Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendants Omid ADHC Corporation and Jilbert Sedighpour 

 

RESPONDING PARTY: Plaintiff Sedigheh Hadian Ghahderijani 

 

BACKGROUND 

This action arises from a slip and fall.  Plaintiff Sedigheh Hadian Ghahderijani is an elderly woman in chronic poor health over the age of 83.  (Compl. ¶2.)  Defendant OMID ADHC Corporation (“OMID”) owns and manages an adult day care facility called Sinai Adult Day Health Care (“Sinai”).  (Id. ¶9.)  Plaintiff goes to Sinai three times of week.  (Id. ¶12.)  OMID provides transportation services to and from Plaintiff’s home.  (Id.)   

On June 28, 2022, Defendant Jilbert Sedighpour went to pick Plaintiff up from her home.  Sedighpour is alleged to be an “officer, director, agent and/or employee” of OMID.  (Id.)  Sedighpour is the usual driver assigned to pick up Plaintiff.  (Id.)   

On this particular day, instead of parking outside her home, Sedighpour “negligently and recklessly parked her vehicle across the street away from Plaintiff’s home on a slope near a curb in a no parking area where the ground was uneven and slippery.”  (Id.)  Sedighpour did not come out to help Plaintiff but instead phoned her to make her way out alone and unattended.  (Id.)  As Plaintiff was navigating her way alone across the uneven and slippery ground, she slipped and fell sustaining physical injuries.  (Id.)  She was transported by ambulance to Cedar-Sanai Medical Center to treat her severe injuries. (Id.)   

The operative verified complaint alleges five claims for (1) elder abuse, (2) general negligence, (3) negligent infliction of emotional distress, (4) negligent misrepresentation and (5) respondeat superior liability.   

This hearing is on Defendants’ demurrer and motion to strike.  Defendants demur to the first cause of action for elder abuse on grounds it fails to allege with the requisite specificity that Defendants are guilty of recklessness, oppression, fraud or malice.  As to their motion to strike, Defendants seek to strike the elder abuse claim and the prayer for relief for that claim, on the same grounds as stated in their demurrer.     

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike 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, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc., § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving 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 or motion to strike. (CCP §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)  Defendant submits the Declaration of Michael N. Hirota, which shows the parties only met and conferred by letter and by email.  While this is insufficient to meet the “in person or by telephone” requirements, it cannot be grounds for the Court to overrule the demurrer or deny a motion to strike.  (CCP §§ 430.41(a)(4), 435.5(a)(4).)   

Plaintiff also argues Defendants failed to identify with legal support the bases for their motion to strike.  Defendants argue that the basis for their motion to strike was the same as their demurrer, and Plaintiff does not dispute Defendants properly identified the authorities for their demurrer.  Regardless, as noted above, Defendants’ failure to comply with their meet and confer requirements cannot be grounds to deny the motion to strike.     

DISCUSSION 

Demurrer 

Defendant demurs to the complaint on the ground that the Elder Abuse Act requires a showing beyond mere negligence, and the facts alleged in the complaint only give rise to a finding of negligence.  The Court agrees.¿ 

A claim for elder abuse requires more than simple or gross negligence.  (Worsham v. O’Connor Hosp. (2014) 226 Cal.App.4th 331, 337.)  To state a cause of action for elder abuse, Plaintiff must allege “[p]hysical abuse, neglect, abandonment, isolation, abduction or other treatment with resulting physical harm or pain or mental suffering.”  (Welf. & Inst. Code § 15610.07, subd. (a)(1).)  Acts which are prohibited under the Elder Abuse Act “do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.”  (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781.)  In other words, neglect is not the same as negligence.   

To constitute abuse and neglect within the meaning of the Elder Abuse Act, thereby triggering the enhanced remedies available under the Act, Plaintiff “must demonstrate by clear and convincing evidence … reckless, oppressive, fraudulent or malicious conduct.”  (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88-89.)  “Recklessness” requires “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.”  (Id.)  ¿“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.’”  (Worsham, 226 Cal.App.4th at 337.)   

There is a heightened standard of pleading for an elder abuse claim.  (Covenant Care, 32 Cal.4th at 790 (“statutory causes of action must be pleaded with particularity”).)  “Facts, not conclusions, must be pleaded.”  (Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, 410.) 

The present case is similar to Worsham v. O’Connor Hosp.  There, the plaintiff alleged that defendants were aware that plaintiff had a risk of falling, failed to have the proper staffing in place to prevent plaintiff’s fall, which resulted in the plaintiff falling and suffering a broken arm and rebreak of her hip.  In affirming the sustaining of the demurrer without leave to amend, the Cout determined that these allegations of understaffing and undertraining were insufficient to support a claim for anything more than professional negligence.  (Worsham, 226 Cal.App.4th at 338.)   

Here, as in Worsham, Plaintiff’s claims amount to negligence, not recklessness.  Plaintiff alleges she fell as a result of Sedighpour’s failure to get out of the vehicle to help her and Sedighpour’s parking in a no parking area where the ground was uneven and slippery.  Even construing these allegations in the light most favorable to Plaintiff, they state a claim for mere negligence, not recklessness.  Indeed, Plaintiff herself characterizes Defendants’ conduct as “negligence.”  (Opp. to Demurrer at 10:18.)  Plaintiff has made no allegations that would support a finding that Sedighpour or OMID engaged in a “conscious choice of a course of action with knowledge” of the serious danger to Plaintiff.  (Covenant Care, 34 Cal.4th at 779.)  

Plaintiffs’ reliance on Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 is unavailing.¿ There, the patient was diagnosed with a disease that subjected her to the risk of skin deterioration.¿ The patient alleged dependent adult abuse on the theory that the care facility did not satisfy its custodial obligation to meet the patient’s basic needs when it failed to follow the care plan for the maintenance of the patient’s skin.¿ The trial court found that there was no evidence that the care facility was guilty of anything more than professional negligence.¿ On appeal, the court reversed and held that there were triable issues as to whether the care facility's employees were guilty of reckless, oppressive, or malicious neglect because there was evidence they failed to follow the patient's care plan for maintaining the health of her skin.¿ A trier of fact could find that when a care facility’s employees ignored a care plan such conduct showed deliberate disregard of the high degree of probability that she would suffer injury.¿ To allege elder abuse, Sababin required “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.”  (Id.)   Here, unlike in Sababin, there is no significant pattern of withholding portions or types of care.  Plaintiff alleges only a single instance of negligence.  And there was no withholding of care; care was provided but Plaintiff claims it was negligently performed.¿¿¿¿¿ 

Motion to Strike 

Defendants seek to strike Plaintiff’s claim for elder abuse and the prayer for relief associated with that claim on the same grounds as their demurrer.  The Court denies the motion as moot.  

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendants’ demurrer with 20 days’ leave to amend and DENIES as moot Defendants’ motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: September 26, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court