Judge: Elaine W. Mandel, Case: 25SMCV00075, Date: 2025-05-29 Tentative Ruling

Case Number: 25SMCV00075    Hearing Date: May 29, 2025    Dept: P

Tentative Ruling

Dowley v. Montage Recovery Solutions, Case no. 25SMCV00075

Hearing date May 29, 2025

Defendants Montage Recovery Solutions, Montage Recovery CA, LLC and Gonzelez’s Demurrer with Motion to Strike

Plaintiff S. Dowley sues defendants Montage Recovery Solutions, LLC, Montage Recovery CA, LLC and director of nursing Gonzalez for dependent adult abuse/neglect, negligence and negligent hiring. Plaintiff was admitted to Montage’s facility following a suicide attempt via overdose. Plaintiff alleges Montage knew of his history but failed to ensure he took his medication properly and left medicine unsecured, allowing plaintiff to attempt suicide again.

Defendants demur to the claim for dependent abuse and moves to strike prayers for: (1) attorney’s fees and costs pursuant to Welf. & Inst. Code §15657(a) (as to the first claim only); (2) punitive damages; (3) costs of suit; and (4) related allegations paras. 66, 69-70. Plaintiffs oppose.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must set forth the essential facts of the case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099. In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.

To prove dependent abuse, plaintiff must establish: (1) plaintiff is a dependent adult; (2) defendant had care or custody of plaintiff; (3) one or more of defendant’s employees failed to use the degree of care that a reasonable person in the same situation would have used by failing to protect plaintiff from health and safety hazards and failing to provide medical care for physical and mental health needs; (4) substantial factor; (5) an officer, director, or managing agent of defendant ratified or authorized the employees’ conduct; and (6) the employees acted with recklessness, malice, oppression, or fraud. CACI 3103/Welf. & Inst. Code §15610.57.

Montage argues plaintiffs fail to plead facts demonstrating sufficiently egregious neglect. Plaintiff must prove “by clear and convincing evidence” that “defendant has been guilty of recklessness, oppression, fraud, or malice.” Welf. & Inst. Code §15657. Recklessness involves "'deliberate disregard' of the 'high degree of probability' that an injury will occur" and "rises to the level of a 'conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’” Delaney v. Baker (1999) 20 Cal.4th 23.

Plaintiff alleges he was a dependent adult under the case and custody of defendants. Compl. paras. 3, 9, 13, 15-17. Plaintiff alleges Montage knew of his previous suicide attempt via overdose and knew his mental health was such that he was at risk for further attempts. Compl. para. 18-21. Plaintiff alleges he told Montage employees he was not taking his medications as required, and employees merely gave a verbal warning, rather than instituting a care plan to ensure he took his medication as necessary. Compl. para. 46. Plaintiff alleges Montage employees left the medication storage unlocked, allowing plaintiff to make a second suicide attempt. Compl. para. 31.

Montage had custody of plaintiff, was in the business of giving psychiatric care to at-risk patients, knew of plaintiff’s mental health history and previous suicide attempt, and were explicitly told by plaintiff that he was not taking his medication as required. Despite this, Montage failed to institute a care plan for plaintiff and left medication unsecured and within his ability to access. These facts as pled demonstrate egregious neglect, in the form of recklessness.

Montage argues plaintiff pled professional negligence, not dependent abuse. Montage cites Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, arguing a distinction exists between poor care and abuse. Carter held poor treatment resulting in pneumonia did not constitute neglect “absent specific factual allegations indicating at least recklessness.” Carter, supra at 408.

Plaintiff alleged specific acts of recklessness, i.e., not implementing a care plan after he revealed his failure to take medication, not securing medication as required, despite being aware of the history of attempted suicide via overdose. Carter is inapplicable.

Plaintiff alleges Montage received three class “A” citations from the Cal. Department of Health. Compl. para. 43. Montage argues the citations are insufficient to establish neglect. In proving neglect, plaintiffs may use regulatory violations to establish “negligent failures.” See Norman v. Life Care Centers (2003) 107 Cal.App.4th 1233. Plaintiff alleges the citations arose from Montage’s failures to secure medication and sufficiently staff the facility such that patients, such as plaintiff, were properly supervised at all times. Compl. paras. 54-55. These citations arise from the alleged negligent failures and bolster claims of recklessness and neglect.

Montage argues plaintiff cannot establish ratification. To bring a dependent adult abuse cause of action against an employer, Welf. & Inst. Code §15657 requires plaintiff to meet the standards of Civ. Code §3294(b) by alleging an officer, director, or managing agent: (i) personally engaged in recklessness, malice, oppression, or fraud, or (ii) authorized reckless, malicious, oppressive, or fraudulent conduct of an employee, or; (iii) ratified reckless, malicious, or fraudulent conduct of an employee.

Plaintiff alleges Montage has a policy of locking all medications, but Montage’s employees had no knowledge of this policy. Compl. para. 48-49. Plaintiff alleges the Cal. Dept. of Health citations found multiple points of failure in Montage’s operations such that de facto ratification is established. Compl. paras. 53-56. This is insufficient. Plaintiff fails to allege facts demonstrating that an officer or managing agent personally engaged in reckless conduct or otherwise ratified employee actions. These allegations are necessary and must be pled with specificity. SUSTAINED with 15 days leave to amend.

Per Cal. Code Civ. Proc. §3294, punitive damages are only awardable when defendant's actions demonstrate “oppression, fraud, or malice,” and such allegations must be pleaded with specificity. Punitive damages are not supported by negligence or gross negligence. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. Wel. & Inst. Code §15657 provides where it is proven by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or abandonment, and defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, plaintiff is entitled to attorney’s fees and costs pursuant to that section.

The motion to strike arises entirely from arguments that plaintiff cannot sustain the first cause of action. The court sustained demurrer to the first cause of action with leave to amend. The prayers for punitive damages, attorney’s fees and costs, costs of suit and the underlying allegations are subject to change pending amendment. The motion to strike is MOOT.