Judge: Barbara M. Scheper, Case: 24STCV24793, Date: 2024-12-06 Tentative Ruling

Case Number: .24STCV24793    Hearing Date: December 6, 2024    Dept: 30

Dept. 30

Calendar No.

Danner, et. al. vs. Silverado Beverly Place LLC, et. al., Case No. 24STCV24793

Tentative Ruling re:  Defendant’s Demurrer to Complaint; Motion to Strike

Silverado Beverly Place LLC (Defendant) demurs to all causes of action in Sarah E. Danner (Decedent), by and through her successors in interest Cheryl Danner and Ingrid Danner’s (collectively, Plaintiffs) complaint. Defendant also moves to strike Plaintiffs’ requests for punitive damages, attorney’s fees, and general damages. Defendant’s demurrer is sustained as to the first cause of action with ten (10) days leave to amend.  The motion to strike is granted as to the allegations and request for punitive damages and for attorney’s fees.

A demurrer is sustained where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., 430.10, subd. (e).) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Yalung v. State (2023) 98 Cal.App.5th 71, 80.) In reviewing a complaint’s legal sufficiency, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Tit. Guaranty Co. (1998) 19 Cal.4th 26, 38.) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, a court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations pleaded or the difficulty a plaintiff may have in proving his allegations. (Ion Equipment Corporation v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

The Court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The Court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court. (Id., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318).  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.)

Defendant demurs to each cause of action on the basis that Plaintiffs have failed to plead facts sufficient to constitute causes of action for elder abuse, negligence, or wrongful death. (Code Civ. Proc., § 430.10, subd. (e).) Defendant also demurs to Plaintiffs’ third cause of action for wrongful death as uncertain. (Id., § 430.10, subd. (f).) Defendant also moves to strike Plaintiffs’ requests for punitive damages, general damages, and attorney’s fees. (Id., § 436, subd. (a).) The Court will address each argument in turn.

Plaintiffs have not pled facts sufficient to constitute a cause of action for elder abuse.

Plaintiffs allege that Defendant is liable for neglect of a dependent adult pursuant to Welfare and Institutions Code section 15657. That section provides for greater damages if a plaintiff proves by clear and convincing evidence that a defendant is liable for neglect of a dependent adult and “has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.” (Welf. & Inst. Code, § 15657.) A dependent adult is “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.” (Id., § 15610.23, subd. (b).) The parties do not dispute that Decedent qualified as a dependent adult under this definition.

Defendant argues that Plaintiffs have failed to plead facts constituting neglect. Under section 15657, neglect refers to “[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., § 15610.57, subd. (a)(1).) Examples of neglect include: “(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. . . (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration.” (Id., § 15610.57, subd. (b)(1)–(4).) In short, neglect refers 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.) Importantly, the facts constituting neglect and establishing a causal link between the neglect and injury must be pleaded with particularity. (Id. at p. 407.)

Here, Plaintiffs allege that Decedent began her residency with Defendant in June 2020. (Compl. ¶ 11.) On March 13, 2024, Decedent developed various symptoms and was diagnosed with sepsis after being transferred to a hospital. (Id. ¶ 12.) She died on April 28, 2024, due to sepsis, intestinal perforation, stercoral ulcer, and dementia. (Id. ¶ 14.) Plaintiffs further allege that Defendant and its employees neglected Decedent by withholding goods or services, but without any specificity. (Id. ¶ 20.) These allegations do not constitute neglect as defined under section 15610.57, subdivision (a)(1). Plaintiffs make no factual allegations that Defendant failed to assist in personal hygiene or failed to provide medical care. Nor do they make allegations concerning a failure to avoid health or safety hazards, or that Defendant failed to prevent malnutrition or dehydration. Effectively, Plaintiffs’ only allegation of neglect is that Decedent developed sepsis while under Defendant’s care. While conduct resulting in such an occurrence could constitute negligence, elder neglect actions are reserved for cases in which a defendant has failed to attend to the basic needs of a dependent adult. No such allegations are made here with any sort of particularity.

Similarly, Plaintiffs have also failed to plead facts demonstrating any recklessness, oppression, fraud, or malice on the part of Defendant. Plaintiffs’ allegation that Decedent developed sepsis while under Defendant’s care does not rise to that level, and Plaintiffs’ conclusory statement that it does is insufficient. (Id. ¶ 21.) Additionally, Plaintiffs have not stated facts alleging any sort of ratification on the part of Defendant’s officers or managing agents as required under section 15657, subdivision (c). Plaintiffs’ conclusory allegation that Defendant’s misconduct “was the direct result and product of the financial and control policies and practices dictated by and forced upon [Defendant] by and through their corporate officers and directors,” does not suffice where Plaintiffs do not identify any such misconduct. (Compl. ¶ 8.) Nor does Plaintiffs’ mere recitation of jury instructions. (Id. ¶ 17.) Accordingly, Defendant’s demurrer is sustained as to the first cause of action. Plaintiffs are granted leave to amend.

Plaintiffs have pled facts sufficient to constitute a cause of action for negligence.

Defendant asserts that Plaintiffs have not pled their second cause of action for negligence with sufficient particularity. The elements of negligence are duty, breach of duty, causation, and damages. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) Here, Plaintiffs allege that Defendant owed Decedent statutory, regulatory, and common law duties of care. (Compl. ¶ 26.) They further allege that Defendant breached these duties by “denying or withholding goods or services necessary to meet the basic needs of [Decedent].” (Id. ¶¶ 20, 27.) Plaintiffs allege that as a proximate result of this breach, they suffered damages. (Id. ¶ 28.) Such allegations, taken as true and subject to no heightened pleading standard like Plaintiffs’ statutory claim, are sufficient to constitute a cause of action for negligence. Accordingly, Defendant’s demurrer is overruled as to Plaintiffs’ second cause of action.

Plaintiffs have pled facts sufficient to constitute a cause of action for wrongful death.

Defendant demurs to Plaintiffs’ third cause of action on the basis that Plaintiffs have not pled sufficient facts. A wrongful death action requires a showing of (1) a wrongful act or neglect of another (2) causing (3) death. (Code Civ. Proc., § 377.60.) Here, Plaintiffs have alleged negligent conduct on the part of Defendant and the death of Decedent, satisfying elements one and three. (Compl. ¶¶ 20, 33.) Plaintiffs also allege that Decedent’s death was the proximate result Defendant’s negligence. (Id. ¶ 33.) Taking all facts pleaded as true, Plaintiffs have sufficiently pled a claim for wrongful death. Accordingly, Defendant’s demurrer is overruled as to Plaintiffs’ third cause of action.

Motion to Strike

Defendant moves to strike Plaintiffs’ prayer for punitive damages and all paragraphs referencing punitive damages in the complaint. A plaintiff may recover punitive damages where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) Malice is defined as conduct intended to injure the plaintiff or despicable conduct by a defendant acting with a willful and conscious disregard of the rights and safety of others. (Id., § 3294, subd. (c)(1).) Oppression means despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of their rights. (Id., § 3294, subd. (c)(2).) And fraud refers to intentional misrepresentations or concealment of a material fact known to the defendant. (Id., § 3294, subd. (c)(3).)

Here, Plaintiffs state that any acts or omissions alleged in the complaint were done with malice, oppression, fraud, and recklessness. (Compl. ¶ 21.) However, Plaintiffs allege no behavior in the complaint other than potential negligence to which these modifiers may attach. Plaintiffs offer no intentional conduct by Defendant or a willful and conscious disregard for the safety of others that would constitute malice. Nor do Plaintiffs plead any facts alleging despicable conduct or fraud. Thus, Defendant’s motion to strike punitive damages from Plaintiffs’ complaint is granted. Plaintiffs are given leave to amend.

Additionally, Defendant argues that Plaintiffs fail to plead facts justifying an award of attorney’s fees. “[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) Here, attorney’s fees would be authorized under Welfare and Institutions Code section 15657, subdivision (a). However, as discussed above, Defendant’s demurrer as to that cause of action is sustained. Accordingly, Defendant’s motion to strike Plaintiffs’ prayer for attorney’s fees is granted as well. Plaintiffs are given leave to amend.

Finally, Defendant argues that Plaintiffs are not entitled to general damages because they bring the current action as successors in interest. “[I]n an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was . . . filed on or after January 1, 2022, and before January 1, 2026. (Code Civ. Proc., § 377.34, subd. (b).) The present case was filed on September 24, 2024, and thus falls within the statutory window. Thus, Plaintiffs are entitled to seek general damages for pain and suffering on behalf of Decedent.