Judge: Anne Richardson, Case: 23STCV10643, Date: 2024-06-21 Tentative Ruling

Case Number: 23STCV10643    Hearing Date: June 21, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

On January 18, 2024, Plaintiffs Robert Heffley, Jr.—individually and as successor in interest to his wife, Sulma Heffley Rodriguez (decd.)—filed their operative First Amended Complaint in this action, which sues Defendants Lakewood Regional Medical Center, Inc. (LRMC), Joshua Daniels, RN, Rowen Mecano, RN, Matthew Sandoval MHA, and Does 1 through 50 pursuant to claims of (1) Violation of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Ins. Code, § 15600, et seq.) and (2) Negligence.

For ease of reference, the Court refers to Plaintiffs by their first name. No disrespect is intended.

The claims arise from the following allegations. As a result of being diagnosed with metastatic breast cancer with lytic lesions in the L4-L5 vertebral bodies, Sulma was admitted to LRMC, a care custodian operating a twenty-four-hour facility for custodial care. Sulma was hospitalized at LRMC between May 11, 2022, and June 17, 2022. During that time, Sulma was dependent on LRMC and its employees/other Defendants for her basic needs, such as personal hygiene and feeding, among other things. Nevertheless, during Sulma’s inpatient treatment, Sulma was subjected to mistreatment, negligent care, and neglect when LRMC nurses repeatedly left Sulma sitting in her own feces and urine for prolonged periods of time (an hour or so). Robert, Sulma’s husband, repeatedly received calls from Sulma regarding this neglect, prompting Robert on numerous occasions to call the hospital to demand that Sulma be changed. Robert also visited Sulma and found her at times sitting in her own feces and urine, again demanding immediate attention for Selma. Despite these protests, LRMC staff indicated that they were short staffed, and that Sulma would need to wait. Multiple LRMC staff noted that they were understaffed, including Sulma’s treating doctor (Tate) and nurses at LRMC. Moreover, Defendant Daniels and Mecano separately admitted that Sulma was treated inhumanely and that LRMC was short staffed. Selma subsequently died around July 20, 2022.

Robert as Plaintiffs sue Defendants individually based on his own injuries in seeing Selma suffer from the above conduct at LRMC, as well as based on Selma’s injuries, with Robert as successor in interest of Selma.

B. Motions Before the Court

On March 1, 2024, Defendants filed a demurrer challenging the FAC’s first and second causes of action.

That same day, Defendants filed a motion to strike Robert’s individual claims against Defendants, the entire claim for elder abuse, and the entire prayer for the elder abuse claim.

On June 6, 2024, Plaintiffs filed separate oppositions to the demurrer and motion to strike.

On June 13, 2024, Defendants filed a reply in support of their demurrer. However, the record fails to reflect a reply in support of their motion to strike.

Defendants’ demurrer and motion to strike are now before the Court.

II. Demurrer

A. Legal 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).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach 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.) 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.) 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.)

B. Analysis

1. Demurrer, FAC, First Cause of Action, Elder Abuse [Neglect]: SUSTAINED, with leave to amend.

a. Relevant Law

To allege an elder abuse claim based on neglect, a plaintiff must allege (and ultimately prove by clear and convincing evidence) 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 (Welf. & Inst.Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney v. Baker (1999) 20 Cal.4th 23, 34 (Delaney);

(2) Knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 85, 90; Benun v. Superior Court (2004) 123 Cal.App.4th 113, 116; Mack v. Soung (2000) 80 Cal.App.4th 966, 972-973); 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) (Welf. & Inst.Code, §§ 15610.07, subd. (b), 15610.57, subd. (b), 15657; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, 786 (Covenant Care); Delaney, supra, 20 Cal.4th at pp. 31-32).

The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst.Code, §§ 15610.07, subds. (a), (b), 15657; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 664; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529.)

Finally, 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. (Covenant Care, supra, 32 Cal.4th at p. 790.)

b. Court’s Determination

The Court finds in favor of Defendants.

Here, the FAC’s allegations essentially revolve around two sets of facts from which liability is direct (Selma’s injuries) or indirect (Robert’s injuries): (1) Defendants placing Selma in a ward that exposed Selma to a COVID-19 positive individual, forcing a quarantine of Selma and delaying Selma’s medical evaluation, medical care, and cancer treatment (FAC, ¶ 21); and (2) between May 11, 2022, and June 17, 2022, Defendants failing to assist Selma with her personal hygiene—cleaning Selma of feces and urine—for prolonged periods of time lasting approximately an hour (see, e.g., FAC, ¶¶ 31, 32, 34, 38, 40(2)). The first cause of action also alleges that as a result of Defendants’ conduct, Robert suffered emotional distress and loss of consortium. (FAC, ¶ 65.)

However, neither set of allegations shows a failure to provide custodial care for Selma. Instead, the FAC’s allegations show (1) a negligent exposure to COVID-19, with remedial quarantine following, and (2) delayed custodial care relating to hygiene as opposed to a failure to provide or withholding of custodial care relating to hygiene. Welfare and Institutions Code section 15657.2 provides that elder abuse is distinct from negligence of a health care provider, where the latter claim is governed by professional negligence authority in the Code of Civil Procedure. (See Delaney, supra, 20 Cal.4th at p. 35 [Elder Abuse Act only applies to neglect by health care provider that is at least reckless]; Sababin, supra, 144 Cal.App.4th at p. 88 [Elder Abuse Act does not apply to simple or gross negligence by health care provider]). These defects render the first cause of action subject to demurrer based on failure to allege a failure or withholding of custodial care.

Defendants’ demurrer is thus SUSTAINED as to the FAC’s first cause of action, with leave to amend to give Plaintiffs another opportunity to clarify the basis for elder abuse based on neglect.

Alternatively, as requested by Plaintiff, leave to amend is granted for Robert to state an intentional infliction of emotional distress claim as an individual, as based on the same set of facts alleged in the FAC. The Court relies on Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. There, the court of appeal determined that a plaintiff could, in response to a sustained demurrer, reallege a derivative claim against a corporation as a declaratory relief claim. Specifically, the Court reasoned that the amendment was proper where the demurrer was sustained based on issues related to standing that were implicated in the new declaratory relief claim. (Ibid.) Here, as argued by Plaintiffs, the proposed IIED claim arises from the same facts alleged in the FAC. (Opp’n, p. 13.) Under these circumstances, amendment from an individual claim of elder abuse by Robert may be realleged as an individual IIED claim.

2. Demurrer, FAC, Second Cause of Action, Negligence: OVERRULED.

However, the Court OVERRULES Defendants’ demurrer to the FAC’s second cause of action.

In their demurrer, Defendants argue that the second cause of action is a survival claim that can only be brought on behalf of the decedent’s successor in interest or personal representative, and that here, Plaintiffs’ claims are all survival claims seeking redress for Selma’s injuries before her death, not injuries to Robert individually. (Demurrer, p. 12.)

Even if the Court were to credit this argument, “[a] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047; see Code Civ. Proc., § 430.50, subd. (a) [A demurrer can be made to an entire complaint or individual causes of action therein].) If Defendants are not challenging the successor in interest portion of the second cause of action, then Defendants are not seeking to dispose of an entire cause of action. Consequently, relief cannot be granted here.

Defendants’ demurrer is thus OVERRULED as to the FAC’s second cause of action.

III. Motion to Strike

A. Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) 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); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally 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), (c)).

In analyzing a motion to strike, California courts “accept as true the well-pleaded allegations” in the challenged pleadings, as well as “well-pleaded allegations admitted in” the responsive “answer.” (Atwell Island Water Dist. v. Atwell Island Water District (2020) 45 Cal.App.5th 624, 628 (Atwell); Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 [California courts “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

B. Analysis

1. Motion to Strike, FAC, Individual Claims: MOOT in part and DENIED in part.

The Court initially notes that that Defendants’ motion is MOOT as to the first cause of action based on the Court’s order above re: the demurrer challenge to this claim.

As for the second cause of action, the Court DENIES Defendants’ motion. Defendants’ argument incorrectly reads the second cause of action. Though Defendants are correct in arguing that the FAC does not explicitly indicate that the second cause of action is brought for Selma’s injuries and Robert’s separate injuries, such allegations are clear from the face of the FAC. Robert alleges that he personally observed the mistreatment and negligence with respect to his wife Selma and that Defendants’ conduct caused Robert emotional distress, loss of consortium, pain, loss of enjoyment of life, and other forms of mental distress and anguish. (FAC, ¶¶ 62, 65.) Defendants’ argument fails on this ground.

The Court notes that while the second cause of action could benefit from separating the claim into two counts, one involving Selma’s injuries and the other involving Robert’s injuries, Defendants’ motion is not brought on those grounds, and nor is it critical based on notice pleading. Instead, the argument is that the second cause of action can only involve a survivor claim as based on Selma’s injuries, making the individual claim by Robert improper—an argument that the Court has rejected.

2. Motion to Strike, FAC, First Cause of Action, Elder Abuse: MOOT.

Based on the Court sustaining Defendants’ demurrer to the FAC’s first cause of action, the Court determines that Defendants’ motion to strike the first cause of action is MOOT.

3. Motion to Strike, FAC, Prayer, Elder Abuse: GRANTED with leave to amend.

Based on the Court sustaining Defendants’ demurrer to the FAC’s first cause of action, the Court determines that the prayer for elder abuse is irrelevant, for which reason the Court GRANTS Defendants’ motion to strike the prayer for elder abuse from the Complaint, with leave to amend. 

IV. Conclusion

A. Demurrer

Demurrer to Plaintiffs’ First Amended Complaint by Defendants Lakewood Regional Medical Center, Inc., Joshua Daniels, RN, Rowen Mecano, RN, and Matthew Sandoval MHA [Res ID # 2734] is SUSTAINED in part and OVERRULED in part as follows:

(1) SUSTAINED, with leave to amend, as to the First Amended Complaint’s first cause of action, with the scope of amendment clarified above; and

(2) OVERRULED as to the First Amended Complaint’s second cause of action.

B. Motion to Strike

Motion to Strike Portions of Plaintiffs’ First Amended Complaint by Defendants Lakewood Regional Medical Center, Inc., Joshua Daniels, RN, Rowen Mecano, RN, and Matthew Sandoval MHA [Res ID # 2734] is MOOT in part, DENIED in part, and GRANTED in part as follows:

(1) MOOT as to striking Robert Heffley, Jr.’s individual elder abuse claim (a portion of the first cause of action) from the First Amended Complaint and as to striking the First Amended Complaint’s first cause of action generally;

(2) DENIED as to striking Robert Heffley, Jr.’s individual negligence claim from the First Amended Complaint; and

(3) GRANTED as to striking the First Amended Complaint’s elder abuse prayer, with leave to amend.