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Judge: Donald F. Gaffney, Case: "Long v. C.C.H.C., Inc.", Date: 2023-08-23 Tentative Ruling

TENTATIVE RULING:

For the reasons set forth below, Defendant Sasan Salmi’s Demurrer to the Complaint is SUSTAINED, with leave to amend, and the Motion to Strike is DENIED as moot.

A. Statement of Law - Demurrer

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)^{^[1]}; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].)

“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (§ 430.40, subd. (a).) “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (§ 430.60.)

A demurrer challenges the sufficiency of a pleading by raising questions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) As such, the only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility the defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.) On the other hand, “a trial court does not abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the complaint that under the applicable substantive law there is no reasonable possibility that an amendment could cure the complaint’s defect.” (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.)

In ruling on a demurrer, the trial court must accept as true all material facts properly pleaded in plaintiff’s petition, disregarding only conclusions of law and allegations contrary to judicially noticed facts. (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 277.) All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief under any possible legal theory. (Woods v. Superior Court (1981) 28 Cal.3d 668, 673.) In evaluating the demurrer, the trial court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Blank, supra, 39 Cal.3d at p. 318.) “‘A general demurrer admits the truth of all material factual allegations in the complaint [citation]; … the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ [Citations.]” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936; see Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 245 [proof of damages].)

B. Statement of Law – Motion to Strike

“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 thereof….” (§ 435.) “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 inserted 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.” (§ 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. (§ 437, subd. (a).)

C. Salmi Adequately Met and Conferred Prior to Filing the Demurrer and Motion to Strike

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer, to see whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (§ 430.41, subd. (a).) The demurring party is required to meet and confer with the opposing party at least five days before the date the responsive pleading is due. (§ 430.41, subd. (a)(2).) As part of the meet-and-confer process, the demurring party “shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (§ 430.41, subd. (a)(2).)

“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.” (§ 435.5, subd. (a).) “As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (§ 435.5, subd. (a)(1).)

The meet-and-confer declaration shall state “the means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer,” or “[t]hat the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (§ 430.41, subd. (a)(3).) However, “[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (§ 430.41, subd. (a)(4); Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356; Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515.)

“The moving party shall file and serve with the motion to strike a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike. (B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (§ 435.5, subd. (a)(3).) However, “[a] determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.” (§ 435.5, subd. (a)(4).)

The parties telephonically met-and-conferred on May 17, 2023, and they again communicated on May 24, 2023, regarding the issues raised in both the Demurrer and Motion to Strike. (Declaration of Robert J. Iacopino, ¶¶ 2-3.) However, the parties were unable to resolve their differences. (Iacopino Declaration, ¶¶ 2-4.)

Given attorney Iacopino’s declaration, the Court finds Salmi adequately met and conferred prior to filing his Demurrer and Motion to Strike.

D. The Court Sustains the Demurrer, With Leave to Amend

a. Second Cause of Action: Elder Abuse and Neglect

i. The Complaint Does Not Allege Neglect Under Section 15610.57 of the Welfare and Institutions Code

The Elder Abuse and Dependent Adult Civil Protection Act (Act) is codified in Welfare and Institutions Code, sections 15600, et seq. Abuse of a dependent adult can mean “(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering….” (Welf. & Inst. Code, § 15610.07, subd. (a).)

Neglect is defined as either “(1) 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. (2) The negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a).)

“Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs …. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration. (5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.” (Welf. & Inst. Code, § 15610.57, subd. (b); Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.) “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.’ [Citations.]” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, 982; Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336; Carter, supra, 198 Cal.App.4th at pp. 404-405; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.)

“The Elder Abuse Act does not apply to simple or gross negligence by health care providers. [Citations.] To obtain the enhanced remedies of section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ [Citation.] ‘“Recklessness” refers to 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 knowledge of the serious danger to others involved in it.” [Citation.]’ [Citation.] [¶] In reviewing the act’s provisions on reckless conduct and professional negligence [citations], the Delaney court concluded that ‘“reckless neglect” under section 15657 is distinct from causes of action ‘“based on ... professional negligence” within the meaning of section 15657.2... .’ [Citation.] The court held, ‘a health care provider which engages in the “reckless neglect” of an elder adult within the meaning of section 15657 will be subject to section 15657’s heightened remedies... .’ [Citation.]” (Worsham, supra, 226 Cal.App.4th 331, 336-337; see Carter, supra, 198 Cal.App.4th at p 405 [plaintiff must prove, by clear and convincing evidence, defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the neglect].)

Several factors must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act. “The 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 or 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 (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations]. 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.] 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. [Citation.]” (Carter, supra, 198 Cal.App.4th at pp. 406-407, 410, citing Covenant Care, supra, 32 Cal.4th at p. 788, italics added; accord, Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 223.)

“[G]eneral statements of recklessness are not sufficient to survive a demurrer to their elder abuse cause of action.” (Alexander, supra, 23 Cal.App.5th at p. 206.) “Statutory causes of action must be pleaded with particularity.” (Covenant Care, supra, 32 Cal.4th at p. 790; see Carter, supra, 198 Cal.App.4th at p. 410 [where “statutory remedies are invoked, the facts ‘must be pleaded with particularity’]; see Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 [“simply parroting the language” of the statute is insufficient to state a cause of action under the statute].)

The allegations against Salmi are as follows: Plaintiffs allege Salmi was Decedent’s attending physician during her residency, such that Salmi owed Decedent “applicable duties of care,” which he breached. (¶¶ 11, 15-16, 85-88.) They also concede Salmi is a “healthcare provider unaffiliated with any of the named Co-Defendants.” (¶ 11.)

On April 8, 2022, Salmi accepted Decedent into the facility’s custody. (¶ 32.) However, Salmi did not examine Decedent until April 10, 2022[2], at which point he charted her neurological condition as “non-focal,” and he was of the opinion she was likely suffering from encephalopathy possibly due to prior medication. (¶ 39.) Thus, Salmi ordered certain prescriptions not be given, and that Decedent be hydrated, and he ordered a panel of labs to address his concerns about Decedent’s condition. (¶ 39.) However, the facility’s staff failed to transcribe this order into the record, and the staff failed to follow Salmi’s orders. (¶ 39.) When he learned Decedent had become unresponsive on April 11, 2022, Salmi placed a phone order to transfer Decedent to Anaheim Global Medical Center via 911 for further evaluation. (¶ 47.)

Plaintiffs fault Salmi for not following up to ensure his order was being complied with. (¶¶ 40-41, 85.) They are also critical of Salmi because “the records are silent regarding any resuscitative measures prior thereto.” (¶ 47.)

However, the allegations of the Complaint itself make clear Salmi did provide medical care. As noted, “when the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.’ [Citations.]” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, 982; Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336; Carter, supra, 198 Cal.App.4th at pp. 404-405; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.)

Further, a physician who gives instructions to a member of the staff is generally not liable for the negligence of the staff member in carrying out his instructions. (Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 966; accord, Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1396; see Sherman v. Hartman (1955) 137 Cal.App.2d 589, 595-596 [surgeon not responsible to ensure nurse properly performed her duties]; see Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 348 [theory that surgeon directly controls all activities of whatever nature in the operating room not realistic in present day medical care].)

In their Opposition, Plaintiffs cite to Sababin for the proposition that Plaintiffs are not required to establish a total absence of care to assert an elder abuse cause of action. While the Sababin court did hold, “If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability,” the example given was a situation where the “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, withholding of care has occurred.” (Sababin, supra, 144 Cal.App.4th at p. 90.) On the other hand, “The Act excludes liability for acts of professional negligence,” such that “it does not apply to simple or gross negligence by health care providers.” (Id. at p. 88.)

Unlike the facts of Sababin, Plaintiffs have not alleged Salmi provided Decedent with care sporadically or inconsistently. Instead, Plaintiffs have alleged Salmi examined Decedent, and he made an order that the facility’s staff failed to transcribe, and which the facility staff failed to follow.

The facts alleged in Plaintiffs’ Complaint are far more similar to those of Carter, where the decedent died as the hospital staff was attempting to treat him, and because those treating him could not locate a common size endotracheal tube to intubate the decedent in time to save his life. (Carter, supra, 198 Cal.App.4th at p. 402.) It is also similar to Krutchanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1134-1135, where the patient was injured because the hospital failed to properly screen the patient before conducting an MRI, which resulted in the patient sustaining a burn to his abdomen. Quoting to Covenant Care, the Krutchanooch court held “There is no substantial evidence that GAMC harmed Kruthanooch by ‘fail[ing] to provide medical care’ or by failing to ‘attend[ ] to [his] basics needs and comforts.’ [Citation.] Rather, the evidence presented at trial supports that GAMC harmed Kruthanooch when undertaking medical services.” (Krutchanooch, supra, 83 Cal.App.5th at pp. 1134-1135.)

Plaintiffs also alleges Salmi “had care and custody of Decedent.” They also allege Salmi breached a number of duties enumerated by the Code of Federal Regulations and the California Code of Regulations. (¶¶ 52-58, 73-79.) They further allege Salmi withheld and denied Decedent interventions, sufficient staffing, and adequate policies and procedures, and they allege these deprivations are part of a routine practice and conspiracy. (¶¶82-83.) Plaintiffs also allege Salmi’s negligence was willful. (¶ 88.)

However, and contrary to Plaintiffs’ belief (Opposition, 14:26-15:1), these allegations are not ultimate facts, i.e., “a statement of the facts constituting the cause of action in ordinary and concise language.” (Code Civ. Proc., § 425.10.) Instead, they are merely conclusions of fact and/or law. A reviewing court “treat[s] the demurrer as an admission by defendants of all material facts properly pled in plaintiffs’ … complaint – but not logical inferences, contentions, or conclusions of fact or law. [Citation.]” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.App.4th 148, 152.)

Contrary to Plaintiffs’ position, they have not “specifically alleged a continuing pattern of withholding necessary care” on the part of Salmi. (Opposition, 14:25-14:26.)

In sum, Plaintiffs have not alleged sufficient facts that Salmi’s conduct constitutes neglect under section 15610.57 of the Welfare and Institutions Code.

ii. Care or Custody of an Elder

Salmi also demurs to the second cause of action on the theory that he did not have a robust caretaking or custodial relationship with Decedent.

“Appearing not only in section 15610.57 but also elsewhere in the Act, the phrase ‘care or custody’ evokes a bond that contrasts with a casual or temporally limited affiliation.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 161.) “[T]he terms ‘care’ and ‘custody’ are used together, and are best understood to denote a distinctive caretaking or custodial relationship.” (Ibid.) “[N]othing in the legislative history suggests that the Legislature intended the Act to apply whenever a doctor treats any elderly patient. Reading the act in such a manner would radically transform medical malpractice liability relative to the existing scheme.” (Id. at p. 163.)

While Plaintiffs conclusively allege Salmi “had care and custody of Decedent,” (¶ 11) this allegation is a conclusion of fact. Further, Plaintiffs have not alleged facts that “evokes a bond that contrasts with a causal or temporally limited affiliation.” (Winn, supra, 63 Cal.4th at p. 161.) Instead, Plaintiffs have alleged Salmi accepted Decedent into the facility on April 8, 2022 (¶ 32), he evaluated Decedent on April 10, 2022 (¶ 39), and he called 911 on April 11, 2022, when Decedent became unresponsive (¶ 47). These allegations are akin to “a causal or temporally limited affiliation,” rather than the ”bond” envisioned by the California Supreme Court.

Stewart v. Superior Court (2017) 16 Cal.App.5th 87, which Plaintiffs cite in their Opposition, is distinguishable because, there, the plaintiff was admitted directly into the acute care facility that she subsequently sued for elder abuse. (Stewart, supra, 16 Cal.App.5th at p. 102.) Here, the allegations of the Complaint support a finding that, while the facility itself had care and custody of Decedent, Salmi himself did not.

The Court sustains the Demurrer to the second cause of action, albeit it with leave to amend, as this is the first challenge to the Complaint.

b. First Cause of Action: Negligence/Willful Misconduct

“Willful misconduct is not a separate tort from negligence, but rather ‘“‘“an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care” [citations].’”’ [Citation.] In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also ‘“‘(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]’” [Citation.]’ [Citation] ‘“[W]illful misconduct is not marked by a mere absence of care. Rather, it ‘“‘involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.’”’ [Citations.]”’ [Citations.]” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 895.) However, “‘[n]o amount of descriptive adjectives[, adverbs] or epithets may turn a negligence action into an action for intentional or willful misconduct.’ [Citation.]” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 413.) The acts or omissions must be alleged with specificity, and conclusory allegations are insufficient. (Ibid.; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528)

In concluding the trial court properly sustained the hospital’s demurrer to the willful misconduct cause of action, the Carter court explained:

Although plaintiffs have alleged the Hospital “failed to exercise the degree of care that a reasonable person in a like position would exercise” in treating Grant, they have not alleged that the Hospital intended to harm Grant. Nor have plaintiffs alleged facts, as opposed to conclusions or contentions, that indicate the Hospital acted “with deliberate indifference and conscious disregard for the health, safety and well-being of [Grant].” We do not accept as true such conclusions or contentions when reviewing a ruling on a demurrer. [Citation.] The few facts alleged in the willful misconduct cause of action show that the Hospital actually treated (or at least attempted to treat) Grant during his hospitalizations by diagnosing pneumonia, sepsis, pressure ulcers and malnutrition; by infusing fluids; and by searching for the size of endotracheal tube needed to save his life. Although the Hospital might have been negligent in its treatment of Grant, “[n]o amount of descriptive adjectives[, adverbs] or epithets may turn a negligence action into an action for intentional or willful misconduct.” [Citation.]

When the third cause of action is stripped of its conclusory assertions of willful misconduct, what remains is a survivors’ claim for professional negligence against the Hospital. [Citations.] Plaintiffs essentially allege that Grant “suffered serious personal injury [and] emotional distress” as a result of the Hospital’s failures to treat and document his pressure ulcers properly, to administer antibiotics needed to treat his pneumonia and to stock and document a crash cart properly. In other words, plaintiffs contend “that the [H]ospital did not, within its available staff and facilities, provide [Grant] with medical treatment necessary to assure, within reasonable medical probability, that no deterioration of [his] condition would likely occur.” [Citation.] Such allegations state a claim for “injuries ‘based on professional negligence,’ i.e., medical treatment falling below the professional standard of care.” [Citations.]

(Carter, supra, 198 Cal.App.4th at pp. 412-413.)

As in Carter, Plaintiffs have alleged conclusions or contentions, rather than facts, to indicate Salmi acted with deliberate indifference and conscious disregard for the health, safety and well-being of Decedent. As discussed attendant to the second cause of action, the few facts alleged show Salmi did examine Decedent, and he prepared an order relating to Decedent’s medication, but it was the failure of the facility’s staff to document Salmi’s order that resulted in his order not being implemented.

The Court sustains the Demurrer to the third cause of action, with leave to amend.

c. Fourth Cause of Action: Wrongful Death

“‘“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.”’ [Citation.]” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968; Musgrove v. Silver (2022) 82 Cal.App.5th 694, 705.) Where the underlying tort was the defendant’s professional negligence, i.e., medical malpractice, the elements of a cause for medical malpractice are “‘(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.’ [Citation].” (Lattimore, supra, 239 Cal.App.4th at p. 968.)

Plaintiff H. Gavin Long’s wrongful death cause of action is predicated on the first and second causes of action (Complaint, ¶¶ 115-116). However, as noted, those causes of action have been inadequately pled as to Salmi.

The Court sustains the Demurrer to the fourth cause of action, with leave to amend.

E. The Court Denies the Motion to Strike as Moot

Since the Court sustains the Demurrer, the Motion to Strike is denied as moot.

Should Plaintiffs desire to file an amended complaint that addresses the issues in this ruling, Plaintiffs shall file and serve the amended complaint within 30 days of service of the notice of ruling.

Moving party to give notice.