Judge Gail Killefer, Case Number: 24STCV15757, Date: 2025-01-07 Tentative Ruling

CASE NAME: Mario Ortiz, by and through his Successor-In-Interest, Marta Pacheco v. BQ Operations Holdings LLC, et al.

OPPOSING PARTY: Defendants BQ Operations Holdings LLC and Devonshire Care Center, LLC

TENTATIVE: Defendants’ demurrer to the FAC is sustained with leave to amend. The motion to strike is granted and denied in part. The motion to strike is denied as to the first and third causes and the FAC’s request for punitive damages and granted as to the FAC’s request for attorney’s fees. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for, and continues the Case Management Conference to, January 29, 2025, at 8:30 a.m. Defendant to give notice.

On June 24, 2024, Mario Ortiz, by and through his Successor-In-Interest, Martha Pacheco (“Plaintiff”), filed a Complaint against BQ Operations Holdings LLC, Devonshire Care Center, LLC dba Devonshire Care Center (collectively “Defendants”), and Does 1 to 40.

Defendants now demurrer and move to strike the FAC. Plaintiff opposes the Motion. The matter is now before the court.

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.)¿To test 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.)¿¿

¿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”].)¿¿¿¿

“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.)¿¿¿

Demurrer[1]

A. First Cause of Action: Elder Abuse/Neglect (Welf. & Inst. Code, §§ 15600, et. seq)

Under the Elder Abuse Act “[a] plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with ‘recklessness, oppression, fraud, or malice.’ ” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156 (Winn).)

“ ‘[N]eglect’ 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 (Covenant Care).)¿¿“As used in the [Elder Adult and Dependent Adult Civil Protection] 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.’ ”¿¿(Ibid.) “Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Ibid. [italics added].)

Defendants demur to the first cause of action on the basis that Plaintiff’s claims are for professional negligence rather than negligence under the Elder Abuse Act because the FAC alleges that substandard care was provided rather than the failure to provide care.

In Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, the appellate court found that the Plaintiff had not pled a claim for Elder Abuse because the FAC referenced various instances of the elder receiving “extensive medical care” and the “allegations do not constitute abuse or neglect within the meaning of the Elder Abuse Act” even if “Plaintiffs may disagree with the frequency and quantity of the medication, hydration, and nutrition Defendants provided to [the elder].” (Id. at p. 224.)

In Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, the elder patient was admitted for chest pains following hip surgery and had no pressure ulcers at the time of admission. (Id. at p. 407.) The Carter Court found that “[n]othing is alleged about the Hospital's denial or withholding of any care or about any injury Grant suffered during this hospitalization. Thus, no violation of the Elder Abuse Act was stated based on this hospitalization.” (Id., at p. 407.) “No facts are alleged as to any care or treatment the Hospital denied or withheld from Grant—indeed, the allegations that various conditions were diagnosed and that Grant was able to be discharged eight days after admission suggest the Hospital actually provided adequate treatment.” (Id. at p. 408.)

In contrast, in Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, the Court of Appeal found that a plaintiff could plead both a cause of action for elder abuse and negligence, even if there was an overlap between the two:

The complaint includes allegations that could be categorized as professional negligence as well as elder abuse. There is at least some overlap between the two. But the complaint was pleaded as one for “negligence/willful misconduct,” elder abuse and neglect under the Act, and wrongful death.

Plaintiffs, within the limits of established law, are essentially free to plead their case as they choose. They chose to plead a cause of action under the Act, and they did so successfully. The fact that they could have also pleaded a claim for medical malpractice, had they wished to do so, is irrelevant.

(Id. at p. 483.) The Avila Court found that the complaint adequately alleged a claim for Elder Abuse because: “The complaint alleges a ‘conscious and continued pattern of withholding the most basic care and services,’ which included a lack of monitoring, supervision, assistance, and other adequate care and services. It alleges the lack of availability of a physician, failure to provide properly trained staff and nursing, among other things.” (Id.)

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, the appellate court explained that statutorily“[t]he Act excludes liability for acts of professional negligence.” (Id. at p. 88 citing Welf. & Inst. Code, § 15657.2^{^[2]}.) Accordingly, Defendants’ liability for Elder Abuse cannot be premised on the same acts that could constitute professional negligence. Moreover, the Elder Abuse allegations “must be pled with particularity” as they invoke statutory remedies. (Covenant Care, supra, 32 Cal.4th at p. 790.)

The FAC alleges that the Plaintiff, age 77, was admitted to Defendant’s facility on February 13, 2024 and discharged on March 8, 2024. (FAC, ¶¶ 27, 33.) While the FAC generally alleges that Plaintiff failed to provide medical services and care, the FAC contains various facts showing that care was provided, albeit not at an acceptable standard.

Despite Plaintiff’s pressure ulcers worsening, Plaintiff admitted to the ER doctor that “he was not really moved” and “moved on the bed roughly and was not given proper care,” suggesting that Defendants provided care related to the pressure sores, but the frequency and type of care was insufficient. (FAC. ¶ 33.) The FAC alleges that Plaintiff received speech, physical, and occupational therapy as well as a nutritional care plan that was later updated. (Id. ¶¶ 28, 29, 30, 31.) The FAC alleges that the Facility ordered a wound consult and feeding assistance, but the FAC fails to state if the care or services ordered were provided. (Id. ¶ 29.)

The FAC also alleges that the Interdisciplinary Team (IDT) met to discuss Plaintiff’s wounds, resulting in wound care orders, and a care plan was initiated to treat the buttock pressure ulcer injury on March 7, 2024. (FAC, ¶ 32.) “The IDT met to discuss his wounds. Care plan problems were developed to address the left buttock pressure injury, perineal/perianal redness, and position preference at this time. Orders for wound care and a low air loss mattress were entered, education was provided to the family regarding pressure ulcer prevention/skin care, and wound care supplies were provided.” (Ibid.)

The above facts support the finding that a care plan was implemented and carried out, albeit negligently. The court agrees that the allegations in the FAC failed to distinguish between conduct that constituted negligence and conduct that was Elder Abuse due to failure to provide any care. “The Estate cannot evade the limitations set forth in Covenant Care simply by characterizing a claim based on the undertaking of medical services as a failure to protect a patient from health or safety hazards.” (Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1135.)

Because the Elder Abuse Act expressly excludes acts of professional negligence, Plaintiff is required to plead specific facts that show that Defendants failed to provide care, not that the care was negligently provided. (See Wel. & Inst. Code, § 15657.2; Sababin, supra, 44 Cal.App.4th at p. 88.)

As with any person or entity in a caretaking or custodial role, a hospital acting as a custodian may negligently fail to provide a patient with adequate hydration or nutrition, fail to tend to the patient's hygiene, or fail to provide medical care. (§ 15610.57, subd. (b)(1), (2), (4).) Such negligent failures are consistent with the definition of neglect under the Act and the Supreme Court's decisions and are not based on the negligent undertaking of medical care.

The court is unaware of any statute or case law holding that the same operative facts used to support a claim for professional negligence can support a claim for negligence under the Elder Abuse Act. Here, the specific operative facts for each cause of action in the FAC should be alleged under each count and not commingled under the section titled “FACTS COMMON TO ALL ALLEGATIONS” because the facts supporting Elder Abuse must be separate from the facts supporting a claim for professional negligence. Plaintiff must distinguish what care and services were negligently provided and what care and services Defendants failed to provide altogether in violation of the Elder Abuse Act.

Furthermore, Plaintiff must allege facts to show how the failure to report a change of condition, understaffing, lack of in-service education program and training was abuse that was committed with “recklessness, oppression, fraud, or malice.” (Welf. & Inst. Code, § 15657.) “Plaintiffs' general statements of recklessness are not sufficient to survive a demurrer to their elder abuse cause of action.” (Alexander, supra, 23 Cal.App.5th at p. 223.)

Lastly, the court is unpersuaded by Defendants’ argument that they did not have a caretaking and custodial relationship with the Plaintiff when the FAC alleges that Plaintiff was transferred from the hospital to Defendant’s Facility so that they could provide for Plaintiff’s basic needs and to initiate medical care. (Winn, supra, 63 Cal.4th at p. 158.) The FAC alleges that Defendants owned, managed, or operated a 24-hour care facility and had the power to initiate medical care, including feeding assistance over the Plaintiff who had substantive mobility issues and was unable to manage his basic needs. (FAC, ¶¶ 4, 27-33.)

As the facts that support Plaintiff’s claim for Elder Abuse are ambiguous and uncertain, the demurrer to the first cause of action is sustained with leave to amend.

B. Third Cause of Action – Violation of Residents’ Rights (Health & Saf. Code, § 1430)

“A current or former resident or patient of a skilled nursing facility . . . may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients’ Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” (Health & Saf. Code, § 1430(b).)¿¿A violation of a statute must be pled with specificity.¿¿(Fisher v. San Pedro Peninsula Hospital¿(1990) 214 Cal.App.3d 560, 604 [“facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled”].

Defendants demur to the third cause of action because it recites the rights that were violated without stating facts to showing how Defendants violated the Plaintiff’s bill of right.

“It is settled law that a pleading must allege facts and not conclusions, and that material facts must be alleged directly and not by way of recital.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.)

While Plaintiff alleges various facts in the FAC under the section titled “FACTS COMMON TO ALL ALLEGATIONS”, Plaintiff fails to tie those facts to the specific statutory violations alleged in Paragraph 113 of the FAC. For example, the third cause of action fails to state what facts support the allegation that Defendants failed to treat Plaintiff with respect and dignity, as required by Title 22 CCR § 72527(a)(12).

While Paragraph 113 identifies some of the rights Defendants violated, Paragraph 113 states those rights are “including, but not limited” to the identified violations. Therefore, Paragraph 113 is not inclusive of all alleged statutory violations. In opposition, Plaintiff states that Paragraph 42 details all statutory violations but the FAC fails to specify if all statutory violations recited in Paragraph 42 were all rights that Defendants violated

As the third cause of action must be pled with specificity, Plaintiff cannot make legal conclusions about which rights were violated and must reallege which specific facts recited in the “FACTS COMMON TO ALL ALLEGATIONS” support each statutory violation recited in Paragraph 113. Without specific facts in the third cause of action, Defendants are forced to speculate about what facts and violations support the third cause of action, meaning Defendants lack sufficient notice to defend against the third cause of action.

Based on the above, the demurrer to the third cause of action is sustained with leave to amend.

1) Paragraphs 87 through 96; First Cause of Action for Elder Abuse/Neglect, in its entirety.

2) Paragraphs 110 through 116; Third Cause of Action for Violation of Patient’s Bill of Rights, and its entirety.

3) Plaintiff’s prayer for attorney's fees and costs pursuant to Welfare and Institutions Code

4) Plaintiff’s prayer for exemplary and punitive damages pursuant to Civil Code §3294.

5) Plaintiff’s prayer for attorney's fees and costs pursuant to Health and Safety Code § 1430(b).

It is improper to strike a whole cause of action pursuant to a motion to strike. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) Such challenges must be made by demurrer. (Id.) Accordingly, the request to strike the first and third cause of action from the FAC is denied.

As the demurrer to the first and third causes of action has been sustained, the motion to strike attorney’s fees and costs under Welf. & Inst. Code §15657(a) and Health and Safety Code § 1430(b) is granted with leave to amend.

Lastly, the court finds that Plaintiff’s claim for punitive damages is adequately pled.

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression, or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)¿ The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Ibid.)¿¿“Malice” is defined in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.”¿ (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.)¿¿¿

When the defendant is a¿corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the¿corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code, § 3294(b).) The FAC alleges that the Director of Nursing (“DON”) is a managing agent of the Facility and carried out duties and functions that “inextricably impact the operations of the facility thereby affecting corporate policy.” (FAC, ¶ 25, 77.)

The FAC alleges the DON was aware that Plaintiff’s pressure sore injuries were worsening but failed to address or remedy the substandard care despite knowing that the pressure sore presented “a life-threatening and potentially fatal risk to the health, safety, and well-being of an elderly and infirm patient such as Mr. ORTIZ.” (FAC, ¶¶ 32, 76.) Because nothing was done about Plaintiff’s injuries, Plaintiff “passed away after spending the remainder of his life enduring needless pain and suffering from the injuries alleged herein.” (Id. ¶ 40.) The DON acted with malice, fraud, and oppression by failing to properly manage the Facility to provide adequate care to patients, failing to comply with local, state, and federal laws, and failing to review, evaluate, and update Plaintiff’s care plan and assess risk factors. (Id. ¶ 77.)

Based on the above, the motion to strike the FAC’s request for punitive damages is denied.

Defendants’ demurrer to the FAC is sustained with leave to amend. The motion to strike is

granted and denied in part. The motion to strike is denied as to the first and third causes and the

FAC’s request for punitive damages and granted as to the FAC’s request for attorney’s fees.

Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for

for, and continues the Case Management Conference to, January 29, 2025, at 8:30 a.m.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (Santiago Decl., ¶ 5, Ex. B.)

[2] “Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.” (Welf. & Inst. Code, § 15657.2.)