Judge: Gail Killefer, Case: 23STCV08676, Date: 2023-08-07 Tentative Ruling

Case Number: 23STCV08676    Hearing Date: October 10, 2023    Dept: 37

HEARING DATE:                 Tuesday, October 10, 2023

CASE NUMBER:                   23STCV08676

CASE NAME:                        Adamaris Wells v. Cliffside Malibu, et al.

MOVING PARTY:                 Defendants Cliffside Malibu; Access Malibu, Inc.; and Cliffside Malibu 1

OPPOSING PARTY:             Plaintiff Adamaris Wells, a minor, by and through her guardian ad litem Ruby Wells and Samantha Claxton, as successor-in-interest for Decedent Charpail Tyler Walker

TRIAL DATE:                        6 November 2023

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer with Motion to Strike First Amended Complaint

OPPOSITION:                        4 October 2023

REPLY:                                  6 October 2023

TENTATIVE:                         Defendants’ demurrer to the second and third causes of action is sustained with 15 days leave to amend. The demurrer to the fourth cause of action is sustained without leave to amend. Defendants’ motion to strike the fourth cause of action is denied as moot, but is otherwise granted without leave to amend.  The court sets an OSC re Amended Complaint for October 31, 2023, at 8:30 a.m.

Background

On April 14, 2023, Plaintiff Adamaris Wells, a minor through her Guardian Ad Litem as successor-in-interest for Decedent Charpail Tyler Walker (collectively “Plaintiffs”), filed a Complaint against Defendants Cliffside Malibu; Access Malibu, Inc.; Cliffside Malibu 1 (collectively “Defendants”) and Does 1 to 50 for (1) negligence (wrongful death/survival action); (2) fraud/intentional misrepresentation; and (3) fraudulent/negligent misrepresentation.

On August 7, 2023, Defendants’ demurrer was sustained with leave to amend as to the second and third causes of action and overruled as to the first cause of action. Defendants motion to strike was also denied.

On August 28, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the following four causes of action: (1) negligence (wrongful death/survival action); (2) fraud/intentional misrepresentation; (3) fraudulent/negligent misrepresentation; and (4) dependent adult neglect.

On September 19, 2023, Defendants filed a demurrer with a motion to strike the FAC. Plaintiffs filed opposing papers on October 4, 2023. Defendants filed a reply on October 6, 2023.

Discussion

I.         Legal Standard

A.        Demurrer 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP, § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ 

B.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

C.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Demurrer[1]

The FAC alleges that on August 22, 2022, at approximately 10:30 am, Charpail Tyler Walker (the “Decedent”) voluntarily admitted himself to Defendants Cliffside Malibu; Access Malibu, Inc.; Cliffside Malibu 1 (collectively “Defendants”) rehabilitation treatment facility for alcohol detox and addiction assessment and treatment. (FAC ¶¶ 9, 11.) Defendants failed to supervise and monitor the Decedent for approximately 11 hours from 11:30 p.m. on August 22, 2022, until he was found dead on August 23, 2022, at 10:45 am. (FAC ¶ 13.)

Plaintiffs bring this action alleging: (1) negligence (wrongful death/survival action); (2) fraud/intentional misrepresentation; (3) fraudulent/negligent misrepresentation; and (4) dependent adult neglect. Defendants now demur to the second, third, and fourth causes of action on the basis that each claim fails to state sufficient facts to constitute a cause of action against Defendants.

A.        Second and Third Causes of Action – Fraud/Intentional Misrepresentation and Fraud/Negligent Misrepresentation

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. [Citations.] Each element of a fraud count must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff. [Citation.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230–231.)

Previously, the court upheld the demurrer to the second and third causes of action on the basis that they were not pled with the requisite specificity as to when and what misrepresentations were made and if they were made by an agent of Defendants. (See 08/07/23 Ruling.)

The court agrees with Defendants that Plaintiffs second and third causes of action fail due to lack of specificity. The FAC states two new facts about the when and what representations were made the Decedent and his family. (See FAC, ¶¶ 41, 42.) First, in May 2022, Jordon Payton-Fernley, an admission coordinator at Cliffside Malibu represented to the Decedent that he would be staying at the Cliffside Malibu facility but instead “was admitted to the far less glamorous Access Malibu for treatment.” (FAC ¶ 43.) In agreeing to be admitted to Cliffside Malibu, Payton-Fernley enticed Plaintiff with the promise of “a luxury resort” and “access to tennis and basketball courts.” (FAC ¶ 41.) Plaintiff fails to state, however, how Payton Fernley's enticement resulted in damages to the Decedent or Plaintiffs or how the promised amenities, or lack thereof, caused the Decedent’s death.

Secondly, the Decedent, and his mother, Samantha Claxton, reviewed Cliffside Malibu facility’s website at or around May and April 2022, which represented Cliffside Malibu as the “premier luxury alcohol and drug rehab program in California.”  The FAC fails to explain how such a representation harmed the Decedent and Plaintiffs and caused damages. (FAC ¶ 42.) Similarly, Plaintiffs failed to explain how the representation of individualized treatment plans promoted by Cliffside Malibu caused damages to the Decedent and Plaintiffs. There is no indication that the individualized treatment plans reviewed by the Decedent and Plaintiff Claxton promised a certain level of care or supervision during rehabilitation, including detoxification. The court cannot ascertain how such misrepresentations damaged Plaintiff.

Moreover, the FAC fails to state how, who, or when representations were made that the Decedent would “receive treatment from experienced alcohol treatment professionals” and receive an “individualized, professionally managed detox program” that would comply with “the standards by The Joint Commissions.” (FAC ¶ 43.) As these facts that are within the knowledge of Plaintiffs, the court is not persuaded that the specificity requirement should be relaxed. “[T]he requirement of specificity is relaxed when the allegations indicate that ‘the defendant must necessarily possess full information concerning the facts of the controversy or when the facts lie more in the knowledge of the opposite party.’[Citation.]” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Consequently, the demurrer to the second and third causes of action is sustained with leave to amend.

B.        Fourth Cause of Action – Dependent Adult Neglect

The Elder Abuse Act penalizes neglect that results in the physical harm, pain, or mental suffering of an elder or “[t]he deprivation of a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, § 15610.07.) “In short, neglect as a form of abuse under the Elder Abuse Act refers ‘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.’” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404 citing Delaney v. Baker (1999) 20 Cal.4th 23, 34.) “Thus, when the medical care of an elder is at issue, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Carter at pp. 404–405 [italics original] citing Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, 11.)

The FAC alleges that Defendants failed to provide for the Decedent’s basic need including food and medical care for the physical and mental needs of an individual undergoing severe withdrawals. (FAC ¶¶ 66, 68.) By failing to provide medical care and protecting the Decedent from the health and safety hazards associated with alcohol withdrawal. (FAC  68.) The Decedent was abandoned during his severe detox and deprived of medical care despite his CIWA-Ar score of 16 requiring a doctor’s observation and care and hospitalization. (FAC¶¶ 66, 69.) Welf. & Inst. Code, § 15610.57 defines neglect as to include the “[f]ailure to provide medical care for physical and mental health needs” and “[f]ailure to protect from health and safety hazards.” Therefore, the court finds that Plaintiffs’ fourth cause of action is adequately pled.

Defendants further request that the demurrer to the fourth cause of action be sustained because the Plaintiffs did not seek leave of court to add the fourth cause of action.  (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”].) The August 7, 2023, ruling specifically granted leave to amend the second and third causes of action, not leave to add a new cause of action. “The granting of leave to amend after a demurrer is sustained on one ground does not give the plaintiff a license to add any possible cause of action that might not be subject to dismissal on that ground. Otherwise, there would be virtually no limitation on amendments following the sustaining of a demurrer.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456 [permitting dismissal of claim that was added without leave of court].)

“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all. (Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [sustaining motion to strike because a new cause of action was added that was outside the scope of the order granting leave to amend].) 

Therefore, the demurrer to the fourth cause of action is sustained without leave to amend.

III.      Motion to Strike

Defendants request the following be stricken from the FAC:

·       Plaintiffs’ Fourth Cause of Action for Dependent Adult Neglect, ¶¶ 65-73; and

·       Request for enhanced remedies under statute, ¶ 6 of the Prayer for Relief.

·       ¶ 43, page 13, line 27: “…who is a person of color…”

·       ¶ 48, page 15, line 12: “…and discriminatory behavior…”

As the demurrer to the fourth cause of action was sustained without leave to amend, the motion to strike the fourth cause of action is denied as moot. However, the request to strike Paragraph 6 from the Prayer for Relief is granted.

“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded.” (Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) As Paragraph 43, page 13, line 27 stating: “who is a person of color” and Paragraph 48, page 15, line 12 stating” “and discriminatory behavior” are not essential facts to Plaintiffs’ causes of action and are surplusage.  The request to strike said paragraphs is granted without leave to amend.

Conclusion

Defendants’ demurrer to the second and third causes of action is sustained with 15 days leave to amend. The demurrer to the fourth cause of action is sustained without leave to amend. Defendants’ motion to strike the fourth cause of action is denied as moot, but the motion is otherwise granted without leave to amend.  The court sets an OSC re Amended Complaint for October 31, 2023, at 8:30 a.m.

Dated: October 10, 2023                                            _______________________________

                                                                                    Gail Killefer

                                                                                    Judge, Los Angeles Superior Court