Judge: David A. Hoffer, Case: 30-2021-1223909, Date: 2022-08-08 Tentative Ruling

The Demurrer by defendant Bartlett Care Center, LLC dba French Park Care Center (“Bartlett”) to the first cause of action stated in the complaint by plaintiff Bernadette Horsfall, individually and as heir and successor in interest to Victoria Rivo (“plaintiff”) is SUSTAINED with 30 days leave to amend.




1st c/a for Elder Abuse

Elder abuse is defined in Welf. & Inst. Code §15610.07 as physical abuse, neglect, abandonment, isolation, abduction or other treatment resulting in physical harm, pain or mental suffering or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.


Neglect is defined in §15610.57(a) (1) as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” While neglect includes, among other failures, failing to provide medical care for physical and mental health needs and failing to protect from health and safety hazards, [Id. at subd. (b)(2), (3)], Elder Abuse excludes liability for professional negligence; it does not apply to simple or even gross negligence by health care providers (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88). 


Enhanced remedies provided by the Elder Abuse Act are available only for “‘acts of egregious abuse’. [I]n order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405)


 “The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Citations omitted) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.” Id. at p.407)


The complaint in this case falls short of these requirements.


The complaint alleges that the defendants withheld and failed to provide showers, change bedsheets, provide medication and rotation or mobility and safety checks or provide and implement policies to prevent decedent’s exposure to infection or report changes to the decedent’s family. (Complaint ¶46) Other than failing to provide showers or change bedsheets, the rest of the alleged neglect or abandonment is pled with conclusory wording of the statute or interpreting caselaw. What is missing are the specific facts that establish the enumerated failings with respect to the decedent and how such failings caused the decedent’s death.


After reading the complaint, one is left wondering what exactly happened to plaintiff’s mother and how did defendants’ conduct cause her death?


As the complaint fails to plead the necessary facts to support an Elder Abuse cause of action, the demurrer to the 1st cause of action is sustained with 20 days leave to amend.



The JOINDER motion by Defendants John Kimball (“Kimball”) and Donna Kimura (“Kimura”) (together “joining defendants”) is GRANTED, and the demurrer to the first cause of action is likewise SUSTAINED as to them.


Motion to Strike:

Bartlett’s motion to strike is MOOT IN PART AND GRANTED IN PART.


Kimball’s and Kimura’s JOINDER motion is GRANTED.


Defendants move to have the following matters stricken from plaintiff’s complaint:


1.    The request for punitive damages related to the “Elder Abuse” cause of action. (Page 9, lines 11-13).


2.    Punitive damages language at Page 13, lines 25-26.


3.    References to terms and derivatives of “willful”, “malice”, “oppressive”, “intent”, “reckless”, and “knowing” (Paragraph 50, line 7.)


4.    Paragraph 86 in its entirety.


Items 1 and 3 are MOOT as a result of the court’s ruling on the demurrer.


The motion is GRANTED as to items 2 and 4 above which are ordered stricken from the complaint. Although punitive damages under Civil Code §3294 may be recovered in connection with a cause of action under Health & Safety Code §1430, there must be a factual showing -- which is absent here -- that defendants’ violations of the statute were committed with malice, oppression or fraud. (See Jarman v. HCR ManorCare, Inc. (2017) 9 Cal.App.5th 807, 818 (reversed and remanded on other grounds without reaching the punitive damages question); Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 393 fn. 8)


Plaintiff is granted 20 days leave to amend.


Bartlett is ordered to give notice of this ruling.