Judge: Frank M. Tavelman, Case: 22STCV01557, Date: 2023-02-03 Tentative Ruling

Case Number: 22STCV01557    Hearing Date: February 3, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

MP:     Bin Si, by and through her guardian ad litem Daisy Lee (Plaintiff)

RP:     David Y. Lin, D.O. (Defendant)

ALLEGATIONS/HISTORY:

Daisy Lee (“Lee”), as guardian ad litem for Bin Si (“Plaintiff”) filed the instant action against The Arcadian Retirement Center, Martha Garcia, David Lin, Beverly Starnes, Janet Elder, Evelyn Garcia, Amber Branconier, and Does 1 through 50 (“Defendants”) on January 13, 2022. On June 23, 2022, Lee filed a first amended complaint (“FAC”) on behalf of Plaintiff, as her successor-in-interest, in which she added as plaintiffs herself and Dexter Cam (“Cam”) (Plaintiff’s children) (collectively, “Plaintiffs”), and alleged causes of action for: (1) Elder Abuse, (2) Medical Malpractice, (3) Wrongful Death, and (4) Negligence.

Defendant David Y. Lin D.O. (“Defendant”) filed a demurrer and motion to strike portions of the FAC on August 18, 2022. Plaintiffs filed opposition to this motion on August 23, 2022. Hearing was initially set for September 3, 2022, but was continued to February 3, 2022 as result of the case’s transfer to this court. As of the date of this hearing, Defendant has not filed a reply.

RELIEF REQUESTED:

Defendant demurs to the first cause of action in the FAC.

Defendant moves to strike the following portions of the FAC as they pertain to him:

A.    Paragraphs 645, 51, 53, and 56-59 of the FAC

B.     Paragraphs 4-6 of the prayer for relief in the FAC.

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.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

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.)

Elder Abuse under Welf. & Inst. Code, § 15610.07

To state a cause of action for elder abuse and neglect, 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(a)(1).) Acts which are prohibited under the Elder Abuse Act provisions of the Welfare and Institute Code “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.) To constitute abuse and neglect within the meaning of the Elder Abuse Act (“the Act”), thereby triggering the enhanced remedies available under the Act, 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,” with recklessness referring “to 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,” and “[o]ppression, fraud and malice [involving] intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88-89.)

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); C.C.P. 435.5(a)(4).)

Upon review of the record the Court finds that meet and confer requirements have been satisfied to code. (James Decl., ¶ 3.)

III.              MERITS

Demurrer

Defendant argues that the FAC pleads insufficient facts as to cause of action for elder abuse against himself. Defendant states that the FAC only contains one specific allegation as to himself. “ARCADIAN employed DAVID LIN, who is a medical doctor, . . . he was also specifically responsible for managing the 24/7 medical care that ARCADIAN provided to decedent.” (FAC ¶8.) Defendant argues the FAC thus only implicates him as a medical provider, and that he is only subject to a cause of action for medical malpractice. Defendant argues that none of the 20 allegations of elder abuse specifically describe what Defendant did or did not do.

Further Defendant argues that he did not have the required caretaking or custodial relationship with Plaintiff. Defendant relies on Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148 where the court found no custodial relationship between a physician and elderly patient absent some larger undertaking. Lin also claims that even if a custodial relationship and negligence are found, the negligent acts pled do not meet the higher burden of recklessness required by the Act. Defendant cites to Sababin v. Superior Court (2006) 144 Cal.App.4th 81 where the Court found “… even facts allowing a reasonable inference of gross negligence by a physician [assistant] in the care and treatment of an elder are insufficient to state a viable claim under the Act.” Defendant also cites to Delaney v. Baker (1999) 20 Cal.4th 23 for the notion that recklessness under the Act must rise to a level above ordinary professional negligence. The Court finds that these cases are instructive as to the recklessness standard but are procedurally inapposite to the instant motion. Sababin concerned a finding of summary adjudication where evidence on recklessness was being reviewed on a standard of the existence of a triable issue of fact. Similarly, Delaney concerned a post-jury trial finding of elder abuse.

Plaintiff argues in opposition that Defendant is named as a defendant both in his capacity as the Director of Arcadian Retirement and in his capacity as a physician. Plaintiff points out that the cause of action for elder abuse alleges that Defendant, along with other management staff at Arcadian, engaged in a deliberate scheme of understaffing and knew the risks that such a scheme would present to residents. Plaintiff points to Complaint paragraph 18 where it is alleged “Defendants and DOES 1-10 provided a care plan with complete assistance for all ADLS including mobility and toileting-- for which they knowingly did not have sufficient staffing to properly implement, in furtherance of the Defendants’ institutional practice of placing profits over patient care.”  Plaintiff relies on Fenimore v. Regents of University of California (2016) 245 Cal. App. 4th 1339, where the court held that allegations of understaffing can be used to support an Elder Abuse claim. The Fenimore court found that the plaintiff’s allegations of statutory violations and understaffing with the intention to promote profits over resident safety was sufficient to state a cause of action for elder abuse.

To overcome a demurrer, a plaintiff must allege facts sufficient to sustain a cause of action. Here, that means Plaintiff must allege facts speaking to the reckless negligence of Defendant as director of the Arcadian Retirement Center. Plaintiff has alleged that Defendant served as both a director and a medical doctor, and alleges separate facts in support as to each role. The Court finds that the full statement specifically naming Defendant, sufficiently alleges his managerial role. It reads: 

“ARCADIAN and DOES 1-10 inclusive employed DAVID LIN, who is a medical doctor, as the Director at ARCADIAN. As a Director, DAVID LIN was a managing agent of Defendants, and he was also specifically responsible for managing the 24/7 medical care that ARCADIAN provided to DECEDENT. Together with other managing agents, who operated, managed, and/or maintained ARCADIAN during the time of DECEDENT’s residency there.”

Plaintiff alleges that Defendant, in his directorial capacity, participated in the practice of purposefully understaffing his facility to properly care for patients with dementia. Further, Plaintiff alleges that this understaffing occurred in violation of 22 C.C.R. § 87705 (c)(4) which requires licensees who accept dementia residents to maintain an appropriate level of staffing. (FAC ¶ 26.) Plaintiff also alleges that these understaffing practices were routine, consciously conducted, and done with motivation of increasing profit at the cost of patient care. Fenimore is clear that allegations of such practices, combined with allegations of statutory violation and recklessness, are sufficient to plead a cause of action for elder abuse. As such, Defendant’s demurrer as to the first cause of action in the FAC is OVERRULED.

Motion to Strike

Defendant’s arguments in his motion to strike mirror his arguments in his demurrer. Defendant moves to strike those portions of the FAC which state a claim of elder abuse against him. Defendant argues that because of his status as a medical provider, any allegations which allege that he acted recklessly, intentionally, willfully, or maliciously should be stricken as irrelevant.

Defendant also argues that punitive damages have no basis as a result of being pled without sufficient specificity. Defendant cites Brouseau v. Jarrett (1977) 73 Cal.App.3d 864 where the court found conclusory statements of oppression, fraud, or malice to be insufficient to sustain punitive damages claim. Defendant also argues that punitive damages cannot be added in a complaint against a healthcare provider without a court order pursuant to C.C..P § 425.13.

Brouseau concerned an action for medical malpractice, and while there is a cause of action for medical malpractice against Defendant, Plaintiff only requests punitive damages as to the first cause of action for elder abuse. Brouseau also deals with punitive damages which are not explicitly statutorily authorized, as they are by the Act. While court order is required to amend a complaint of professional negligence, the portions of the FAC which request punitive damages are clear that they do so only with respect to the first cause of action and not the medical malpractice claim.

Defendant’s arguments in his motion strike are predicated on the idea that Plaintiff has not properly alleged a cause of action for elder abuse against him. The Court does not find this to be the case, as noted in its analysis on Defendant’s demurrer. The Court finds the allegations and requests are relevant to the Plaintiff’s claims against Defendant in his capacity as a director of the Arcadian Retirement Center. As such it would be inappropriate to strike the allegations in the first cause of action and the requests for relief. Defendant’s motion to strike paragraphs 45, 51, 53, and 56-59 of the FAC and paragraphs 4-6 of the prayer for relief is DENIED.

IV.              CONCLUSION

Defendant’s demurrer as to the first cause of action for elder abuse is OVERRULED. Defendant’s motion to strike as to paragraphs 45, 51, 53, and 56-59 of the FAC and paragraphs 4-6 of the prayer for relief is DENIED.

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 David Y. Lin, D.O.’s Demurrer and Motion to Strike came on regularly for hearing on February 3, 2023, 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 OVERRULED.

THE MOTION TO STRIKE IS DENIED AS TO PARAGRAPHS 45, 51, 53, AND 56-59 OF THE FAC AND PARAGRAPHS 4-6 OF THE PRAYER FOR RELIEF.

IT IS SO ORDERED.

DATE:  February 3, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles