision (f), is reviewed for abuse of discretion.” (Bai v. Yip (2024) 107 Cal.App.5th 188, 194; accord Nuño v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 807.)
“ ‘ “Leave to amend a complaint is . . . entrusted to the sound discretion of the trial court. ‘. . . The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. . . .’ ” ’ [Citations.]” (S.C. v. Doe 1 (2025) 115 Cal.App.5th 365, 376; see also § 473, subd. (a)(1) [“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading”].)
B. The Trial Court Abused Its Discretion by Dismissing McCovery’s Action Without Further Leave To Amend McCovery argues that “[t]he dismissal of this case was not based on anything other than the Plaintiff . . . not filing the Second Amended Complaint in a timely manner.” Respondents contend dismissal was proper because the proposed second amended complaint attached to McCovery’s opposition to the motion to dismiss did not cure the defects the trial court identified.
Here, the trial court granted McCovery a single opportunity to amend and ordered her to file a section 377.32 declaration with her second amended complaint.4 McCovery filed a proposed second amended complaint shortly after the court’s deadline that appeared to allege a wrongful death claim, which did not require a section 377.32 declaration. Under these circumstances, we
4 Respondents contend McCovery has failed to meet her burden to demonstrate reversible error because the record is deficient. We may, of course, rely on the documents in the respondents’ motion to augment, which we previously granted.
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conclude the trial court abused its discretion when it granted respondents’ motion to dismiss and denied McCovery’s request to file a second amended complaint.
It is well established that trial courts should liberally grant leave to amend pleadings at any stage of the proceedings absent prejudice to the adverse party. (S.C. v. Doe 1, supra, 115 Cal.App.5th at p. 376; see also § 473, subd. (a)(1).) “ ‘That trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state since 1901.’ [Citations.] Underlying this ‘general rule of liberal construction of pleadings’ [citation] ‘and of liberal allowance of amendments’ [citation] is ‘the fundamental policy that “cases should be decided on their merits” ’ [citation]. ‘Indeed, “it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case.’ ” ’ [Citation.] ‘[A]bsent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail.’ ” (S.C. v. Doe 1, at p. 376.)
Amendment “ha[s] always been liberally permitted to the extent that the amendment[ ] stay[s] within the same general state of facts and do[es] not prejudice the defendant[ ] or add new defendants beyond limitation periods or patently contradict[s] prior allegations that are fatal to the cause of action.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 357; see also Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 159–162 [where action was brought in name of trust, which had no ability to sue independently of trustee, amendment should have been allowed to substitute trustee as plaintiff to cure defect]; Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111 (Bettencourt)
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[abuse of discretion to deny leave to amend when there is a “reasonable possibility” that defect can be cured].) “ ‘Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.’ ” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)
Courts have found prejudice where the amendment would result in a delay of trial, require additional discovery related to new issues, subject the parties to loss of critical evidence, or increase the costs of preparation of the case. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486–488 [“Where the trial date is set, the jury is about to be impaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion”]; see also P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 [unreasonable delay in seeking amendment]; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649 [leave to amend properly denied where the plaintiff knew for over five months claims had not been properly pleaded and took no action to amend until after summary judgment was granted against it].)
Here, the record establishes the following. The parties agreed to permit McCovery to amend her initial complaint after the court directed them to meet and confer. The court provided guidance to the parties, observing that a section 377.32 declaration would be required for the malpractice and negligence causes of action, but not for the wrongful death cause of action. Respondents again demurred when McCovery filed a first
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amended complaint alleging a negligence cause of action. The court sustained the demurrer and gave McCovery leave to file a second amended complaint within 20 days with a section 377.32 declaration. When McCovery missed the deadline, respondents moved to dismiss. On February 26, 2024, less than two weeks after the 20-day deadline, McCovery filed a proposed second amended complaint and requested leave to file it. At the hearing to address respondents’ motion to dismiss and McCovery’s request for leave to file a second amended complaint, the trial court granted respondents’ motion to dismiss. Although the record discloses discovery had begun in the case, there is no indication a summary judgment motion or trial was imminent. Under these circumstances, we conclude the trial court abused its discretion when it granted respondents’ motion to dismiss and denied McCovery’s request to file a second amended complaint.
Respondents rely on Cano v. Glover (2006) 143 Cal.App.4th 326, 330, but that case does not help them. In Cano, the plaintiff filed first, second, and third amended complaints against the defendant and co-defendant. When the plaintiff did not name the defendant in his fourth amended complaint, the defendant moved for dismissal, which the court granted without prejudice. Cano held that section 581, subdivision (f)(2), gave the trial court discretion to dismiss the case but did not authorize a dismissal without prejudice. (Id. at p. 329.) Here, the trial court dismissed McCovery’s complaint with prejudice, but unlike Cano it did so before she had “several opportunities” to amend the complaint before dismissal. (Id. at p. 330.) McCovery was essentially given only one opportunity to amend, after the court ruled on the demurrer to the first amended complaint.
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DISPOSITION
The judgment is reversed. On remand, the trial court is directed to vacate its order granting respondents’ motion to dismiss, enter a new order denying the motion to dismiss and granting McCovery leave to file an amended complaint that cures the defects the trial court identified in its previous orders and instructions. McCovery may recover her costs on appeal.
MARTINEZ, P. J.
We concur:
SEGAL, J.
STONE, J.