Judge: Andrew E. Cooper, Case: 23CHCV01046, Date: 2023-12-21 Tentative Ruling

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Case Number: 23CHCV01046    Hearing Date: December 21, 2023    Dept: F51

DEMURRER WITH MOTION TO STRIKE

Demurrer with Motion to Strike Filed: 9/19/23

MOVING PARTY: Defendants Kumar Lifecare Hospice, Inc. dba Aasta Hospice (Doe 1); and Kumar Lifecare Hospice, Inc. (Doe 2) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiffs Andrew Swihart and Amy Schmid, Individually and as Personal Representative and Successors-In Interest to the Estate of Timothy Swihart, Deceased (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: Moving Defendants demur to the second, third, and fourth causes of action in Plaintiffs’ complaint. Moving Defendants also seeks an order striking Plaintiffs’ references to punitive damages and attorney fees from the complaint.

TENTATIVE RULING: The demurrer is sustained as to Plaintiffs’ second and fourth causes of action and overruled as to Plaintiffs’ third cause of action. The motion to strike is granted as to Plaintiffs’ references to punitive damages and attorney fees as to their second cause of action and denied as to Plaintiffs’ references to attorney fees as to their third cause of action. Plaintiffs are granted 30 days leave to amend.

BACKGROUND¿ 

This is an elder abuse action wherein Plaintiffs are the children and successors-in-interest of decedent Timothy Swihart (“Decedent”), and Defendants allegedly agreed to provide in-home hospice care for Decedent. (Compl. ¶¶ 1–7.) Plaintiffs allege that “on or about April 12, 2022, while under the care and supervision of Defendants AASTA LIVING, AASTA HEALTH, HOUSEKEEPS, and DOE Defendants 1 to 30, and each of them, Decedent Timothy Swihart was discovered by his family to have been left for several hours lying face down on the floor, non-responsive, with a weak pulse, blood and bruises on his face and mouth, having soiled himself, and wearing the same clothing from the previous day.” (Id. at ¶ 16.)

On 4/11/23, Plaintiffs filed their complaint against Defendants, alleging the following causes of action: (1) Negligence; (2) Breach of Contract; (3) Elder Abuse; and (4) Violation of Business and Professions Code § 17200 et seq. On 6/6/23, Plaintiffs amended their complaint to add Moving Defendants as Doe defendants 1 and 2.

On 9/19/23, Moving Defendants filed the instant demurrer and motion to strike. On 11/30/23, Plaintiffs filed their oppositions. On 11/28/23, Moving Defendants filed their replies.

DEMURRER

“A demurrer tests the pleading alone, and not 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. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Moving Defendants demur to the second, third, and fourth causes of action in Plaintiffs’ complaint on the basis that Plaintiffs fail¿to allege facts sufficient to¿constitute¿those causes of action.

A.    Meet and Confer

Moving Defendants’ counsel declares that on 9/8/23, she sent Plaintiffs’ counsel a letter to meet and confer regarding the issues raised in the instant demurrer and motion to strike. (Decl. of Anastasia K. Olano, ¶ 4.) On 9/12/23, counsel for the parties further met and conferred telephonically, but the parties were unable to come to a resolution. (Id. at ¶¶ 5–6.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Breach of Contract

Plaintiffs’ second cause of action alleges against all defendants Breach of Contract. To state a cause of action for breach of contract, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A written contract may be pleaded either verbatim or generally “according to its legal intendment and effect.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199.)

Here, Plaintiffs allege that Decedent and Defendants “entered into a written and/or agreement, in which Defendants promised in writing that they would provide good and adequate care to Decedent TIMOTHY SWIHART. This care included keeping Decedent TIMOTHY SWIHART safe, comfortable, housed, fed, cleaned, medicated, and clothed.” (Compl. ¶ 25.) Plaintiffs allege that Defendants breached the purported agreement by failing to provide the care to Decedent as agreed, and by failing to contact Plaintiffs after Decedent’s fall. (Id. at ¶¶ 26–29.)

Moving Defendants argue that “Plaintiffs’ claims with regard to Breach of Contract sound in negligence. Plaintiffs’ claim for Breach of Contract is stated only using conclusory allegations and not facts to sufficiently state the elements of the cause of action. Additionally, without reference or attachment to a specific contract, this cause of action is uncertain. To the extent that Plaintiffs claim breach of a written contract, the claim is insufficiently pled as there is no verbatim inclusion of the written instrument.” (Dem. 4:13–17.)

Moving Defendants observe, and the Court agrees, that “there are no facts that show the second element regarding Plaintiffs’ performance or excuse for nonperformance.” (Defs.’ Reply 2:22–23.) Based on the foregoing, the Court finds that Plaintiffs have not alleged facts sufficient to constitute a cause of action for breach of contract. Accordingly, the demurrer is sustained as to Plaintiffs’ second cause of action.

C.    Elder Abuse

Plaintiffs allege in their third cause of action that Defendants committed neglect and physical abuse in violation Welfare and Institutions Code section 15600 et seq. (the Elder Abuse and Dependent Adult Civil Protection Act, or the “Act”). The Act defines, in relevant part, abuse of a dependent adult as either “(1) Physical abuse, neglect, … or other treatment with resulting physical harm or pain or mental suffering;” or “(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code § 15610.07, subd. (a).)

The Act defines “neglect” as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code § 15610.57, subd. (a).) “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.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) Under the Act, neglect “speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Ibid.; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.)

A statutory cause of action such as Dependent Adult Abuse/Neglect must be pled with particularity. (Covenant Care, 32 Cal.4th at 790; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) A plaintiff who can prove by clear and convincing evidence that (1) the defendant is liable for physical abuse, neglect, or abandonment as defined by the Act; and that (2) the defendant acted with “recklessness, oppression, fraud, or malice in the commission of this abuse,” can recover heightened remedies under the Act. (Welf. & Inst. Code § 15657; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.)

Here, Plaintiffs allege that Decedent was at all relevant times an individual over the age of 65 years and dependent on Defendants for care as defined by the Act, and that Defendants’ acts in violation of the Act caused him to suffer “physical, general and economic damages, including mental distress.” (Compl. ¶¶ 34–37.)

Moving Defendants argue that “the allegations in Plaintiffs’ Complaint fall short of showing a conscious choice of a course of action or deliberate disregard on the part of Defendants. There is no allegation of intentional conduct on the part of Defendants or any conduct that rises to the level of reckless, oppressive, fraudulent, or malicious conduct.” (Dem. 5:20–23.) Moving Defendants further argue that “the Complaint fails to allege any showing of authorization or ratification on the part of Defendants. It is devoid of any allegation that an officer, director, or managing agent engaged in the alleged abuse or neglect or authorized the alleged abuse or neglect.” (Id. at 6:15–17.) The Court notes that these arguments are more appropriately directed at Plaintiffs’ prayer for punitive damages, and therefore addresses them below in its analysis of Moving Defendants’ motion to strike.

The Court finds that Plaintiffs have sufficiently alleged facts to support a cause of action for Elder Abuse under the “neglect” prong of the Act by alleging that Decedent was a dependent elder under the Act, that Defendants were charged with caring for Decedent, and that Defendants failed to properly keep Decedent “safe, comfortable, housed, fed, cleaned, medicated and clothed.” (Compl. ¶¶ 10, 26, 34, 35.) Specifically, Plaintiffs allege that “on or about April 12, 2022, while under the care and supervision of Defendants … Decedent Timothy Swihart was discovered by his family to have been left for several hours lying face down on the floor, non-responsive, with a weak pulse, blood and bruises on his face and mouth, having soiled himself, and wearing the same clothing from the previous day.” (Id. at ¶ 16.)

Based on the foregoing, the Court overrules the demurrer to Plaintiffs’ third cause of action.

D.    Unfair Business Practices

Plaintiffs’ fourth cause of action alleges that all Defendants engaged in unfair business practices in violation of Business and Professions Code section 17200 et seq. (the “UCL”). To set forth this cause of action, a plaintiff must establish that the defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.)

“In essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.” (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.) A plaintiff alleging an “unfair” business practice under the UCL must show that the defendant's conduct is “tethered to an underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law or violates the policy or spirit of an antitrust law.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613.) “‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘are likely to be deceived.’” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.)

Here, Plaintiffs allege that Defendants violated the “unlawful” prong of the UCL by “representing that they would care for Mr. Swihart’s comfort and safety. Further, said Defendants represented that they would feed, clean, medicate, and groom Mr. Swihart, a frail and elderly dementia individual who was dependent upon Defendants to care for his needs. However, Defendants … failed to perform that which they promised and were responsible for.” (Compl. ¶ 44.) Plaintiffs further allege that Defendants violated the UCL by failing “to hire and/or use caregivers capable of performing said tasks.” (Id. at ¶ 45.)

Moving Defendants argue that “here, Plaintiff’s Complaint does not sufficiently state a cause of action for Violation of Business and Professions Code § 17200. It does not include allegations of violation of an underlying law. Instead, the Complaint contains only conclusory allegations that alleged conduct on behalf of Defendant was ‘immoral, unethical, oppressive, unscrupulous, and substantially damaging.’” (Dem. 7:10–14, quoting Compl. ¶ 44.)

The Court concludes that to the extent that Plaintiffs base their UCL cause of action on violations of other laws, those underlying laws are not apparent from the face of the complaint. It is therefore unclear to the Court which exact laws Plaintiffs intend to base their UCL cause of action on. Accordingly, the Court sustains the demurrer as to Plaintiffs’ fourth cause of action.

MOTION TO STRIKE

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, subd. (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, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

A.    Punitive Damages

1.      Malice, Fraud, Oppression

Here, Moving Defendants move to strike Plaintiffs’ references to punitive damages from the complaint. Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Id. at subd. (c); Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

Here, Moving Defendants argue that “there are simply no facts in Plaintiffs’ Complaint that allege any conduct on the part of Defendant that could amount to conduct sufficient to support punitive damages.” (MTS 7:1–2.) “The allegations without any supporting facts in the Complaint are conclusory. As a matter of law, such conclusory allegations (such as that Defendants are guilty of acting ‘with recklessness, oppression, fraud, and malice’ (Complaint, ¶ 39)) are insufficient.” (Id. at 7:7–10.)

In opposition, Plaintiffs argue that they have sufficiently alleged that Moving Defendants acted with the requisite recklessness to recover heightened damages under the Elder Abuse Act. Under the Act, a plaintiff who can prove by clear and convincing evidence that (1) the defendant is liable for physical abuse, neglect, or abandonment as defined by the Act; and that (2) the defendant acted with “recklessness, oppression, fraud, or malice in the commission of this abuse,” can recover heightened remedies. (Welf. & Inst. Code § 15657; Winn, 63 Cal.4th at 152.) Plaintiffs argue that their allegation that Defendants left Decedent “for several hours lying face down on the floor, non-responsive, with a weak pulse, blood and bruises on his face and mouth, having soiled himself, and wearing the same clothing from the previous day” sufficiently warrants recovery of heightened damages. (Pls.’ MTS Opp. 4:13–27.)

The Court agrees and finds that the conduct alleged by Plaintiffs may reasonably be considered malicious, oppressive, or reckless, in “conscious disregard for” Decedent’s rights or safety. (Code Civ. Proc. § 435.5, subd. (c); Turman, 191 Cal.App.4th at 63.) Based on the foregoing, the Court finds that at the pleading stage, Plaintiffs have sufficiently alleged facts to support their prayer for punitive damages against Moving Defendants as authorized under the Act.

2.      Employer Liability

“An employer shall not be liable for [punitive] damages … based upon acts of an employee of the employer, unless the employer … authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294, subd. (b).)

Here, Moving Defendants argue that they cannot be liable for punitive damages because “the Complaint fails to allege any showing of authorization or ratification on the part of Defendants. It is devoid of any allegation that an officer, director, or managing agent engaged in the alleged abuse or neglect or authorized the alleged abuse or neglect.” (Dem. 6:15–17.) The Court agrees, and notes that Plaintiffs do not address this argument in their oppositions.

Based on the foregoing, the Court grants Moving Defendants’ motion to strike Plaintiffs’ references to punitive damages from their complaint.

B.     Attorney Fees

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, Plaintiffs pray for attorney fees in connection with their second and third causes of action. (Compl. 12:8, 12:20.) The Court finds that to the extent that Plaintiffs pray to recover attorney fees stemming from their second cause of action for Breach of Contract, Plaintiffs have not alleged that they are entitled to such relief under any purported agreement.

However, the Act authorizes a plaintiff who proves that a defendant is liable for physical abuse, neglect, or abandonment, and “has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse,” to recover reasonable attorney's fees and costs. (Welf. & Inst. Code § 15657, subd. (a).) As the Court finds that Plaintiffs have sufficiently alleged a violation of the Act against Moving Defendants, in addition to oppressive or malicious conduct, Plaintiffs are thereby entitled to seek recovery of reasonable attorney fees and costs in connection with their third cause of action only. Accordingly, the motion to strike Plaintiffs’ prayer for attorney fees is granted as to Plaintiffs’ second cause of action and denied as to Plaintiffs’ third cause of action.

LEAVE TO AMEND

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the first demurrer brought against Plaintiffs’ original complaint, and that Plaintiffs have requested leave to amend if the Court sustains the instant demurrer. (Pls.’ Opp. 5:3–5.) Under the Court’s liberal policy of granting leave to amend, Plaintiffs are granted 30 days leave to amend the complaint to cure the defects set forth above.

CONCLUSION 

The demurrer is sustained as to Plaintiffs’ second and fourth causes of action and overruled as to Plaintiffs’ third cause of action. The motion to strike is granted as to Plaintiffs’ references to punitive damages and attorney fees as to their second cause of action and denied as to Plaintiffs’ references to attorney fees as to their third cause of action. Plaintiffs are granted 30 days leave to amend.

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at CHAdeptF51@LACourt.org or by telephone at (818) 407-2233.