Judge: Frank M. Tavelman, Case: 23BBCV02538, Date: 2024-05-03 Tentative Ruling

Case Number: 23BBCV02538    Hearing Date: May 3, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify 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 argument is received.  

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

ALLEGATIONS: 

Sevan Hawandjian, by and through her Conservator and Guardian ad Litem, Salpi Seukunian (Plaintiff) brings this action against Ability Pathways Inc. (API) and Right Choice In-Home Care, LLC (Right Choice). Plaintiff alleges she was injured when she was dropped while being transferred from her bed to a wheelchair while she resided in API’s care facility.

Before the Court are a Demurrer and Motion to Strike brought by API. API demurs to Plaintiff’s second cause of action for Elder Abuse and fifth cause of action for Negligent Hiring/Retention. API argues that the FAC contains insufficient factual allegations to support either of these causes of action. API also moves to strike Plaintiff’s request for punitive damages and attorney’s fees in connection with their cause of action for Elder Abuse. Plaintiff opposes both motions and API replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

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. (Masters Decl. ¶ 5.)

Facts

Plaintiff alleges that API provided her nursing and caretaking services while she was a resident at their Norris House care facility. (FAC. ¶ 5.) Plaintiff states that she is a disabled person suffering from cerebral palsy and cannot ambulate on her own. (Id.) On November 2, 2022, Plaintiff alleges she was being assisted by caregivers Maria Murillo (Murrillo) and Maria Aguirre (Aguirre) to move from her bed to a wheelchair. (Id.) Plaintiff alleges the caregivers implemented the use of a Hoyer lift to accomplish this task. (Id.) Plaintiff alleges that, due to the caregivers’ negligence, she was dropped from the lift onto the floor causing severe injury. (Id.) Plaintiff alleges that Murillo and Aguirre “knew, based on the training they received in moving immobile patients via a lift, that it was highly probable that failing to properly secure a patient would cause the patient to fall and become seriously injured.” (Id.)

Plaintiff further alleges that “Defendants had a significant and known pattern and practice of understaffing and undertraining its staff to cut costs, in direct violation of state staffing regulations, which was known to Defendants’ managing agents, and which foreseeably resulted in the abuse and neglect of Plaintiff.” (FAC ¶ 21.) Plaintiff also alleges, “API, knew, or in the reasonable exercise of diligence should have known that the nurses and caretakers hired to move immobile patients such as Plaintiff were unfit and incompetent to perform the duties for which they were hired, and that an undue risk to persons such as Plaintiff would exist because of the hiring.” (FAC ¶38.)

First Cause of Action - Elder Abuse - Sustained with Leave to Amend

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.)

The Court finds Plaintiff’s allegations are insufficient to sustain a cause of action for Elder Abuse. Plaintiff alleges a singular incident in which Murillo and Aguirre failed to properly secure her in the Hoyer lift before attempting to move her to a wheelchair. The failure to secure Plaintiff before moving her appears to the Court more an accusation of medical negligence than the failure to provide basic custodial care.

By way of contrast, in Carter the California Court of Appeals discussed situations of Elder Abuse in which care facilities had (1) failed to provide a man suffering from Parkinson’s disease sufficient food and water and necessary medication and left him unattended for long periods of time, (2) left a woman with a broken ankle lying unattended for long periods of time resulting pressure ulcers, and (3) an elderly man was abused beaten, and unlawfully restrained. (Id. at 406.) Each of these situations indicates a pattern of abuse or refusal to render basic custodial services supporting an Elder Abuse action. Here, Plaintiff does not allege that API’s employees refused to move her, or that they routinely neglected their duties in any other way. Without further factual allegations, the Court finds the failure to secure Plaintiff on this one instance to be more indicative of negligence than elder abuse.

Further, the Court finds the Plaintiff has alleged insufficient facts as to API’s oppression, fraud, and malice. Plaintiff’s argument that she has alleged such behavior by way of her allegations of understaffing is unpersuasive. First, Plaintiff’s allegations of understaffing are conclusory and present no assertions of fact. The facts from which Plaintiff believes API engaged in deliberate understaffing must be pled with specificity. Second, Plaintiff’s arguments that said understaffing led API staff to be undertrained is in conflict with her allegations that Murillo and Aguirre were trained to relocate her. Plaintiff alleges that Murillo and Aguirre knew from their training that they should have secured her before moving her, yet Plaintiff also alleges that API staff was untrained in this procedure. These allegations are at ends with one another.

In short, the Court finds Plaintiff has not pled sufficient facts to sustain a cause of action for Elder Abuse. Plaintiff’s allegations speak to a singular incident of medical negligence rather than routine denial of care. Further, Plaintiff has alleged no facts speaking to API’s oppression, fraud, and malice. Regardless, the Court finds that it remains possible Plaintiff could amend her pleading to cure these defects. Accordingly, the demurrer to the cause of action for Elder Abuse is SUSTAINED with 20 days’ leave to amend.

Fifth Cause of Action – Negligent Hiring/Retention – Sustained with Leave to Amend

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

API argues that the FAC contains no allegations of their foreknowledge of Murillo or Aguirre’s unfitness for their positions. Plaintiff argues she properly alleges that API should have known that their employees were neither qualified nor able to safely operate the Hoyer Lift in a manner that is reasonably expected of an employee or agent. (FAC ¶ 38.)

The Court first notes that the FAC is unclear as to who Murillo and Aguirre are employed by. Plaintiff states this cause of action against both API and Right Choice. Plaintiff specifically alleges that Right Choice “assigns nurses and caregivers to in-home nursing facilities that they contract with…” (FAC ¶ 2.) The FAC does not contain any factual allegations as to whether API or Right Choice actually employ Murillo and Aguirre. To the extent that Plaintiff believes Murillo and Aguirre were employed by both, she has not stated as such in her FAC. In order for Plaintiff to sustain her cause of action for Negligence Hiring, she must allege that API actually employed Murrillo and Aguirre.

The Court also notes that Plaintiff’s allegations of API’s foreknowledge are conclusory and not factual. Plaintiff alleges that API should have been aware that their employees were not properly trained in the use of the Hoyer lift. (FAC ¶ 38.) Plaintiff alleges no facts as to how API should have been aware of this fact, outside the general allegation that API’s facilities were understaffed. As previously discussed, this allegation is at odds with Plaintiff’s allegation that Murillo and Aguirre were in fact trained in the use of the Hoyer lift. (FAC ¶ 5.) As such, the Court finds these facts do not serve to allege API’s foreknowledge of Murillo and Aguirre’s unfitness.

Accordingly, the demurrer to the cause of action for Negligent Hiring/Retention is SUSTAINED with 20 days’ leave to amend.  

Motion to Strike

API also moves to strike Plaintiff’s request for punitive damages and attorney’s fees. These requests appear in connection with Plaintiff’s cause of action for Elder Abuse. As the Court has sustained the demurrer to the Elder Abuse cause of action, the motion to strike attorney’s fees, costs, and punitive damages is MOOT.

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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 

Ability Pathways Inc.’s Demurrer and Motion to Strike came on regularly for hearing on May 3, 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 SECOND CAUSE OF ACTION FOR ELDER ABUSE IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE DEMURRER TO THE FIFTH CAUSE OF ACTION FOR NEGLIGENT HIRING/RETENTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE IS MOOT.

THE CASE MANAGEMENT CONFERENCE SET FOR MAY 3, 2024 IS CONTINUED TO AUGUST 28, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, API TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  May 3, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles