Northern California Record

Tuesday, November 12, 2019

Appeals court affirms dismissal of wrongful death suit


By Asia Mayfield | Oct 24, 2018

General court 07

SAN JOSE – California's Sixth District Court of Appeal recently affirmed the dismissal of a wrongful death suit, agreeing with the trial court that plaintiff Zejin Deng failed to properly prosecute his suit because he neglected to serve two of the deceased’s heirs.  

According to the appeals court ruling on Oct. 16, Deng filed suit in 2016 in Santa Clara County Superior Court after his sister, Cuilan Deng, died after being treated at El Camino Hospital. The suit against the hospital and two of its doctors alleged that mistreatment by the hospital’s doctors led to his sister’s death. The action was abated because the plaintiff’s two other sibling’s, the deceased’s remaining heirs, weren’t included in the suit.  

Deng argued that because his siblings lived in China, they were outside of the court’s jurisdiction. The defendants demurred, and the court sustained the objection, giving Deng time to amend his complaint.  

The appeals court opinion said, “Plaintiff filed a Doe amendment. ... Plaintiff’s counsel filed a declaration a few months later to provide the court a status update. The declaration stated that plaintiff had hired a process service company to translate the summons and complaint into Chinese, transmit the documents to the Chinese government, and return a certificate of service to plaintiff’s counsel.” 

Deng’s counsel continued to make updates. However, Deng never demonstrated that he did everything in his power to serve his siblings. There were issues and delays with the Chinese government yet the suit was abated for more than a year and a half.  

Deng defended his suit by claiming that his siblings’ involvement wasn’t necessary for the case to go forward. He also claimed that he had made more than enough of an attempt to contact them.

When the trial court stated that it was not “satisfied that the opposition to [the motions to dismiss] showed that there were ongoing, strenuous, frantic efforts to make sure those last parties were served,” Deng was unable to offer an additional defense. 

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