Judge Christian R. Gullon, Case Number: 24STCV10079, Date: 2025-05-30 Tentative Ruling

Judge: Christian R. Gullon, Case: 24STCV10079, Date: 2025-05-30 Tentative Ruling

(1) DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT BY DEFENDANT KND DEVELOPMENT 52, LLC dba KINDRED HOSPITAL BALDWIN PARK is OVERRULED.

(2) DEFENDANT KECK MEDICAL CENTER OF USC, dba KECK HOSPITAL OF USC, ERRONEOUSLY SUED AND SERVED HEREIN AS KECK HOSPITAL OF USC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT is SUSTAINED in part (i.e., as to fraud based COAs), OVERRULED in part (i.e., as to elder abuse COA, professional negligence COA, and wrongful death COA), and CONTINUED for supplemental briefing as to the UCL COA.

(3) MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT AGAINST DEFENDANT KECK MEDICAL CENTER OF USC, dba KECK HOSPITAL OF USC, ERRONEOUSLY SUED AND SERVED HEREIN AS KECK HOSPITAL OF USC is GRANTED.

This is an elder abuse case. Plaintiffs LILY HU and NORMAN HU, Individually and as Successors-in-Interest to LIE-YEN HU allege the following against Defendants Kindred Hospital-Baldwin Park (“Defendant Kindred”) and Keck Hospital of USC (“Keck” or “USC”) (collectively, “Defendants”): Plaintiff is mentally incapacitated due to encephalopathy, unconsciousness, the effects of numerous medications, and other conditions. Plaintiff was a resident of Defendant USC from about March 2020 to April 2020 and a resident of Kindred from on or about April 7, 2020 through on or about September 25, 2020. As for Defendant Kindred, during decedent’s stay there, similar allegations are made including that “daily tube feeding records showed nurses failed to give her any tube feeding at all on nine days” and that she developed ulcers on her body that became septic and ultimately died from related condition. (See FAC ¶23.)

On April 22, 2024, Plaintiffs filed the instant action asserting the following causes of action (COAs):

On November 25, 2024, Defendant USC filed the instant demurrer x motion to strike (MTS).

On February 7, 2025, Plaintiffs filed their opposition to USC’s demurrer x MTS.

On February 24, 2025, the court (Department 20), issued a minute order stating that “The parties are to file a notice of related case in case number 21STCV18038.”

On April 21, 2025, this court related the cases and designated 21STCV18038 as the lead case.

Before engaging in the merits, the court turns to the lead case. There, the court granted in part and denied in part Kindred’s MSJ. The court granted the MSJ as to the elder abuse COA. While the court noted in a footnote in the ruling that both authorization and ratification may be implied via circumstantial evidence, Plaintiff provided no evidence of notice to create such an inference. As for the MSJ as to the negligence COA, the court denied the MSJ as there was a triable issue of material fact as to causation Effectively, Plaintiff’s medical expert’s opinion (Dr. Pietruszka) that Kindred’s care fell below a certain standard of care (e.g., failing to give Plaintiff adequate nutrition) such that it caused certain injuries (e.g., extreme weight loss), is sufficient to create a triable issue of material act as to the element of causation. That ruling was issued on 2/28/24; on 4/22/24, Plaintiff filed a notice of dismissal of the entire action of all parties and all causes of action without prejudice. That same day of the dismissal, Plaintiffs filed this instant action.

USC demurs to all the COAs asserted against it (all but the 2^nd COA for willful misconduct).

As to the entirety of the FAC, Defendant USC argues that each COA is barred by the statute of limitations (SOL). As Defendant’s argument turns on perhaps an evidentiary issue that exceeds the scope of a demurrer, the court declines to sustain the demurrer on said grounds. (Court notes that the FAC does not state when decedent passed away, but the papers indicate the death occurred on April 22, 2023. See e.g., Opp. p. 4.)

In California, the SOL for a wrongful death claim against a healthcare provider based on alleged willful

misconduct is three years after the date of injury, or one year after the plaintiff discovers or should have discovered the injury, whichever occurs first. (Demurrer pp. 10, 11, citing California Code of Civil Procedure section 340.5; Fields v.

Defendant USC argues that Plaintiffs’ claims are barred by the SOL because “Plaintiffs have been litigating decedent’s

claims since May 13, 2021 and clearly knew, or at least had inquiry notice, of any injury prior to the filing

of the voluntarily dismissed complaint.” (Demurrer p. 11:16-18.) As noted in opposition, the running of the statute must appear “clearly and affirmatively” from the dates alleged,” and “it is not enough that the complaint might be time-barred.” (Opp. p. 5, quoting Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403). It is enough that the claim may be timely, and where it is not, a defendant’s proper remedy is to move for summary judgment. (Opp. p. 5, citing Childs v. State of California (1983) 144 Cal.App.3d 155, 160). The reply does not address the standard applied on demurrers.

USC argues that “[t]here is nothing in Plaintiffs’ facts, as pled, that rise to the level of abuse or neglect contemplated

by the Act… the Complaint contains vague and conclusory allegations about the alleged neglect.” (Demurrer p. 13.) The court disagrees. The Court in Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 iterated the general

rule that “statutory causes of action must be pleaded with particularity” such that at the pleading stage Plaintiff must plead “specific allegations of intentional conduct and willful injury to or willful endangerment of an elder person.” (Demurrer p. 12, citing Guardian North Bay v. Superior Court of Santa Clara County (2001) 94 Cal.App.4th 963, emphasis added.)

Here, Plaintiffs do sufficiently plead an elder abuse COA. Defendant’s citation to Alexander v. Scripps Memorial Hospital La Jolla, (2018) 23 Cal.App.5th 206 supports the sufficiency and particularity of the allegations here. In Alexander, a woman suffering from end-stage terminal pancreatic cancer, died four days after she was transferred from a skilled nursing facility to Scripps Memorial Hospital La Jolla because defendants allegedly “declined to provide [her] with certain advanced life support measures on the basis that such measures would have been ineffective and would have caused her to suffer further harm.” (Id. at p. 212). The Alexander court concluded that “These allegations do not assert ... anything ... sufficiently egregious to constitute elder abuse,” but “To the contrary, Plaintiffs'

allegations show Scripps was working on [her] transfer” and “provided [her] with medical care throughout her hospitalization.” (Id. at p. 224, emphasis added.) Here, the FAC is replete with allegations of malnutrition, dehydration, contractures, bedsores, and death. More specifically, Plaintiffs allege, inter alia, that the staff at USC withheld decedent’s feeding and failed to give her other aid. Specifically, decedent lost about 14 pounds in her first six days at USC and then an additional 10 pounds and that she was also left in her bed, unattended and unassisted for excessively long periods, in her own urine and excrement for long periods such that she developed ulcers on her body that became septic. (See generally First Amended Complaint (FAC) ¶13.)

In reply recognizes the sufficiency of the allegations as it presents a new argument: that Elder Abuse necessarily involves the withholding of custodial care but here the basis of Plaintiff’s claim for Elder Abuse/Neglect is medical care. Parties may not advance new arguments in reply.

2. Fourth, Fifth and Sixth Causes of Actions- Constructive Fraud, Fraudulent

USC argues that California does not countenance recasting medical malpractice as fraud. (Demurrer p. 14.) In support of this proposition, USC cites to Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, Weinstock v. Eissler (1964) 224 Cal.App.2d 212 and Tell v. Taylor (1961) 191 Cal.App.2d 266.

The court agrees with Plaintiffs that Defendant’s citations do not entirely support such a proposition. For example, taking Goldrich, the plaintiff “alleged that the defendants falsely and fraudulently represented to her, her physicians and other members of the general public that their product was safe for use in breast surgery, that it posed no dangerous risks of injury to [Mrs. Goldrich], and that it would not require frequent removal from [her] body.” (Id. at p. 782.) The appellate court determine that “[t]his is not the stuff of which a fraud claim is made” as “her conclusory allegations offer no facts at all and it is impossible to determine what was said or by whom or in what manner….don't know whether the statements were made in writing (in package inserts or advertisements or otherwise) or orally (by executives or sales representatives or others) or by one or all of the defendants. Reliance is alleged in equally insufficient terms, with no explanation about how Mrs. Goldrich could have relied upon something she cannot now describe in any fashion.” (Id. at p. 783.) Accordingly, the case does not stand for unequivocal position that a fraud COA may also not be asserted in addition to a medical negligence claim.

Notwithstanding, the court agrees with Defendant, though a point expanded upon in reply, that Plaintiffs fail to allege what facts are alleged to have falsely represented to the plaintiff.

“The UCL outlaws as unfair competition ‘any unlawful, unfair or fraudulent business act or practice ….” (Morgan v. AT&T Wireless Services, Inc., (2009) 177 Cal.App.4th 1235, 1253.) In Motors v. Times Mirror Co. (1980) 102 Cal.App.3d 735, the court noted: “[T]he determination of whether a particular business practice is unfair necessarily involves an examination of its impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim—a weighing process quite similar to the one enjoined on us by the law of nuisance.”

Here, the allegation is that Keck Hospital of USC mistreats their elderly and vulnerable clientele and make a considered decision to promote profit at the expense of their legal obligations to resident.

The court continues the hearing on this COA for supplemental briefing as neither party has meaningfully addressed the relevant authority nor provided a meaningful analysis. (That said, the court disagrees with Defendant that Plaintiffs do not have standing as they have pled that decedent “lost money or property because of Defendant’s” misconduct.)

Based on the foregoing, the demurrer is sustained in part and overruled in part; sustained as to the fraud based COAs, overruled as to the elder abuse COAs, and overruled as to COAs predicated upon the SOL. The court continues the hearing only as to the UCL COA for supplemental briefing.

USC seeks to strike Plaintiffs’ prayer for punitive damages and attorney fees and costs on the following grounds:

1. The alleged facts set forth in the First Amended Complaint fail to adequately plead that any conduct on the part of the Defendant was so egregious in nature, such that it constituted elder abuse or neglect within the meaning of Welf. & Inst. Code section 15600, et. seq[3]

2. Plaintiff, however, has not pled any actual facts consistent with Civil Code section 3294(b) (ratification)[4]

3. Pursuant to Code of Civil Procedure, section 425.13, as well as the case law interpreting same, plaintiff cannot include a prayer for punitive damages in this action at this point in time, but must, instead, pursue an evidentiary hearing, as provided under Code of Civil Procedure, section 425.13.

Here, Plaintiffs’ opposition does not squarely address whether they are required to obtain leave of Court under Code of Civil Procedure Section 425.13 before they may assert a claim for punitive damages against Dr. Mathur. With that, as their claim for punitive damages is procedurally improper, the motion to strike is granted with leave to amend.

Kindred’s demurrer is also based upon an SOL argument. The court directs the parties to the analysis above.

[1] Another reason asserted in USC’s demurrer is that the FAC does not comply with Code of Civil Procedure section 377.32, which mandates that a person(s) who seeks to commence an action or proceeding as the Decedent’s successor in interest must execute and file an affidavit or a declaration under penalty of perjury stating, among other things, the Decedent’s name, the date and place of the Decedent’s death, that the declarant is the Decedent’s proper successor in interest and succeeds to the Decedent’s interest in the action or proceeding, and that no other person has a superior right to commence the action or proceeding. In opposition, Plaintiff maintains that it has remedied the issue, and the reply no longer takes issue with the statutory mandate. (And according to Parsons v. Tickner (1995) 31 Cal.App.4th 1513, which is a case cited by Plaintiff, the plaintiff may file the affidavit after commencing an action to “continue a pending action.” (C.C.P. §377.32(a).) Thus, Plaintiffs are decedent decedent’s successors-in-interest for purposes of C.C.P. §377.30 and entitled to bring the present action.

[2] With that, the court need not address Defendant’s other argument that decedent is not insane within the meaning

of Code of Civil Procedure section 352 for purposes of tolling, which is what Plaintiffs argue. But the court does note that Plaintiffs’ reliance upon Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94 as there the defendant “did not dispute that the plaintiff was insane” within CCP section 352. (Id. at p. 101.) Notwithstanding, the case did involve a summary adjudication motion on the tolling issue as did other cases cited in the Alcott case like Feely v. Southern Pacific Transportation, Co. (1991) 234 Cal.App.3d 949, which suggests resolving the issue of what constitutes as ‘insane’ for purposes of tolling may not be appropriate on demurrer.

[3] The MTS would be denied on said grounds based upon the court’s ruling on the demurrer.

[4] Plaintiffs advance various arguments as to this, none of which are addressed in reply.