Judge: Gary I. Micon, Case: 24CHCV00562, Date: 2024-08-08 Tentative Ruling
Case Number: 24CHCV00562 Hearing Date: August 8, 2024 Dept: F43
Dept. F43
Date: 8-8-24
Case #24CHCV00562 , Olga
Weisher, et al. vs. Henry Mayo Newhall Memorial Hospital, et al.
Trial Date: N/A
DEMURRER TO COMPLAINT WITH MOTION TO STRIKE
MOVING PARTY: Defendant Henry Mayo Newhall Memorial
Hospital
RESPONDING PARTY: Plaintiffs Olga Weisher, Carl Weisher,
Priscilla Weisher, Jeffery Avila, and Leslie Weisher
RELIEF REQUESTED
Demurrer to Complaint
·
1st Cause of Action for Dependent
Adult Abuse
Motion to Strike
·
Requests for punitive and exemplary damages and
related allegations [p. 23:25-26; p. 24:1-7; and Prayer, item no. 4, p.
28:19-20]
RULING: Demurrer is overruled. The motion to
strike is denied.
SUMMARY OF ACTION
Plaintiffs Olga Weisher, et al., (Plaintiffs) allege that
Olga Weisher developed pressure wounds that were not properly treated while she
was at Defendant Henry Mayo Newhall Memorial Hospital’s (Defendant) facility,
and that Ms. Weisher died as a result thereof.
Plaintiffs’ Complaint alleges four causes of action for
(1) Dependent Adult Abuse & Neglect; (2) Wrongful Death; (3) Negligence;
and (4) Negligent Hiring, Supervision, and Retention. Defendant demurs to the
First Cause of Action.
Defendant filed its demurrer with motion to strike on June
27, 2024. Plaintiffs oppose Defendant’s motion.
ANALYSIS
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(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) The purpose of a demurrer is to challenge the sufficiency of a pleading
“by raising questions of law.” (Postley
v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a
pleading, for the purpose of determining its effect, its allegations must be
liberally construed, with a view to substantial justice between the parties.”
(CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material
facts properly pleaded, but not contentions, deductions or conclusions of fact
or law…” ’ ” (Berkley v. Dowds (2007)
152 Cal.App.4th 518, 525.) In applying these standards, the court liberally
construes the complaint to determine whether a cause of action has been stated.
(Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733.)
First
Cause of Action for Dependent Adult Abuse
Defendant demurs to the First Cause of Action on the basis
that it fails to allege facts sufficient to constitute a cause of action and is
uncertain.
Statutory causes of action for dependent adult abuse must be
pled with particularity. (See Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 790.)
“To obtain enhanced remedies under the Elder Abuse Act, ‘a
plaintiff must demonstrate by clear and convincing evidence that defendant is
guilty of something more than mere negligence; he or she must show reckless,
oppressive, fraudulent, or malicious conduct.’” (Intrieri v. Superior Court
(2004) 117 Cal.App.4th 72, 83.)
The California Supreme Court stated that recovery against a
health care provider under the Act was intended only for “egregious acts of
misconduct distinct from professional negligence...” (Covenant Care, 32
Cal.4th at 784.) As stated by the court in Worsham v. O’Connor Hospital (2014)
226 Cal.App.4th 331, 336, “The Elder Abuse Act does not apply to simple or
gross negligence by health care providers.”
Plaintiffs’ complaint alleges that Defendant’s acts went
beyond mere negligence because Defendant’s showed, at the very least, reckless
conduct in failing to properly treat Ms. Weisher. Defendant failed to provide
adequate staffing, so Ms. Weisher was not being adequately cared for, and
Defendant knew that this lack of care could have dangerous consequences.
(Comp., ¶¶ 52, 55, 59.) Plaintiffs further allege that this lack of adequate
staff and care was ratified by Defendant’s officers, including its Administrator,
its Directors of Nursing, and owner/operator. (Comp., ¶ 63.) Finally,
Plaintiffs request punitive damages on the basis that Defendant’s conduct was
done with a reckless and conscious disregard for the rights and safety of Ms.
Weisher. (Comp., ¶ 71.)
Defendant argues that Plaintiffs’ allegations concerning the
ratification of the conduct are conclusory, vague, and devoid of specific
facts. Plaintiffs argue in their opposition that their allegations concerning
ratification are sufficient because they indicated that certain employees
ratified the conduct that led to the alleged abuse.
Plaintiffs also argue that they have sufficiently pled facts
showing recklessness because they alleged that the understaffing was a
customary practice to reduce labor costs. Plaintiffs also alleged that
Defendant knew that Ms. Weisher was in a vulnerable condition and required
adequate custodial care at all times, but they failed to do so.
For purposes of surviving a demurrer, Plaintiffs have
sufficiently alleged that Defendant acted recklessly in its care and treatment
of Ms. Weisher to a greater degree than mere negligence. Plaintiffs have
alleged that the understaffing that led to her inadequate treatment was more
than just negligence and was instead a customary practice meant to cut costs,
and Plaintiffs have alleged that this conduct was ratified by Defendant’s
officers. These allegations are sufficient at this stage of the proceedings. (See
Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90; see also Country
Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120
Cal.App.4th 426, 430, 434-435.)
Defendant’s demurrer to Plaintiff’s First Cause of Action is
overruled.
Motion to Strike
A court may strike from the complaint any irrelevant, false,
or improper matter. Under CCP § 435, “[a]ny 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.” Under CCP § 436(a), “[t]he court may, upon a motion made
pursuant to Section 435, or at any time in its discretion, and upon terms it
deems proper . . . [s]trike out any irrelevant, false, or improper matter
inserted in any pleading.” Under CCP § 436(b), the court may “[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.”
Punitive Damages
Punitive damages are governed by Civ. Code § 3294: “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.” (Civ. Code § 3294(a).)
Plaintiffs have requested punitive and exemplary damages for
their abuse of a dependent adult cause of action.
In order to state a prima facie claim for punitive damages,
a complaint must set forth the elements as stated in Civ. Code § 3294. (Coll.
Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) “Malice is
defined in the statute as conduct intended by the defendant to cause injury to
the plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others.” (Id.
at 725.) Oppression is “despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights.” (Civ. Code §
3294(c)(2).) Fraud is defined as “an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the intention on the
part of the defendant of thereby depriving a person of property or legal rights
or otherwise causing injury.” (Civ. Code § 3294(c)(3).)
Potter v. Firestone Tire & Rubber Co. (1993) 6
Cal.4th 965, 1004 explained that “punitive damages sometimes may be assessed in
unintentional tort actions.” Taylor v. Superior Court (1979) 24 Cal.3d
890, 894-895 noted that “something more than the mere commission of a tort is
always required for punitive damages. There must be circumstances of
aggravation or outrage, such as spite or malice, or a fraudulent or evil motive
on the part of the defendant, or such a conscious and deliberate disregard of
the interests of others that his conduct may be called willful or wanton.”
Indeed, “punitive damages are proper only when the tortious conduct rises to
levels of extreme indifference to the plaintiff’s rights, a level which decent
citizens should not have to tolerate.” (Lackner v. North (2006) 135
Cal.App.4th 1188, 1210 (internal quotation omitted).)
The “conclusory characterization of defendant’s conduct as
intentional, willful and fraudulent is a patently insufficient statement of
oppression, fraud or malice…within the meaning of section 3294.” (Brousseau
v. Jarrett (1977) 73 Cal.App.3d 864, 872.)
“It is not sufficient to allege merely that defendant ‘acted
with oppression, fraud or malice.’ Rather, plaintiff must allege specific facts
showing that defendant’s conduct was oppressive, fraudulent or malicious (e.g.,
that defendant acted with the intent to inflict great bodily harm on plaintiff
or to destroy plaintiff's property or reputation).” (Croskey, et al., Cal.
Prac. Guide: Insurance Litigation Ch. 13-C (Thomson Reuters, 2016) ¶ 13:197.2;
and see, Anschutz Entertainment Group, Inc. v. Snepp (2009) 171
Cal.App.4th 598, 643 [allegations that defendant’s conduct was “intentional,
and done willfully, maliciously, with ill will towards Plaintiffs, and with
conscious disregard for Plaintiff’s rights” did not satisfy specific pleading
requirements].)
Plaintiffs have alleged that Defendant acted with a willful
and conscious disregard for the rights of Ms. Weisher in failing to provide her
adequate care due to the understaffing. In other words, Plaintiffs have alleged
that Defendant acted with malice in failing to adequately care for Ms. Weisher.
Plaintiffs have also alleged that Defendant acted with oppression because
Defendant’s inadequate care subjected Plaintiff to cruel and unjust hardship in
knowing disregard for her rights. Plaintiffs’ allegations are sufficient to
maintain a claim for punitive damages at this stage of the proceedings.
Defendant’s motion to strike is denied.
CONCLUSION
Defendant’s demurrer to Plaintiffs’ First Cause of Action is
overruled. Defendant’s motion to strike is denied.
Moving party to give notice to all parties.