Judge: Bruce G. Iwasaki, Case: 22STCV04718, Date: 2023-08-14 Tentative Ruling
Case Number: 22STCV04718 Hearing Date: April 22, 2024 Dept: 58
Judge Bruce G. Iwasaki
Hearing Date: April 22,
2024
Case Name: George Small
v. European Loving Care II
Case No.: 22STCV04718
Matter: Demurrer with Motion to
Strike
Moving Party: Defendant European
Loving Care II
Responding Party: Plaintiffs George Small III, Barbara
Small, Kent Small
Tentative Ruling: The demurrer the Second Amended Complaint is sustained
as to the first cause of action without leave to amend and sustained as to the
second and third causes of action with leave to amend. The motion to strike the
request for attorney fees is granted without leave to amend the request for
punitive damages is granted with leave to amend.
On February 7, 2022, Plaintiffs George
Small III (Decedent) (by and through his Successor in Interest, Barbara Small),
Barbara Small, and Kent Small, M.D. (collectively, Plaintiffs) filed their
initial complaint in this action.
On
July 11, 2023, Defendant Nicholas
Jauregui, M.D., Inc. (Defendant or
Supportive Care) filed
a demurrer to the first cause of action and a motion to strike. Plaintiffs opposed the demurrer and motion to strike. The
Court sustained the demurrer with leave to amend and granted the motion to
strike.
On
September 13, 2023, Plaintiffs filed a First Amended Complaint (FAC); the FAC
contains causes of action for (1.) elder abuse, (2.) negligence, and (3.) wrongful death. Defendant
Supportive Care filed
a demurrer to the first cause of action to the FAC and a motion to strike. The
Court sustained the demurrer with leave to amend.
On
January 10, 2024, Plaintiffs filed a Second Amended Complaint (SAC); the SAC
contains causes of action for (1.) elder abuse, (2.) negligence, and (3.) wrongful death.
On February 9, 2024, Defendant Supportive
Care filed a demurrer to the first cause
of action of the SAC and a motion to strike. The Court sustained the demurrer to the
first cause of action without leave to amend. The motion to strike was also
granted without leave to amend.
Now,
Defendant European Loving Care II (European) demurs
to the first, second and third causes of action in the SAC and moves to strike
portions of the pleading. Plaintiffs
opposed the demurrer and motion to strike.
The
demurrer is sustained in part with leave to amend and without leave to amend.
The motion to strike is granted in part with leave to amend and without leave
to amend.
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.) When considering
demurrers, courts read the allegations liberally and in context. 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.) At the pleading
stage, a plaintiff need only allege ultimate facts sufficient to apprise the
defendant of the factual basis for the claim against him. (Semole v.
Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however,
admit contentions, deductions or conclusions of fact or law alleged in the
pleading, or the construction of instruments pleaded, or facts impossible in
law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732
[internal citations omitted].)
“The court may, upon a motion made
pursuant to Section 435, 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. (b) Strike out 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.) “Immaterial” or “irrelevant” matters
include allegations not essential to the claim, allegations neither pertinent
to nor supported by an otherwise sufficient claim or a demand for judgment
requesting relief not supported by the allegations of the complaint. (Code Civ.
Proc. § 431.10, subds. (b)(1)-(3).)
DISCUSSION
First Cause of Action for Elder Abuse:
Defendant European
demurs to the first cause of action for elder abuse. The basis for the demurrer
is Plaintiffs’ purported failure to allege facts sufficient to state an elder
abuse claim against Defendant European.
The elements of a cause of action
under the Elder Abuse and Dependent Adults Act (Elder Abuse Act or Act), are
statutory. (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “The Elder Abuse Act makes certain
enhanced remedies available to a plaintiff who proves abuse of an elder, i.e.,
a ‘person residing in this state, 65 years of age or older.’ (Welf. & Inst.
Code, § 15610.27.) In particular, a plaintiff who proves ‘by clear and
convincing evidence’ both that a defendant is liable for physical abuse,
neglect or financial abuse (as these terms are defined in the Act) and that the
defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the
commission of such abuse may recover attorney fees and costs. (Welf. &
Inst. Code, § 15657, subd. (a).)
The demurrer is well taken. As discussed extensively in the Court’s
ruling on Supportive Care’s demurrer to this cause of action, the SAC fails to
state a claim for elder abuse. This analysis applies equally to Defendant
European where the SAC does not specifically reference European’s duties with
regards to Decedent and how European’s actions or inaction led to Decedent’s
injury.
Moreover, the opposition makes nearly identical arguments to Plaintiffs’
opposition arguments rejected by the Court in relation to Supportive’ s
demurrer to the SAC.
Thus, the SAC fails to allege a
cause of action for elder abuse based on neglect. The demurrer to this cause of
action is sustained without leave to amend.
Second Cause of Action for
Negligence and Third Cause of Action for Wrongful Death:
The
essential elements of a negligence claim are: “(1) a defendant's legal duty to
use due care; (2) a breach of that duty; and (3) the breach as the proximate or
legal cause of the resulting injury.” (Elam v. College Park Hospital
(1982) 132 Cal.App.3d 332, 338.)
“In any action for wrongful death resulting from negligence,
the complaint must contain allegations as to all the elements of actionable
negligence. [Citation.] Negligence involves the violation of a legal duty
imposed by statute, contract or otherwise, by the defendant to the person
injured, e.g. the deceased in a wrongful death action.” (Jacoves v. United
Merchandising Corp. (1992) 9 Cal.App.4th 88, 105.)
In
demurring to these causes of action, Defendant European argues the SAC fails to
allege facts show any specific duties, conduct or causation as it relates to specifically
to Defendant European.
In
opposition, Plaintiff contends that its SAC contains “detailed factual
allegations” and the directs the Court to Paragraphs 13 to 38 of the SAC. However,
the only specific references to European in those Paragraphs are the allegations
that Decedent was a custodial resident of European, and European requested
assistance in managing Decedent from Defendants Haven Health and Supportive
Care to provide a 24-hour palliative nurse. (SAC ¶¶ 18-19.)
Based on the foregoing allegations,
Defendant European has failed to state a claim. The allegations do not show any
breach of a duty of care by European. Thus, the demurrer to these causes of
action are sustained with leave to amend.
Motion to Strike
Defendant European also
moves to strike the request for punitive damages, and attorney fees.
In opposition, Plaintiffs argue that
they are entitled to attorney fees based on the elder abuse cause of action.
(3:4-7.) Further, referencing arguments made in their opposition to the
demurrer, Plaintiffs contend they have pled sufficient facts to support
prayer for punitive damages. (Opp., 3:10-14.)
As a result of the
Court’s ruling on the demurrer to the negligence and wrongful death causes of
action, the motion to strike the punitive damages allegations is well taken and
granted with leave to amend.
CONCLUSION
The demurrer is
sustained as to the first cause of action without leave to amend, and sustained
as to the second and third causes of action with leave to amend. The motion to strike
the request for attorney fees is granted without leave to amend and is granted
as to the request for punitive damages with leave to amend. Plaintiffs shall
file and serve an amended complaint by May 22, 2024.