Judge: Alison Mackenzie, Case: 22SMCV01730, Date: 2023-05-09 Tentative Ruling

Case Number: 22SMCV01730    Hearing Date: May 9, 2023    Dept: 207

Background

This is an action for elder abuse, violation of patient’s rights, wrongful death, and negligence brough by Plaintiffs Darlene Waters, by and through her successor in interest, Robert Goldston, Sr. and Robert Goldston, Sr., individually (collectively “Plaintiffs”). Plaintiff’s operative Complaint alleges Darlene Waters (“Decedent”) suffered a stroke in October 2020 and was admitted to the hospital. After this admission, she was transferred to a number of skilled nursing facilities and acute care hospitals operated by various entities, including Defendant The Regents of the University of California (“Defendant”). Plaintiffs allege Defendants failed to provide required medical care and treatment to Decedent, ultimately resulting in her death. Defendant brings this demurrer to Plaintiffs’ causes of action for elder abuse and negligence, alleging each fails to state sufficient facts to constitute a cause of action against it under Code Civ. Proc. § 430.10(e) and is uncertain under Code Civ. Proc. § 430.10(f). Defendant also asserts Plaintiffs’ claim for negligence is barred by the applicable statute of limitations. Defendant separately moves to strike Plaintiffs’ claims for attorney’s fees, punitive damages, and statutory damages pursuant to Health and Safety Code § 1430(b). Plaintiffs oppose Defendant’s motions.

Demurrer Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

A special demurrer for uncertainty under Section 430.10(f) is disfavored and will only be sustained where the pleading is so unintelligible that a defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

Motion to Strike Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are: the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Analysis

            1.         Meet and Confer Requirement

The Court finds Defendant has complied with the meet and confer requirements set forth under Code of Civil Procedure §§ 430.41 and 435.5. (Ryckman Decls. at ¶6.)

            2.         Elder Abuse & Neglect

To plead elder abuse based on neglect pursuant to Welfare & Institutions Code § 15600 et seq., , the plaintiff must allege “facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the¿plaintiff¿alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations].” (Carter v. Prime Healthcare Paradise Valley LLC¿(2011) 198 Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Id.¿at 407.) “[T]he¿facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the¿pleading rules governing statutory claims.” (Id.¿[quoting¿Covenant Care, Inc. v. Superior Court¿(2004) 32 Cal.4th 771, 790].)¿¿

“‘[N]eglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, supra, 32 Cal.4th at 783.)¿“As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’”¿ (Id.) “Neglect includes the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88.)

In order to distinguish elder abuse from professional¿negligence, there must be a showing of recklessness, fraud, malice, or oppression. (Id.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature.” (Carter, supra, 198 Cal.App.4th¿at 405 [internal quotation marks omitted].) Recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Id.) The enhanced remedies for elder abuse are only available for “acts of egregious abuse against elder and dependent adults.” (Id.)¿There must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (See Civ. Code, § 3294; Cal.¿Welf. & Inst. Code, § 15657(c).)

In its moving papers, Defendant argued Plaintiffs have failed to sufficiently plead that it “failed to use the degree of care that a reasonable person in the same situation would have used in providing for Decedent’s basic needs.” (Demurrer at 5.) Defendant claimed the Complaint merely alleged Decedent had received medical treatment at its facility but did not allege that care fell below the standard of care or that any care or treatment was withheld from her. In response, Plaintiffs pointed to paragraphs of the Complaint wherein they have alleged Defendant “failed to implement a comprehensive pressure sore prevention program including regular turning and repositioning to offload high pressure areas; providing a pressure-relieving air mattress; frequent skin checks of high pressure areas including heels and buttocks/sacrum to monitor for signs of developing pressure sores; timely response to call lights by any available nursing staff; ongoing and timely assistance with mobility, transfers, and hygiene care; safety education regarding room layout and call lights; providing adequate staff to attend to resident’s needs.” (Complaint at ¶78; see also id at ¶84 [alleging Defendant “failed to effectively develop, implement, and modify care plans” for Decedent].) Plaintiffs allege that as a result of this failure to provide adequate care and treatment to Decedent, she “developed and or suffered from worsening multiple preventable, pressure sores during her admissions” at Defendant’s facility. (Id. at ¶79.) It further alleges that when she was admitted to Defendant’s facility there was only one pressure sore noted in her skin assessment, but after her stay it was discovered that she had “developed additional pressure injuries on her bilateral clavicles, right heel, left medial foot, bilateral big toes, second right toe, and third right toe.” (Id. at ¶82.) These allegations are incorporated into Plaintiffs’ cause of action for elder abuse. (Id. at ¶85.) The cause of action for elder abuse also explicitly alleges Defendant failed to “exercise the degree of care that a reasonable person in a like position would exercise.” (Id. at ¶92.)

Defendant argues Plaintiffs’ allegations against it only concern the manner in which care and treatment were provided to Decedent but do not allege that “medical care was not provided.” (Reply at 3.) The Court disagrees. The Complaint alleges Defendant failed “to assess, care-plan for, and implement adequate pressure sore prevention,” failed to assess the existence of Decedent’s injuries or provide her “with access to medical care to address those hospital-acquired injuries,” “failed to accurately and routinely monitor, assess, recognize, and report” Decedent’s condition, and failed to provide her with effective pain management. (Id. at ¶93.) The Complaint further alleges Defendant “denied and withheld” basic care to Decedent. (Id. at ¶96.)

In its reply, Defendant argues for the first time that Plaintiffs have also failed to sufficiently plead recklessness, oppression, fraud, or malice sufficient to entitle them to the enhanced remedies available under the Elder Abuse Act. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn.3; see also Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; Alcazar v. LAUSD (2018) 29 Cal.App.5th 86, fn. 5.) Moreover, Defendant did not raise this argument in its December 27, 2022, meet and confer correspondence to Plaintiffs. (Ex. A to Ryckman Decl.) Plaintiffs were thus never put on notice that Defendant’s demurrer would raise this issue and have thus had no opportunity to respond to this claim. Defendant has offered no explanation as to why this argument could not have been raised in its initial meet and confer efforts with Plaintiffs or in the demurrer itself. As Defendant has failed to present a good reason for raising this argument for the first time in its reply, the Court declines to consider this as a ground for demurrer. Defendant’s argument would otherwise fail on the merits, as paragraph 101 of the Complaint alleges Defendant made an intentional and conscious choice to understaff its facility despite knowing that Decedent would be denied care because of this choice.

For these reasons the Court OVERRULES Defendant’s demurrer to the first cause of action for elder abuse.

            3.         Negligence Per Se

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)

While Plaintiffs’ fourth cause of action is titled “Negligence Per Se,” it is in fact simply a cause of action for negligence as negligence per se is not a distinct cause of action. Defendant argues Plaintiffs’ claim for negligence is duplicative of the third cause of action for wrongful death. But the fourth cause of action for negligence is a survivor cause of action, which carries a possibility of recovering different damages than those that are available under the wrongful death claim, such as past medical bills. The Court thus finds Plaintiffs’ fourth cause of action is not duplicative of the third cause of action for wrongful death.

Defendant also argues Plaintiffs’ fourth cause of action for negligence is barred by the one-year statute of limitations set forth in Code Civ. Proc. § 340.5. The one-year statute provided by section 340.5 begins to run when “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.” (C.C.P. § 340.5.) Defendant argues the statute began to run when Decedent died on February 5, 2021, and thus expired in February 2022, well before Plaintiffs filed the operative Complaint in this action in September 2022. Plaintiffs argue the claim for negligence is not barred by virtue of the delayed discovery rule.

“A complaint disclosing on its face that the limitations period has expired in connection with one or more counts is subject to demurrer.” (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962.) As the Court in Fuller explained:

Under the discovery rule, which delays accrual of a cause of action until a party discovers or has reason to discover the cause of action (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 [151 Cal. Rptr. 3d 827, 292 P.3d 871] (Aryeh)), if the party has notice of facts that would put a reasonable person on inquiry, or has the reasonable opportunity to obtain information from sources open to investigation, the limitations period begins to run (Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 902 [177 Cal. Rptr. 657] (Boatwright). If a demurrer demonstrates that a pleading is untimely on its face, it becomes the plaintiff's burden “even at the pleading stage” to establish an exception to the limitations period. (Aryeh, supra, 55 Cal.4th at p. 1197.)

(Id.) Plaintiffs do not appear to dispute the Complaint is facially untimely as it was filed more than one year after Decedent passed away. Instead, Plaintiffs have submitted a declaration from counsel purporting to demonstrate that the accrual of the negligence cause of action was delayed until they could have discovered the existence of the cause of action. Plaintiffs argue under the discovery rule, the one-year statute did not begin to run until December 9, 2021.

However, in ruling on Defendant’s demurrer, the Court’s consideration is limited to the four corners of the Complaint and any matters which the Court may judicially notice. The assertions of counsel’s declaration are thus beyond the Court’s purview in ruling on Defendant’s demurrer. Under Aryeh, supra, 55 Cal.4th at 1197-1198, to survive a demurrer on statute of limitations grounds, Plaintiffs’ pleading itself must allege facts or factors supporting their claims regarding the discovery rule. The Complaint itself here does not allege any such facts or factors from which the Court can determine that Plaintiffs’ cause of action for negligence may not have begun to run until December 9, 2021. As Plaintiffs’ opposition suggests they may be able to assert such facts if given leave to amend, the Court SUSTAINS Defendant’s demurrer to the fourth cause of action for negligence with leave to amend.[1]

            4.         Motion to Strike

Defendant moves to strike Plaintiffs’ prayer for relief for “statutory damages according to proof pursuant to Health & Safety Code § 1430(b)” arguing such damages are not recoverable against it. Plaintiffs do not contest this and state such damages are sought in connection with their second cause of action for violation of Health and Safety Code § 1430(b), which is not asserted against Defendant. The Court grants Defendant’s motion to strike such damages only to the extent they are sought against Defendant, but this language will not be deemed stricken as to any entities named in Plaintiffs’ second cause of action.

Defendant also moves to strike Plaintiffs’ claims for attorney’s fees and punitive damages, arguing they are barred by Government Code § 818. Section 818 provides “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”

Plaintiffs argue they may properly recover attorney’s fees under Welfare and Institutions Code § 15657(a). Plaintiffs point to Marron v. Superior Court (2003) 108 Cal.App.4th 1049, in which the Court considered whether the enhanced remedies under section 15657 were compensatory or punitive in nature for purposes of applying Government Code § 818. The Court ultimately held such damages were intended to compensate a plaintiff rather than punish a defendant, and thus “conclude[d] that an award of reasonable attorney fees and costs under section 15657 cannot be considered punitive or exemplary damages under Government Code section 818.” (Id. at 1064.) Defendant offers no response to Marron and does not proffer any contrary authority. The Court finds Plaintiffs have sufficiently shown their claim for attorney’s fees under Welfare and Institutions Code § 15657 is not barred by Government Code § 818. Defendant’s motion to strike Plaintiffs’ prayer for attorney’s fees is thus DENIED.

This leaves Plaintiffs’ claim for punitive damages under Civil Code § 3294. Such damages are expressly barred by the plain terms of section 818. Plaintiffs provide no authority suggesting they can maintain a claim for punitive damages against Defendant under section 3294, and the Marron Court itself acknowledged punitive or exemplary damages intended to punish a defendant are barred by section 818. “Government Code section 818 in context means that [] a plaintiff who alleges injury caused by a public entity may be entitled to actual damages for that injury, but not punitive damages.” (Marron, supra, 108 Cal.App.4th at 1059 [quoting Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 145.) The Court thus grants Defendant’s motion to strike Plaintiff’s claim for punitive damages against it.

Conclusion

Defendant’s demurrer is OVERRULED with regard to Plaintiffs’ first cause of action for elder abuse and is SUSTAINED with 30-days’ leave to amend as to Plaintiffs’ fourth cause of action for negligence. Defendant’s motion to strike is GRANTED as to Plaintiffs’ claims against it for statutory damages under Health & Safety Code § 1430(b) and for punitive damages and is DENIED as to Plaintiffs’ claim for attorney’s fees pursuant to Welfare and Institutions Code § 15657(a).