Judge: Frank M. Tavelman, Case: 23BBCV00728, Date: 2024-03-08 Tentative Ruling

Case Number: 23BBCV00728    Hearing Date: March 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

MP:                 Victor Valley Hospital Acquisition, Inc. (Defendant)

RP:                 Brian Tilmon (Plaintiff)

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS:

Brian Tilmon (Plaintiff) brings this action against Victor Valley Hospital Acquisition, Inc., dba Victor Valley Global Medical Center (Victor Valley), LJMP, LP, dba Capri in the Desert, San Marino in the Desert RTC LLC dba San Marino in the Desert (collectively “Defendants”).  Plaintiff alleges that Defendants failed to assess and address his medical condition and needs during his stay at each of Defendants’ facilities.

Victor Valley now demurs to the first cause of action in Plaintiff’s Complaint for Dependent Elder Abuse. Victor Valley also moves to strike attorney’s fees and costs associated with that cause of action, and Plaintiff’s request for punitive damages. Plaintiff filed an opposition and Victor Valley filed a reply.

ANALYSIS:

I.                    LEGAL STANDARDS

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. (Id.)

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 318.)

Pursuant to Code of Civil Procedure (“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.)

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).)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Lagas Decl. ¶ 4.)

Alleged Facts re: Victor Valley

On December 27, 2021, Plaintiff entered a hospital operated by Victor Valley in severe abdomen pain, sepsis, and an infected abdomen wound. (SAC ¶24.) Plaintiff was taken to surgery immediately, and thereafter transferred to ICU where he stayed for most of his hospitalization, intubated in an induced coma. (SAC ¶24.) Plaintiff had no pressure sores upon admittance to Victor Valley’s facility. (SAC ¶ 25.) From January 1 through January 20 of 2022, Plaintiff alleges that Victor Valley staff failed to reposition him every two hours to avoid the risk of pressure ulcers. (SAC ¶¶ 27-42.) Plaintiff alleges that on January 8, 2022, Victor Valley staff documented a pressure sore injury to Plaintiff’s sacral area but continued to not reposition him every two hours. (SAC ¶ 34.) Plaintiff alleges several other instances where Victor Valley staff documented separate pressure sore injuries. (See SAC ¶¶ 37-39.) Plaintiff alleges that over the course of his stay in Victor Valley’s facility, the sacral pressure sore worsened considerably. (SAC ¶¶ 51.)

In addition, Plaintiff alleges that Victor Valley was understaffed during his stay at the facility. (SAC ¶ 35.) Plaintiff also alleges that Victor Valley did not provide passive “ROM” exercises to prevent or lessen Plaintiff from developing severe contractures. (SAC ¶ 68.)

Demurrer

Victor Valley argues these allegations fail to meet the heightened pleading requirements for statutory claims and fail to allege specific facts supporting Plaintiffs’ allegations that Victor Valley acted with oppression, fraud, or malice. Victor Valley also argues the factual allegations in the Complaint do not amount to elder abuse.

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 Welf and Inst. Code § 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 supra, 198 Cal.App.4th at 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.)

Victor Valley argues that the factual allegations of the SAC lack the specificity required to state an elder abuse cause of action. Specifically, Victor Valley argues that the SAC contains no factual allegations as to any action of Victor Valley which constituted recklessness, malice, or oppression. Victor Valley argues that, unlike the plaintiff in Carter, Plaintiff did receive care and services in the form of repositioning. Victory Valley appears to argue that Plaintiff must claim the complete absence of care, rather than that care was not rendered frequently enough.  The Court disagrees.

As alleged in the Second Amended Complaint that Plaintiff was admitted without bedsores and was documented with a Braden Scale Score of 10/23 indicating Plaintiff was at a high risk for pressure ulcers.  (SAC ¶26).  From January 1, 2022 through January 7, 2022 Plaintiff was not repositioned every two hours to avoid pressure ulcers.   As a result on January 8, 2022 a sacral pressure injury occurred.  (SAC ¶34).  Plaintiff asserts that despite the sacral pressure injury, Victor Valley still failed to reposition Plaintiff every two hours, which resulted in a worsening in the injury.  After three additional days of improper repositing more pressure ulcers developed.  An additional pressure injury developed on January 18^th.  Plaintiff then goes on to describe other injuries related to the asserted neglect.  The Court finds that the allegations are sufficient to support Plaintiff’s cause of action. Plaintiff alleges that for a period of several days after his admittance to Victor Valley, the staff failed to regularly reposition him to avoid pressure sores developing. (SAC ¶¶ 27-33.) Plaintiff was entirely at the mercy of the Victor Valley staff during this time as he was intubated and in a coma. (SAC ¶ 24.) It was not until January 8 that Victor Valley staff documented the formation of the pressure sore, and even then, Plaintiff alleges staff failed to reposition him regularly. (SAC ¶¶ 33-36.) Plaintiff alleges that this failure to reposition occurred even though Victor Valley assessed a risk of pressure sore development. (SAC ¶ 29.)

Victor Valley argues that the SAC allegations imply that Plaintiff was repositioned in some regard and was eventually evaluated for his pressure sore injuries. This argument is unavailing. The fact that some repositioning occurred does not negate Plaintiffs allegations that regular repositioning was required once Victor Valley staff was aware of the risk. Victor Valley’s failure to regularly reposition Plaintiff despite their knowledge of the risk could be found to be recklessness sufficient to find elder abuse occurred. Whether such frequent repositioning was actually called for and how often Victor Valley repositioned Plaintiff are irrelevant for purposes of a demurrer.

In Sababin v. Superior Court, the California Court of Appeals explicitly denied the argument that liability cannot be found for elder abuse unless there is a total absence of care. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) The Sababin court held that a trier of fact must find that a pattern of neglect occurred which involved repeated withholding of care and leading to the conclusion that the pattern was the result of choice or deliberate indifference. (Id.) Here, Plaintiff has sufficiently alleged a pattern of neglect whereby the staff at Victor Valley failed to reposition him despite clear knowledge of the risks. Further, Plaintiff has alleged that this failure to reposition and provide care is the result of a deliberate scheme by Victor Valey and its managing agents to understaff their facility. (SAC ¶ 101.) Whether Plaintiff will be able to provide evidence that this is the case remains to be seen, but the Court finds the SAC contains sufficient allegations as to a pattern of neglect.

Accordingly, Victor Valley’s demurrer is OVERRULED.

Motion to Strike

Victor Valley seeks to strike allegations and prayers for punitive damages from the SAC on the grounds that (1) the facts alleged in the SAC do not constitute oppression, fraud, or malice on the part of Victor Valley (Strike Mot. ¶¶ 1-13.) and (2) Plaintiff has failed to plead facts constituting authorization or ratification (Strike Mot. ¶¶ 14-18.) Victor Valley lastly seeks to strike Plaintiff’s request for attorney’s fees.

First, Victor Valley moves to strike those sections of the SAC which allege vicarious liability. Victor Valley argues that any allegations which allege they acted recklessly, intentionally, willfully, or maliciously should be stricken as irrelevant. The Court disagrees. The sections which Victor Valley seeks to strike are directly relevant to Plaintiff’s claim of systematic neglect and vicarious liability. Accordingly, the motion to strike those allegations is DENIED.

Victor Valley further argues that punitive damages have been pled without sufficient specificity. 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.)

Victor Valley also argues that the facts supporting punitive damages have not been pled such that malice could be shown by clear and convincing evidence as per Civil Code § 3294(a). Civil Code § 3294(a) states that, “[W]here it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff…may recover damages for the sake of example and by way of punishing the defendant.” As discussed above in connection with the demurrer, the SAC’s allegations are sufficient to support a claim for willful misconduct, specifically, that Victor Valley acted with a deliberate indifference and conscious disregard for Plaintiff’s health. Such conduct can be deemed despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others and thus may support recovery of punitive damages. (See Civil Code § 3294(c) [defining malice and oppression].) Accordingly, the motion to strike punitive damages is DENIED.

Lastly, Victor Valley moves to strike Plaintiff’s claim for attorney’s fees. Attorney's fees are recoverable in an elder abuse cause of action pursuant to Welf. and Inst. Code § 15657(a). Because the elder abuse cause of action remains viable, the motion to strike the prayer for attorney’s fees, sought in connection with said cause of action remains viable as well. Accordingly, the motion to strike the request for attorney’s fees 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

Victor Valley Hospital Acquisition, Inc.’s Demurrer and Motion to Strike came on regularly for hearing on March 8, 2024, 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 TO THE FIRST CAUSE OF ACTION IS OVERRULED.

THE MOTION TO STRIKE IS DENIED IN ITS ENTIRETY.

UNLESS ALL PARTIES WAIVE NOTICE, VICTOR VALLEY TO GIVE NOTICE.

I