Judge Edward B. Moreton, Jr, Case Number: 25SMCV00033, Date: 2025-04-15 Tentative Ruling

Judge: Edward B. Moreton, Jr, Case: 25SMCV00033, Date: 2025-04-15 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

Plaintiff claims Defendants, including Danielle Moerke, R.N., M.D., were negligent. The operative complaint alleges claims for professional negligence, negligent hiring, supervision and retention, and dependent adult abuse.

This hearing is on Nurse Moerke’s demurrer to the Complaint.[1] Nurse Moerke argues that Plaintiff’s claim for dependent adult abuse fails because Moerke is not a care custodian and because the facts alleged do not demonstrate a failure to provide medical care.

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer, 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. (Code Civ. Proc. § 430.41(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(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).) Nurse Moerke submits the Declaration of Michelle J. Birtja who attests the parties met and conferred by telephone on March 6, 2025, less than five days before the demurrer was filed on March 7, 2025. (Birtja Decl. ¶ 5.) Notwithstanding, the Court cannot overrule a demurrer based on an insufficient meet and confer.

A demurrer to a complaint may be general or special. A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).) The term uncertain means “ambiguous and unintelligible.” (Id.) A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

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.)

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.”).) 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.)

Nurse Moerke argues that at best, Plaintiff has only alleged a claim for professional negligence which cannot support a dependent abuse claim. The Court agrees.

A cause of action for Dependent Adult Abuse is a statutory claim and must be alleged with particularity. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Acts that constitute mere professional negligence do not constitute dependent adult abuse. (Id.)

Here, Plaintiff has not alleged specific facts that would support a finding of reckless, oppressive, fraudulent, or malicious conduct. At best, Plaintiff’s bare-bones allegations that she fell while under the care of defendants and while she was under anesthesia, support a finding of negligence.

It is true Plaintiff alleges Defendants’ actions were “reckless” and “neglectful”, but on a demurrer, the Court does not assume the truth of contentions or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125. “Facts, not conclusions, must be pleaded.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 8.) Further, where, as here, statutory remedies are invoked, the facts “must be pleaded with particularity.” (Covenant Care, 32 Cal.4th at 790.) Accordingly, Plaintiff’s “[u]se of such terminology [as reckless and neglectful] cannot cure [the] failure to point out exactly how or in what manner the [Defendant has] transgressed.” (Lavine v. Jessup (1958) 161 Cal.App.2d 59, 69.)

Worsham v. O'Conor Hospital, et al. (2014) 226 Cal.App.4th 331 is instructive. There, Juanita Worsham (“Worsham”), the plaintiff's mother, entered O’Connor Hospital ("O'Connor") on July 31, 2010 to undergo hip surgery to treat a fractured hip she suffered as a result of falling at home. Following surgery, Worsham was discharged to O’Connor for rehabilitative care. On August 20, 2010, Worsham fell, breaking her right arm and re-breaking her hip. Her complaint alleges violation of the Act and professional negligence, asserting that the O’Connor was understaffed and undertrained, and that the lack of sufficient well-trained staff caused her fall. Worsham also alleged that O'Connor should have provided a "sitter" to ensure she did not fall, and that her doctor recommended that a sitter be provided. The trial court sustained O’Connor’s demurrer without leave to amend. The Court of Appeal upheld the trial court’s ruling.

The appellate court noted the allegations concerned O’Connor’s alleged negligent undertaking of medical services, rather than a failure of those responsible for attending to Worsham’s basic needs and comforts to carry out their custodial or caregiving obligations. The Court noted that the allegations, if true, demonstrate O’Connor’s negligence in the undertaking of medical services, not a “fundamental [f]ailure to provide medical care for physical and mental health needs.” Absent specific facts indicating at least recklessness, any failure to provide adequate supervision would constitute professional negligence but not elder abuse. (Id. at 337-338.)

Here, Plaintiff allege that Defendants were aware that she was under anesthesia and unable to care for herself and thus, at risk of falling. (Compl. ¶ 62.) Under Worsham, these allegations would at best support a claim for professional negligence, not dependent abuse.

In addition, Nurse Moerke argues that the Act does not apply unless the defendant “had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more needs”, and such a relationship did not exist between her and Plaintiff. The Court agrees.

“The Act does not apply unless the defendant healthcare provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult's relationship with the dependent - not the dependent's professional standing - that makes the defendant potentially liable for neglect.” (Winn v. Pioneer Medical Group, Inc., 63 Cal.4th at 152.) The assessment of care and custody status is not based on a “task-by-task basis” but requires the “focus on the extent of dependence by a patient on a health care provider rather than on the nature of the particular activities that comprised the patient-provider relationship.” (Steward v. Superior Court (2017) 16 Cal.App.5th 87, 103-104.)

In Winn v. Pioneer Medical Group, Inc., the heirs of a decedent brought an Elder Abuse claim against Pioneer Medical Group and its employee, Dr. Csepanyi relating to outpatient care that the doctor was providing. (Winn v. Pioneer Medical Group, Inc., 63 Cal.4th at 153.) It was alleged that Dr. Csepanyi failed to perform a vascular exam on the decedent despite the doctor’s finding that the decedent had peripheral vascular disease. (Id.) Over several months of continued out patient visits, the decedent's foot continued to become worse, and he was ultimately admitted to the hospital for gangrene. (Id.) Pioneer Medial Group demurred arguing they were not care custodians. The trial court sustained the demurrer on this ground, and the plaintiff appealed.

The Appellate Court affirmed, noting that the Legislature “did not intend[] 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.” It further found that that defendants’ treatment of the decedent at outpatient “clinics” operated by the defendants was intermittent and did not create a caretaking or custodial relationship between the decedent and the defendants. The court noted there were “[n]o allegations in the complaint support an inference that [decedent] relied on defendants in any way distinct from an able-bodied and fully competent adult’s reliance on the advice and care of his or her medical providers.” (Id.)

So it is here. The Complaint alleges Plaintiff underwent a one-time cosmetic procedure under Defendants’ care. (Compl. ¶ 28.) While being lifted off of the operating table, Defendants and each of them dropped Plaintiff. (Compl. ¶ 29-30.) There are no alleged facts that would support a finding that Plaintiff retained Defendants to provide ongoing caretaking or custodial care. Indeed, the alleged care here was far less frequent than that in Winn. As such, a dependent adult abuse claim must fail, and the Court sustains the demurrer to this claim.

Plaintiff cites two cases which she claims support her position that Defendants’ mere failure to secure her to the operating table constitutes dependent abuse, rather than mere professional negligence. Neither case supports her argument. Both involve far more egregious facts than what is alleged (or could be alleged) in this case.

In Covenant Care Inc. v. Superior Court (2004) 32 Cal.4^th 771, the defendants allegedly “withh[e]ld essential care, treatment and medical services from decedent including … food, fluids, medicine, and basic nursing care including basic palliative care.” (Id. at 777.) The plaintiffs alleged that while decedent was at the defendants’ nursing facility, the “defendants knew he was suffering from Parkinson’s disease and was unable to care for his personal needs. Defendants nevertheless failed to provide decedent with proper care, nutrition, hydration, and medication. … Decedent was left in his bed, unattended and unassisted, for excessively long periods. Although decedent increasingly could not feed or hydrate himself, he was for long periods not provided assistance with these activities. As a result, decedent was inadequately stimulated, became malnourished, and lost much of his body weight. Decedent was left in his excrement for long periods; he developed ulcers on his body that exposed muscle and bone and became septic; and he also became severely dehydrated.” (Id.) Plaintiffs further alleged that the defendants “deliberately failed to report such symptoms, neglect, and abuse to public authorities as they were legally required to do. Moreover, defendants misrepresented decedent’s condition and failed to inform plaintiffs of his true condition, thus concealing his deterioration from plaintiffs”. (Id.) These allegations are far more egregious than what is alleged here.

Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4^th 426, is similarly distinguishable. There, “decedent was a resident at Country Villa. While there, a pressure ulcer on her right heel worsened, because Country Villa failed to provide adequate pressure relief. She also suffered a painful fall when Country Villa's staff dropped her. Country Villa additionally failed to provide for decedent’s personal hygiene, leaving her in filthy and unsanitary conditions. Decedent further developed aspirational pneumonia as a result of Country Villa’s failure to provide her with the proper diet of pureed food, monitor her food intake, and assist with her eating. As a result, decedent died from respiratory failure, aspirational pneumonia, bulbar dysfunction and Parkinsonism.” (Id. at 430.)

Unlike in Covenant Care and Country Villa, this case does not involve a systemic failure to provide basic care. Rather, Plaintiff fell from an operating table once because she was not properly secured. While the Court does not wish to diminish Plaintiff’s complaint and her allegations may support a claim for medical negligence, they do not support a claim for dependent care abuse.

Nurse Moerke argues that Plaintiff is not entitled to attorneys’ fees because she does not have a viable claim for dependent adult abuse. As Plaintiff concedes her prayer for attorneys’ fees is based on her dependent adult abuse claim, this request must be stricken since the Court concludes she has not properly stated an abuse claim.

For the foregoing reasons, the Court SUSTAINS Danielle Moerke’s demurrer to and motion to strike the Complaint without leave to amend.

[1] The demurrer refers to a First Amended Complaint, but there is no such pleading. The Court interprets the demurrer as one to the original (and only) complaint.

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

YEVGINE ANGIE DAGBASHYAN,

Plaintiff,

CARL MICHAEL TRUESDALE, M.D., et al.,

Defendants.

Case No.: 25SMCV00033

Hearing Date: April 15, 2025

[TENTATIVE] order RE:

DEFENDANT kiarash paydar, m.d.’s

DEMURRER to AND motion to

STRIKE complaint

This case arises out of a claim for professional negligence. Plaintiff Yevgine Dagbashyan was a 42 year old woman who was undergoing cosmetic surgery (a face lift) when she fell from the operating table, injuring her head, brain, nose, lips, the entirety of her face, knees, and arms. Plaintiff claims Defendants, including Kiarash Paydar, M.D., were negligent. The operative complaint alleges claims for professional negligence, negligent hiring, supervision and retention, and dependent adult abuse.

This hearing is on Dr. Paydar’s demurrer to and motion to strike the Complaint. Dr. Paydar argues that (1) Plaintiff’s claims for negligent hiring, supervision and retention fail because Dr. Paydar was not an employer of any other person working at the time of the incident; (2) Plaintiff’s claim for dependent adult abuse fails because Plaintiff has only alleged a claim of professional negligence which is not enough to support a dependent abuse claim, and (3) Plaintiff’s reservation of the right to allege a punitive damages claim should be stricken because Plaintiff’s allegations cannot support a claim for punitive damages.

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 or motion to strike 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. (Code Civ. Proc. §§ 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. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) Dr. Paydar submits the Declaration of Raffi Bagdasaryan who attests the parties met and conferred by telephone on February 20, 2025, more than five days before the demurrer was filed on March 3, 2025. (Bagdasaryan Decl. ¶ 3.) This satisfies the requirements of Code Civ. Proc. §§ 430.41, 435.5.

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿

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.)

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 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.”).) 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.)

Negligent Hiring, Supervision and Retention

Dr. Paydar argues that he was not an employer and, therefore, cannot be liable for negligent hiring, supervision or retention. The Complaint alleges, however, that Dr. Paydar was an employer. Specifically, it alleges that “Defendant-PAYDAR …. negligently hired, supervised and/or retained employees” and he knew or should have known that his “employees were unfitted [sic] to perform their job duties.” On a demurrer, the Court must accept these allegations as true.

Dr. Paydar argues that these allegations are entirely conclusory and do not meet the “heightened” standard for pleading a claim for negligent hiring, supervision or retention. But Dr. Paydar does not cite any authority that this claim is subject to a heightened pleading standard. Rather, the claim is subject to fact pleading, and Plaintiff need not plead evidentiary facts, only ultimate facts. Accordingly, the Court overrules Dr. Paydar’s demurrer to Plaintiff’s negligent hiring, supervision and retention claim.

Dependent Abuse Claim

Dr. Paydar argues that at best, Plaintiff has only alleged a claim for professional negligence which cannot support a dependent abuse claim. The Court agrees.

A cause of action for Dependent Adult Abuse is a statutory claim and must be alleged with particularity. (See¿Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)¿Acts that constitute mere professional negligence do not constitute dependent adult abuse. (Id.)¿

“In order to obtain the remedies available in¿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.¿The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32; see¿also Carter v. Prime Healthcare Paradise Valley LLC, 198 Cal.App.4th at 405 (“To recover the enhanced remedies available under the [Dependent] ¿Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the¿provider's care or custody of the [dependent].”).) “[T]he legislature intended the [Dependent] Abuse¿Act to sanction only egregious acts of misconduct distinct from¿professional negligence....” (Covenant Care, 32 Cal.4th at 784.)¿

Here, Plaintiff has not alleged specific facts that would support a finding of reckless, oppressive, fraudulent, or malicious conduct. At best, Plaintiff’s allegations that she fell while under the care of Defendants and while she was under anesthesia, support a finding of negligence.

It is true Plaintiff alleges Defendants’ actions were “reckless” and “neglectful”, but on a demurrer, the Court does not assume the truth of contentions or conclusions of law. (Moore v. Regents of University of California¿(1990) 51 Cal.3d 120, 125.¿“Facts, not conclusions, must be pleaded.” (Zumbrun v. University of Southern California¿(1972) 25 Cal.App.3d 1, 8.)¿ Further, where, as here, statutory remedies are invoked, the facts “must be pleaded with particularity.” (Covenant Care, 32 Cal.4th at 790.) Accordingly, Plaintiff’s “[u]se of such terminology [as reckless and neglectful] cannot cure¿[the] failure to point out exactly how or in what manner the [Dr. Paydar has] transgressed.” (Lavine v. Jessup¿(1958) 161 Cal.App.2d 59, 69.)

In Covenant Care Inc. v. Superior Court (2004) 32 Cal.4th 771, the defendants allegedly¿“withh[e]ld essential care, treatment and medical services from decedent including … food, fluids, medicine, and basic nursing care including basic palliative care.” (Id. at 777.) The plaintiffs alleged that while decedent was at the defendants’ nursing facility, the “defendants knew he was suffering from Parkinson’s disease and was unable to care for his personal needs. Defendants nevertheless failed to provide decedent with proper care, nutrition, hydration, and medication. … Decedent was left in his bed, unattended and unassisted, for excessively long periods. Although decedent increasingly could not feed or hydrate himself, he was for long periods not provided assistance with these activities. As a result, decedent was inadequately stimulated, became malnourished, and lost much of his body weight. Decedent was left in his excrement for long periods; he developed ulcers on his body that exposed muscle and bone and became septic; and he also became severely dehydrated.” (Id.) The plaintiffs further alleged that the defendants “deliberately failed to report such symptoms, neglect, and abuse to public authorities as they were legally required to do. Moreover, defendants misrepresented decedent’s condition and failed to inform plaintiffs of his true condition, thus concealing his deterioration from plaintiffs”. (Id.)

In Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, “decedent was a resident at Country Villa. While there, a pressure ulcer on her right heel worsened, because Country Villa failed to provide adequate pressure relief. She also suffered a painful fall when Country Villa's staff dropped her. Country Villa additionally failed to provide for decedent’s personal hygiene, leaving her in filthy and unsanitary conditions. Decedent further developed aspirational pneumonia as a result of Country Villa’s failure to provide her with the proper diet of pureed food, monitor her food intake, and assist with her eating. As a result, decedent died from respiratory failure, aspirational pneumonia, bulbar dysfunction and Parkinsonism.” (Id. at 430.)

Unlike in Covenant Care and Country Villa, this case does not involve a systemic failure to provide basic care. Rather, Plaintiff fell from an operating table once because she was not properly secured. While the Court does not wish to diminish Plaintiff’s complaint and her allegations may support a claim for medical negligence, they do not support a claim for dependent care abuse.

Dr. Paydar also argues that the Act does not apply unless the defendant “had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more needs”, and such a relationship did not exist between him and Plaintiff. The Court agrees.

“The Act does not apply unless the defendant healthcare provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult's relationship with the dependent - not the dependent's professional standing - that makes the defendant potentially liable for neglect.” (Winn v. Pioneer Medical Group, Inc., 63 Cal.4th at 152.) The assessment of care and custody status is not based on a “task-by-task basis” but requires the “focus on the extent of dependence by a patient on a health care provider rather than on the nature of the particular activities that comprised the patient-provider relationship.” (Steward v. Superior Court (2017) 16 Cal.App.5th 87, 103-104.)

In Winn v. Pioneer Medical Group, Inc., the heirs of a decedent brought an Elder Abuse claim against Pioneer Medical Group and its employee, Dr. Csepanyi relating to outpatient care that the doctor was providing. (Winn v. Pioneer Medical Group, Inc., 63 Cal.4th at 153.) It was alleged that Dr. Csepanyi failed to perform a vascular exam on the decedent despite the doctor’s finding that the decedent had peripheral vascular disease. (Id.) Over several months of continued out patient visits, the decedent's foot continued to become worse, and he was ultimately admitted to the hospital for gangrene. (Id.) Pioneer Medial Group demurred arguing they were not care custodians. The trial court sustained the demurrer on this ground, and the plaintiff appealed.

So it is here. The Complaint alleges Plaintiff underwent a one-time cosmetic procedure under Defendants’ care. (Compl. ¶ 28.) While being lifted off of the operating table, Defendants and each of them dropped Plaintiff. (Compl. ¶ 29-30.) There are no alleged facts that would support a finding that Plaintiff retained Defendants to provide ongoing caretaking or custodial care. Indeed, the alleged care here was far less frequent than that in Winn. As such, a dependent adult abuse claim must fail, and the Court sustains the demurrer to this claim.