Judge: Alison Mackenzie, Case: 23STCV19225, Date: 2024-05-15 Tentative Ruling
Case Number: 23STCV19225 Hearing Date: May 15, 2024 Dept: 55
NATURE OF PROCEEDINGS:
Defendant Brenda Mandelbaum’s Demurrer to Plaintiff’s First Amended Complaint.
Defendant Brenda Mandelbaum’s Motion to Strike Portions of Plaintiff’s First
Amended Complaint. Janet Mandelbaum’s Demurrer to Plaintiff’s First Amended
Complaint. Janet Mandelbaum’s Motion to Strike Portions of Plaintiff’s First
Amended Complaint. Defendant Simcha Mandelbaum's Demurrer to Plaintiff's First Amended Complaint. Defendant Simcha Mandelbaum's Motion to Strike Portions of Plaintiff's First Amended Complaint.
BACKGROUND
ALAN TONKINS (“Tonkins”), in and through his Successor-In-Interest,
JOSHUA TONKINS and JOSHUA TONIKINS (“Plaintiffs”) bring this case against GUARDIAN
REHABILITATION HOSPITAL; 533 SOUTH FAIRFAX AVENUE, INC. dba GUARDIAN
REHABILITATION HOSPITAL; SKILLSERVE, INC. dba US SKILLED SERVE; JANET
MANDELBAUM; BRENDA MANDELBAUM; and SIMCHA MANDELBAUM for damages arising out of
Tonkins’s stay at the skilled nursing facility owned and managed by Defendants.
The First Amended Complaint (“FAC”) asserts the following causes of action
against Defendants Janet Mandelbaum, Brenda Mandelbaum, and Simcha Mandelbaum (collectively,
“Mandelbaum Defendants”): (1) Elder Abuse, Welfare and Institutions Code
Sections 15600, et seq., (2) Negligence (4) Willful Misconduct, and (5)
Wrongful Death, Code of Civil Procedure Section 377.60.
Each of the Mandelbaum Defendants filed demurrers to
the entire FAC, and to all the claims except the Third Cause of Action. Each of
the Mandelbaum Defendants also filed motions to strike certain prayers for damages
and other allegations. The arguments in the three demurrers and three motions to
strike are essentially the same and so the Court has advanced the hearing on
Simcha Mandelbaum’s demurrer and motion to strike to 5/15/24 and considers all the
demurrers and motions to strike in this tentative ruling. Plaintiffs oppose the
demurrers and motions to strike.
LEGAL STANDARD
Demurrers are to be sustained where a pleading fails
to plead adequately any essential element of the cause of action. Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.
Regarding uncertainty, "[t]here is no need to
require specificity in the pleadings because 'modern discovery procedures
necessarily affect the amount of detail that should be required in a
pleading.'” Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82
Cal.App.4th 592, 608.
The grounds for a motion to strike are that the
pleading has irrelevant, false or improper matter, or has not been drawn or
filed in conformity with laws. Code Civ.
Proc., § 436.
ANALYSIS
1. Demurrers
A. Individual
Liability
The Mandelbaum Defendants argue that the entire FAC is
uncertain because it is pleaded globally or collectively as to all defendants
and fails to specify actionable conduct or elder abuse by them. Additionally, the
Mandelbaum Defendants contend that the licensed facility has non-delegable
duties that they do not have.
If the allegations for negligence “show plainly the
connection between cause and effect, it suffices to plead causation succinctly
and generally.” Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71,
78. In such cases alleging conduct of defendants and each of them is sufficient
to charge each with liability. E.g., Lee v. Escrow Consultants, Inc.
(1989) 210 Cal.App.3d 915, 925.
The Elder Abuse Act applies to defendants having had a
caretaking or custodial relationship with an elder or dependent adult,
including health care providers, administrators or employees of health
facilities, persons providing care or services, members of support and
maintenance staff, nursing homes, and clinics. Winn v. Pioneer Medical
Group, Inc. (2016) 63 Cal.4th 148, 163-165.
“[J]oint venturers,… are jointly and severally liable
to third parties for the obligations of the joint venture ….” Victor Valley
Transit Auth. v. Workers' Comp. Appeals Bd. (2000) 83 Cal.App.4th 1068,
1076. A jury found individuals engaged in a joint venture were liable for elder
abuse. See Cochrum v. Costa Victoria Healthcare, LLC (2018) 25
Cal.App.5th 1034, 1043.
Here, the FAC alleges that each Mandelbaum Defendant
had control over operations, such as by being directors. E.g., FAC, ¶¶ 31-35
and 96-133. Further, each Mandelbaum Defendant acted as care custodians. E.g.,
FAC, ¶¶ 37-38. In addition, there are global allegations attributing alleged
conduct to all defendants, which is permissible, because allegations adequately
state that a bladder puncture and catheter non-removal occurred, which
naturally infers causation of personal injuries and related complications such
as sepsis. Also, the FAC alleges that all Defendants (including the Mandelbaum
Defendants) allegedly were a joint enterprise and venture jointly and severally
liable. E.g., FAC, ¶¶ 17, 37 and 134-137.
“[W]hile a plaintiff can look to either the
vicariously liable defendant or the actively negligent defendant to pay these
damages, the plaintiff cannot recover these same damages from both.” Schreiber
v. Lee (2020) 47 Cal.App.5th 745, 761. The issue of double recovery arises during or
after trial, not in the pleading phase. Specifically,
parties may initially pursue a double recovery, and make an election of
remedies at trial or after. De Anza Santa Cruz Mobile Estates Homeowners
Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 907.
Thus, by law, Plaintiffs may litigate against both the entity having
nondelegable duties or vicarious liability, and the actively negligent agents,
until any issue of double recovery comes up during trial.
Therefore, the Court overrules the demurrers as to the
questions of individual liability.
B. First
Cause of Action for Elder Abuse
The Mandelbaum Defendants argue that the elder abuse claim
fails because they had no caretaking or custodial relationship with Tonkins and
because the FAC does not allege intentional malice. The Court disagrees.
Various theories may support claims for elder abuse,
beyond just directly caregiving for a resident. See, e.g., Fenimore v.
Regents of Univ. of Cal. (2016) 245 Cal.App.4th 1339, 1349 (demurrer should have been overruled, where
plaintiff alleged hospital health care facility had a pattern and knowing
practice of understaffing, recklessly causing injury); Sababin v. Superior
Court (2006) 144 Cal.App.4th 81, 90 (if a health care facility knows it
must provide a certain type of care on a daily basis but provides it
sporadically, or is supposed to provide multiple types of care but only
provides some, then the withholding of care may constitute more than
negligence, and reckless conduct, in support of heightened remedies, where a
trier of fact finds a significant pattern of withholding medical care.); Carter
v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396,
407 (“the 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.”); Stewart v.
Superior Court (2017) 16 Cal.App.5th 87, 108 (triable issues regarding whether medical
entity’s decision-making structure, and doctor’s decision about treatment, were
beyond professional negligence and instead reckless); Intrieri v. Superior Court (2004) 117
Cal. App. 4th 72, 85 (determining triable issue existed regarding reckless
neglect in not providing medical care); Benun
v. Superior Court (2004) 123
Cal.App.4th 113, 126 (“the intent of the Elder Abuse Act is to subject health
care providers to its ‘heightened remedies’ when their acts or omissions are
reckless or willful and, thus, more culpable than professional negligence.”); Worsham
v. O'Connor Hospital (2014) 226 Cal. App. 4th 331, 338 (alleged failures to
provide a doctor-recommended sitter to prevent fall, understaffing and
undertraining, amounted to professional negligence lacking in specific facts
indicating any recklessness, defined as a conscious choice of action done with knowledge
of serious danger to others involved).
The FAC alleges that each Mandelbaum Defendant consciously
disregarded their duties to provide care for Tonkins as a resident, and created
probable, serious injury. E.g., FAC, ¶¶ 43-44. The Mandelbaum Defendants allegedly
recklessly disregarded Plaintiff’s safety, while knowing there would be a
probability of injury or death. E.g., FAC, ¶¶ 149 and 176-177. The Mandelbaum Defendants
allegedly consciously understaffed the facility because they put their
financial interests above the residents’ interests. E.g., FAC., ¶¶ 85-86.
Causation is clearly alleged, including Defendants not removing a catheter from
Plaintiff, thereby blocking urine output, long-term. E.g., FAC, ¶¶ 53-58.
Defendants consciously and knowingly the physician’s order regarding treatment.
E.g., FAC, ¶ 65. Defendants, as care custodians, abandoned and abused the care
of Plaintiff, leading to his suffering sepsis, bladder perforation, abdominal
ascites, urinary tract infection, acute kidney injury, and eventually death. E.g.,
FAC, ¶ 46. In the demurrer procedure, the Mandelbaum Defendants cannot properly
contradict such allegations, by stating that they had no caretaking or
custodial relationship. Gould v. Maryland Sound Industries, Inc. (1995)
31 Cal.App.4th 1137, 1144 (“defendants cannot set forth allegations of fact in
their demurrers which, if true, would defeat plaintiff's complaint”).
Also, the prescribed procedure for getting more
details to address any uncertainty is conducting discovery.
Hence, the Court overrules the demurrers as to the claim
for elder abuse.
C. Second
Cause of Action for Negligence
The Mandelbaum Defendants do not specifically address
the negligence claim listed in the notices, other than as to individual
liability and uncertainty, which the Court has already addressed above. The
demurrers to this claim are overruled.
D. Fourth
Cause of Action for Willful Misconduct
The Mandelbaum Defendants contend that this claim
fails because California law does not recognize an independent cause of action
for “willful misconduct.”
There is a split of authority on the issue. See, e.g.,
Nazar v. Rodeffer (1996) 184 Cal.App.3d 546, 552, disapproved on other
grounds by Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1108; New v.
Consolidated Rock Products Co. (1985) 171 Cal. App. 3d 681, 689; Bastian
v. County of San Luis Obispo (1988) 199 Cal. App. 3d 520, 533; Carter v.
Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412 (“Willful misconduct involves more than a
failure to use ordinary care….”); Calvillo-Silva v. Home Grocery (1998)
19 Cal.4th 714, 730, disapproved on other grounds by Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854, fn. 19; Acosta v. Glenfed
Development Corp. (2005) 128 Cal.App.4th 1278, 1293. But see Berkley v.
Dowds (2007) 152 Cal.App.4th 518, 526 (willful misconduct is an aggravated
form of negligence).
Where there is a split of authority, trial courts have
discretion to choose between the decisions.
Auto Equity Sales, Inc.
v. Superior Court (1962) 57
Cal.2d 450, 456. Where there is a split of authority, “[a]s a practical matter,
a superior court ordinarily will follow an appellate opinion emanating from its
own district even though it is not bound to do so.” McCallum v. McCallum (1987) 190 Cal.App.3d 308, 316, fn.4.
Here, the Court, in its discretion, will follow the
great weight of authority, and not the isolated authority cited for support in
the demurrers— i.e., Berkley, supra. The Court also disregards the Mandelbaum
Defendants’ argument in the reply briefs that the claim fails to allege sufficient
facts because they failed to raise such an argument in their moving papers and
improperly raised it for the first time in the reply briefs. The Court
overrules the demurrers as to willful misconduct.
E. Fifth
Cause of Action for Wrongful Death
The Mandelbaum Defendants contend that Plaintiffs’
allegations do not establish a causal connection between their wrongful conduct
and Tonkins’s death, nor do the allegations give rise to such an inference.
A wrongful death claim requires “(1) a wrongful act or
neglect on the part of one or more persons that (2) causes (3) the death of
another person.” Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 390. “In
any action for wrongful death resulting from negligence, the complaint must
contain allegations as to all the elements of actionable negligence.” Jacoves
v. United Merchandising Co (1992) 9 Cal.App.4th 88, 105.
Under the topics of individual liability and elder
abuse, the Court already addressed the sufficiently particular factual allegations
supporting the negligence claim that gives rise to the wrongful death claim. Therefore,
the Court overrules the demurrers as to wrongful death.
2. Motions
to Strike
A. Section
425.13
The Mandelbaum Defendants contend that the elder abuse
claim is based on allegations only constituting professional negligence by a
healthcare provider, such that an order allowing leave to allege punitive
damages pursuant to Code of Civil Procedure Section 425.13 is required.
Section 425.13 does not apply to an elder abuse claim.
Covenant Care, Inc. v. Superior Ct. (2004) 32 Cal. 4th 771, 783-790. As
analyzed as to the demurrers, the FAC sufficiently alleges elder abuse, and not
merely professional negligence. Thus, the Court denies the motions to strike
allegations based upon Section 425.13.
B. Punitive
Damages
The Mandelbaum Defendants assert that they did not
have care or custody of Plaintiff and cannot be liable for punitive damages
under the Elder Abuse Act. Further they assert that the FAC fails to
specifically allege fraud, oppression, or malice.
“In order to survive a motion to strike an allegation
of punitive damages, the ultimate facts showing an entitlement to such relief
must be pled by a plaintiff.” Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255. Generally, “punitive damages may be recovered in
medical malpractice cases depending upon the facts of the particular case.” Baker
v. Sadick (1984) 162 Cal.App.3d 618, 630.
“To recover enhanced remedies under the [Elder Abuse]
act, ‘a plaintiff must prove more than simple or even gross negligence in the
provider’s care or custody of the elder.’” Nevarrez v. San Marino Skilled
Nursing and Wellness Centre (2013) 221 Cal.App.4th 102, 128. For
corporations to be liable for punitive damages, a director or managing agent
may have done the conduct, but also liability may include knowledge of an
employee's unfitness and disregard the rights of others, or authorized or
ratified the conduct. Myers v. Trendwest Resorts, Inc. (2007) 148
Cal.App.4th 1403, 1436.
As addressed with respect to the demurrers, the FAC sufficiently
alleges each Mandelbaum Defendant’s status as a caregiver and custodian, which
is to be assumed true for purposes of the motion to strike. Kaiser
Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696,
699, fn.1. Further, the FAC alleges the Mandelbaum Defendants’ conscious
disregard of a high degree of probability that Tonkins could suffer injuries. Also,
each Mandelbaum Defendant acted through managing agents and approved or
ratified the alleged acts and omissions. E.g., FAC, ¶¶ 39, 73 and 80.
Thus, the Court denies the motions as to punitive
damages.
C. Attorneys’
Fees
The Mandelbaum Defendants reason that Plaintiffs have
not adequately pled specific facts under the Elder Abuse Act to be entitled to
attorney's fees.
Unsupported attorneys’ fees allegations need not be
stricken pursuant to a motion to strike because later discovery may reveal a
basis for their recovery. Camenisch v.
Superior Court (1996) 44
Cal.App.4th 1689, 1699. “There is no requirement that a party plead that it is
seeking attorney fees, and there is no requirement that the ground for a fee
award be specified in the pleadings.” Yassin v. Solis (2010) 184 Cal.App.4th 524, 533.
While there is no standard for pleading attorneys’
fees, the FAC sufficiently alleges the Elder Abuse Act as being supportive. See
Covenant Care, Inc. v. Sup. Ct.
(2004) 32 Cal.4th 771, 789 (“In order to obtain the Act’s heightened
remedies, a plaintiff must allege conduct essentially equivalent to conduct
that would support recovery of punitive damages.”); Marron v. Superior Court
(2003) 108 Cal.App.4th 1049, 1058, 1063, fn.11 (Welfare and Institutions
Section 15657 provides for recovery of damages for a decedent's pain and
suffering—a type of compensatory damages, and “enhanced remedies include awards
of reasonable attorney fees and costs and limited damages for a decedent's pain
and suffering….”).
Therefore, the motions are denied as to alleging
attorneys’ fees.
D. Special
Damages Prayer
The Mandelbaum Defendants assert that special damages
must be alleged with support and statements of amounts.
Generally, with exceptions, special damages must be
pleaded with some specificity. 5 Witkin, Cal. Proc. 6th Plead § 932 (2024)
(citing several opinions from the early and middle 1900s). Older case authority
may be impliedly overruled by a later trend of decisions, without an opinion
expressly overruling. Frisk v. Sup.Ct. (2011) 200 Cal.App.4th 402, 411. Modernly,
a court errs in striking a prayer for damages, where the plaintiff sufficiently
stated a supportive cause of action. Ruiz v. Musclewood Inv. Properties, LLC
(2018) 28 Cal.App.5th 15, 24–25.
The FAC adequately alleges types of special damages,
including medical expenses, as elements of supportive causes of action. See, e.g.,
FAC, ¶ 162 (“incurred, losses, including medical expenses in an amount to be
proven at trial in excess of the minimum jurisdictional limits….”). Cf., Ducat
v. Goldner (1946) 77 Cal.App.2d 332, 338 (the pleading sufficiently alleged
unknown medical charges as a part of special damages such that the defendant
could have learned specifics via discovery).
Hence, the Court denies the motions as to the prayer
for special damages.
E. Pleading
Conclusions
The Mandelbaum Defendants contend that certain
allegations are conclusory and can be stricken. Conclusory language in pleading
allegations is not subject to a motion to strike where the full context of the
complaint contains sufficient facts alleged to support the conclusions. Perkins
v. Superior Court (1981) 117 Cal.App.3d 1, 6–7.
While the opinion cited in the motions held that
conclusions properly were stricken, it did not address whether the full context
of the pleading contained support for those conclusions. See Simpson v.
Richmond (1957) 154 Cal.App.2d 27, 32. “[A]n unnecessarily broad holding is
‘informed and limited by the fact[s]’ of the case in which it is articulated.” Covenant
Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.
As analyzed regarding the demurrers, the FAC contains
allegations sufficiently supportive of each attacked claim, such that the purportedly
conclusory allegations are not subject to a motion to strike.
Hence, the Court declines all the motions’ requests to
strike the alleged conclusions.
CONCLUSION
The Court overrules the demurrers and denies the
motions to strike. Twenty days to answer.