Judge: Ashfaq G. Chowdhury, Case: 25NNCV00104, Date: 2025-05-01 Tentative Ruling
Case Number: 25NNCV00104 Hearing Date: May 1, 2025 Dept: E
Case No: 25NNCV00104
Hearing Date: 5/1/2025 – 8:30am
Trial Date: UNSET
Case Name: ANTHONY KELLEY v. AHMC MONTEREY PARK
HOSPITAL L.P. dba MONTEREY PARK HOSPITAL; DOES 1-50; and DOES 51-60.
TENTATIVE RULING ON
DEMURRER AND MOTION TO STRIKE
RELIEF REQUESTED
“[D]efendant
AHMC MONTEREY PARK L.P. d/b/a MONTEREY PARK HOSPITAL, will and hereby does
demur to plaintiff’s Complaint. The demurrer is made on the following grounds:
DEMURRER TO THE SECOND
CAUSE OF ACTION
(As to Plaintiff’s Claim
of Violations of the Elder and Dependent Adult Civil Protection Act [Welf.
& Inst. Code § 15600 et seq.])
Under
C.C.P. §430.10(e), Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th
148; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, Worsham
v. O’Connor Hospital (2014) 226 Cal.App.4th 331, and Carter v. Prime
Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, plaintiffs’
Second Cause of Action fails to state facts sufficient to constitute a cause of
action for Dependent Adult Abuse and/or Neglect under Welfare &
Institutions Code § 15600, et seq., because the Complaint fails to allege, with
particularity, how the plaintiff qualifies as a “dependent adult” within the
meaning of the Act; fails to allege, with particularity, that defendant was a
“care custodian” within the meaning of the Act; and fails to allege, with
particularity, the requisite recklessness and egregiousness of any conduct
sufficient to constitute Elder Abuse or Neglect.
DEMURRER TO THE THIRD
CAUSE OF ACTION
(As to Plaintiff’s Claim
of Violations of Resident Rights [Health & Safety Code § 1430(b)])
Under
C.C.P. §430.10(e), Covenant Care, Inc. v. Superior Court (2004) 32
Cal.4th 771, 790, and Lopez v. Southern Cal. Rapid Transit Dist. (1985)
40 Cal.3d 780, 795, every fact material to the existence of each element of a
statutory cause of action must be pleaded with particularity. Plaintiff’s
ostensible cause of action under Health & Safety Code § 1430 (the Patients’
Bill of Rights), however, fails to allege that plaintiff was a “resident”
within the meaning of the Code, fails to allege that defendant was a “long-term
health care facility” or “licensee” within the meaning of the Code; and is
otherwise based on conclusory and nonspecific allegations, without describing
any specific violative conduct on the part of the demurring defendant.
The
Demurrer is made and based upon this Notice, the accompanying Memorandum of
Points and Authorities, the Declaration of Marshall J. Shepardson, Esq., on all
pleadings, papers, and records in the court’s file in this action, and upon
such other and further oral and documentary evidence and argument as may be
presented at the hearing.”
(Notice,
p. 2-3.)
PROCEDURAL
Moving Party: Defendant,
AHMC Monterey Park L.P. dba Monterey Park Hospital
Responding Party: No Opposition submitted
by Plaintiff
Moving Papers: Notice/Demurrer
Opposition Papers: No Opposition submitted by Plaintiff
Reply Papers: No Reply
Proof of Service Timely Filed (CRC Rule
3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok
BACKGROUND
On 1/7/2025, Plaintiff,
Anthony Kelley, filed the instant action against Defendants: (1) AHMC Monterey
Park Hospital L.P. d/b/a Monterey Park Hospital; (2) Does 1-50; and (3) Does
51-60.
Plaintiff’s
Complaint alleges causes of action for: (1) Negligence, (2) Violations of the
Elder and Dependent Adult Civil Protection Act [Welf. & Instit. Code §
15600 et seq.], and (3) Violations of Resident Rights [Health & Safety Code
§ 1430(b)].
The
instant action’s allegations arise from when Plaintiff was a resident/patient
at Defendant’s acute care hospital from January 8, 2024 to January 14, 2024.
(Compl. ¶ 19.)
PROCEDURAL
Meet
and Confer
A party filing a
demurrer “shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (Code Civ.
Proc., § 430.41, subd. (a).) “The
parties shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., § 430.41, subd. (a)(2).)
Failure
to sufficiently meet and confer is not grounds to overrule or sustain a
demurrer. (CCP §430.41(a)(4).)
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) 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.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law ….” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.)
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 pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed. (Code Civ. Proc., §§ 430.30,
430.70.) The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action. (Hahn, supra, 147
Cal.App.4th at 747.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.”
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.” (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.)
ANALYSIS
Second Cause of
Action – Violation of Elder & Dependent Adult Civil Protection Act [Welf.
& Instit. Code § 15600 et seq.]
Dependent Adult
Defendant argues
that Plaintiff does not plausibly allege that Plaintiff is a “dependent adult”
under the Elder Abuse and Dependent Adult Civil Protection Act.
Chapter 11, located
within Part 3 in Division 9, of the Welfare and Institutions Code (WIC) is
titled as the “Elder Abuse and Dependent Adult Civil Protection Act [15600 –
15675].”
“Dependent adult”
is defined as:
(a) “Dependent adult” means a person,
regardless of whether the person lives independently, between the ages of 18
and 64 years who resides in this state and who has physical or mental
limitations that restrict his or her ability to carry out normal activities or
to protect his or her rights, including, but not limited to, persons who have
physical or developmental disabilities, or whose physical or mental abilities
have diminished because of age.
(b) “Dependent adult” includes any
person between the ages of 18 and 64 years who is admitted as an inpatient to a
24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
(WIC § 15610.23(a)-(b).)
Plaintiff’s
Complaint alleges: (1) Plaintiff [Kelley] is an individual and at all relevant
times was a resident of Los Angeles County, California; (2) At all relevant
times Kelley was a 56-year-old; (3) Kelley was a resident/patient at
Defendant’s acute care hospital from January 8, 2024 – January 14, 2024; (4)
That Defendant was in the business of providing acute and long-term care as a
24-hour health care facility as defined in § 1250 of the Health & Safety
Code; and (5) Mr. Kelley was admitted with edema and congestive heart failure,
and was dependent on staff for eating, bed mobility, transfers, dressing,
toilet use and personal hygiene with assistance of one to two or more staff
members. (See Compl. ¶¶ 5, 10, 14, & 19.)
Thus, Plaintiff
sufficiently alleges he is a “dependent adult” under WIC § 15610.23.
Although Defendant
argues that a conclusory assertion from Plaintiff that he is a “dependent
adult” is insufficient, Defendant’s argument ignores the allegations of the
entire complaint as a whole. Yes, there are instances in the Complaint wherein
Plaintiff conclusorily refers to himself as a “dependent.” However, Defendant
ignores the allegations of the Complaint as a whole, for example paragraphs
like 5, 10, 14, and 19, wherein Plaintiff sufficiently alleges that he is a
“dependent adult” under WIC § 15610.23.
Further,
Defendant’s citations to (1) Estate of Shinkle (2002) 97 Cal.App.4th
990, 1005 and (2) Stewart v. Superior Court (2017) 16 Cal.App.5th 87,
102 are unavailing. First, both of those cases were not at the pleading stage;
therefore, their procedural posture is inapposite. Second, Defendant’s citation
to Stewart is unavailing because even though the plaintiff in Stewart
was deemed a dependent adult when he could not effectively communicate, Stewart
does not stand for the proposition that not being able to effectively
communicate is a necessary element that must be alleged to successfully allege
that a plaintiff is a dependent adult. Similarly, Defendant’s citation to Estate
of Shinkle is unavailing for the same reason.
//
Care Custodian
The Elder Abuse
and Dependent Adult Civil Protection Act affords certain protections to elders
and dependent adults. (Winn v. Pioneer Medical Group, Inc. (2016) 63
Cal.4th 148, 152.) Section 15657 of the Welfare and Institutions
Code provides heightened remedies to a plaintiff who can prove “by clear
and convincing evidence that a defendant is liable for physical abuse as
defined in Section 15610.63, or neglect as defined in Section 15610.57,”
and who can demonstrate that the defendant acted with “recklessness,
oppression, fraud, or malice in the commission of [this] abuse.” (Id.) Section
15610.57, in turn, defines “neglect” in relevant part as “[t]he 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.” (Id. citing Welf. & Inst. Code § 15610.57,
subd. (a)(1).)
Defendant next
argues that Plaintiff did not allege a cause of action under the Elder Abuse
and Dependent Adult Civil Protection Act because Plaintiff did not successfully
allege he was in Defendant’s “care or custody.”
Defendant cites to
the standard in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148
to argue that Plaintiff here did not allege he was in the “care or custody” of
Defendant.
The Elder Abuse
and Dependent Adult Civil Protection Act does not apply unless defendant health
care provider had a substantial caretaking or custodial relationship with the
patient. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148,
152.) A substantial caretaking or custodial relationship is a relationship
where a certain party has assumed a significant measure of responsibility for
attending to one or more of an elder or dependent adult’s basic needs that an
able-bodied and fully competent adult would ordinarily be capable of managing
without assistance. (Id. at 158.)
Defendant cites to: (1) Winn v. Pioneer Medical Group, Inc. (2016)
63 Cal.4th 148, (2) Kruthanooch v.
Glendale Adventist Medical Center (2022) 83
Cal.App.5th 1109; and (3) Oroville Hospital
v. Superior Court (2022) 74 Cal.App.5th 382, to argue that Plaintiff
did not allege a caretaking or custodial relationship. Defendant argues that
Plaintiff had an ordinary patient-hospital relationship.
Defendant’s arguments are unavailing.
First, the Court notes that Defendant’s citations to Kruthanooch and Oroville are not
entirely on point because those two cases are not pleading cases.
Second, with respect to Oroville, wherein the Court of Appeal did not find a substantial caretaking or
custodial relationship :
Wound care such
as that at issue here is not a “basic need” of the type an able-bodied and
fully competent adult would ordinarily be capable of managing on his or her
own. Indeed, plaintiffs themselves assert Foster, presumably an able-bodied and
fully competent adult, did not have the training to properly attend to
decedent's wound care needs, and they acknowledged in their separate statement
in opposition to defendants’ motion that she “was not qualified to provide such
nursing services.” Unlike a basic need an able-bodied and fully competent
adult would be capable of managing without assistance, such as eating, taking
medicine, or using the restroom, decedent's wound care required competent
professional medical attention. Like Winn, we conclude the allegations
and evidence here do not “support an inference that [decedent] relied on
defendants in any way distinct from an able-bodied and fully competent
adult's reliance on the advice and care of his or her medical providers.”
(Oroville Hospital v. Superior Court
(2022) 74 Cal.App.5th 382, 405.)
Here, Plaintiff’s Complaint alleges:
5. Defendants,
and , were required to meet the basic needs of Mr. Kelley such as nutrition,
hydration, hygiene, safety and medical care, as Mr. Kelley was admitted with
edema and congestive heart failure, and was dependent
on staff for eating, bed mobility, transfers, dressing, toilet use and personal
hygiene with assistance of one to two or more staff members.
6. Defendants,
and , knew of the conditions that made Mr. Kelley unable to provide for his own
basic needs such as a being assessed as a “high risk” for skin breakdown and/or
bedsores or pressure ulcers due to his comorbidities and limited mobility.
…
34. Defendant
knew that by virtue of his physical and mental state, Mr. Kelley was dependent
upon them for nursing and other health care services.
35. Defendant
also knew by virtue of Mr. Kelley’s physical state that he was dependent upon
them for his activities of daily living including, but not limited to, feeding
and dietary planning, skin care, hygiene, infection control/prevention,
toileting, and physical rehabilitation/exercise. Furthermore, defendant knew
Mr. Kelley required substantial assistance with bathing and basic hygiene.
(Compl. ¶¶ 5, 6, 34, & 35.)
Here, Plaintiff successfully alleges that Defendant assumed a
significant measure of responsibility for attending to one or more of an elder
or dependent adult’s basic needs that an able-bodied and fully competent adult
would ordinarily be capable of managing without assistance by alleging that he
was dependent on staff for eating, bed mobility, transfers, dressing, toilet
use, and personal hygiene. (Compl ¶ 5.) This is in stark contrast to Oroville, because wound
care is not a basic need of the type an able-bodied and fully competent adult
would ordinarily be capable of managing on his or her own.
Third, Kruthanooch is equally as unavailing as Oroville. In Kruthanooch, there was no substantial evidence that plaintiff sought or required
ongoing assistance with eating, drinking, toileting, or any other basic needs.
(Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th
1109, 1129.) Here, Plaintiff alleged that he “was dependent on staff for
eating, bed mobility, transfers, dressing, toilet use and personal hygiene with
assistance of one to two or more staff members.” (Compl. ¶ 5.)
Fourth, Defendant’s citation to Winn
is unavailing because in Winn there were no
allegations in the complaint that supported an inference that plaintiff relied
on defendants in any way distinct from an able-bodied and fully competent
adult’s reliance on the advice and care of his or her medical providers. (Winn
v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 165.) Unlike in Winn, Plaintiff here successfully
alleges that Defendant assumed a significant measure of responsibility for
attending to one or more of an elder or dependent adult’s basic needs that an
able-bodied and fully competent adult would ordinarily be capable of managing
without assistance by alleging that he was dependent on staff for eating, bed
mobility, transfers, dressing, toilet use, and personal hygiene. (Compl ¶ 5.)
Thus, Plaintiff here succussefully alleges a substantial caretaking or
custodial relationship.
Egregious
Defendant argues that Plaintiff’s cause of action for violation of The Elder
Abuse and Dependent Adult Civil Protection Act (the Act) is defective because
Plaintiff does not allege, with particularity, conduct “egregious” enough to
constitute abuse or neglect under the Act.
As
stated in Carter v. Prime Healthcare Paradise Valley LLC:
To recover the enhanced remedies available under the Elder Abuse
Act from a health care provider, a plaintiff must prove more than simple or
even gross negligence in the provider's care or custody of the elder. (Welf.
& Inst.Code, § 15657.2; Delaney, supra, 20 Cal.4th at p.
32, 82 Cal.Rptr.2d 610, 971 P.2d 986; Sababin v. Superior Court (2006)
144 Cal.App.4th 81, 88, 50 Cal.Rptr.3d 266 (Sababin ).)
The plaintiff must prove “by clear and convincing evidence” that “the defendant
has been guilty of recklessness, oppression, fraud, or malice in the commission
of” the neglect. (Welf. & Inst.Code, § 15657.) Oppression, fraud and malice
“involve ‘intentional,’ ‘willful,’ or ‘conscious' wrongdoing of a ‘despicable’
or ‘injurious' nature.” (Delaney, at p. 31, 82 Cal.Rptr.2d 610, 971
P.2d 986.) Recklessness involves “ ‘deliberate disregard’ of the ‘high degree
of probability’ that an injury will occur” and “rises to the level of a
‘conscious choice of a course of action ... with knowledge of the serious
danger to others involved in it.’ ” (Id. at pp. 31–32, 82
Cal.Rptr.2d 610, 971 P.2d 986.) Thus, the enhanced remedies are available only
for “ ‘acts of egregious abuse’ against elder and dependent adults.” (Id. at
p. 35, 82 Cal.Rptr.2d 610, 971 P.2d 986; see also Covenant Care, supra, 32
Cal.4th at p. 786, 11 Cal.Rptr.3d 222, 86 P.3d 290 [“statutory elder abuse
may include the egregious withholding of medical care for physical and mental
health needs”].) In short, “[i]n order to obtain the Act's heightened remedies,
a plaintiff must allege conduct essentially equivalent to conduct that would
support recovery of punitive damages.” (Covenant Care, at p. 789,
11 Cal.Rptr.3d 222, 86 P.3d 290.)
(Carter
v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.)
Further,
as stated in Carter v. Prime Healthcare Paradise Valley LLC:
From the statutes and cases discussed above, we distill several
factors that must be present for conduct to constitute neglect within the
meaning of the Elder Abuse Act and thereby trigger the enhanced remedies
available under the Act. The 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, supra, 20
Cal.4th at p. 34, 82 Cal.Rptr.2d 610, 971 P.2d 986); (2) knew of conditions
that made the elder or dependent adult unable to provide for his or her own
basic needs (Sababin, supra, 144 Cal.App.4th at pp. 85,
90, 50 Cal.Rptr.3d 266; Benun, supra, 123 Cal.App.4th at
p. 116, 20 Cal.Rptr.3d 26; Mack, supra, 80 Cal.App.4th at
pp. 972–973, 95 Cal.Rptr.2d 830); and (3) denied or withheld goods or
services *407 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 **904 (if the plaintiff alleges recklessness) (Welf. &
Inst.Code, §§ 15610.07, subd. (b); 15610.57, subd. (b), 15657; Covenant
Care, supra, 32 Cal.4th at pp. 783, 786, 11 Cal.Rptr.3d 222, 86 P.3d
290; Delaney, at pp. 31–32, 82 Cal.Rptr.2d 610, 971 P.2d 986).
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, supra, 163 Cal.App.4th at
p. 664, 77 Cal.Rptr.3d 743; Berkley, supra, 152 Cal.App.4th at
p. 529, 61 Cal.Rptr.3d 304.) 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, at p. 790, 11 Cal.Rptr.3d
222, 86 P.3d 290.)
(Carter v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 406-407.)
Here, based on the allegations in the Complaint at ¶¶ 4- 64,
Defendant’s argument – that Plaintiff did not allege conduct with enough
specificity that would constitute reckless neglect – is unavailing.
TENTATIVE RULING SECOND CAUSE OF ACTION
Defendant’s demurrer to the second cause of action for Violation of The
Elder & Dependent Adult Civil Protection Act [Welf. & Instit. Code §
15600 et seq.] is OVERRULED.
//
//
Third Cause of Action – Violation of Resident Rights [Health &
Safety Code § 1430(b)]
Defendant argues that Plaintiff’s third cause of action for Violation
of Resident Rights [Health & Safety Code § 1430(b)] fails to successfully
allege a cause of action. Defendant argues that this cause of action fails to
allege that Plaintiff was a “resident” within the meaning of the Code. Further,
Defendant argues that Plaintiff failed to allege that Defendant was a
“long-term health care facility” or “licensee” within the meaning of the Code.
Specifically, Defendant’s demurrer argues as follows:
Health &
Saf. Code § 1430 expressly applies to “long-term health care facilities,” as
defined in Health & Saf. Code § 1418. This definition includes Skilled
Nursing Facilities and other like specialized care facilities—but it expressly
excludes general acute care hospitals: “‘Long-term health care facility’ does
not include a general acute care hospital or an acute psychiatric hospital,
except for that distinct part of the hospital that provides skilled nursing
facility, intermediate care facility, intermediate care
facility/developmentally disabled, or pediatric day health and respite care
facility services.” Health & Saf. Code, § 1418(c) (emphasis added).
(“Licensee” is synonymous with “longterm health care facility” according to §
1418(d).)
This exclusion
of general acute care hospitals from the applicability of the “Residents’
Rights” statute is consistent with the codified purpose of the Chapter that
contains § 1430:
It is the
intent of the Legislature in enacting this chapter to establish (1) a citation
system for the imposition of prompt and effective civil sanctions against long-term
health care facilities in violation of the laws and regulations of this
state, and the federal laws and regulations as applicable to nursing
facilities… (2) an inspection and reporting system to ensure that long-term
health care facilities are in compliance with state statutes and
regulations pertaining to patient care; and (3) a provisional licensing
mechanism to ensure that full-term licenses are issued only to those long-term
health care facilities that meet state standards relating to patient care.
Health &
Saf. Code § 1417.1 (“Legislative intent”).
Here, the
plaintiff was not treated for a long term, and defendant was not a long-term
facility.2 Therefore, no “Resident Rights” claim may stand.
(Def. Dem. p. 13-14; Fn. 2 states, “It stands to reason, just as an
admitting hospital does not necessarily become a “care custodian,” that the
admitted patient does not become a “resident.”)
Here, the Court does not understand Defendant’s argument.
Plaintiff’s cause of action here is for violation of Health &
Safety Code § 1430(b). In relevant part of 1430:
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. The suit shall be brought
in a court of competent jurisdiction. The licensee shall be liable for the acts
of the licensee’s employees.
(Health & Safety Code § 1430(b)(1).)
The Court fails to understand Defendant’s argument because Defendant states,
“Health & Saf. Code § 1430 expressly applies to “long-term health care
facilities,” as defined in Health & Saf. Code § 1418.” (Def. Dem. p. 13.)
The Court fails to see any reference to “long-term health care
facilities” in § 1430(b)(1). Further, the Court fails to see any reference to Health
& Saf. Code § 1418 in § 1430(b)(1).
Based on the Court’s reading of § 1430(b)(1), the Court notices
references to “a skilled nursing
facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250.” (Health & Safety
Code § 1430(b)(1); emph. added.)
In relevant part of Plaintiff’s Complaint, Plaintiff alleges:
The acts and
omissions of Defendant Monterey Park Hospital as alleged herein constitute
violations of residents’ rights within the meaning of Health and Safety Code
section 1430(b), and other applicable statutes, was an intermediate care
facility.
(Compl. ¶ 66.)
Here, it appears that Plaintiff is alleging that Defendant was an
intermediate care facility based on the allegations in paragraph 66 of the
Complaint.
Additionally, the Court does not understand Defendant’s argument with respect
to Health & Saf. Code § 1417.1
TENTATIVE RULING THIRD CAUSE OF ACTION
The Court will hear argument as to the third cause of action.
Tentatively, the Court plans to OVERRULE Defendant’s demurrer to the third
cause of action because the Court failed to understand any of Defendant’s
arguments.
OVERALL
Tentatively this Court plans to OVERRULE
Defendant’s demurrer to the second and third causes of action in Plaintiff’s
Complaint.
MOTION
TO STRIKE
PROCEDURAL
Moving
Party: Defendant, AHMC Monterey Park L.P. dba Monterey Park Hospital
Responding
Party: No Opposition submitted by Plaintiff
Moving Papers: Notice/Motion
to Strike
Opposition Papers: No
Opposition submitted by Plaintiff
Reply Papers: No Reply
Proof of Service
Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok
RELIEF REQUESTED
“[D]efendant AHMC MONTEREY PARK L.P. d/b/a
MONTEREY PARK HOSPITAL, will and hereby does move this Court pursuant to Code
of Civil Procedure §§ 435 and 436, and Civil Code §§ 3294 and 3345, to strike
the following portions of the Complaint, on the grounds that said allegations
and prayers for relief are not drawn in conformity with the laws of California:
1.
Paragraph (b.) of plaintiff’s Prayer for Relief, at p. 24:11–13: “Punitive
damages according to proof, including but not limited to treble punitive
damages per Civil Code section 3345;”
2.
Paragraph (e.) of plaintiff’s Prayer for Relief, at p. 24:18–19: “Attorney’s
fees per Welfare & Institutions Code section 15657;”
This Motion is made and
based upon this Notice, the accompanying Memorandum of Points and Authorities,
the attached declaration of Marshall J. Shepardson, Esq., on all pleadings,
papers, and records in the court’s file in this action, and upon such other and
further oral and documentary evidence and argument as may be presented at the
hearing on this Motion.”
(Def. Notice, p. 1-2.)
Meet and
Confer
Before filing a motion
to strike pursuant to this chapter, the moving party shall meet and confer in
person or by telephone with the party who filed the pleading that is subject to
the motion to strike for the purpose of determining if an agreement can be
reached that resolves the objections to be raised in the motion to strike. If
an amended pleading is filed, the responding party shall meet and confer again
with the party who filed the amended pleading before filing a motion to strike
the amended pleading. (CCP §435.5(a).)
Here,
Defendant’s counsel telephoned Plaintiff’s office and sent Plaintiff’s office a
meet and confer letter; however, Defendant never heard back from Plaintiff’s
counsel. (See Shepardson Decl. ¶¶ 3-5.)
LEGAL
STANDARD – 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(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.
(Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the
grounds that a complaint fails to state facts sufficient to constitute a cause
of action, but instead is properly based on grounds of superfluous or abusive
allegations, or improprieties in form or procedure. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509,
528-29.)
The grounds for moving
to strike must appear on the face of the pleading or by way of judicial
notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of
Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read
allegations of a pleading subject to a motion to strike as a whole, all parts
in their context, and assume their truth”].)
Further, CCP §
431.10(a)-(c) states as follows:
(a) A material allegation in a pleading is one essential
to the claim or defense and which could not be stricken from the pleading
without leaving it insufficient as to that claim or defense.
(b) An immaterial allegation in a pleading is any of the
following:
(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.
(3) A demand for judgment requesting relief not
supported by the allegations of the complaint or cross-complaint.
(c) An “immaterial allegation” means “irrelevant matter”
as that term is used in Section 436.
(CCP § 431.10(a)-(c).)
TENTATIVE
RULING MOTION TO STRIKE
Defendant moves to strike Paragraph (b) in the
Complaint’s Prayer for Relief.
Paragraph (b) in the Prayer for Relief seeks “Punitive
damages according to proof, including treble punitive damages per Civil Code
section 3345.”
Defendant argues that Plaintiff did not sufficiently
allege facts to support a showing of malice, oppression, or fraud.
Under WIC § 15657:
Where it is proven by clear and convincing
evidence that a defendant is liable for physical abuse as defined in Section
15610.63, neglect as defined in Section 15610.57, or abandonment as defined in
Section 15610.05, and that the defendant has been guilty of recklessness,
oppression, fraud, or malice in the commission of this abuse, the following
shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the
plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but
is not limited to, reasonable fees for the services of a conservator, if any,
devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by
Section 377.34 of the Code of Civil Procedure on the damages recoverable shall
not apply. However, the damages recovered shall not exceed the damages
permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the
Civil Code.
(c) The standards set forth in
subdivision (b) of Section 3294 of the Civil Code regarding the imposition of
punitive damages on an employer based upon the acts of an employee shall be
satisfied before any damages or attorney’s fees permitted under this section
may be imposed against an employer.
(WIC § 15657(a)-(c).)
In an action for the breach of an obligation not
arising from contract, where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice, the plaintiff,
in addition to the actual damages, may recover damages for the sake of example
by way of punishing the defendant. (Civil Code § 3294(a).)
“‘Malice’ means conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” (Civil Code § 3294(c)(1).)
“‘Oppression’ means despicable conduct that subjects
a person to cruel and unjust hardship in conscious disregard of that person’s
rights. (Civil Code § 3294(c)(2).)
“‘Fraud’ means an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury. (Civil Code § 3294(c)(3).)
Further, Civil Code § 3294(b)
states:
An employer shall not be liable for damages pursuant to
subdivision (a), based upon acts of an employee of the employer, unless the
employer had advance knowledge of the unfitness of the employee and employed
him or her with a conscious disregard of the rights or safety of others or
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.
(Civil Code § 3294(b).)
“In determining whether a complaint states facts
sufficient to sustain punitive damages, the challenged allegations must be read
in context with the other facts alleged in the complaint. Further, even though
certain language pleads ultimate facts or conclusions of law, such language
when read in context with the facts alleged as to defendants' conduct may
adequately plead the evil motive requisite to recovery of punitive damages.” (Monge
v. Superior Court (1986) 176 Cal.App.3d 503, 510 citing Perkins v. Superior
Court (1981) 117 Cal.App.3d 1, 6–7.)
Here, based on examining the entirety of Plaintiff’s
Complaint, Plaintiff sufficiently alleges a basis for seeking punitive damages.
Therefore, Defendant’s motion to strike the portion of
Paragraph (b) in the Prayer for Relief that seeks “Punitive damages according
to proof,” is DENIED.
With respect to the latter portion of Paragraph (b) in
the Prayer for Relief that seeks “treble punitive damages per Civil Code
section 3345,” Defendant argues that treble punitive damages under Civil Code §
3345(a) are unavailable to Plaintiff because this case has nothing to do with
unfair trade practices, and no allegations supporting such a claim are offered
by the Complaint.
Under Civil Code § 3345:
(a) This section shall apply only in
actions brought by, on behalf of, or for the benefit of those individuals
specified in paragraphs (1) to (3), inclusive, to redress unfair or deceptive
acts or practices or unfair methods of competition.
(1) Senior citizens, as defined in
subdivision (f) of Section 1761.
(2) Disabled persons, as defined in
subdivision (g) of Section 1761.
(3) Veterans, as defined in Section
18540.4 of the Government Code.
(b) Whenever a trier of fact is
authorized by a statute to impose either a fine, or a civil penalty or other
penalty, or any other remedy the purpose or effect of which is to punish or
deter, and the amount of the fine, penalty, or other remedy is subject to the
trier of fact’s discretion, the trier of fact shall consider the factors set
forth in paragraphs (1) to (3), inclusive, in addition to other appropriate
factors, in determining the amount of fine, civil penalty or other penalty, or
other remedy to impose. Whenever the trier of fact makes an affirmative finding
in regard to one or more of the factors set forth in paragraphs (1) to (3),
inclusive, it may impose a fine, civil penalty or other penalty, or other
remedy in an amount up to three times greater than authorized by the statute,
or, where the statute does not authorize a specific amount, up to three times
greater than the amount the trier of fact would impose in the absence of that
affirmative finding.
(1) Whether the defendant knew or
should have known that their conduct was directed to one or more senior
citizens, disabled persons, or veterans.
(2) Whether the defendant’s conduct
caused one or more senior citizens, disabled persons, or veterans to suffer:
loss or encumbrance of a primary residence, principal employment, or source of
income; substantial loss of property set aside for retirement, or for personal
or family care and maintenance; or substantial loss of payments received under
a pension or retirement plan or a government benefits program, or assets
essential to the health or welfare of the senior citizen, disabled person, or
veteran.
(3) Whether one or more senior
citizens, disabled persons, or veterans are substantially more vulnerable than
other members of the public to the defendant’s conduct because of age, poor
health or infirmity, impaired understanding, restricted mobility, or
disability, and actually suffered substantial physical, emotional, or economic
damage resulting from the defendant’s conduct.
(Civil Code § 3345(a)-(b).)
Here, the Court to hear argument. Defendant argues
that this case has nothing to do with unfair trade practices and that no
allegations supporting such a claim are offered by the Complaint.
The Court to hear argument because Defendant does not
cite case law to support its argument and because Plaintiff did not submit
opposition to help analyze Defendant’s argument.
Defendant’s motion to strike the latter portion of
Paragraph (b) in the Prayer for Relief that seeks “treble punitive damages per
Civil Code section 3345,” is DENIED or GRANTED.
Defendant also seeks to strike Paragraph (e) in
Plaintiff’s Prayer for Relief which seeks “Attorney’s fees per Welfare and
Institutions Code section 15657.”
Defendant’s motion did not provide an explanation as
to why striking Paragraph (e) in the Prayer for Relief is appropriate.
Additionally, the Court notes that WIC § 15657(a)
states, “The court shall award to the plaintiff reasonable attorney’s fees and
costs. The term “costs” includes, but is not limited to, reasonable fees for
the services of a conservator, if any, devoted to the litigation of a claim
brought under this article.” (WIC § 15657(a).)
Defendant’s motion to strike Paragraph (e) of the Prayer
for Relief is DENIED. Defendant provided no explanation as to why this should
be stricken, and Plaintiff’s second cause of action successfully alleged a
violation of the Elder and Dependent Adult Civil Protection Act.