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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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.
________________________
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.
2
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.
3
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.
4
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
5
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.
6
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,
7
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.
8
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)
9
[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
10
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.
11
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.
12