Judge: Colin Leis, Case: 23STCV04169, Date: 2023-10-27 Tentative Ruling
Case Number: 23STCV04169 Hearing Date: October 27, 2023 Dept: 74
Veanush Mgdesyan v. Cedars-Sinai Medical
Center
Defendant Cedars-Sinai Medical Center’s
Demurrer
The court considered the moving papers, opposition,
and reply.
BACKGROUND
In
February 2023, Plaintiff Veanush Mgdesyan (Plaintiff) filed a complaint against
Defendant Cedars-Sinai Medical Center (Defendant). The complaint alleges
professional negligence and elder abuse. On May 31, 2023, Defendant filed this
demurrer. Defendant seeks dismissal of the elder abuse claim.
LEGAL STANDARD
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¿¿.) “¿To
survive a demurrer, the complaint need only allege facts sufficient to state a
cause of action; each evidentiary fact that might eventually form part of the
plaintiff’s proof need not be alleged.¿” (¿¿C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 872¿¿.) For the purpose of testing
the sufficiency of the cause of action, the demurrer admits the truth of all
material facts properly pleaded. (¿Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 966-967¿.) A demurrer “¿does not admit contentions, deductions
or conclusions of fact or law.¿” (¿¿Daar v. Yellow Cab Co. (1967) 67
Cal.2d 695, 713¿¿.)
DISCUSSION
Second Cause of Action – Elder Abuse
Defendant
argues the court should sustain its demurrer to plaintiff’s cause of action for
elder abuse because the complaint’s allegations support only a professional
negligence claim alleging substandard medical services. Elder abuse involves
(1) physical abuse committed with recklessness, oppression, fraud, or malice or
(2) neglect defined as “the negligent failure of any person having the care or
custody of an elder . . . to exercise that degree of care that a reasonable
person in a like position would exercise.” “Care and custody” involve a party’s
assuming responsibility for an elder’s basic needs that an able-bodied and
fully competent adult would ordinarily be capable of managing without
assistance. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148,
156, 158 ; Wel. & Instit. Code § 15610.57.) Basic needs include personal
hygiene, food, and hydration. (Welf. & Inst. Code,
§ 15610.57, subds. (b)(1) & (b)(4).) Here, Plaintiff alleges “Defendants
failed to provide Plaintiff proper nutrition and balanced fluid intake to
maintain weight and hydration . . .” (Complaint, ¶ 57.)
Because eating and drinking are tasks that an adult could ordinarily accomplish
on her own, Plaintiff’s allegations support an elder abuse claim.
CONCLUSION
Based
on the foregoing, the court overrules Defendant’s demurrer.
Defendant
shall give notice.
Defendant’s Motion to Strike
Portions of Plaintiffs’ Complaint
The court considered the moving
papers, opposition, and reply.
BACKGROUND
This action arises from a dispute over medical malpractice
and elder abuse.
On
February 24, 2023, Plaintiff Veanush Mgdesyan (Plaintiff) filed a complaint
against Defendant Cedars-Sinai Medical Center (Defendant). The complaint
alleges professional negligence and elder abuse.
On
May 31, 2023, Defendant filed this motion to strike portions of the complaint.
LEGAL STANDARD
A court may strike any “¿irrelevant,
false or improper matter¿inserted in any pleading¿” or any part of a 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¿.) “¿The grounds for a
motion to strike shall appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice.¿” (¿Code
Civ. Proc., § 437¿.)¿
DISCUSSION
Defendant
first argues the court should strike paragraphs 46-86 of the complaint because
the second cause of action fails to state facts sufficient to constitute an
elder abuse claim. However, the court has found otherwise and overruled
Defendant’s related demurrer. Next, Defendant argues the court should strike
Plaintiff’s request for punitive damages on page 23, line 8 of the complaint
because Plaintiff has not alleged sufficient facts to support such an award. For
an elder abuse claim, a plaintiff must prove, in part, that the defendant
committed the abuse with recklessness, oppression, fraud, or malice. (Winn
v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156.) Under Civil
Code section 3294, subdivision (c), malice can mean despicable conduct which is
carried on by the defendant with a willful and conscious disregard for the
rights and safety of others. Plaintiff has alleged that Defendant was aware of
Plaintiff’s need for heightened care yet failed to provide her sufficient food
and water. (Complaint, ¶¶ 53, 57.) These allegations could lead a trier of fact
to conclude that Defendant acted with malice.
Defendant
goes on to argue Plaintiff failed to comply with Code of Civil Procedure
section 425.13, subdivision (a): “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 . . . unless the court enters an order
allowing an amended pleading that includes a claim for punitive damages to be
filed.” However, this action is also based on an elder abuse claim. And the procedural
prerequisites for punitive damages in an action for professional negligence of
a health care provider do not apply to elder abuse claims. (Covenant Care,
Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)
Last,
Defendant seeks to strike Plaintiff’s request for attorney fees on page 23,
line 18 of the complaint because, according to Defendant, the complaint does
not allege facts that constitute elder abuse, to support awarding attorney
fees. (Welf. & Inst. Code, § 15657, subd. (a).) But the court has found
otherwise and overruled Defendant’s related demurrer.
CONCLUSION
Based
on the foregoing, the court denies Defendant’s motion to strike in its
entirety.
Defendant
shall give notice.