Judge Carolyn M. Caietti, Case 37-2022-00016511-CU-PN-CTL 2023-08-25 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2022-00016511-CU-PN-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Professional Negligence Demurrer / Motion to Strike 37-2022-00016511-CU-PN-CTL HARRIS VS PRIME HEALTHCARE PARADISE VALLEY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/16/2023

Defendant Prime Healthcare Paradise Valley, LLC's Demurrer to the First Amended Complaint is SUSTAINED IN PART WITHOUT LEAVE TO AMEND and OVERRULED IN PART.

Defendant Prime Healthcare Paradise Valley, LLC's Motion to Strike the Complaint is MOOT IN PART, DENIED IN PART and GRANTED IN PART.

Demurrer A demurrer 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; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) The second cause of action for negligent infliction of emotional distress fails to state sufficient facts to constitute negligent infliction of emotional distress. Negligent infliction of emotional distress and negligence are the same cause of action with the same elements, with the former a subset of the latter.

(Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) The negligence cause of action does not appear to be different from the negligent infliction of emotional distress cause of action, making the later duplicative and unnecessary. (See, FAC, at ¶¶ 12-14 [negligence cause of action], cf. id., at ¶¶ 21-22 [NIED cause of action]; Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 (finding demurrer properly sustained to duplicative negligence cause of action where such pleading 'adds nothing to the complaint by way of fact or theory').) In opposition, Plaintiffs make an unnecessarily editorialized argument about the factual allegations, concedes they are pursuing a direct victim theory and does not address Defendants' argument this cause of action is duplicative of the negligence cause of action. Plaintiffs also do not identify how they could amend to make the causes of action not duplicative. The demurrer to the second cause of action for negligent infliction of emotional distress is SUSTAINED WITHOUT LEAVE TO AMEND.

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2963587 35 CASE NUMBER: CASE TITLE: HARRIS VS PRIME HEALTHCARE PARADISE VALLEY LLC [IMAGED] 37-2022-00016511-CU-PN-CTL The third cause of action states sufficient facts to constitute intentional infliction of emotional distress.

(Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) Assuming the truth of the facts alleged and liberally construing the FAC, Defendant acted with intent of causing or reckless disregard of the probability of causing emotional distress by allowing the decedent's body to decay, knowing Plaintiffs wanted an open casket funeral. Sufficient facts also reveal this conduct is so extreme as to exceed all bounds of that usually tolerated in a civilized community and that Plaintiffs suffered emotional distress.

(FAC, at ¶¶ 8-10.) Contrary to Defendant's argument, the FAC alleges Defendant 'left Mr. Harris' body out despite knowing it would decompose and that his family wanted a funeral service.' (FAC, at ¶ 21.) The demurrer to the third cause of action is OVERRULED.

The elements of fraud/concealment claim are: (i) misrepresentation (false representation, concealment, or nondisclosure); (ii) knowledge of falsity (scienter); (iii) intent to defraud (i.e., to induce reliance); (iv) justifiable reliance; and (v) resulting damage. (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1185–1186.) Suppression of a material fact is actionable when there is a duty of disclosure. (Id. at pp. 1186–1187.) Fraud, including concealment, must be pleaded with specificity. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 132.) The fourth cause of action sufficiently states facts to constitute fraud (concealment). First, Defendant does not argue it did not have a legal duty to disclose any facts. (Civ. Code, § 1710(3).) Second, the FAC is sufficient. Plaintiffs allege a misrepresentation 'that Mr. Harris' body would be maintained,' 'knew the body would need to stay in the hospital for a few days to arrange transport and assured Plaintiffs that everything was fine.' (FAC, at ¶ 8.) Further Defendant represented it could 'preserve and maintain [the decedent's] body'. (FAC, at ¶ 24.) The FAC alleges Defendant knew it could not preserve the body and did not preserve the body. And while Plaintiffs called the hospital on several dates with questions about the body, Defendant knew the body was decomposing. (FAC, at ¶ 23 [sic] at p. 6.) Plaintiffs are not required to allege facts not in their possession or which lie more in the defendant's knowledge. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) Plaintiffs relied on those representations and allowed the body to remain at the hospital. (FAC, at ¶ 24.) These pleaded facts show entitlement to some relief to survive demurrer. The demurrer to the fourth cause of action is OVERRULED.

For these reasons, the demurrer is SUSTAINED IN PART WITHOUT LEAVE TO AMEND AND OVERRULED IN PART.

Motion to Strike The motion to strike is MOOT IN PART, DENIED IN PART and GRANTED IN PART.

A motion to strike a complaint in whole or in part is governed by C.C.P. sections 435 through 437. C.C.P.

section 436, provides that '[t]he court may, upon a motion ... (a) [s]trike out any irrelevant, false or improper matter...(b) [s]trike 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.' The grounds for a motion to strike must appear on the face of the challenged pleading or matter subject to judicial notice. (C.C.P., § 437(a).) In ruling on a motion to strike, courts must assume the truth of the complaint's allegations and liberally construe the allegations with a view to substantial justice. (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 91 & C.C.P., § 452.) Here, the motion is MOOT as to the second cause of action for negligent infliction of emotional distress in light of the ruling on the demurrer.

For the intentional infliction of emotional distress and fraud causes of action, Defendant's motion relies heavily on the arguments made in the demurrer. The FAC allegations are not irrelevant, false or improper. On this basis, the motion is DENIED IN PART.

However, while sufficient facts are plead to allege punitive damages against Defendant (Civ. Code, § Calendar No.: Event ID: TENTATIVE RULINGS

2963587 35 CASE NUMBER: CASE TITLE: HARRIS VS PRIME HEALTHCARE PARADISE VALLEY LLC [IMAGED] 37-2022-00016511-CU-PN-CTL 3294), the claim for punitive damages is improper because Plaintiff did not comply with C.C.P. section 425.13(a) by seeking leave of court. 'In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.' (C.C.P., § 425.13(a); see also, Divino Plastic Surgery, Inc. v. Sup. Ct.

(2022) 78 Cal.App.5th 972.) Here, Plaintiffs' FAC includes a prayer for punitive damages and Plaintiffs' three-sentence opposition does not dispute C.C.P. section 425.13 applies to this case and that they have not complied with the statute.

Thus, the motion is MOOT IN PART, DENIED IN PART and GRANTED IN PART without prejudice to Plaintiffs timely seeking leave to amend pursuant to C.C.P. section 425.13. The Court will strike the prayer for punitive dagames.

Concluding Orders The Court strikes the First Amended Complaint's prayer for punitive damages at page 6:16-17.

Defendant is ordered to file and serve an answer by September 8, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendant is ordered to serve written notice of the Court's final order on all parties by August 29, 2023.

Plaintiffs are reminded to comply with Department 70's Policies and Procedures (available on the San Diego Superior Court website) and to provide courtesy copies of all motion paperwork.

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