Judge: Carolyn M. Caietti, Case: 37-2023-00014231-CU-NP-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 37-2023-00014231-CU-NP-CTL JONES VS KEARNY MESA CONVALESCENT AND NURSING HOME [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant GHC of Kearny Mesa, LLC dba Kearny Mesa Convalescent and Nursing Home & Life Generations Healthcare, LLC's Demurrer to the First Amended Class Complaint is OVERRULED.

Defendant GHC of Kearny Mesa, LLC dba Kearny Mesa Convalescent and Nursing Home & Life Generations Healthcare, LLC's Motion to Strike Portions of Plaintiff's First Amended Class Complaint is DENIED.

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.) 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 FACC sufficiently alleges class allegations and the prerequisites to maintaining a viable class action. As explained in Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 487 [Cal. Rptr. citations omitted]: 'It is often premature for a trial court to make determinations pertaining to class suitability on demurrer.

Rather, 'all that is normally required for a complaint to survive demurrers to the propriety of class litigation is that the complaint allege facts that tend to show: (1) an ascertainable class of plaintiffs, and (2) questions of law and fact which are common to the class.' (Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 784.) As our Supreme Court has recognized, for purposes of determining whether a demurrer should have been overruled, 'it is sufficient that there is a reasonable possibility plaintiffs can establish a prima facie community of interest among the class members....' (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 813; see also Beckstead v. Superior Court, supra, at p. 783 ['[T]he California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation.'].) Accordingly, '[w]here there is a 'reasonable possibility' that the plaintiff in a class action can establish a community of interest among class members, 'the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing Calendar No.: Event ID:  TENTATIVE RULINGS

3000633  41 CASE NUMBER: CASE TITLE:  JONES VS KEARNY MESA CONVALESCENT AND NURSING  37-2023-00014231-CU-NP-CTL has been held on the appropriateness of class litigation.' [Citation.]' (Canon U.S.A. v. Superior Court (1998) 68 Cal.App.4th 1, 5; see also Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1329 [demurrer to class action complaint improper where the plaintiff 'alleges institutional practices ...

that affected all of the members of the potential class in the same manner, and it appears from the complaint that all liability issues can be determined on a class-wide basis'].)' The FACC sufficiently alleges an ascertainable class of 'California residents who resided at KMC from April 6, 2019, through the date notice is disseminated.' (FAC, at ¶ 41; see also, Prince, supra.) As framed by the FAC, the case is about Defendants' business practices and not individual patient's medical needs.

The FACC sufficiently alleges a community of interest among class members. There are predominant questions of law and fact. The FAC alleges Defendants engaged in facility-wide understaffing and failed to follow or implement policies and procedures concerning the administration of prescribed medications.

(FAC, at ¶¶ 26, 34-37, 45.) Similarly, Plaintiff sufficiently alleged typicality and adequacy. The FAC alleges the claims arise from similar conduct of Defendants' failures to properly staff and implement/follow adequate policies on prescription medication. (Id., at ¶ 46.) They also involve the same legal theories under Health and Safety Code section 1430(b) and Business and Professions Code section 17200. The FAC also alleges Plaintiff will fairly and adequately represent and protect the interests of the Class members. (Id., at ¶ 47.) For these reasons, the demurrer is OVERRULED in its entirety.

Motion to Strike Defendants seek to strike all allegations referring to class action claims and punitive damages.

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.) For the reasons discussed above, the FAC sufficiently alleges class action claims. Thus, the class action allegations are not improper.

With regard to punitive damages, a pleading that fails to adequately allege facts supporting a claim for punitive damages is subject to a motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) To recover punitive damages, a plaintiff must plead specific facts demonstrating malice, oppression or fraud. (Civ. Code, § 3294(a).) Malice, oppression and fraud are defined at Civil Code section 3294(c)(1)-(3). As relevant to this motion, oppression means 'despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.' (Id., at subd. (c)(2).) Punitive damages are recoverable under Health and Safety Code section 1430(c) [The remedies specified in this section are in addition to any other remedy provided by law]. (Jarman v. HCR ManorCare, Inc. (2017) 9 Cal.App.5th 807, 817, rev'd on other grounds and remanded (2020) 10 Cal.5th 375, 393, fn. 8 (declining to reach the question whether the plaintiff was entitled to punitive damages or how the $500 cap in section 1430(b) would apply to lawsuits involving multiple plaintiff patients).) Here, the FAC states sufficient facts to demonstrate oppression. As alleged inter alia, Defendants had a duty to provide proper care to its residents and comply with various laws and regulations, including maintaining adequate levels of competent and adequately trained staff, but did not do so (FAC, at ¶ 53); Calendar No.: Event ID:  TENTATIVE RULINGS

3000633  41 CASE NUMBER: CASE TITLE:  JONES VS KEARNY MESA CONVALESCENT AND NURSING  37-2023-00014231-CU-NP-CTL continuing to admit additional patients two days Defendants first knowingly failed to procure and dispense medications to its patients (¶ 27); knowing every day, multiple times per day and for multiple consecutive days for multiple residents, Defendants knew they were unable to procure and administer multiple prescribed medications (¶ 28); failing and refusing to timely remedy these medication problems (id.); and choosing a pattern and practice to cut costs (¶ 40.) Defendants focus on College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704 and Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034. These cases were decided under different standards of the law (C.C.P. section 425.13, which includes an evidence component, and jury instructions). But also, contrary to these cases, as alleged here, Defendant knew what was happening and elected on a course of inaction. Defendants knew of their duties, had been reported for not complying with their duties, did not redress and instead continued to cut costs for profits and admit even more patients to their already understaffed facility. These are facts showing despicable conduct that subjected Plaintiff and the patients to cruel and unjust hardship in conscious disregard of their rights. (E.g., FAC, at ¶¶ 2, 4, 35-37, 39, 40, 5.) Moreover, Civil Code section 3294(b) does not require fact-specific pleading that Defendants' officer, director or agent was involved in the alleged conduct. Not only is this information within Defendant's knowledge, but also, can be resolved in discovery. (See, Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158 [a plaintiff cannot allege facts not in their possession or when the facts lie more in the defendant's knowledge].) It does not defeat a claim for punitive damages at the pleading stage. For now, Plaintiff sufficiently Defendants and their agents knew they did not have an adequate number of qualified personnel to carry out the functions of the facility and that alleged the conduct was committed by and/or ratified by managing and directing agents of Defendants. (E.g. FAC, at ¶ 27, 57.) Thus, the motion to strike is DENIED in its entirety.

Concluding Orders Defendant is ordered to: (i) file and serve an answer by March 8, 2024; and (ii) serve written notice of this ruling on all appearing parties by February 27, 2024, if the tentative ruling is confirmed without modification.

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