Judge: Frank M. Tavelman, Case: 22STCV05565, Date: 2023-03-20 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: 22STCV05565 Hearing Date: March 20, 2023 Dept: A
THIS IS BEING POSTED ON THE COURT'S TENTAVIE RULING SITE FOR CONVENIENCE OF COUNSEL. HOWEVER, THIS IS A FINAL RULING AFTER ARGUMENT
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
FINAL RULING
AFTER ARGUMENT
MARCH 20,
2023
DEMURRER
AND MOTION TO STRIKE
Los Angeles Superior Court
Case # 22STCV05565
|
MP: |
Belmont
Village Burbank Tenant, LLC; Belmont Three, LLC; Belmont Three Corporation
Holding LLC; Belmont Village, L.P. (Defendants)
|
|
RP: |
Blanche Rivero Maynes, by and through her
successor-in-interest, Christina Maynes; Christina Maynes, individually; Lisa
Maynes; Philip Maynes (Plaintiffs) |
ALLEGATIONS:
Plaintiffs Blanche Rivero Maynes,
by and through her successor-in-interest, Christina Maynes (“Decedent”);
Christina Maynes, individually (“Christina”); Lisa Maynes (“Lisa”); and Philip
Maynes (“Philip”, and collectively, “Plaintiffs”) filed suit against Defendants
Belmont Village Burbank Tenant, LLC (“BVBT”); Belmont Three LLC (“BT”); Belmont
Three Corporation Holding, LLC (“B3CH”); Belmont Village Partners LP (“BVP”);
Belmont Village, L.P. (“BV”); Health Care REIT, Inc. (“HCREIT”, and together
with BT, B3CH, BVP, and BV, “Belmont Corporate Defendants”; BVBT and Belmont
Corporate Defendants together shall be referred to as “Belmont Defendants”);
Burbank Healthcare, Inc., d.b.a. Burbank Healthcare & Rehabilitation Center
(“Burbank Healthcare”); Burbank Investments, LP (“BI”); Longwood Management
Corporation (“LMC”); and Longwood Enterprises, Inc. (“LE”, and together with
Burbank Healthcare, BI, and LMC, “Longwood Corporate Defendants”). Plaintiffs
allege that Defendants failed to assess and address Decedent’s medical
condition and needs when she was admitted by Belmont Village Burbank on July 21,
2020, resulting in her death.
On February 14, 2022, Plaintiff
filed an initial Complaint, an on April 21, 2022 filed a First Amended
Complaint (“FAC”) which alleges twelve causes of action for: (1) Elder Neglect
(against Belmont Defendants); (2) Elder Neglect, Enhanced Remedies (against
Belmont Defendants); (3) Elder Neglect (against Longwood Corporate Defendants);
(4) Elder Neglect, Enhanced Remedies Sought (against Longwood Corporate
Defendants); (5) Negligence (against Belmont Defendants); (6) Negligence
(against Longwood Corporate Defendants); (7) Fraud (against Belmont
Defendants); (8) Fraud (against Longwood Corporate Defendants); (9) Violation
of Patients’ Bill of Rights (against Longwood Corporate Defendants); (10) NIED
(against Longwood Corporate Defendants); (11) Wrongful Death (against Belmont
Defendants); and (12) Wrongful Death (against Longwood Corporate
Defendants).
HISTORY:
Belmont
Defendants filed this Demurrer and Motion to Strike on January 4, 2023.
Plaintiffs filed their opposition on February 27, 2023. Reply was filed March
3, 2023.
RELIEF
REQUESTED:
Belmont
Defendants demur to Plaintiffs’ first, second, fifth, seventh, and eleventh
cause of action.
Belmont
Defendants move to strike the following portions of Plaintiffs’ FAC:
1.
Page 21,
¶ 53: “reckless, oppressive and malicious”; (Second COA)
2.
Page 22,
¶ 54: “reckless, oppressive, and malicious”; (Second COA)
3.
Page 23,
¶ 56 in its entirety; (Second COA)
4.
Page 25,
¶ 65 in its entirety; (Second COA)
5.
Page 45,
¶ 124: “recklessly”; (Eleventh COA)
6.
Page 47,
¶ 3: “For attorneys’ fees against all defendants pursuant to Welfare and
Institutions Code section 15657(a) and Code of Civil Procedure section 1021.5;”
(Second COA)
7.
Page 25,
¶ 63: “and attorneys’ fees and costs”; and (Second COA)
8.
Page 47,
¶ 4: “For punitive damages against all defendants.” (All COA)
RULING
AFTER ARGUMENT:
The Court issued its Tentative
Ruling. Plaintiff requested that the Court
reconsider its ruling arguing that they sufficiently pled the Cause of Actions. Plaintiffs requested the Court reevaluate
its ruling in light of ¶¶ 14, 15, 39, 40, 47-49, 53, 55 and 57-61. The Court again reviewed the Plaintiffs First
Amended Complaint, paying special attention to the referenced paragraphs as well
as applicable CACI instructions. The
Court has done so, and is not convinced to change the Tentative Ruling.
In Worsham v. O'Connor
Hospital, (2014) 226 Cal. App. 4th 331 the Courts of Appeal addressed
similar circumstances. The plaintiff alleged the hospital knew the
elder was a fall risk; the hospital was “chronically understaffed” and
undertrained the staff it did have; and the lack of sufficiently well-trained
staff caused the decedent's fall. (Id. at pp. 334, 338.) The trial court
sustained the hospital's demurrer to the operative complaint, holding that,
although the plaintiff alleged the hospital acted recklessly by deliberately
understaffing and undertraining, he had not sufficiently supported the
allegations with particular facts. (Id. at p. 335.) The appellate court
affirmed and held the allegations of failure to provide adequate staffing
constituted nothing more than “negligence in the undertaking of medical
services, not a ‘fundamental “[f]ailure to provide medical care for physical
and mental health needs.”’” (Id. at p. 338, quoting Delaney v. Baker
(1999) 20 Cal.4th 23).
The Court having considered the arguments from
counsel adopt its tentative as the final ruling. The Court grants leave amend because the Court
believes that Plaintiff is capable of pleading with particularity what is needed.
ANALYSIS:
I.
LEGAL
STANDARD
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 without
leave to amend 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 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; (2) knew of conditions that made the elder
or dependent adult unable to provide for his or her own basic needs; 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).)¿¿
The Elder Abuse
Act “does not apply unless the defendant health care provider had a substantial
caretaking or custodial relationship, involving ongoing responsibility for one
or more basic needs, with the elder patient.” (Winn v. Pioneer Medical
Group, Inc.¿(2016) 63 Cal.4th 148, 152.) “It is the nature of the elder or
dependent adult’s relationship with the defendant—not the defendant’s
professional standing—that makes the defendant potentially liable for neglect.”
(Id.)¿¿¿
II.
MEET AND
CONFER
CCP § 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. Failure
to meet and confer is not grounds to overrule or sustain a demurrer, or grant
or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).)
Belmont defendants submit the declaration of
Thien Tran to evidence their meet and confer efforts. The declaration states
that Belmont Defendants sent a letter on March 22, 2022 discussing what they
perceived to be the legal and factual insufficiencies of Plaintiffs’ original
Complaint. (Tran Decl. ¶ 2.) Plaintiffs thereafter filed their FAC, which the
declaration states was unchanged except for the addition of named defendants.
(Tran Decl. ¶ 3.) The declaration makes no aversions to further meet and confer
efforts or whether Plaintiffs ever responses to the March 22 letter. The Court
is uncertain that the efforts extended before the filing of the operative
complaint meet Belmont Defendants burden. The Court finds that parties have not
complied with the meet and confer requirements, and are admonished to do so in
the future.
Regardless, failure to meet and confer is not
grounds to overrule or sustain a demurrer. The Court will analyze Belmont
Defendants demurrer on its merits.
III.
MERITS
Plaintiff’s
Theory of Liability
Belmont
Defendants arguments about liability appear at the end of their moving papers
but, given that these arguments are intended to be demur to the entirety of the
FAC, the Court will analyze them first. Belmont Defendants specifically argue
the Plaintiffs allege insufficient facts to support holding the Belmont
Defendants liable for the alleged conduct of Belmont Village Burbank.
Belmont
Defendants argue that Plaintiffs have not adequately alleged that Belmont
Defendants had care or custody of Decedent such as to support a claim for Elder
Neglect. Belmont
Defendants argue that Belmont Village Burbank is a Residential Care Facility
per Health and Safety Code §1502. Belmont Defendants argue that under California
Code of Regulations, Title 22, § 72501, the duty held by resident care
facilities is non-delegable. Belmont Defendants cite to California Assn. of
Health Facilities v. Department of Health Services (1997) 16 Cal.4th
284 in support of this argument.
The Court finds that Belmont Defendants misstate the holding
of California Assn. While it is correct that the duty held by licensees
under Health and Safety Code §1502 is nondelegable, the Court in California
Assn. was specifically addressing the delegation of that duty to employees
of the resident care facility. Here, Plaintiff is alleging that Belmont
Defendants owe the same duty as the resident care facility by virtue of vicarious
liability. The Court does not see how this allegation amounts to one of delegation
within the meaning of the statute.
Belmont
Defendants also argue that Plaintiffs have not adequately alleged theories of
vicarious liability. Belmont Defendants specifically address the allegation of
alter ego. Belmont Defendants cite to Meadows v. Emett & Chandler (1950)
99 Cal.App.2d 496, in arguing that mere allegations of making all the
management decisions do not suffice to claim alter ego. This assertion is
correct, but it ignores the remainder of the holding in Meadows. The Meadows
court held that allegations of managerial control must be accompanied by
facts from which it appears that justice cannot be accomplished without alter
ego liability. (Id. at 499.)
Courts
have held that on demurrer that plaintiffs are only required to allege ultimate
facts as to alter ego, as opposed to evidentiary facts. (Rutherford
Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236.) Here
that means Plaintiffs must plead ultimate facts as to complete managerial
control and a resulting injustice in failure to pierce the corporate veil. (Id.)
The Court finds that the FAC contains facts as to the managerial control and
its allegation that Belmont Village Burbank was “intentionally undercapitalized
as a way of avoiding liability” has met the requirements. (FAC ¶¶ 6-10, 16-17.)
Plaintiffs
further argue in their Opposition that the FAC contains several theories of
liability as to Belmont Defendants which are not addressed on Demurrer. These
theories include direct liability, joint venture, aider and abettor, and
conspiracy. (Oppo. pg. 17.) Belmont Defendants reply that they are not required
to challenge all theories of liability but then say that if Demurrer is overruled,
they will bring a Motion for Judgment on the Pleadings (MJOP) as to each theory
of liability. (Reply pg. 7.) The Court notes that each theory of liability will
be subject to factual determination at trial and cautions that Demurrers and
MJOPs only address the sufficiency of pleadings.
As such
the Court finds that Plaintiffs allegations of alter ego are sufficient but
makes no determination as to the other theories of liability.
The Court
will not sustain the demurrer on allegations of alter ego.
Plaintiffs’
1st and 2nd COA (Elder Neglect & Elder Neglect
Enhanced Remedies) - Sustained
The FAC
alleges the following facts. Belmont Defendants were responsible for Decedent’s
medical care and knew of the conditions that made Decedent unable to provide
for her own basic needs. (FAC, ¶¶ 46.) Belmont Defendants were aware of
Decedent’s status as a fall risk and as someone who suffered from dementia.
(FAC ¶47.) Belmont Defendants were aware of Decedents tendency to walk herself
to the bathroom at night. (Id.) Belmont Defendants failed to carry out
care plans related to Decedent’s fall risk. (Id.) That Belmont
Defendants controlled staffing decisions and purposefully understaffed to maximize
profits over patient care (FAC ¶ 14.) Such understaffing was a pattern of Belmont
Defendants, and such pattern was designed to increase their profits. (FAC ¶¶
14, 15.) Belmont Defendants knew of and ignored the physical threat to Decedent
to increase profits. Decedent suffered physical harm that ultimately led to her
death. (FAC, ¶¶ 50, 51.) Defendant’s managing agents directly participated in
or authorized Decedent’s abuse and neglect. (FAC, ¶¶ 55-57.)
In Fenimore¿v.
Regents of University of California¿(2016) 245 Cal.App.4th 1339, the court
determined that allegations that a hospital engaged in a pattern and practice
of understaffing and undertraining its staff to cut costs, which foreseeably
resulted in the abuse and neglect of its residents, were sufficient to state a
cause of action under the Elder Abuse Act. The Fenimore court found
that:
“Worsham's determination that
understaffing constitutes no more than negligence may be true,¿absent¿further
allegations showing recklessness. But the Fenimores have alleged more than a
simple understaffing here. The FAC identified the staffing regulation the
Hospital allegedly violated and suggested a knowing pattern of violating it
constituted recklessness. A jury may see knowingly flouting staffing
regulations as part of a pattern and practice to cut costs, thereby endangering
the facility's elderly and dependent patients, as qualitatively different than
simple negligence”]
(Id.
at 1350.)
The Fenimore
court concluded “Recklessness may be inferred when the neglect recurs in a
significant pattern.” (Id.) However, the opinion in Fenimore does not
describe what sort of pattern or practice would suffice to infer recklessness.
Plaintiffs are required to plead facts which allege conduct
essentially equivalent to conduct that would support the recovery of punitive
damages. (Covenant Care, supra, 32 Cal App. 4th at 789.) Further,
Plaintiffs are required to plead their statutory causes of action with particularity
(Id. at 790.) The Court
finds that Plaintiffs have failed to plead understaffing with sufficient
particularity to establish their causes of action for Elder Abuse. Plaintiffs
allege that Belmont Defendants engaged in understaffing in a conclusory manner,
unlike those in Fenimore which were alleged to be chronic and in
violation of particular staffing statutes. The Court recognizes that Plaintiffs
allege this understaffing to be in violation of law, but this general statement
does not fulfill Plaintiffs’ burden of pleading with particularity. Without
further factual allegations related to the understaffing the Court finds the
FAC to be insufficiently pled as to Elder Abuse.
Plaintiffs
suffer a further particularity problem in regards their allegations that
Belmont Defendants directly participated in/ratified Decedent’s abuse and
neglect. Plaintiff only alleges that unnamed employees served as managing
agents for Belmont Defendants and that those managing agents authorized the
understaffing that led to neglect. There are no allegations of the managing
agents identity or their ability to bind Belmont Defendants. There are also no
allegations that the unidentified managing agent was aware of the understaffing
or its consequences to Decedent.
The Court SUSTAINS the Demurrer as to these two causes of
action with 20 days’ leave to amend.
Given the above, the Court need not address the parties’
arguments as to whether it was properly alleged that Belmont Defendants had a
custodial relationship with decedent.
Plaintiffs’ 5th Cause of Action (Negligence)- Overruled
In order to state a claim for negligence, a plaintiff must
allege the elements of (1) “the existence of a legal duty of care,” (2) “breach
of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014)
228 Cal.App.4th 664, 671.)
Belmont Defendants argue that Plaintiffs’ have not alleged
sufficient facts to allege causation. Belmont Defendants argue that Plaintiffs’
FAC contains no factual allegations as to what conduct occurred and how that
conduct caused Decedents injury. Plaintiffs contend that the FAC does allege
facts as to the wrongdoing, namely the failure to implement basic custodial
interventions to protect Decedent from falling. (FAC ¶¶ 38-41, 47-50, 89-90.) Plaintiffs
argue that Decedent suffered from this fall significant trauma, including a
high vertebral fracture. (FAC ¶¶ 41.) Plaintiffs also argue that the FAC does
allege Decedent ultimately died from these injuries, speaking to causation.
(FAC ¶¶ 43-44, 62, 124.)
The Court finds that Plaintiffs have alleged sufficient acts
to support their claim of negligence. Belmont Defendants argument that the FAC
lack facts as to any action of an individual Belmont Corporate entity relies on
having defeated any theory of vicarious liability. Plaintiffs have alleged that
the Belmont Defendants are vicariously liable for the conduct of Belmont
Village Burbank. Plaintiffs allege that Belmont Village Burbank has a legal
duty of care to Decedent, that Belmont Village Burbank breached that duty in
failing to prevent Decedent’s fall, and that injuries resulted from that
failure. The Court finds these allegations sufficient as to support a cause of
action against Belmont Defendants.
The Court OVERRULES the demurrer as to the fifth cause of
action.
Plaintiffs’ 7th Cause of Action (Constructive Fraud)
- Sustained
“Constructive
fraud is a unique species of fraud applicable only to a fiduciary or
confidential relationship; generally, constructive fraud comprises any act,
omission or concealment involving a breach of legal or equitable duty, trust or
confidence which results in damage to another even though the conduct is not
otherwise fraudulent.” (Assilzadeh v. California Federal Bank (2000)
82 Cal.App.4th 399, 415.)
The facts constituting the alleged
fraud must be alleged factually and specifically as to every element of fraud,
as the policy of “liberal construction” of the pleadings will not ordinarily be
invoked. (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the
plaintiffs must plead the names of the persons allegedly making the false
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written. (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Belmont Defendants argue that Plaintiffs have not pled Fraud
with sufficient particularity as per Wilhelm v. Pray, Price, Williams &
Russell (1986) 186 Cal.App.3d 1324. Belmont Defendants argue that
Plaintiffs have failed to allege facts which support the existence of a
fiduciary duty between Belmont Defendants and Decedent. Belmont Defendants cite
to Moore v. Regents of the U.C. (1990) 51 Cal.3d 120, stating that care
facilities do not have a fiduciary duty to disclose information to a patient. In
Moore, the court held that a fiduciary duty to disclose only
existed between physician and patient,
and did not extend to non-physician defendants. Further, Belmont Defendants
ague that Plaintiffs fail to allege facts as to who breached that fiduciary
duty, if it did indeed exist.
Plaintiffs argue that “Defendants suggest, without analysis
or citation to authority, that Pine Creek Care Center was not in a fiduciary
relationship with Mr. Rios.” (Oppo. pg. 15.) The Court presumes this is a
typographical error and substitutes the names of the parties in the instant
action for the purposes of analyzing Plaintiffs’ argument. Plaintiffs argue
that a fiduciary duty can be found where one party has repose trust and
confidence in another, citing Barrett v. Bank of America (1986), 183
Cal. App. 3d 1362. Plaintiffs argue that Decedent placed such trust and
confidence in Belmont Defendants by virtue of her willing reliance on them for
her more basic care needs. Plaintiffs also argue that Moore is
distinguishable from the instant case and miscategorized by Belmont Defendants.
Plaintiffs argue that unlike in Moore, the allegations against Belmont
Defendants did not fail to disclose information but rather to provide care.
The Court finds that Moore is informative on this
issue. While Moore held that non-physician defendants cannot be said to
have a fiduciary relationship, it also held that those defendants could still
be held liable for a breach of fiduciary duty under theories of secondary
liability. (Moore supra 51 Cal.3d 120, 135.) Plaintiffs here are
alleging secondary liability under a number of theories. As such, Belmont
Defendants could be held to have breached a fiduciary duty for the purposes of
constructive fraud.
Regardless, the Court finds that Plaintiffs’ fraud claims
are pled with insufficient particularity. Plaintiff alleges no individual which
made fraudulent representations, instead averring that the entirety of Belmont
Village Burbank misrepresented its ability to care for Decedent. The Court does
not find these allegations sufficient to state a cause of action for fraud
against a corporation.
The Court SUSTAINS the demurrer to the seventh cause of
action with 20 days leave to amend.
Plaintiffs’ 11th Cause of Action (Wrongful Death)
- Overruled
“The elements of a cause of action for wrongful death are a
tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.)
Belmont Defendants argue that because Wrongful Death is
statutorily created cause of action it must be pled with specificity. Belmont
Defendants cite to Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 and Vecchione
v. Carlin (1980) 111 Cal.App.3d 351 for the general assertion that
Wrongful Death is a statutory cause of action. Neither of these cases address
the sufficiency of pleadings on demurrer. Belmont Defendants do not brief which of the
elements of wrongful death that Plaintiffs have not pled with specificity. However,
Belmont Defendants do contend that there are no allegations as to a specific
wrongful act of each corporate defendant. As discussed in the section
addressing the Negligence claim, this argument relies on Belmont Defendants
defeating Plaintiffs theory of vicarious liability.
The Court does not find that Plaintiffs have insufficiently
pled their cause of action for wrongful death. Plaintiffs have alleged
vicarious liability of Belmont Defendants for the actions of Belmont Village
Burbank. Plaintiffs have alleged a specific act of wrongdoing which constitutes
negligence. Plaintiffs have alleged that Decedent died as a result of injuries
sustained due to Belmont Villages Burbank’s failure to provide care.
The Court OVERRULES the demurrer with respect to the eleventh
cause of action.
Motion to
Strike
Cal
Civil Code § 3294 (a) states “In an action for the breach of an obligation
not arising from contract, where it is proven by clear and convincing evidence
that the defendant has been guilty of oppression, fraud, or malice, the
plaintiff, in addition to the actual damages, may recover damages for the sake
of example and by way of punishing the defendant.”
The Court
notes that as it has sustained the demurrer with respect to the second cause of
action with leave to amend, the motion to strike those portions of the FAC
which stem from the second cause of action is moot. These portions include:
1.
Page 21,
¶ 53: “reckless, oppressive and malicious”; (Second COA)
2.
Page 22,
¶ 54: “reckless, oppressive, and malicious”; (Second COA)
3.
Page 23,
¶ 56 in its entirety; (Second COA)
4.
Page 25,
¶ 65 in its entirety; (Second COA)
5.
Page 47,
¶ 3: “For attorneys’ fees against all defendants pursuant to Welfare and
Institutions Code section 15657(a) and Code of Civil Procedure section 1021.5;”
(Second COA)
6.
Page 25,
¶ 63: “and attorneys’ fees and costs”; and (Second COA)
This
leaves the following portions for the Court to analyze:
1.
Page 45,
¶ 124: “recklessly”; (Eleventh COA)
2.
Page 47,
¶ 4: “For punitive damages against all defendants.” (All COA)
The Court
notes that Belmont Defendants do not individually brief their motion to strike
as to the word “recklessly” in Plaintiffs’ eleventh cause of action. The Court
finds that the inclusion of recklessness in this cause of action does not speak
to any of the elements of a claim for Wrongful Death. As such, the Court orders
the word recklessness stricken from the cause of action for irrelevance. The
allegations of recklessness do speak to the causes of action for Elder Neglect,
but as discussed, the Court has sustained demurrer to these causes of action.
The Court
also notes that Plaintiffs’ request for punitive damages in the prayer for
relief does not specify the basis for these punitive damages. (FAC pg. 47 ¶ 4.)
The references to punitive damages in the body of the FAC are confined to the second
cause of action. (FAC pg. 23, ¶ 56;
pg. 25, ¶ 65.) As such, it appears to the court that the basis for punitive
damages in the FAC stems from its causes of action for elder abuse. As the
Court has sustained demurrer to those causes of action with leave to amend, the
motion to strike punitive damages from the prayer for relief is moot.
IV.
CONCLUSION
The matte
was taken under submission after argument.
The Court adopts its Tentative Ruling as the Final ruling for the reasons
stated above.
As such the Court finds that Plaintiffs
allegations of alter ego are insufficient but makes no determination as to the
other theories of liability. The Court OVERRULES the demurrer as to the
allegations of alter ego. The Court SUSTAINS the Demurrer as
to these two causes of action with 20 days leave to amend. The Court OVERRULES
the demurrer as to the fifth cause of action. The Court SUSTAINS the demurrer
to the seventh cause of action with 20 days leave to amend. The Court OVERRULES the demurrer with
respect to the eleventh cause of action.
The motion to strike is GRANTED as to the word reckless in
the eleventh cause of action. The remainder of the motion to strike is moot as
the Court sustained demurrer on the causes of action for Elder Abuse and Fraud.
---
RULING:
In the
event 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
Belmont Village Burbank Tenant, LLC;
Belmont Three, LLC; Belmont Three Corporation Holding LLC; Belmont Village,
L.P. ’s Demurrer and Motion to Strike
came on regularly for hearing on March 10, 2023, with appearances/submissions
as noted in the minute order for said hearing, and the court, being fully
advised in the premises. The Court heard
argument and took the matter under submission and rules as follows:
THE COURT OVERRULES THE DEMURRER AS TO THE
ALLEGATIONS OF ALTER EGO.
THE COURT SUSTAINS THE
DEMURRER AS TO THE FIRST, SECOND AND SEVENTH CAUSES OF ACTION WITH 20’ DAYS
LEAVE TO AMEND.
THE COURT OVERRULES
THE DEMURRER AS TO THE FIFTH AND ELEVENTH CAUSES OF ACTION.
THE MOTION TO STRIKE IS GRANTED AS TO THE WORD “RECKLESS” IN
THE ELEVENTH CAUSE OF ACTION.
THE REMAINDER OF THE MOTION TO STRIKE IS MOOT AS THE COURT
SUSTAINED DEMURRER ON THE CAUSES OF ACTION FOR ELDER ABUSE AND FRAUD.
DEFENDANT TO GIVE NOTICE, UNLESS ALL PARTIES WAIVED NOTICE.
IT IS SO
ORDERED.
DATE:
March 20, 2023 _______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of
Los Angeles