Judge: Frank M. Tavelman, Case: 22GDCV00897, Date: 2023-03-29 Tentative Ruling
SUBMITTING
ON THE TENTATIVE
The Court tries to post tentative rulings prior to any
hearing on many matters, but not all. If
the parties wish to submit on the tentative ruling and avoid a court
appearance, all counsel must confer and agree to do so. Each counsel must contact the court and
advise they are submitting on the matter, that they have spoken to opposing
counsel who has indicated they too are submitting and will be calling the
court. All submitting counsel must call Dept A by 9:00 a.m. on the day of the
hearing and state that all parties will submit on the tentative ruling or in lieu
may indicate the party is submitting during calendar check-in and notice of the
ruling must be served as indicated in the tentative. If any party declines to
submit on the tentative ruling, then no telephone call is necessary, and all
parties should appear at the hearing in person or remotely.
Case Number: 22GDCV00897 Hearing Date: March 29, 2023 Dept: A
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
TENTATIVE
RULING
MARCH 29,
2023
DEMURRER
& MOTION TO STRIKE
Los Angeles Superior Court
Case # 22GDCV00897
MP: KSM Healthcare, Inc. dba Drier’s Nursing
Care Center (Defendant)
RP: None
ALLEGATIONS:
On November 17, 2022, Willia D.
Osby (“Plaintiff”) filed a complaint ("FAC") in Pro Per against KSM
Healthcare, Inc. dba Drier’s Nursing Care Center (“Defendant”). The Complaint
contains causes of action for (1) Elder Abuse and (2) Wrongful Death.
Plaintiff alleges that on June
29, 2019, her brother, Frank Osby (“Decedent”), was transferred to Drier’s
Nursing Care Center until July 1, 2019. (Compl. ¶ 3.) During Decedent’s stay at
the facility, Decedent suffered a stroke. (Id. ¶ 27.) After speaking
with Decedent, Plaintiff, Decedent’s sister, reached out to the nurse’s station
with concerns that Decedent’s responses were unusual, and his speech was
slurred. (Id. ¶ 7.) Plaintiff alleges these concerns were ignored. (Id.)
Plaintiff further alleges that she inquired of a Certified Nursing Assistant
regarding Decedent’s lack of treatment, but they refused to evaluate Decedent
for a stroke. (Id.) On June 30th, 2019, Defendant’s staff continued
insisting that Decedent was fine. (Id. ¶ 6.) On July 1, 2019, Plaintiff
planned to meet with the Director of Nursing to express her concerns, but
Decedent was transported by ambulance to St. Joseph Medical Center Burbank. (Id.
at ¶8.)
This case is related to an action
filed by Decedent prior to his passing, in which Plaintiff now serves as
Decedent’s successor in interest. That action bears the case number 20STCV33920.
Plaintiff originally filed this
action with the Glendale Courthouse, Department E. On December 13, 2022, the
Glendale court ordered this case transferred to Burbank Department A, as the two
cases were related within the meaning of CRC Rule 3.300(a). No motion for
consolidation has been brought.
HISTORY:
On January 18, 2023, Defendant filed its Demurrer and Motion
to Strike Portions of Plaintiff’s Complaint. No opposition was filed.
RELIEF REQUESTED:
Defendant demurs to the entire action on
grounds Plaintiff does not have standing.
Defendant demurs to the first cause of action
for elder abuse on grounds it fails to state sufficient facts. Defendant demurs
to the second cause of action for wrongful death on grounds it is time barred.
Defendant moves to strike the following
portions of Plaintiff’s complaint:
1.
At page 9, lines 9-10, as follows: “Decedent is
entitled to punitive damages in an amount to be determined according to proof.”
2.
At page 9, lines 15-16, in their entirety, as follows: “2.
Punitive damages according to proof, including treble punitive number damages,
per Civil Code section 3345.”
ANALYSIS:
I.
LEGAL
STANDARDS
Demurrer
The grounds for a demurrer must appear on the
face of the pleading or from judicially noticeable matters. (C.C.P. §
430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a
demurrer hearing is whether the complaint states a cause of action. (Ibid.)
A demurrer assumes the truth of all factual,
material allegations properly pled in the challenged pleading. (Blank v.
Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable,
the plaintiff’s allegations must be accepted as true for the purpose of ruling
on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981)
123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions;
conclusions of fact or law alleged in the complaint; facts impossible in law;
or allegations contrary to facts of which a court may take judicial
notice. (Blank, supra, 39 Cal. 3d at p. 318.)
Motion to Strike
Motions
to strike are used to reach defects or objections to pleadings that are not
challengeable by demurrer, such as words, phrases, and prayers for damages.
(See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false
allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting
a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion
made pursuant to Section 435 [notice of motion to strike whole or part of
complaint], 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.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations
that are not essential to the claim or those not pertinent to or supported by
an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike
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.” (C.C.P. § 436
(b).)
To
succeed on a motion to strike punitive damages allegations, it must be said as
a matter of law that the alleged behavior was not so vile, base, or
contemptible that it would not be looked down upon and despised by ordinary
decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217,
1228-1229.)
Standing
C.C.P. § 377.72(a) states that a person who seeks to commence an action
or proceeding or to continue a pending action or proceeding as the decedent's
successor in interest under this article, shall execute and file an affidavit
or a declaration under penalty of perjury under the laws of this state stating
all of the following:
1) The decedent's name.
2) The date and place of the decedent's death.
3) “No proceeding is now pending in California
for administration of the decedent's estate.”
4) If the decedent's estate was administered, a
copy of the final order showing the distribution of the decedent's cause of
action to the successor in interest.
5) Either of the following, as appropriate, with
facts in support thereof:
a)
“The
affiant or declarant is the decedent's successor in interest (as defined
in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in
the action or proceeding.”
b)
“The
affiant or declarant is authorized to act on behalf of the decedent's successor
in interest (as defined in Section 377.11 of the California Code of
Civil Procedure) with respect to the
decedent's interest in the action or proceeding.”
6) “No other person has a superior right to
commence the action or proceeding or to be substituted for the decedent in the
pending action or proceeding.”
7) “The affiant or declarant affirms or declares
under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.”
C.C.P. § 377.72(c) requires a certified copy of the decedent's death
certificate be attached to the affidavit or declaration.
Elder Abuse under Welf. & Inst. Code, § 15610.07
To plead elder
or dependent adult abuse, the plaintiff must allege “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].” (Carter v. Prime
Healthcare Paradise Valley LLC¿(2011) 198 Cal.App.4th 396, 406-07.) “The
plaintiff must also allege . . . that the neglect caused the elder or dependent
adult to suffer physical harm, pain or mental suffering.” (Id.¿at 407.)
“[T]he¿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.” (Id.¿(quoting¿Covenant
Care, Inc. v. Superior Court¿(2004) 32 Cal.4th 771, 790).)¿¿
Case law is clear that, “‘neglect’ within the meaning of
Welfare and Institutions Code section 15610.57 covers an area of misconduct
distinct from ‘professional negligence.’”¿ (Covenant Care, Inc. v. Superior
Court¿(2004) 32 Cal.4th 771, 783.)¿ “As used in the Act, neglect refers not
to the substandard performance of medical services but, rather, to the ‘failure
of those responsible for attending to the basic needs and comforts of elderly
or dependent adults, regardless of their professional standing, to carry out
their custodial obligations.’”¿ (Id.)¿¿¿
In order to distinguish Dependent Adult Abuse from
Professional¿Negligence, there must be a showing of recklessness, fraud,
malice, or oppression. (See¿Covenant Care, Inc., supra, 32 Cal.4th¿at
783.) “Oppression, fraud, and malice involve intentional, willful, or conscious
wrongdoing of a despicable or injurious nature.” (Carter v. Prime Healthcare
Paradise Valley¿LLC (2011) 198 Cal.App.4th¿396, 405 (internal quotation
marks omitted).) Recklessness requires deliberate disregard of a high degree of
probability an injury will occur. (Id.) The enhanced remedies for Elder
Abuse are only available for “acts of egregious abuse against elder and
dependent adults.” (Id.)¿There must be an allegation of authorization or
ratification on the part of a managing agent in order to recover damages for
dependent adult abuse against corporate defendants. (See Civ. Code, § 3294;
Cal.¿Welf. & Inst. Code, § 15657(c).)¿¿
II.
MEET
& CONFER
C.C.P. § 430.41(a) requires that the demurring party meet
and confer with the party who filed the pleading that is subject to the
demurrer at least 5 days before the date the responsive pleading is due, by
telephone or in person, for the purpose of determining if the parties can
resolve the objections to be raised in the demurrer. The demurring party must
file and serve a declaration detailing their meet and confer efforts.
C.C.P.
§ 435.5(a) provides that before filing a 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 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.
Failure to meet and confer is not grounds to overrule or
sustain a demurrer, or grant or deny a motion to strike. (C.C.P. §§
430.41(a)(4), 435.5(a)(4).)
Upon review of the record the Court finds that meet and
confer requirements have been satisfied to code. (Kral Decl., ¶¶ 2-3.)
III.
MERITS
Demurrer
Standing
Defendant argues that Plaintiff lacks standing to bring this action.
Defendant argues Plaintiff brings this action representing the interests of her
brother. Defendants argue that as a non-attorney, Plaintiff cannot represent
the interests of another in court.
Plaintiff’s complaint contains motion papers and a minute order from the related
case 20STCV33920. (Compl. Exh. 3.) These submissions include Plaintiff’s
declaration in support of her being assigned as Decedents successor in
interest. (Id.) The Court finds these submissions do not constitute the
affidavit or declaration required by C.C.P. § 377.72. These documents all bear the
case number of the related case and were not filed as to this action. As
Plaintiff has not submitted the required affidavit or declaration, she is not
currently successor in interest for the purposes of this action.
As such, the Court SUSTAINS the
demurrer in its entirety with 20 days’ leave to amend.
Elder Abuse – Demurrer
Sustained with leave to amend
Defendant argues that Plaintiff does not allege sufficient facts to
constitute an action for elder abuse.
Plaintiff alleges the following facts pertaining to Defendant. Decedent
was transferred to Defendant’s facility to continue wound care treatment of a
chronic left foot ulcer and care of his other medical conditions. (Compl. ¶ 1.)
On June 22, 2019, Defendant transferred Decedent to Providence St. Joseph
Medical Center where he was treated for, among other things, GI bleeding. (Id.
¶ 2.) Decedent was discharged
from St. Joseph’s and transferred back to Defendant's facility where he was a
resident until July 1, 2019. (Id. ¶ 3.) On June 29, 2019, Plaintiff arrived at Defendant’s facility and
asked several staff members questions about Decedent’s condition but received
no responses. (Id. ¶ 7.) On
June 30, 2019, Decedent suffered a stroke, which went unnoticed, undiagnosed,
and untreated by any healthcare provider at Defendant’s facility, even after
Plaintiff repeatedly alerted personnel of Decedent's altered state. (Id.
¶ 27.) That before Plaintiff
could speak with the Director of Nursing on July 1st, an ambulance transferred
Decedent to St. Joseph’s Emergency Department to treat a “bleed of unknown
origin.” (Id. at ¶8-9.) Neither
stroke nor stroke symptoms were listed on Decedent's medical records between
healthcare facilities. (Id. ¶¶ 1-4.)
The Court does not find the facts
pled are with sufficient particularity to support an Elder Abuse claim. Plaintiff
alleges Defendants did not timely notice Descendent had suffered a stroke. Plaintiff
alleges that Defendant’s staff did not listen to her warnings about Decedent’s
strange behavior, but fails to articulate what the strange behavior was. For example, depending on the description of
what Plaintiff noted, those symptoms may not be consistent with a stroke. While the Court agrees that slurred speech can
be a symptom, depending on what was otherwise described by the Plaintiff it may
have mitigated a conclusion of stroke.
Likewise, Plaintiff does not articulate what specifically was said to
the staff. There can be a difference
between, for example, “he seemed off and mumbled some words” and other
observations that could be more symptomatic of a stroke. Plaintiff alleges that
when Defendant did notice Decedent’s condition, he was transferred to a
hospital for treatment. None of these more vague allegations speak to the level
of conduct required to distinguish this case as one of elder abuse, especially
in light of the need to plead this cause of action with particularity so as to
distinguish it from a negligence cause of action. Plaintiff alleges that
Defendants acted with the required recklessness,
fraud, malice, and oppression, but she does not state any facts on which to
base these allegations. Plaintiff does not describe any act of Defendant which
was beyond that of professional negligence. It is possible Plaintiff could
allege such facts, but she has not done so here.
As such, the demurrer is SUSTAINED
with 20 days leave to amend as to the elder abuse cause of action.
Wrongful Death – Demurrer
sustained without leave to amend
Defendants argue that Plaintiff’s claim for wrongful death is barred by the
statute of limitations (“SOL”).
C.C.P. § 340.5 provides that the SOL for injury or death against a
healthcare provider based upon professional negligence is three years after
date of the injury or one year after discovery of the injury. C.C.P. § 340.5
defines professional negligence as a negligent act or omission to act by a
health care provider in the rendering of professional services, which act or
omission is the proximate cause of a personal injury or wrongful death,
provided that such services are within the scope of services for which the
provider is licensed, and which are not within any restriction imposed by the
licensing agency or licensed hospital.
Defendants argue Plaintiff’s filing is outside of the SOL because the
injury, Decedent’s death, was discovered upon his passing on November 17, 2019,
and therefore the shorter statute of limitation of one year applies. (Dmr, pgs.
5-6, Compl. ¶ 11.) The Court finds Plaintiff’s filing on November 17, 2022
to be outside the one year SOL period. As such, the demurrer is SUSTAINED
without leave to amend as to the wrongful death cause of action.
Motion to Strike - Moot
The motion to strike punitive
damages is mooted by virtue of the Court sustaining the demurrer to Plaintiff’s
cause of action for elder abuse with leave to amend.
IV.
CONCLUSION
Defendant’s demurrer as to the first cause of action for elder abuse is SUSTAINED
with 20 days’ leave to amend. Defendant’s demurrer as to the second cause of
action for wrongful death is SUSTAINED without leave to amend. Defendant’s
motion to strike is moot in light of the Court granting
leave to amend. Plaintiff must also comply
with C.C.P. § 377.72(a).
RULING:
In the event the parties submit on this
tentative ruling, or a party requests a signed order or the court in its
discretion elects to sign a formal order, the following form will be either
electronically signed or signed in hard copy and entered into the court’s
records.
ORDER
Defendant
KSM Healthcare, Inc. dba Drier’s Nursing Care Center’s Demurrer
and Motion to Strike came on regularly for hearing on March 29, 2023 (after
being continued by the Court from the prior week), with appearances/submissions
as noted in the minute order for said hearing, and the court, being fully
advised in the premises, did then and there rule as follows:
THE
DEMURRER IS SUSTAINED AS TO THE FIRST CAUSE OF ACTION WITH 20 DAYS’ LEAVE TO
AMEND.
THE
DEMURRER IS SUSTAINED AS TO THE SECOND CAUSE OF ACTION WITHOUT LEAVE TO AMEND.
PLAINTIFF
SHALL COMPLY WITH C.C.P. § 377.72(a).
THE MOTION TO STRIKE IS MOOT.
DEFENDANT
TO GIVE NOTICE, UNLESS ALL PARTIES WAIVE NOTICE.
IT IS SO ORDERED.
DATE: March
29, 2023
_______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles