Judge: Anne Richardson, Case: 22STCV31730, Date: 2023-05-16 Tentative Ruling

Case Number: 22STCV31730    Hearing Date: May 16, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Defendants Huntington Drive Health and Rehabilitation Center, AG Arcadia, LLC, and Cambridge Healthcare Services, LLC.

OPPOSITION:                      Plaintiff Nunilon Ledesma, in and through her Successor-in-Interest Edwin Ledesma, Edwin Ledesma, and Cynthia Villasis.

Background

Plaintiff Nunilon Ledesma, in and through her Successor-in-Interest Edwin Ledesma, Edwin Ledesma, and Cynthia Villasis (Plaintiffs) sue Defendants Huntington Drive Health and Rehabilitation Center, AG Arcadia, LLC, and Cambridge Healthcare Services, LLC (Defendants) pursuant to a January 17, 2023 Second Amended Complaint (SAC) alleging claims of (1) Elder Abuse, (2) Negligence, (3) Wrongful Death, and (4) Violation of Health and Safety Code § 1430(B).

The claims arise from allegations that while under the care of Defendants, Defendants and their employees failed to exercise the degree of care that reasonably skilled nursing facility owners, operators, officers, directors, and employees in similar positions would have exercised with regard to Nunilon Ledesma—an individual who was 65 years old at all relevant times—thus causing injuries to Nunilon Ledesma, including but not limited to unnecessarily suffering from Covid-19 and being quarantined in Defendants’ skilled nursing facility’s Covid “Red Zone” for a prohibited amount of time of over twenty days, during which time Defendants repeatedly failed to provide Nunilon Ledesma with her anti-seizure medication causing Nunilon Ledesma to suffer numerous seizures, and allowed Nunilon Ledesma to aspirate while she was receiving nutrition and medication through a gastrostomy tube and a nasogastric tube, leading to her death on January 12, 2021, as well as a loss of personal dignity, shame and humiliation, extreme and unnecessary pain and suffering, degradation, anguish, and emotional trauma prior to death.

The SAC pleads Defendants as alter egos and joint enterprises of one another, with Huntington Drive Health and Rehabilitation Center being a dba for AG Arcadia, LLC and Does 1-50 (collectively, the Facility), and with Cambridge Healthcare Services, LLC and Does 51 to 100 being the pleaded owners, operators, parent company, and/or management company (collectively, the Management Defendants).

On March 29, 2023, Defendants demurred to the SAC’s four causes of action and prayer for punitive damages. Defendants also moved to strike portions of the SAC.

On April 25, 2023, Plaintiffs filed a combined opposition to the demurrer and motion to strike.

On May 3, 2023, Defendants replied to the opposition.

The demurrer and motion to strike are now before the Court. 

Demurrer

Demurrer Sufficiency Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

SAC, First Cause of Action, Elder Abuse: OVERRULED.

The California Welfare and Institutions Code (the Elder Abuse Act) defines an “elder” as a person beyond the age of 65 years. (Welf. & Inst. Code, § 15610.27.)

To plead elder abuse, 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, 406-407.) “The plaintiff must also allege … [4] 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 [5] ‘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.)

The first cause of action alleges in essence that Nunilon Ledesma—an individual born in 1934 who was 65 years old at all relevant times—was admitted into Defendants’ care in December 2018, and that, after testing and diagnosis of Covid-19 between December 19, 2020 and December 24, 2020, Nunilon Ledesma was admitted into the Facility’s Red Zone, where Defendants and their employees failed to exercise the degree of care that reasonably skilled nursing facility owners, operators, officers, directors, and employees in similar positions would have exercised with regard to Nunilon Ledesma—an individual who was 65 years old at all relevant times—thus causing injuries to Nunilon Ledesma, including but not limited to unnecessarily suffering from Covid-19 and being quarantined in Defendants’ skilled nursing facility’s Covid “Red Zone” for a prohibited amount of time of over twenty days, during which time Defendants repeatedly failed to provide Nunilon Ledesma with her anti-seizure medication causing Nunilon Ledesma to suffer numerous seizures, and allowed Nunilon Ledesma to aspirate while she was receiving nutrition and medication through a gastrostomy tube and a nasogastric tube, leading to her death on January 12, 2021, as well as a loss of personal dignity, shame and humiliation, extreme and unnecessary pain and suffering, degradation, anguish, and emotional trauma prior to death. (SAC, ¶¶ 21, 24; see SAC, ¶¶ 20-103 [paragraphs comprising first cause of action for Elder Abuse].) Among many other allegations, Plaintiffs allege that such withholding of required care and services from Nunilon Ledesma by Defendants was in violation of applicable state and federal regulations, including by, among other things, (1) failing to review, evaluate, and update her patient care plan upon significant changes in condition, (2) failing to continually assess her care needs, (3) failing to timely, accurately and competently perform assessments of her care needs, (4) failing to promptly notify her family, physician, and/or legal representatives of significant changes in her condition, including sudden and/or marked adverse change in signs, symptoms or behaviors, and unusual occurrences, (5) withholding timely, accurately, and properly created Plans of Care so as to record fluid intake and output, (6) failing to provide necessary treatment and services, consistent with professional standards of practice, to assist with nutrition and hydration, and (7) failing to timely, accurately and competently perform assessments as appropriate following changes of conditions, such as deterioration in health in either life-threatening conditions or clinical complications. (SAC, ¶ 62.)

Defendants demur to this cause of action on various grounds, discussed separately. (See Demurrer, pp. 11-22.)

I. Failure to Plead Grounds for Neglect

Defendants first demur to the first cause of action on the ground that the claim is not pleaded with the requisite particularity. (Demurrer, pp. 11-14.) More specifically, Defendants first argue that Plaintiffs’ SAC failed to allege facts that Defendant denied or withheld goods or services necessary to meet the decedent’s basic needs, either with knowledge that injury was substantially certain to befall the decedent or with conscious disregard of the high probability of such injury, where the SAC instead pleads that care was in fact provided to the decedent. (Demurrer, pp. 12-13.) Second, Defendants argue that no allegations of egregious or malicious conduct support the first cause of action, as required for an elder abuse claim. (Demurrer, pp. 13-14.) Third, Defendants argue that the SAC fails to plead causation beyond conclusory allegations. (Demurrer, p. 14.)

In opposition, Plaintiffs first argue that, pursuant to case law cited in the opposition there are sufficient allegations to allege Elder Abuse where the SAC pleads that: “while 86-year-old Plaintiff Ledesma was a resident under the care and custody of the Defendants, the staff repeatedly failed to provide Ledesma with her antiseizure medication, as outlined in a care plan; failed to inform the family and physician that Ledesma did not receive her medication, as outlined in a care plan; and failed to update Ledesma’s care plans with additional interventions to ensure she received the medication and/or lowered her risk of seizures[] (SAC, ¶¶ 21-22, 33-37[])”; “Ledesma had a seizure which contributed to her aspiration event (SAC, ¶¶ 1, 24, 33-34)”; “Defendants failed to timely create a care plan for Ledesma’s aspiration risk once she had an NG-tube placed on January 7, 2021[] (SAC, ¶ 54[])”; “Ledesma had orders for continuous feedings through the NG-tube[] (SAC, ¶ 55[])”; “by failing to create a timely care plan and then follow the care plan that was created, fail[ing] to monitor Ledesma and fail[ing] to ensure the head of bed was elevated 30 to 45 degrees during and after feedings which put her at extreme risk for aspirating[] (SAC, ¶¶ 59, 62[])”; [a]s a result [of such conduct], in the evening of January 12, 2021, Ledesma was heard coughing and seen coughing up phlegm” and “died less than a half hour later[] (SAC ¶ 60[])”; and “Defendants’ repeated failure to create and follow Ledesma’s care plans, repeated failure to properly monitor her for a change of condition, and repeated failure to notify a physician that Ledesma was not receiving her medications … constitutes a withholding of services necessary to meet the definition of egregious “neglect” within the meaning of the Elder Abuse Act and holding in Delaney” v. Baker (1999) 20 Cal.4th 23. (Combined Opp’n, pp. 7-8; see Opp’n pp. 5-8 generally.)

Plaintiffs also argue that the first cause of action is sufficiently stated under the elements of Covenant Care Inc. v. Superior Court, supra, because: “[t]he SAC alleged Defendants’ staff had custodial obligations to meet the needs of Ledesma, who [was] an elder who required physical assistance with mobility, … medication[] [intake] …, care planning, and feedings through the NG-tube”; “[t]he staff knew Ledesma required assistance with those basic needs and … the staff withheld these necessary services … with the conscious disregard of the high probability that she would have a seizure without her anti-seizure medications and aspirate when not monitored appropriately while being tube-fed”; “Plaintiffs pleaded facts identifying that Defendants knew she had a history of seizures and that a failure to receive her anti-seizure medication would put her at risk for injury”; and “[a]s a result, [Defendants’] neglect caused her to suffer a seizure and aspirate, leading to her death on January 12, 2021.” (Combined Opp’n, pp. 8-9.)

In reply, Defendants generally reiterate their points on demurrer and argue that Plaintiffs cannot deny that the pleadings allege that Defendants’ staff provided some measure of care to Decedent, for which reason the question whether the prophylactic measures undertaken by Defendants’ staff were sufficient, as pleaded in the SAC, amounts to nothing more than alleged inadequate care provided to Decedent, and therefore should be governed by laws specifically applicable to such negligence. (See Demurrer Reply, pp. 2-4.)

The Court finds that neglect is sufficiently alleged in the SAC for the purposes of an elder abuse claim. The reason for this conclusion is that paragraphs 20-103 in the SAC—and, more narrowly, the paragraphs cited above by Plaintiffs—provide more than ample grounds for the Court to find that the SAC alleges with particularity that Defendants undertook medical care of Nunilon Ledesma, were fully aware of her medical needs, and that, after Nunilon Ledesma contracted Covid-19, Defendants’ employees withheld proper care from Nunilon Ledesma related to ensuring her took her anti-seizure medication and to timely update Nunilon Ledesma’s care plan, with conscious disregard of the probability that she would suffer aspiration from having seizures while being feed through a tube, which caused her death.

Defendants’ demurrer to the first cause of action on this ground therefore fails.

II. Failure to Plead Malice, Oppression, Fraud, or Recklessness

Defendants next argue that the SAC fails to allege with particularity that they acted with malice, oppression, fraud, of recklessness in caring for Nunilon Ledesma. (Demurrer, pp. 14-16.) More specifically, Defendants argue that Plaintiffs have not alleged facts with particularity that Defendants acted with recklessness, oppression, fraud, or malice, particularly where Plaintiffs fail to identify specific defendants to show what entity or individual was responsible for which acts, instead grouping all Defendants together, which makes it difficult to determine whether the facts pleaded in the SAC are sufficient to allege a cause of action individually against each defendant in this matter. (Demurrer, p. 15.) Second, Defendants argue that Plaintiffs’ inclusion of allegations of Defendants’ failure to maintain adequate staffing levels and training due to increasing profit is specious due to a lack of specificity about how and which specific deficiencies establish a pattern of neglect relevant to this action and how this alleged pattern specifically injured the decedent. (Demurrer, pp. 15-16.)

In opposition, Plaintiffs argue the sufficiency of their allegations. (Combined Opp’n, pp. 5-9; see Failure to Plead Grounds for Neglect discussion supra for summary of these arguments.)

In reply, Defendants repeat and elaborate on their arguments as to failure to plead malice, oppression, fraud, or recklessness. (See Demurrer Reply, pp. 4-5.)

The Court adopts its discussion above as to Failure to Plead Grounds for Neglect to find that the SAC sufficiently pleads, with particularity, malice or recklessness by Defendants’ staff in recognizing and acting upon probability that Nunilon Ledesma would suffer aspiration from having seizures while being fed through a tube as a result of the withholding of care related to anti-seizure medication and timely acting on and updating Nunilon Ledesma’s care plan, leading to her death.

The Court also notes that there is no lack of clarity as to which defendant the conduct in the SAC is ascribed: The SAC pleads the conduct alleged therein is ascribable to all Defendants through allegations that they committed the pleaded wrongs and by allegations that Defendants are alter egos or joint enterprises of one another. (SAC, ¶¶ 6-19 [alter ego and joint enterprise allegations], 20-103 [allegations against Defendants collectively].) The Court notes that Defendants’ demurrer does not challenge the alter ego or joint enterprise allegations, which failure undercuts their ‘failure to differentiate between wrongful actor’ argument. (See Demurrer and Demurrer Reply generally [failing to mention alter ego or joint enterprise allegations].)

Defendants’ demurrer to the first cause of action on this ground therefore fails.

III. Failure to Plead Officer, Director, or Managing Agent Involvement

Defendants last argue on demurer that, for various reasons, the first cause of action insufficiently alleges, with particularity, that an officer, director, or managing agent of Defendants engaged in, authorized, or ratified the conduct alleged in the SAC, a showing required by Welfare and Institutions Code section 15657, subdivision (c). (Demurrer, pp. 16-17.)

In opposition, Plaintiffs fail to address this argument. (See Combined Opp’n generally.)

In reply, Defendants raise Plaintiffs’ failure to rebut arguments related to officer, director, or managing agent involvement and briefly reiterate their arguments on demurrer. (Demurrer Reply, p. 6.)

The Court finds that, at the pleadings stage, the SAC sufficiently alleges a general ratification by Defendants’ management as to the conduct alleged against Defendants in the SAC. Customary practices by a corporation can show that the practices must have been known to and authorized by those who dictated the collection policies of the corporation. (Schanafelt v. Seaboard Finance Company (1951) 108 Cal.App.2d 420, 424; see SAC, ¶ 78 [citing Schanafelt].) Here, the SAC pleads Defendants’ awareness without rectification of customary practices, including (1) the understaffing of Facility, in both number and training and (2) the relationship between understaffing and sub-standard provision of care to patients of Facility including Nunilon Ledesma. (SAC, ¶¶ 9, 13, 74-77.)

Defendants’ demurrer to the first cause of action on this ground therefore fails.

Accordingly, having failed to raise any grounds upon which this Court can find that the first cause of action was insufficiently pleaded, the Court OVERRULES Defendants’ demurrer to the SAC’s Elder Abuse claim.

SAC, Second Cause of Action, Negligence: OVERRULED.

Unless a complaint affirmatively discloses on its face that the statute of limitations has run, the general demurrer on these grounds must be overruled. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred”].) Instead, “[t]he proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ….’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 325.) Generally, a “statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her” (the “discovery rule”). (Bernson v. Browning–Ferris Industries (1994) 7 Cal.4th 926, 932.) “[A] cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807, citation omitted.) However, if the complaint alleges wrongful conduct commencing at a time now barred by the statute of limitations, but continuing until a date not barred, the last over act supporting the tort controls the trigger date for the statute of limitations. (See Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 786 [holding that the statute of limitations on continuing tort cause of action does not begin to run until commission of last overt act].)

Defendants demur to the SAC’s second cause of action for Negligence on the ground that is it pleaded beyond its one-year statute of limitations because the SAC’s allegations place the date of discovery of injury on January 12, 2021, i.e., the date of death of Nunilon Ledesma, and because the initial Complaint in this action was not filed until September 28, 2022, more than a year later. (Demurrer, pp. 17-18.) Defendants argue that Plaintiffs attempt to plead around this deficiency by alleging their date of discovery as January 13, 2022, but that such pleadings are deceitful insofar as Plaintiff Edwin Ledesma filed a declaration accompanying the original Complaint indicating that Nunilon Ledesma died on January 12, 2021, listing the cause of death as cardiac arrest and Covid-19. (Demurrer, p. 18.) In the alternative, Defendants argue that Plaintiff Edwin Ledesma, through the use of reasonable diligence, should have discovered or suspected the facts leading to his mother’s injury as early as January 12, 2021. (Demurrer, p. 18.)

In opposition, Plaintiffs argue that Plaintiffs’ Negligence claim was brought within one year of discovery of the injuries underlying the claim, as pleaded in paragraph 108 of the SAC, and as supported by the Declaration of David E. Ramirez. (Combined Opp’n, pp. 4-5.) Plaintiffs also argue that because the Ledesma family was only left to believe that Nunilon Ledesma died of cardiac arrest and Covid-19, the discovery that she had failed to receive her anti-seizure medications which led to an aspiration event was the true start of the statute of limitations pursuant to Code of Civil Procedure section 340.5. (Combined Opp’n, p. 5.)

In reply, Defendants argue in essence that Plaintiffs do not sufficiently plead grounds in the SAC for the Court to determine that the date of discovery was in fact January 13, 2022. (Demurrer Reply, 8-11.)

The Court finds that the SAC does not affirmatively show on its face that the statute of limitations has run on the Negligence claim as grounded in the one-year limitations period provided for in Code of Civil Procedure section 340.5.

First, the Court is satisfied that paragraph 108 of the SAC alleges sufficiently elaborated grounds for the date of discovery of January 13, 2022—i.e., less than a year before the September 28, 2022 filing of the original Complaint in this action—given that the SAC pleads that Plaintiffs discovered Defendants’ alleged wrongdoing through “the Department of Public Health[’s] … Statement of Deficiencies against Defendants” in relation to the death of Nunilon Ledesma. (SAC, ¶ 108.)

Second, the Court finds the arguments related to the death certificate unavailing because knowledge of death of an individual based on “cardiac arrest” and “Covid-19” does not specify particular reasons why that death was related to the conduct of Defendants.

The Court thus OVERRULES Defendants’ demurrer to the SAC’s second cause of action.

SAC, Third Cause of Action, Wrongful Death: OVERRULED.

Unless a complaint affirmatively discloses on its face that the statute of limitations has run, the general demurrer on these grounds must be overruled. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, supra, 91 Cal.App.4th at p. 881.)

The SAC alleges the date of discovery of Defendants’ conduct as the cause leading to Nunilon Ledesma’s wrongful death as January 13, 2022. (SAC, ¶ 124; see SAC, ¶ 108 [same and incorporated into third cause of action by paragraph 117].)

Defendants demur to the third cause of action on the ground that it was first pleaded beyond its one-year statute of limitations, with the limitations period beginning to run on January 12, 2021 and the limitations period expiring before the original Complaint was filed in this action on September 28, 2022. (Demurrer, pp. 19-21.)

In opposition, Plaintiffs argue that Plaintiffs’ Wrongful Death claim was brought within one year of discovery of the injuries underlying the claim, as pleaded in paragraph 108 of the SAC, and as supported by the Declaration of David E. Ramirez. (Combined Opp’n, pp. 4-5.) Plaintiffs also argue that because the Ledesma family was only left to believe that Nunilon Ledesma died of cardiac arrest and Covid-19, the discovery that she had failed to receive her anti-seizure medications which led to an aspiration event was the true start of the statute of limitations pursuant to Code of Civil Procedure section 340.5. (Combined Opp’n, p. 5.)

In reply, Defendants argue in essence that Plaintiffs do not sufficiently plead grounds in the SAC for the Court to determine that the date of discovery was in fact January 13, 2022. (Demurrer Reply, 8-11.)

The Court adopts its discussion as to the Negligence claim above to determine that the January 13, 2022 date of discovery applies to the claim for Wrongful Death and that this claim was thus timely pleaded in the September 28, 2022 Complaint.

The Court thus OVERRULES Defendants’ demurrer to the SAC’s third cause of action.

SAC, Fourth Cause of Action, Violation of Health and Safety Code § 1430(B): OVERRULED.

Health & Safety Code section 1430, subdivision (b) provides for a civil remedy for patients and residents of a skilled nursing facility or intermediate care facility for violation of patient rights in section 72527 of Title 22 of the Code of Regulations, or any other right provided for by federal or state law or regulation. (See Health & Saf. Code, § 1430, subd. (b).)

Defendants raise two arguments against the fourth claim: (1) its statute of limitations period began to run on January 12, 2021 and expired a year later on January 12, 2022, as premised on Code of Civil Procedure section 340 or 340.5 (Demurrer, pp. 19-21); and (2) the fourth claim is insufficiently pleaded (Demurrer, pp. 21-22).

The Court adopts its discussion as to the second and third causes of action to determine that the fourth cause of action—subject to a one-year limitations period pursuant to Code of Civil Procedure sections 340 or 340.5—is pleaded within its statute of limitations as based on a discovery date of January 13, 2022.

The Court therefore only analyzes whether the fourth cause of action is insufficiently pleaded.

In their demurrer, Defendants argue that the fourth cause of action is not sufficiently pleaded because (1) this cause of action is a statutory claim, requiring particularity, and fails for the same reasons that the Elder Abuse claim failed, (2) Plaintiff itemizes numerous statutory rights that were allegedly violated by Defendants without specific support facts therefor, and (3) the SAC fails to parse out allegations attributable to each individual Defendant. (Demurrer, pp. 21-22.)

In opposition, Plaintiffs argue that the SAC sufficiently pleads violation of numerous California Code of Regulations and Health and Safety Code sections as to support this claim. (Combined Opp’n, pp. 9-10.)

In reply, Defendants generally reiterate their argument that Plaintiffs fail to plead any facts with strict particularity in support of any of the alleged violations of specific rights. (Demurrer Reply, pp. 6-7.)

The Court finds that the fourth cause of action is sufficiently pleaded.

Specifically, the Court adopts its discussion of the first cause of action for Elder Abuse to find that statutory violations have been properly alleged against Defendants in the SAC. (See SAC, ¶¶ 117 [incorporating prior allegations], 120 [providing 29 statutory violation grounds]; see also SAC, ¶¶ 20-103 [incorporated first cause of action, sufficiently alleging Elder Abuse].) The Court also notes that the SAC’s alter ego and joint enterprise allegations undercut any argument that the SAC does not sufficiently parse out which conduct is attributable to each individual defendant. (See SAC ¶¶ 6-19; see also First Cause of Action discussion supra.)

SAC, Prayer for Damages, Punitive Damages: IMPROPER.

Defendants’ demurrer is IMPROPER insofar as it challenges the allegations and prayer for punitive damages (see Demurrer, p. 22) because the adequacy of punitive damages cannot be challenged on demurrer, but rather, must be challenged in a motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163-164.) 

Motion to Strike

Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a)-(b).) For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)

SAC, Strike Punitive Damages: DENIED.

The Court adopts its discussion as to the Elder Abuse claim to DENY the motion to strike punitive damages allegations and prayers from the SAC (see Strike Mot., pp. 3-7) because the arguments raised in the motion to strike were addressed above—i.e., failure to allege oppression, fraud, or malice and failure to plead officer, director, or managerial agent involvement—and because the Court finds that the allegations as to the first cause of action could support punitive damages based on a willful and conscious disregard of the safety of Nunilon Ledesma through withholding of necessary medical aid.

SAC, Strike Attorney’s Fees: DENIED.

The Court DENIES the striking of attorney’s fees allegations and prayers from the Complaint because though Defendants argue that there are no proper grounds to support such relief (Strike Mot., pp. 7-8; Strike Reply, pp. 2-3), Welfare and Institutions Code section 15657—relating to claims of elder abuse—provides that “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse,” “[t]he court shall award to the plaintiff reasonable attorney’s fees and costs.” (Welf. & Inst. Code, § 15657, subd. (a).)

SAC, Strike References Cal. DPH: DENIED.

In their motion to strike, Defendants seek an order striking allegations from the SAC related to the California Department of Public Health on the grounds that (1) any argument that the CDPH investigations and records are not precluded by the statute simply ignores the language of Health and Safety Code section 1280, subdivision (f), (2) the findings by the Department of Health consists of the opinions of layperson State surveyors that results from the application of the individual surveyor’s interpretation of Title 22 of the California Code of Regulations to the contents of medical records, interviews with facility staff and third parties, consultant reports, and intra-departmental consultation, and (3) the alleged findings by the Department of Health are irrelevant, because the law is clear that citations are inadmissible at trial and any introduction of evidence to the citation will be reversible error and create an appealable issue for the defense. (Strike Mot., pp. 8-9.)

In opposition, Plaintiffs argue that any reference to the Department of Public Health in the SAC adds facts, as stated by Defendants’ employees, regarding the failure to administer medication, failure to notify the family and physician of changes in condition, and failure to develop and follow care plans such that Plaintiffs are not making any legal conclusions and are not using the conclusions made by the author. (Combined Opp’n, pp. 10-11.)

In reply, Defendants argue that (1) Plaintiffs ignore controlling authority on this subject, expressly holding that introduction of records from the Department of Public Health constitutes an abuse of discretion that prejudices the jury verdict and (2) arguments related to the Evidence Code and prejudice not raised in the motion to strike in the first instant and thus not considered for lack of good reason why these arguments are being raised for the first time on reply. (Reply, pp. 3-4; see Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 [Courts generally need not accept arguments raised for the first time on reply without good cause explanation as to why points were not raised earlier].)

The Court DENIES the motion to strike as to the California Department of Public Health allegations because, as used in the SAC, they constitute a basis to support admissions from employees of Defendants or as ancillary information that does not constitute the essential elements supporting the claims pleaded in the SAC. 

Conclusion

 Defendants Huntington Drive Health and Rehabilitation Center, AG Arcadia, LLC, and Cambridge Healthcare Services, LLC’s Demurrer to Second Amended Complaint is OVERRULED, in Part, and IMPROPER, in Part, as follows:

(1) OVERRULED as to the SAC’s four causes of action, which the Court finds are either sufficiently pleaded (first and fourth causes of action) or pleaded within their proper statute of limitations (second to fourth causes of action); and

(2) IMPROPER as to punitive damages because such relief must be challenged through a motion to strike.

Defendants Huntington Drive Health and Rehabilitation Center, AG Arcadia, LLC, and Cambridge Healthcare Services, LLC’s Motion to Strike Portions of Second Amended Complaint is DENIED as follows:

(1) DENIED as to allegations and prayers for punitive damages and attorney’s fees because these forms of relief are properly supported by the pleaded elder abuse claim and allegations in the SAC; and

(2) DENIED as to allegations relating to the California Department of Public Health because the Court finds that Defendants provide insufficient grounds for their striking.