Judge: Erick L. Larsh, Case: 2021-01192314, Date: 2023-05-18 Tentative Ruling

Demurrer

Defendant Hope Pak’s Demurrer to the Second Amended Complaint is SUSTAINED, without leave to amend, as to the 1st Cause of Action for Elder Abuse as follows.

The 1st cause of action for elder abuse against PAK is not sufficiently and specifically pled as required. The new allegations in paragraphs in paragraphs 22-24, 26, 29-31, 33-36, 39-43, and 45-50 still do not allege sufficient facts to meet the heightened pleading requirements for a statutory claim for elder abuse/neglect as there are no allegations that PAK acted with knowledge that injury was substantially certain to befall Mr. Hull or that PAK acted with conscious disregard of the high probability of such injury in order to impose personal liability against her. Plaintiff pleads only legal conclusions (see e.g., ¶¶ 22, 23, 26, 41, and 45) and fails to plead the acts constituting elder abuse with particularity as required. A cause of action for elder abuse is subject to the general rule that statutory causes of action must be pled with particularity. (Covenant Care, supra, 32 Cal.4th at 790.)

The SAC does not allege that PAK, as opposed to Defendant BOK, acted maliciously, fraudulently, or oppressively; that PAK personally observed Mr. Hull’s Scabies infection and ignored it; that PAK personally observed Mr. Hull’s scratching, bleeding wounds, and spreading of the rash and neglected care; or that PAK was the present on October 26, 2020 when Mr. Hull was found naked on the floor with a blanket on him; or that PAK was directly aware of any neglect.

The SAC also does not allege facts showing how PAK’s conduct or inaction, as opposed to Defendant BOK’s generally, caused Mr. Hull to suffer physical harm, pain, or mental suffering as required. (See Carter, supra, 198 Cal.App.4th at 406-407 [“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.”].)

As noted by PAK in the Demurrer, the only case in California which includes a claim for elder abuse/ neglect against the individual Administrator/Owner is Delaney v. Baker (1999) 20 Cal.4th 23. Delaney, however, is procedurally inapposite as it did not involve a demurrer and the issue herein was “whether a health care provider which engages in the ‘reckless neglect’ of an elder adult within the meaning of section [Welfare and Institutions Code section] 15657 will be subject to section 15657's heightened remedies, or if section 15657.2 forbids the application of section 15657 under these circumstances.” (Delaney, supra, 20 Cal.4th at 27.)

Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.55h 85 cited by Plaintiffs does not support a finding of personal liability against a hospital facilitator’s Administrator/Owner. Samantha B. involved a suit by former patients in an acute psychiatric hospital who suffered sexual abuse by a hospital employee against the hospital and its management company only.

Moreover, the cases cited by Plaintiffs that the failure to implement a care plan that PAK knew was required for Mr. Hull’s health, safety, and well-being constitutes elder abuse are all inapposite as they involved actions against the nursing home only, not the Administrator/Owner. (See Intrieri v. Superior Court (2004) 117 Cal.App.4th 72 [action against nursing home for elder abuse]; Covenant Care, supra, 32 Cal.4th 771 [action against care facility]; Carter, supra, 198 Cal.App.4th 396 [action against hospital and skilled nursing facility]; Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233 [action against licensed nursing facility]; In re Conservatorship of Gregory (2000) 80 Cal.App.4th 514 [action against nursing home]; Country Villa Claremont Health Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426 [action against skilled nursing facility].

And, Plaintiffs’ contention that the Department of Social Services’ deficiencies related to Mr. Hull demonstrate neglect per se is inapposite as to whether a claim for elder abuse is sufficiently pled against PAK. Klein v. BIA Hotel Corporation (1996) 41 Cal.App.4th 1133 involved an action against the residential care facility only and did not seek to assert personal liability against the facility’s owner.

Moving Party is to give notice.

Motion to Strike

Defendant Hope Pak’s Motion to Strike Portions of the Second Amended Complaint is GRANTED, in part, without leave to amend, as follows.

The Motion is GRANTED, in part, as Paragraph 45, strike “HOPE PAK”; GRANTED as to Paragraph 50; GRANTED, in part, as to Paragraph 87, strike “HOPE PAK”; GRANTED, in part, as to Paragraph 89, strike “and each of them”; and GRANTED, in part, as to Paragraph 95, strike “HOPE PAK”.

The Motion is DENIED as to Paragraphs 81, 84, 89, 91, and 113, 115 as they refer to “Defendants” not PAK, specifically.

The Motion is DENIED as to Prayer for Relief, Item 3 and 4.

Moving Party is to give notice.