Judge: Andrew E. Cooper, Case: 24CHCV01952, Date: 2025-01-07 Tentative Ruling

Case Number: 24CHCV01952    Hearing Date: January 7, 2025    Dept: F51

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

DEMURRER WITH MOTION TO STRIKE

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Demurrer with Motion to Strike Filed: 8/15/24

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MOVING PARTY: Defendants Henry Mayo Newhall Memorial Hospital; and Lu L. Wang, M.D. (collectively, “Defendants”)

RESPONDING PARTY: Plaintiffs Anahit Dagesyan; Araxi Dagesyan; Lusine Dagesyan; Mesrop Dagesyan; and Nvard Dagesyan (collectively, “Plaintiffs”)

NOTICE: OK

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RELIEF REQUESTED: Defendants demur to the second and third causes of action in Plaintiffs’ complaint. Defendants also seek an order striking Plaintiffs’ prayers for punitive damages and attorney fees.

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TENTATIVE RULING: The demurrer against Plaintiffs’ third cause of action is sustained, and the motion to strike Plaintiffs’ prayer for attorney fees in connection therewith is granted, without leave to amend. The demurrer against Plaintiffs’ second cause of action is sustained, and the motion to strike the remaining provisions of Plaintiffs’ complaint is granted, with 30 days leave to amend.

BACKGROUND¿ 

This is a wrongful death action brought by Plaintiffs, individually and as successors-in-interest to their mother, Azatui Dagesyan (“Decedent”). (Compl. ¶ 1.) Plaintiffs allege that on 2/13/23, Decedent was admitted to defendant Henry Mayo Newhall Memorial Hospital’s (“Hospital”) acute care hospital. (Id. at ¶ 19.) Plaintiffs further allege that on 2/24/23, during her stay at the Hospital, Decedent was seen and evaluated by defendant Wang. (Id. at ¶ 20.) Plaintiffs allege that during the overnight hours between 2/24/23 and 2/25/23, “defendants, and each of them, negligently and carelessly neglected, ignored, or otherwise failed to monitor DECEDENT’s activities, so as to inflict or otherwise cause DECEDENT to fall and sustain severe injuries, including but not limited to multiple fractured ribs and contusions on her back.” (Id. at ¶ 22.) Plaintiffs allege that on 6/8/23, Decedent died as a result of her injuries. (Id. at ¶ 51.)

On 5/23/24, Plaintiffs filed their complaint, alleging against Defendants the following causes of action: (1) Wrongful Death; (2) Dependent Adult Abuse (Survivor Action); and (3) Violation of Patient’s Bill of Rights Pursuant to Health and Safety Code § 1430.

On 8/15/24, the Hospital filed and served the instant demurrer and motion to strike. On 9/16/24, Wang filed a notice of joinder to the Hospital’s demurrer and motion to strike. On 12/23/24 and 12/24/24, Plaintiffs filed their oppositions. On 12/30/24, the Hospital filed its reply.

DEMURRER

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) 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 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, Defendants¿demur to Plaintiffs’ second and third causes of action on the basis that the complaint fails¿to allege facts sufficient to¿state¿those causes of action.

A.    Meet-and-Confer 

Here, the Hospital’s counsel declares that on 8/12/24, 8/13/24, and 8/14/24, he emailed Plaintiffs’ counsel in attempts to meet and confer regarding the issues raised in the instant demurrer and motion to strike but received no response. (Decl. of Tony Hsu ¶¶ 4–8.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

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B.     Dependent Adult Abuse

Plaintiffs’ second cause of action alleges Dependent Adult Abuse against Defendants, 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.)

The definition of a “care custodian” under the Act includes administrators, employees, and those who otherwise provide care and services to dependent adults in facilities including hospitals. (Welf. & Inst. Code § 15610.17.) For a healthcare provider to be liable for dependent adult neglect, the claim requires a caretaking or custodial relationship wherein the defendant assumed significant responsibility for attending to one or more of those basic needs of the dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155, 158.)¿ 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.)

Here, Plaintiffs allege the following:

“Defendants abused and neglected the DECEDENT during the overnight hours of February 24, 2023 – February 25, 2023 through their negligent and careless attempt to transfer the DECEDENT from the hospital bed to the restroom, during which they directly and proximately caused the DECEDENT to fall on the floor and sustain severe injuries. Defendants’ lack of due care and attention during this process, despite being aware of the DECEDENT’s medical condition and her heightened risk of falling, contributed to the injuries sustained. It is evidence that greater caution should have been exercised both in assisting the DECEDENT out of bed and during her movement to the restroom, given the circumstances. In addition, it should be emphasized that the hospital should have refrained from attempting to transport the DECEDENT from her bed to the restroom, as they were fully aware of the inherent risks associated with such actions given the DECEDENT’s medical condition.” (Compl. ¶ 25.)

Defendants argue that they cannot be liable to Plaintiffs for dependent adult abuse because Plaintiffs fail to allege the existence of a caretaking or custodial relationship between Defendants and Decedent. (Dem. 4:13–15.) Specifically, Defendants assert that “the Complaint provided no facts for the 3-4 month period between the incident and her death at Providence Saint Joseph Medical Center. As such it fails to support the existence of a ‘robust caretaking or custodial relationship’ between HENRY MAYO and decedent.” (Id. at 7:9–12.)

Defendants further argue that Plaintiffs’ allegations are insufficient to show a failure to provide medical care to Decedent, as the allegations “describe a dissatisfaction and/ or disagreement by plaintiffs in the decisions made by defendants in decedent’s medical care and treatment but at the same time, taken as true, show that medical care was in fact provided to decedent during the entire hospital stay rather than a failure to provide medical care.” (Id. at 8:9–12.)

In opposition, Plaintiffs argue that they “have plead with specificity to establish that Decedent was neglected at the hands of HENRY MAYO staff during her hospitalization.” (Pls.’ Opp. 6:18–19.) “The Complaint, at ¶¶ 19-28, discusses in detail all facts that give rise to Plaintiffs’ cause of action for elder abuse against Defendant HENRY MAYO.” (Id. at 8:9–11.) Specifically, Plaintiffs cite their allegations that “HENRY MAYO and its staff knew that Decedent was [experiencing] malnutrition, they knew that she had worsening symptoms of syncope, they knew she was incapable of self-ambulating, they knew she was a high risk of falling, they knew that she required constant assistance with bowel and bladder movements, normal hygiene, and cleanup after soiling on herself in bed. Even though the aforementioned was known by HENRY MAYO and its staff, they left Plaintiff unattended and failed to monitor Plaintiff during the overnight hours of February 24, 2023 – February 25, 2023.” (Id. at 10:27–11:6.)

As a preliminary matter, the Court disagrees with Defendants that Plaintiffs have not sufficiently alleged a caretaking or custodial relationship between Defendants and Decedent. It is clear from Plaintiffs’ allegations that Decedent required assistance with basic needs, and that Defendants undertook responsibility for attending to those needs during Decedent’s stay at the Hospital. (Compl. ¶¶ 14–19.)

Plaintiffs further argue that the Court should apply the “recklessness” standard set forth in Mack v. Soung (2000) 80 Cal.App.4th 96. 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, 63 Cal.4th at 152.) In Mack, the Court of Appeal found that “a doctor who conceals the existence of a serious bedsore on a nursing home patient under his care, opposes her hospitalization where circumstances indicate it is medically necessary, and then abandons the patient in her dying hour of need commits neglect within the meaning of the Act. Further, if it can be proved by clear and convincing evidence that such acts were committed with recklessness, oppression, fraud, or malice, the heightened remedies of section 15657 will apply.” (80 Cal.App.4th at 973.) Defendants argue in opposition that “the facts of this case are completely inapposite to Mack and fail to show the level of recklessness, oppression, fraud or malice required to support any cause of action for Elder Abuse or damages associated thereto.” (Defs.’ Reply 5:12–14.)

The Court finds the Court of Appeal’s findings in Mack to be inapposite in the instant demurrer analysis and is more apt for a discussion of the availability of heightened damages under the Act. In Mack, the Court of Appeal found that the defendant physician’s neglect of the elderly decedent was reckless. Here, the Court agrees with Defendants that the gravamen of Plaintiffs’ allegations, in that Hospital staff negligently attempted to transfer Decedent from her hospital bed to the restroom, causing her to fall and sustain injuries, amount to Defendants’ professional negligence in treating and caring for Decedent rather than their failure to provide medical care. (Compl. ¶ 25; Covenant Care, 32 Cal.4th at 783.) Therefore, unlike in Mack, the Court finds that Plaintiff’s allegations, as pled, do not constitute neglect as defined in the Act, and the Court need not reach a determination of whether Plaintiffs have alleged that the purported neglect was reckless.

Based on the foregoing, the Court finds that Plaintiffs have failed to allege facts to constitute a cause of action for Dependent Adult Abuse. Accordingly, the demurrer against Plaintiffs’ second cause of action is sustained.

C.    Violation of Health and Safety Code section 1430

Plaintiffs’ third cause of action alleges Violation of Patient’s Bill of Rights Pursuant to Health and Safety Code section 1430 against Defendants. Section 1430 provides that “a current or former resident or patient, or the legal representative, personal representative, or successor in interest of a current or former resident or patient, of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in Section 72527 or 73523 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” (Health & Saf. Code § 1430, subd. (b)(1).)

Here, Defendants argue that “Plaintiffs’ third cause of action for Violation of Patient’s Bill of Rights pursuant to Health & Safety Code section 1430 (“Section 1430”) fails as a matter of law since HENRY MAYO is a general acute care hospital. Pursuant to Section 1430(b)(1), to allege a cause of action under Section 1430, defendant would need to be either a skilled nursing facility as defined in Health & Safety Code section 1250(c), or an intermediate care facility as defined in Health & Safety Code section 1250(d). Since HENRY MAYO is neither of these, they would not be subject to a cause of action under Section 1430 for violations of 22 C.C.R section 72527.” (Dem. 5:1–7.) As Defendants observe, Plaintiffs fail to address Defendants’ arguments against their third cause of action in their opposition.

Based on the foregoing, the Court finds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action for Violation of Health and Safety Code section 1430. Accordingly, the demurrer against Plaintiffs’ third cause of action is sustained.

A.    Punitive Damages

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.)

1.      Wrongful Death/Medical Negligence

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” (Code Civ. Proc. § 425.13.)

Here, Plaintiffs pray “for punitive and exemplary damages, according to proof and as permitted by law” in connection with their first cause of action for wrongful death. (Compl. p. 18, l. 2, para. 7.) As Defendants observe, that “Plaintiff has not obtained a court order pursuant to California Code of Civil Procedure section 425.13 … to allow a prayer for punitive damages against HENRY MAYO for professional negligence/ wrongful death.” (MTS 4:5–8.)

In opposition, Plaintiffs argue that “in the context of elder abuse causes of action, a plaintiff may pray for punitive damages against a healthcare provider without leave of the court, and he is not subject to the limitations imposed by Section 425.13(a) of the Code of Civil Procedure.” (MTS Opp. 6:17–19.) However, the Court finds Plaintiffs’ argument misplaced, as it does not address the applicability of Section 425.13 to Plaintiffs’ first cause of action for wrongful death.

Based on the foregoing, the Court grants Defendants’ motion to strike Plaintiffs’ prayer for punitive damages in connection with Plaintiffs’ first cause of action.

2.      Elder Abuse Act

As earlier discussed, 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 Elder Abuse 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, 63 Cal.4th at 152.)

Here, Defendants argue that “Plaintiffs’ allegations either merely re-state the law or fail to provide accompanying facts that would support a cause of action for Elder Abuse. The language in the Complaint is insufficient because plaintiffs fail to specify what, if any, ultimate facts support an award of punitive damages against defendant HENRY MAYO.” (MTS 6:22–25.)

As the Court finds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action for Dependent Adult Abuse, it likewise finds that Plaintiffs have failed to allege facts sufficient to support a prayer for punitive damages in connection with their second cause of action. Accordingly, the motion to strike Plaintiffs’ prayer for punitive damages in connection with their second cause of action is granted.

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, the Medical Injury Compensation Reform Act “does not provide for an award of attorney fees to the prevailing party in medical malpractice actions. Accordingly, the ordinary rule, that each party bears the cost of its own attorney fees, must prevail.” (Salgado v. County of Los Angeles (1998) 19 Cal.4th 629, 651.) The Elder Abuse 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).) Health and Safety Code section 1430 also provides for the recovery of attorney fees. (Health & Saf. Code § 1430, subd. (b)(1).)

Here, Plaintiffs have not alleged any basis for the recovery of attorney fees in connection with their first cause of action. As the Court finds that Plaintiffs have failed to allege facts sufficient to constitute their second and third causes of action, it likewise finds that Plaintiffs have failed to allege facts sufficient to support a prayer for the recovery of attorney fees in connection with those causes of action. Accordingly, the motion to strike Plaintiffs’ prayer for attorney fees is granted.

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 their second cause of action in the event that the Court sustains the instant demurrer. (Pls.’ Opp. 12:11–14.) 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.

However, as to Plaintiffs’ third cause of action, the Court agrees with Defendants that their “argument in the Demurrer was effectively unopposed by the Opposition and should therefore be sustained without leave to amend and Motion to Strike corresponding damages granted accordingly.” (Defs.’ Reply 3:9–11.) Accordingly, leave to amend is denied as to Plaintiffs’ third cause of action and the prayer for attorney fees stemming therefrom.

CONCLUSION¿ 

The demurrer against Plaintiffs’ third cause of action is sustained, and the motion to strike Plaintiffs’ prayer for attorney fees in connection therewith is granted, without leave to amend. The demurrer against Plaintiffs’ second cause of action is sustained, and the motion to strike the remaining provisions of Plaintiffs’ complaint is granted, with 30 days leave to amend.