Judge Deirdre Hill, Case 21STCV30974 2022-10-04 Tentative Ruling

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(1) Defendant Santa Fe Home Care, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint; and Motion to Strike Portions of Plaintiffs’ First Amended Complaint

Responding Party: Plaintiffs, Estate of Cecelia Bethel (by and through its personal representative, Anthony Curtis) and Frazer Payton

(2) Defendant Gardena Hospital, L.P.’s Demurrer to Plaintiffs’ First Amended Complaint; and Motion to Strike Portions of Plaintiffs’ First Amended Complaint

Responding Party: Plaintiffs, Estate of Cecelia Bethel (by and through its personal representative, Anthony Curtis) and Frazer Payton

(3) Defendant Santa Ana Hospice, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint; and Motion to Strike Portions of Plaintiffs’ First Amended Complaint

Responding Party: Plaintiffs, Estate of Cecelia Bethel (by and through its personal representative, Anthony Curtis) and Frazer Payton

Defendant Santa Fe Home Care, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED with respect to plaintiffs’ First and Second causes of action, and SUSTAINED, with leave to amend, with respect to plaintiffs’ Third cause of action. Defendant Santa Fe Home Care, Inc.’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.

Defendant Gardena Hospital, L.P.’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED. Defendant Gardena Hospital, L.P.’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.

Defendant Santa Ana Hospice, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED. Defendant Santa Ana Hospice, Inc.’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.

On August 20, 2021, Cecelia Bethel, by and through her Guardian Ad Litem, Anthony Curtis (hereinafter, “Decedent”), initiated the present action by filing a Complaint against the following defendant-entities: Gardena Hospital, L.P., and Santa Fe Home Care, Inc.

On September 16, 2021, pursuant to an Order For Appointment of Guardian Ad Litem, Anthony Curtis was effectively appointed as the Guardian Ad Litem for Decedent.

On April 1, 2022, a “Notice of Death” was filed in this action, notifying the court and all parties that Decedent passed away on January 10, 2022.

On June 27, 2022, pursuant to the stipulation of the parties, the Estate of Cecelia Bethel, by and through its personal representative, Anthony Curtis, and Decedent’s husband, Frazier Payton (hereinafter, collectively “plaintiffs”) filed the operative First Amended Complaint against the following defendant-entities: Gardena Hospital, L.P., Santa Fe Home Care, Inc., Santa Ana Hospice, Inc., and Allelo & Associates. Plaintiffs’ operative First Amended Complaint alleges the following causes of action: (1) Statutory Elder Abuse/Neglect; (2) Negligence; and (3) Wrongful Death.

The moving party against whom a complaint or cross-complaint is directed may object by demurrer to the pleading on one of several grounds outlined by section 430.10. (Code Civ. Proc., § 430.10, subd. (a)-(h).) These grounds include lack of jurisdiction, lack of legal capacity to sue, uncertain pleadings, or pleadings that do not state facts sufficient to constitute a cause of action, among others. (Ibid.)

A demurrer¿advanced on the ground the pleading does not state facts sufficient to constitute a cause of action “tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725; Code Civ. Proc., § 430.10, subd. (e).) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4^th 780, 804.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

“Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part” of that pleading. (Code Civ. Proc., § 435, subd. (b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike 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.” (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, subd. (a).) “Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 437, subd. (b).)

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 435.5, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5, subd. (a)(3).)

The court presently considers three demurrers and three motions to strike filed simultaneously by three separate defendants—Santa Fe Home Care, Inc. (“Santa Fe Home Care”), Gardena Hospital, L.P. (“Gardena Hospital”), and Santa Ana Hospice, Inc. (“Santa Ana Hospice”) As may be apparent from the procedural posture of this action, the demurrers and motions to strike under consideration each challenge the operative First Amended Complaint. The court discusses each defendant’s demurrer and motion to strike respectively, below.

A. Defendant Santa Fe Home Care, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint; and Motion to Strike Portions of Plaintiffs’ First Amended Complaint

Defendant Santa Fe Home Care, Inc. demurs to plaintiffs’ operative First Amended Complaint, challenging the factual sufficiency of plaintiffs’ First, Second, and Third causes of action. The court addresses each challenged cause of action respectively, below.

Defendant Santa Fe Home Care demurs to plaintiffs’ First cause of action on the ground plaintiffs have failed to state sufficient facts to constitute a cause of action. Defendant Santa Fe Home Care advances two primary arguments in support of the aforementioned contention. First, defendant Santa Fe Home Care argues plaintiffs have failed to state facts demonstrating that the acts allegedly perpetrated by defendant against Decedent constitute punishable acts of “elder abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”). Defendant Santa Fe Home Care contends the factual allegations within the First Amended Complaint merely constitute acts of negligence, which is not punishable under the Elder Abuse Act. Defendant Sante Fe Home Care’s argues plaintiffs have failed to allege facts demonstrating defendant committed the alleged acts of abuse against Decedent with the requisite mental state, that is, with recklessness, oppression, fraud, or malice. Second, defendant Santa Fe Home Care argues plaintiffs have failed to allege facts which would warrant liability under the Elder Abuse Act against defendant, as a corporate employer.

Plaintiffs bring the cause of action for “Elder Abuse/Neglect” pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”). (Welf. & Inst. Code, §§ 15600 et seq.) In order to sufficiently plead a cause of action for elder abuse and neglect under the Elder Abuse Act, “plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [Citations.]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [Citations.]; and (3) denied or withheld goods and services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult . . . or with conscious disregard of the high probability of such injury . . . . [Citations.]” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.) “[T]he facts constituting the neglect and establishing the casual connection between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.” (Id., at p. 407, citing Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

The Elder Abuse Act, and the heightened remedies afforded thereunder, was not enacted to protect elders from instances of professional negligence. (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1347 [“The Elder Abuse Act provides for heightened remedies to afford extra protection to the vulnerable population of infirm elders and dependent adults. . . . The Elder Abuse’s heightened remedies do not apply to acts of professional negligence.”].) Section 15657.2 of the Act specifically states, “any cause of action for injury or damage against a healthcare provider . . . based on the healthcare provider’s alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.” (Wefl. & Inst. Code, § 15657.2.) The legislative history and case law makes clear that the purpose of the Elder Abuse Act is “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) The Legislature enacted the Elder Abuse Act understanding that elder adults who depend on others for their most basic needs may be at risk for “abuse, neglect, or abandonment by their families or caretakers” and, may “suffer impairments and other poor heath” as a result. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4thh 148, 162-163.) The Elder Abuse Act seeks to forbid “ ‘acts of egregious abuse’ against elder and dependent adults,” such as failing to assist in personal hygiene, or the provision of food, clothing, or shelter, failing to prevent malnutrition or dehydration, or failing to provide medical care for the elder’s physical and mental health needs. (Delaney, supra, 20 Cal.4th at p. 35, italics added; see Welf. & Inst. Code, § 15610.57, subd. (b).) The Act is not a means to initiate actions based upon “simple professional negligence, but . . . forms of abuse or neglect performed with some state of culpability greater than mere negligence.” (Delaney, supra, 20 Cal.4th at p. 32.)

Therefore, in order to adequately plead a cause of action under the Elder Abuse Act, the plaintiff “must plead and prove something more than negligence . . . .” (Fenimore, supra, 245 Cal.App.4th at p. 1347.) Indeed, a plaintiff must plead facts demonstrating (and, following the pleading stage, prove by clear and convincing evidence) that the “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of [the] . . . abuse.” (Welf. & Inst. Code, § 15657.) “ ‘The latter three categories [that is, oppression, fraud, and malice] involve “intentional”, “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature.’ [Citation.] Recklessness is a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur. [Citations.] Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action . . . with knowing of the serious danger to others involved in it.” ’ [Citation.]” (Fenimore, supra, 245 Cal.App.4th at p. 1347.)

Additionally, Welfare and Institutions Code section 15657, subdivision (c) specifies that, when a cause of action under the Elder Abuse Act is brought against a corporate defendant, the Act’s heightened remedies will only be awarded against the corporate defendant if the plaintiff has made the showing required under Civil Code section 3294, subdivision (b)—the statute governing an award of punitive damages. (Welf. & Inst. Code, § 15657, subd. (c) [“The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.”].) Civil Code section 3294, subdivision (b) provides,

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code, § 3294, subd. (b).) The importance of such a requirement is explained within the Court of Appeal’s opinion in Cruz v. HomeBase (200) 83 Cal.App.4th 160, 167 (“Cruz”):

Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation's employees.

But the law does not impute every employee’s malice to the corporation. Instead, the punitive damage statute requires proof of malice among corporate leaders: the “officer[s], director[s], or managing agent [s].” [Citation.] This is the group whose intentions guide corporate conduct. By so confining liability, the statute avoids punishing the corporation for malice of low-level employees which does not reflect the corporate “state of mind” or the intentions of corporate leaders. This assures that punishment is imposed only if the corporation can be fairly be viewed as guilty of the evil intent sought to be punished. “ ‘[T]o award [punitive] damages against the master for the criminality of the servant is to punish a man for that of which he is not guilty.’ ” [Citation.]

(Cruz, supra, 83 Cal.App.4th at p. 167 [italics in original] [internal citations omitted].)

Following consideration of the parties’ arguments, the court is not persuaded by defendant’s arguments, and concludes plaintiffs have sufficiently stated facts sufficient to constitute a cause of action under the Elder Abuse Act. Firstly, despite defendant’s contentions, the court concludes the factual allegations within plaintiffs’ operative First Amended Complaint sufficiently contemplate something more than negligence and, indeed, demonstrate defendant committed “neglect” while Decedent was within the entity’ care, with the requisite recklessness, oppression, fraud, or malice. Specifically, plaintiffs’ operative First Amended Complaint alleges that, on May 15, 2020, Decedent was admitted to defendant’s facility for the purposes of undergoing treatment with respect to a sacral pressure ulcer. (First Amended Complaint (“FAC”), ¶¶ 14-15.) Plaintiffs allege that, at the time Decedent was admitted to defendant’s facility, defendant was made aware of Decedent’s sacral pressure ulcer and was responsible for providing Decedent with “required care to prevent the formation and worsening” of the aforementioned pressure ulcer. (Id. ¶ 15.) Plaintiffs allege, despite having knowledge of Decedent’s existing sacral pressure ulcer, defendant “repeatedly” neglected Decedent and failed to provide Decedent with the requisite care, knowing that withholding such care from Decedent would cause Decedent’s sacral pressure ulcer to worsen and, further, lead to the cause of additional pressure ulcers upon Decedent’s person. (Id. ¶ 16.) Particularly, Plaintiffs allege, while Decedent was within the entity’s care, defendants “repeatedly” failed to turn and reposition Decedent to relieve pressure from her existing sacral pressure ulcer and, additionally, “repeatedly” failed to monitor Decedent to prevent the development of other pressure ulcers. (Ibid.) As a result of defendant’s repetitive and “wrongful withholding of required care”, Decedent’s sacral pressure ulcer worsened, and Decedent developed additional pressure ulcers on her buttocks and heels of her feet. (Id. ¶ 19.) The court concludes plaintiffs’ allegations, which adequately describe defendant’s repeated and consecutive failure to provide Decedent with necessary medical care, are sufficient to demonstrate that defendant’s withholding of care “was the result of choice or deliberate indifference,” as opposed to negligence. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [“[I]f a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, [the] withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.”].) Accordingly, based upon plaintiffs’ allegations of defendant Santa Fe Home Care’s “repeated” failures to provide Decedent with care—which upon demurrer, the court must consider true—the court concludes plaintiffs’ First Amended Complaint sufficiently alleges defendant committed the act of neglect with the requisite recklessness, oppression, fraud, or malice.

Secondly, despite defendant’s contentions, the court concludes plaintiffs’ operative First Amended Complaint sufficiently alleges facts demonstrating a defendant Santa Fe Home Care “authorized or ratified” the acts of neglect experienced by Decedent. Specifically, plaintiffs’ First Amended Complaint alleges defendant Santa Fe Home Care’s “corporate officers, directors and managing agents” devised a plan to “cut costs” and increase the financial success of the entity by engaging in a pattern and practice of understaffing defendant’s facility. (FAC, ¶ 29 [“The injuries [Decedent] suffered were the result of Defendants’ plan to cut costs at the expense of their residents such as [Decedent]. Integral to this plan was the practice and pattern of staffing with an insufficient number of service personnel . . . .”].) Plaintiffs allege defendant’s corporate officers, directors, and managing agents “were aware that such understaffing . . . would lead to injury to patients, including [Decedent]”, however, defendant’s corporate officers, directors, and managing agents continued to engage in a pattern and practice of understaffing in order to “reduce labor costs” and obtain a financial benefit for the entity. (Ibid.) Plaintiffs allege defendant’s intentional understaffing of the facility “caused [the] widespread neglect of residents,” including Decedent. (Ibid.) The court must assume the truth of the factual allegations included within plaintiffs’ operative First Amended Complaint. (Harris, supra, 56 Cal.4th p. 240.) Pertinently, with respect to plaintiffs’ allegations, the court must assume plaintiffs can prove by clear and convincing evidence that defendant had a knowing practice of improperly understaffing to cut costs, and had the facility been staffed sufficiently, Decedent would have been properly supervised and would not have suffered injury. (See Fenimore, supra, 245 Cal.App.4th at p. 1349 [holding, “[t]he FAC supplied allegations that may show recklessness. It alleged the Hospital had a pattern and knowing practice of improperly understaffing to cut costs, and had the Hospital been staffed sufficiently, George would have been properly supervised and would not have suffered injury. On a demurrer, we must accept the allegations as true and express no opinion on whether the Fenimores can ultimately prove these allegations. We must assume the Fenimores can prove by clear and convincing evidence that the Hospital was understaffed at the time George fell, that this understaffing caused George to fall or otherwise harmed him, and that this understaffing was part of a pattern and practice. If they do so, we cannot say as a matter of law that the Hospital should escape liability for reckless neglect. The trier of fact should decide whether a knowing pattern and practice of understaffing in violation of applicable regulations amounts to recklessness.”].) Based on the foregoing, the court concludes plaintiffs’ First Amended Complaint sufficiently includes allegations demonstrating defendant Santa Fe Home Care “authorized or ratified” the acts of neglect experienced by Decedent.

Considering the court’s findings above, defendant Santa Fe Home Care’s demurrer to plaintiffs’ First cause of action is OVERRULED.

Defendant Santa Fe Home Care demurs to plaintiffs’ Second cause of action on the ground plaintiffs have failed to allege facts sufficient to constitute a cause of action for negligence. Specifically, defendant Santa Fe Home Care argues plaintiffs’ First Amended Complaint fails to allege facts demonstrating any breach of duty on the part of defendant Santa Fe Home Care.

“ ‘The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’ [Citation.]” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230.) “[T]he standard of care for [medical professionals] is the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470-471.)

Following a review of the parties’ arguments, the court concludes plaintiffs’ Second cause alleges sufficient facts to constitute a cause of action for negligence. Plaintiffs allege, as Decedent was a patient of defendant Santa Fe Home Care’s medical facility, defendant Santa Fe Home Care and defendant’s employees owed Decedent a duty of care to exercise a reasonable degree of skill, knowledge, and care in the provision of medical services. (Avivi, supra, 159 Cal.App.4th at pp. 470-471.) Plaintiffs adequately allege defendant Santa Fe Home Care breached this duty of care as defendant Santa Fe Home Care effectively neglected the provision of medical services to Decedent, causing Decedent’s existing sacral pressure ulcer to worsen and, additionally, causing Decedent to develop pressure ulcers in other areas of her person. (FAC, ¶¶ 15-16.) Based on the aforementioned allegations, the court finds plaintiffs’ Second cause of action for negligence has been properly pled.

Accordingly, defendant Santa Fe Home Care’s demurrer to plaintiffs’ second cause of action is OVERRULED.

Defendant Sante Fe Home Care demurs to plaintiffs’ Third cause of action on the ground plaintiffs have failed to allege facts sufficient to constitute a cause of action for wrongful death. Specifically, defendant Santa Fe Home Care argues plaintiffs have failed to allege facts demonstrating any wrongful act of defendant caused Decedent’s death.

To prevail on a cause of action for wrongful death, plaintiffs must prove “(1) a ‘wrongful act or neglect’ on the part of one or more persons [(that is, negligence)] that (2) ‘cause[s]’ (3) the ‘death of [another] person.’ ” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 390.)

Following a review of the parties’ arguments, the court finds plaintiffs’ Third cause of action fails to adequately plead a cause of action for wrongful death. Specifically, the court concludes plaintiffs’ Third cause of action fails to plead facts demonstrating that any act of defendant Santa Fe Home Care caused Decedent’s death. As noted above, plaintiffs have alleged facts demonstrating that, while Decedent was within defendant Santa Fe Home Care’s custody and care, defendant withheld medical care from Decedent, which caused Decedent’s existing sacral pressure ulcer to worsen and, additionally, caused Decedent to develop further pressure ulcers on her person. (FAC, ¶¶ 15-16.) However, with respect to the factual allegations concerning Decedent’s ultimate death, plaintiffs appear to allege that Decedent’s death was caused by a “very dirty” catheter, as opposed to Decedent’s pressure ulcers. (Id. ¶ 21.) Specifically, plaintiffs allege, nearly two years after Decedent was a patient with defendant Santa Fe Home Care, and after Decedent’s stay at a separate medical facility, Decedent was “hospitalized at Kaiser on January 9, 2022 where the emergency department’s physician noted that the Foley catheter was very dirty with pus that needed to be removed. [Decedent] was admitted to the intensive care unit for septic shock and intubated. [Decedent] passed awat the next day on January 10, 2022.” (Ibid.) As can be ascertained from plaintiffs’ allegations, plaintiffs do not allege Decedent’s death was caused by Decedent’s existing and worsening ulcers, but rather, due to septic shock as a result of a “very dirty” catheter. (Ibid.) Accordingly, the court is persuaded by defendant Santa Fe Home Care’s contentions, and finds plaintiffs have failed to allege facts demonstrating a wrongful act by defendant caused Decedent’s death.

Based on the foregoing, defendant Santa Fe Home Care’s demurrer to plaintiffs’ Third cause of action is SUSTAINED, with leave to amend.

Defendant Santa Fe Home Care moves to strike the whole of plaintiffs’ prayer for damages, which includes plaintiffs’ prayer for “general damages”, “special damages”, “punitive and exemplary damages”, and “attorneys’ fees and costs as allowable by law according to proof at the time of trial.” (FAC, at p. 11:12-15.) Defendant Santa Fe Home Care argues plaintiffs have failed to allege sufficient facts to support the sum of the requested damages identified above. The court addresses defendant Santa Fe Home Care’s arguments with respect to each respective category of damages, below.

Defendant Santa Fe Home Care moves to strike plaintiffs’ prayer for punitive damages on the ground plaintiffs have failed to allege sufficient facts demonstrating defendant acted with oppression, fraud, or malice in connection with the alleged neglect of Decedent, and, further, that plaintiffs have failed to allege facts demonstrating defendant, as a corporate employer, sufficiently authorized or ratified the wrongful conduct of certain employees.

As thoroughly explained above, a plaintiff must prove conduct essentially equivalent to that which would support recovery of punitive damages, in order to obtain the Elder Abuse Act’s heightened remedies. (Covenant Care, Inc., supra, 32 Cal.4th at p. 789.) Specifically, Welfare and Institutions Code section 15657 provides that heightened remedies under the Elder Abuse Act will only be awarded “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.” (Welf. & Inst. Code, § 15657.) Additionally, Welfare and Institutions Code section 15657, subdivision (c) specifies that, the Act’s heightened remedies will only be awarded against the corporate defendant if the plaintiff has made the showing required under Civil Code section 3294, subdivision (b), providing that plaintiff must demonstrate the employer, among other things, “authorized or ratified” the wrongful conduct. (Welf. & Inst. Code, § 15657, subd. (c); Civ. Code, § 3294, subd. (b).)

Here, as described at length above, the court has already concluded, in connection with plaintiffs’ First cause of action, that plaintiffs have sufficiently alleged facts demonstrating defendant Santa Fe Home Care committed the purported neglect with the requisite recklessness, oppression, fraud, or malice, and has additionally demonstrated, defendant Santa Fe Home Care “authorized or ratified” the purported neglect of Decedent. Accordingly, defendant Santa Fe Home Care’s motion to strike plaintiffs’ prayer for punitive damages is DENIED.

Defendant Santa Fe Home Care moves to strike plaintiffs’ prayer for attorneys’ fees on the ground plaintiffs have failed to allege facts demonstrating an entitlement to attorneys’ fees under the Elder Abuse Act.

During discussion of plaintiffs’ First cause of action for Elder Abuse, the court repeatedly referred to certain “heightened remedies” which are afforded under the Elder Abuse Act “to afford extra protection to the vulnerable population of infirm elders and dependent adults.” (Fenimore, supra, 245 Cal.App.4th at p. 1347.) These “heightened remedies” include the recovery of attorneys’ fees and costs. (Ibid.; Welf. & Inst., § 15657, subd. (a).) Specifically, “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply . . . : ¶ (a) The court shall award to the plaintiff reasonable attorney’s fees and costs.” (Welf. & Inst., § 15657, subd. (a).)

While defendant Santa Fe Home Care argues otherwise, consistent with the court’s conclusions above, the court finds plaintiffs have sufficiently alleged facts demonstrating plaintiffs’ entitlement to the heightened remedies afforded in the Elder Abuse Act. Specifically, the court concludes plaintiffs have alleged sufficient facts demonstrating that defendant Santa Fe Home Care committed the “neglect” of Decedent with the requisite “recklessness, oppression, fraud, or malice,” and has additionally demonstrated that, defendant Santa Fe Home Care “authorized or ratified” the purported neglect of Decedent. Accordingly, defendant Santa Fe Home Care’s motion to strike plaintiffs’ prayer for attorneys’ fees is DENIED.

Defendant Santa Fe Home Care argues, “[f]or the same reasons as set forth above with respect to Plaintiffs’ request for attorney’s fees under Welfare & Institutions Code §15657, Plaintiffs are not entitled to any of the enhanced remedies under this section, including general damages.” (Mot., at p. 8:7-9.) However, as the court has found defendant Santa Fe Home Care’s argument with respect to plaintiffs’ prayer for attorneys’ fees unavailing, the court finds the same with respect to defendant’s argument with respect to plaintiffs’ prayer for general and special damages. Accordingly, defendant Santa Fe Home Care’s motion to strike plaintiffs’ prayer for general and special damages is DENIED.

B. Defendant Gardena Hospital, L.P.’s Demurrer to Plaintiffs’ First Amended Complaint; and Motion to Strike Portions of Plaintiffs’ First Amended Complaint

Defendant Gardena Hospital demurs to plaintiffs’ operative First Amended Complaint, challenging plaintiffs’ First cause of action only. Defendant Gardena Hospital demurs to plaintiffs’ First cause of action on two separate grounds. First, defendant Gardena Hospital demurs to plaintiffs’ First cause of action on the ground the cause of action is fatally uncertain. Second, defendant Gardena Hospital demurs to plaintiffs’ First cause of action on the ground plaintiffs have failed to state facts sufficient to constitute a cause of action. The court addresses defendant Gardena Hospital’s grounds for demurrer below, respectively.

Defendant Gardena Hospital contends plaintiffs’ First cause of action is uncertain as “[p]laintiffs have mostly lumped together all four defendants in the elder abuse cause of action [referring to defendants as “Defendants”], making it impossible to distinguish specifically which allegations apply to which defendants.” (Dem., at p. 6:26-27.) Defendant Gardena Hospital contends, “[plaintiffs’] failure to distinguish between four separate entities each with different dates of treatment and admissions, makes it impossible to determine which allegations apply to which party[,]” and therefore, plaintiffs’ First cause of action is fatally uncertain. (Id., at p. 7:6-8.)

A special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty may only be sustained when a defendant cannot reasonably determine to what he or she is required to respond. (Ibid.) For example, where it is not reasonably certain what issues must be admitted or denied, or what counts or claims are directed against the defendant, the complaint will be uncertain. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Here, following review of the parties’ arguments, the court concludes defendant Gardena Hospital’s contentions regarding uncertainty are not well-taken. Following a reading of the operative First Amended Complaint, the court observes it is abundantly clear what counts and claims are advanced against defendant Gardena Hospital, and additionally, which specific issues defendant Gardena Hospital is required to respond. Specifically, plaintiffs’ First Amended Complaint alleges defendant Gardena Hospital is liable for the commission of elder abuse and “neglect” as defined within the Elder Abuse Act due to defendant Gardena Hospital’s repeated willful failure to provide Decedent with requisite medical care while Decedent was admitted to defendant’s facility on April 3, 2020. (FAC, ¶¶ 13-14, 30.) Pursuant to plaintiffs’ allegations, it is apparent defendant Gardena Hospital is required to respond to plaintiffs’ contentions of willful neglect under the Elder Abuse Act. (Ibid.) While defendant Gardena Hospital is correct in noting that plaintiffs have, at time, referred to the four defendants in this action collectively as “Defendants” (id., ¶¶ 24-29, 32), this fact does not render plaintiffs’ First cause of action ambiguous per se. Indeed, a complete reading of plaintiffs’ First Amended Complaint reveals that plaintiffs have distinguished each defendant in this action and has included factual allegations with respect to each (id., ¶¶ 13-21, 30-31). Accordingly, the court concludes plaintiffs’ complaint includes sufficient allegations at this stage of the pleadings in order to defeat defendant Gardena Hospital’s special demurrer on the ground of uncertainty. Thus, defendant Gardena Hospital’s special demurrer on the ground of uncertainty is OVERRULED.

Defendant Gardena Hospital additionally demurs to plaintiffs’ First cause of action on the ground plaintiffs have failed to state facts sufficient to constitute a cause of action. Defendant Gardena Hospital advances three arguments in order to demonstrate this contention. First, defendant Gardena Hospital argues plaintiffs have failed to allege facts demonstrating defendant committed an act of neglect against Decedent with the mental state contemplated within the Elder Abuse Act, that is, with the requisite recklessness, oppression, fraud, or malice. Second, defendant Gardena Hospital argues plaintiffs have failed to allege facts which would warrant liability under the Elder Abuse Act against defendant, as a corporate employer (i.e., facts demonstrating defendant “authorized or ratified” the neglect). Lastly, defendant Gardena Hospital argues plaintiffs’ First cause of action fails to include the requisite specificity required under the Elder Abuse Act.

Before addressing defendant Gardena Hospital’s arguments, the court refers the parties to the lengthy statement of applicable law which has been outlined in connection with the court’s discussion of defendant Santa Fe Home Care’s demurrer, above. The court will refrain from reiterating the entirety of the law under the Elder Abuse Act, but will briefly outline certain principles which remain applicable to defendant Gardena Hospital’s demurring arguments. As noted above, in order to adequately plead a cause of action under the Elder Abuse Act, a plaintiff must plead facts demonstrating (and ultimately prove by clear and convincing evidence) that defendant committed an act of “neglect” (as defined in Section 15610.57), with the requisite recklessness, oppression, fraud, or malice. (Welf. & Inst. Code, § 15657.) Further, where a cause of action for Elder Abuse is advanced against a corporate defendant, the plaintiff must plead facts demonstrating “the [corporate] employer . . . authorized or ratified the wrongful conduct[.]” (Id., § 15657, subd. (c); Civ. Code, § 3294, subd. (b).) Additionally, the court observes, “the facts constituting the neglect and establishing the casual connection between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.” (Carter, supra, 198 Cal.App.4th at p. 407.)

Here, following a review of the parties’ arguments, the court finds plaintiffs’ First cause of action adequately states facts sufficient to constitute a cause of action under the Elder Abuse Act. Initially, the court concludes, despite defendant Gardena Hospital’s contentions, plaintiffs’ First cause of action sufficiently pleads facts demonstrating that defendant Gardena Hospital committed an act of neglect against Decedent, which ultimately led to Decedents’ development of a sacral pressure ulcer, with the requisite recklessness, oppression, fraud, or malice. Somewhat similar to plaintiffs’ allegations with respect to defendant Santa Fe Home Care, plaintiffs allege Decedent was admitted to defendant Gardena Hospital on April 3, 2020 and, despite defendant Gardena Hospital’s knowledge that Decedent “required care to prevent the formation and worsening of a sacral pressure ulcer”, defendant Gardena Hospital “repeatedly fail[ed]” to provide Decedent with the requisite medical care, upon which she was dependent. (FAC, ¶¶ 13-14.) Specifically, plaintiffs allege, although being made aware of Decedent’s existing sacral pressure ulcer, defendant Gardena Hospital “repeatedly failed to turn and reposition [Decedent] . . . to relieve pressure from bony prominences” and “repeatedly failed . . . to prevent worsening of the pressure sores” which had already developed on Decedent’s person. (Ibid.) As the court has observed above, allegations describing defendant’s repeated and consecutive failure to provide Decedent with necessary medical care is sufficient to demonstrate that defendant’s withholding of care “was the result of choice or deliberate indifference,” as opposed to negligence. (Sababin, supra, 144 Cal.App.4th at p. 90 [“[I]f a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, [the] withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.”].) Accordingly, based upon plaintiffs’ allegations of defendant Gardena Hospital’s “repeated” failures to provide Decedent with care—which upon demurrer, the court must consider true—the court concludes plaintiffs’ First Amended Complaint sufficiently alleges defendant committed the act of neglect with the requisite recklessness, oppression, fraud, or malice.

Additionally, the court further concludes plaintiffs’ First cause of action sufficiently alleges facts demonstrating defendant Gardena Hospital “authorized or ratified” the acts of neglect experienced by Decedent. Plaintiffs’ First Amended Complaint alleges defendant Gardena Hospital’s “corporate officers, directors and managing agents devised a plan to “cut costs” and increase the financial success of the entity by engaging in a pattern and practice of understaffing defendant’s facility. (FAC, ¶ 29 [“The injuries [Decedent] suffered were the result of Defendants’ plan to cut costs at the expense of their residents such as [Decedent]. Integral to this plan was the practice and pattern of staffing with an insufficient number of service personnel . . . .”].) Plaintiffs allege defendant’s corporate officers, directors, and managing agents “were aware that such understaffing . . . would lead to injury to patients, including [Decedent]”, however, defendant’s corporate officers, directors, and managing agents continued to engage in a pattern and practice of understaffing in order to “reduce labor costs” and obtain a financial benefit for the entity. (Ibid.) Plaintiffs allege defendant’s intentional understaffing of the facility “caused [the] widespread neglect of residents,” including Decedent. (Ibid.) The court must assume the truth of the factual allegations included within plaintiffs’ operative First Amended Complaint. (Harris, supra, 56 Cal.4th p. 240.) Pertinently, with respect to plaintiffs’ allegations, the court must assume plaintiffs can prove by clear and convincing evidence that defendant had a knowing practice of improperly understaffing to cut costs, and had the facility been staffed sufficiently, Decedent would have been properly supervised and would not have suffered injury. (See Fenimore, supra, 245 Cal.App.4th at p. 1349.) Based on the foregoing, the court concludes plaintiffs’ First cause of action sufficiently includes allegations demonstrating defendant Gardena Hospital “authorized or ratified” the acts of neglect experienced by Decedent.

Lastly, the court observes that defendant Gardena Hospital’s arguments concerning the lack of specificity in plaintiffs’ allegation is, to some degree, well-taken. Defendant Gardena Hospital is correct in stating plaintiffs’ allegations of abuse must be pled with particularity under the Elder Abuse Act. (Carter, supra, 198 Cal.App.4th at p. 407.) However, despite defendant Gardena Hospital’s contentions, the court is not persuaded such a requirement would mandate plaintiffs’ allegations to include the name of each physician who engaged in neglect, or the specific dates in which the neglect occurred. The court believes plaintiffs’ First Amended Complaint contains ultimate facts which sufficiently apprise defendant of the pertinent allegations advanced against the entity in connection with the First cause of action.

Based on the foregoing, defendant Gardena Hospital’s demurrer to plaintiffs’ First cause of action is OVERRULED.

Defendant Gardena Hospital moves to strike plaintiffs’ prayer for punitive damages and attorneys’ fees, on the grounds identical to those advanced by defendant Santa Fe Home Care within that entity’s motion to strike. Specifically, with respect to plaintiffs’ prayer for punitive damages, defendant Gardena Hospital argues, plaintiffs’ First Amended Complaint fails to plead facts which demonstrate defendant committed acts of abuse against Decedent with the requisite oppression, malice, or fraud, and further, that plaintiffs have failed to plead facts demonstrating that defendant Gardena Hospital, as a corporate employer, “authorized or ratified” the acts of neglect. With respect to plaintiffs’ prayer for the recovery of attorneys’ fees, defendant Gardena Hospital argues plaintiffs have failed to plead sufficient facts to demonstrate plaintiffs are entitled to the heightened remedies, which include the award of attorneys’ fees, under the Elder Abuse Act.

As noted above in connection with the court’s discussion of defendant Santa Fe Home Care’s motion to strike, the issues relevant to whether plaintiffs are entitled to attorneys’ fees as heightened remedies under the Elder Abuse Act and, whether plaintiffs have alleged facts sufficient to warrant an award of punitive damages, are entirely intertwined. As stated previously, a plaintiff must prove conduct essentially equivalent to that which would support recovery of punitive damages, in order to obtain the Elder Abuse Act’s heightened remedies. (Covenant Care, Inc., supra, 32 Cal.4th at p. 789.)

As detailed above, the court has concluded, with respect to defendant Gardena Hospital’s demurrer, that plaintiffs have sufficiently stated facts demonstrating defendant Gardena Hospital committed the neglect of Decedent with the requisite recklessness, oppression, fraud, or malice, and has additionally alleged facts demonstrating, defendant Gardena Hospital “authorized or ratified” the neglect of Decedent. Accordingly, the court concludes plaintiffs’ First Amended Complaint includes facts sufficient to support plaintiffs’ prayer for punitive damages, and the heightened remedies under the Elder Abuse Act. For these reasons, defendant Gardena Hospital’s motion to strike plaintiffs’ prayer for punitive damages and attorneys’ fees is DENIED.

C. Defendant Santa Ana Hospice, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint; and Motion to Strike Portions of Plaintiffs’ First Amended Complaint

Defendant Santa Ana Hospice demurs to plaintiffs’ First Amended Complaint, challenging plaintiffs’ First cause of action only. Defendant Santa Ana Hospice demurs to plaintiffs’ First cause of action on the ground plaintiffs have failed to allege facts sufficient to constitute a cause of action. Defendant Santa Ana Hospice advances the following two arguments for the purposes of demonstrating the factual insufficiency of plaintiffs’ First cause of action. First, defendant Santa Ana Hospice contends plaintiffs’ factual allegations fail to sufficiently demonstrate defendant committed the neglect of Decedent, with the requisite recklessness, oppression, fraud, or malice. Second, defendant Santa Ana Hospice argues plaintiffs fail to allege facts which would warrant liability under the Elder Abuse Act against defendant, as a corporate employer (i.e., facts demonstrating defendant “authorized or ratified” the neglect).

The court, on two occasions now, described the applicable legal authority governing plaintiffs’ First cause of action under the Edler Abuse Act. In the interest of brevity, the court refrains from reiterating the applicable law for a third time, and refers the parties to the court’s discussion above.

Here, following a review of the parties’ arguments, the court finds plaintiffs have alleged facts sufficient to constitute a cause of action under the Elder Abuse Act. Initially, similar to the court’s findings with respect to the two prior demurrers, the court concludes plaintiffs’ First Amended Complaint sufficiently states facts demonstrating defendant Santa Ana Hospice committed an act of neglect against Decedent, with the requisite recklessness, oppression, fraud, or malice. Similar to plaintiffs’ allegations with respect to defendants Santa Fe Home Care and Gardena Hospital, plaintiffs allege defendant Santa Ana Hospice “repeatedly” neglected Decedent and failed to provide Decedent with the medical care upon which Decedent was dependent. (FAC, ¶¶ 17-18.) Specifically, plaintiffs allege defendant Santa Ana Hospice was aware Decedent was within the entity’s custody and control for the purposes of receiving “required care to prevent the formation and worsening of pressure ulcers”, and defendant was similarly aware that Decedent’s existing sacral pressure ulcer would worsen in the event Decedent did not receive the care contemplated. (Ibid.) Despite this knowledge, plaintiffs allege defendant Santa Ana Hospice “repeatedly” withheld medical care from Decedent by “repeatedly failing to provide [Decedent] with wound assessments and care”, “by repeatedly failing to monitor and changes of [the] condition[s]” of Decedent’s pressure ulcers. (Id. ¶ 18.) As a result of defendant Santa Ana Hospice’s repeated neglect of Decedent, Decedent’s pressure ulcers worsened, extending to the coccygeal and buttock area “with full thickness and tissue loss.” (Ibid.) As the court has observed above, allegations describing defendant’s repeated and consecutive failure to provide Decedent with necessary medical care is sufficient to demonstrate that defendant’s withholding of care “was the result of choice or deliberate indifference,” as opposed to negligence. (Sababin, supra, 144 Cal.App.4th at p. 90.) Accordingly, based upon plaintiffs’ allegations of defendant Santa Ana Hospice’s “repeated” failures to provide Decedent with care—which upon demurrer, the court must consider true—the court concludes plaintiffs’ First Amended Complaint sufficiently alleges defendant committed the act of neglect with the requisite recklessness, oppression, fraud, or malice.

Further, the court further concludes plaintiffs’ First cause of action sufficiently alleges facts demonstrating defendant Santa Ana Hospice “authorized or ratified” the acts of neglect experienced by Decedent. Plaintiffs’ First Amended Complaint alleges defendant Santa Ana Hospice’s “corporate officers, directors and managing agents devised a plan to “cut costs” and increase the financial success of the entity by engaging in a pattern and practice of understaffing defendant’s facility. (FAC, ¶ 29.) Plaintiffs allege defendant’s corporate officers, directors, and managing agents “were aware that such understaffing . . . would lead to injury to patients, including [Decedent]”, however, defendant’s corporate officers, directors, and managing agents continued to engage in a pattern and practice of understaffing in order to “reduce labor costs” and obtain a financial benefit for the entity. (Ibid.) Plaintiffs allege defendant’s intentional understaffing of the facility “caused [the] widespread neglect of residents,” including Decedent. (Ibid.) The court must assume the truth of the factual allegations included within plaintiffs’ operative First Amended Complaint. (Harris, supra, 56 Cal.4th p. 240.) Pertinently, with respect to plaintiffs’ allegations, the court must assume plaintiffs can prove by clear and convincing evidence that defendant had a knowing practice of improperly understaffing to cut costs, and had the facility been staffed sufficiently, Decedent would have been properly supervised and would not have suffered injury. (See Fenimore, supra, 245 Cal.App.4th at p. 1349.) Based on the foregoing, the court concludes plaintiffs’ First cause of action sufficiently includes allegations demonstrating defendant Santa Ana Hospice “authorized or ratified” the acts of neglect experienced by Decedent.

Based on the foregoing, defendant Santa Ana Hospice’s demurrer to plaintiffs’ First cause of action is OVERRULED.

Defendant Santa Ana Hospice moves to strike plaintiffs’ prayer for punitive damages and attorneys’ fees on the ground plaintiffs have failed to allege facts sufficient to support such prayers for relief. Additionally, defendant Santa Ana Hospice moves to strike the following factual statements within plaintiffs’ operative First Amended Complaint: (a) Paragraph 19, Page 5, line 17, the words “gasping for air”; (b) Paragraph 19, Page 5, line 22, the word “horrific”; (c) Paragraph 24, Page 6, Lines 18-19, the word “neglected” and the phrase “as the term is defined in Welfare and Institutions Code section 15610.57”; (d) Paragraph 26, Page 6, Lines 27-28, the words “abuse”, “neglect”; (e) Paragraph 29, Page7, Line 21, the words “abuse”, “neglect”; (f) Paragraph 39, Page 11, Line 3 and 7, the phrase ““neglect: (as that term is defined in Welfare and Institutions Code § 15610.57)”. (Mot., at p. 2.)

Defendant Santa Ana Hospice moves to strike plaintiffs’ prayer for punitive damages and attorneys’ fees, on grounds identical to those advanced by the aforementioned two defendants. Specifically, with respect to plaintiffs’ prayer for punitive damages, defendant Santa Ana Hospice argues, plaintiffs’ First Amended Complaint fails to plead facts which demonstrate defendant committed acts of abuse against Decedent with the requisite oppression, malice, or fraud, and further, that plaintiffs have failed to plead facts demonstrating that defendant Santa Ana Hospice, as a corporate employer, “authorized or ratified” the acts of neglect. With respect to plaintiffs’ prayer for the recovery of attorneys’ fees, defendant Santa Ana Hospice argues plaintiffs have failed to plead sufficient facts to demonstrate plaintiffs are entitled to the heightened remedies, which include the award of attorneys’ fees, under the Elder Abuse Act.

As noted above in connection with the court’s discussion of the prior motions to strike, the issues relevant to whether plaintiffs are entitled to attorneys’ fees as heightened remedies under the Elder Abuse Act and, whether plaintiffs have alleged facts sufficient to warrant an award of punitive damages, are entirely intertwined. As stated previously, a plaintiff must prove conduct essentially equivalent to that which would support recovery of punitive damages, in order to obtain the Elder Abuse Act’s heightened remedies. (Covenant Care, Inc., supra, 32 Cal.4th at p. 789.)

As detailed above, the court has concluded, with respect to defendant Santa Ana Hospice’s demurrer, that plaintiffs have sufficiently stated facts demonstrating defendant Santa Ana Hospice committed the neglect of Decedent with the requisite recklessness, oppression, fraud, or malice, and has additionally alleged facts demonstrating, defendant Santa Ana Hospice “authorized or ratified” the neglect of Decedent. Accordingly, the court concludes plaintiffs’ First Amended Complaint includes facts sufficient to support plaintiffs’ prayer for punitive damages, and the heightened remedies under the Elder Abuse Act. For these reasons, defendant Santa Ana Hospice’s motion to strike plaintiffs’ prayer for punitive damages and attorneys’ fees is DENIED.

With respect to the remaining factual allegations defendant Santa Ana Hospice presently moves to strike (“gasping for air”, “horrific”, “neglected”, “abuse”, “neglect”), the court is not inclined to warrant the relief requested. “[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) However, “such use of the motion to strike should be cautious and sparing. We have no intention of creating a procedural ‘line item veto’ for the civil defendant.” (Ibid.) Defendant has failed to demonstrate to this court how the phrases above qualify as substantive defects within the operative First Amended Complaint, or how the phrases constitute “irrelevant, false or improper matters”. (Code Civ. Proc., §436.) Accordingly, defendant Santa Ana Hospice’s motion to strike is DENIED, as to these additional factual allegations.

Defendant Santa Fe Home Care, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED with respect to plaintiffs’First and Second causes of action, and SUSTAINED, with leave to amend, with respect to plaintiffs’ Third cause of action. Defendant Santa Fe Home Care, Inc.’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.