Case Number: 20STCV33081    Hearing Date: May 2, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                             Tuesday, May 2, 2023 

Department B                                                                                                                            Calendar No. 6

PROCEEDINGS

Jeffrey Horwich v. Dr. Michael Roosin, et al.  

20STCV33081

1.      Michael Roosin, M.D., Pamela Roosin, Robert Horwich, and Jill Horwich’s Demurrer to First Amended Complaint

2.      Cynthia L. Williams, M.D.’s Demurrer to First Amended Complaint

3.      Holly M. Emge’s Demurrer to First Amended Complaint       

TENTATIVE RULING

            Michael Roosin, M.D., Pamela Roosin, Robert Horwich, and Jill Horwich’s Demurrer to First Amended Complaint is sustained with 20 days leave to amend.

Cynthia L. Williams, M.D.’s Demurrer to First Amended Complaint is sustained with 20 days leave to amend.

Holly M. Emge’s Demurrer to First Amended Complaint is sustained with 20 days leave to amend.

            Background

            Plaintiff filed the Complaint on August 28, 2020, and the First Amended Complaint (“FAC”) on January 9, 2023.  Plaintiff alleges the following facts.  Plaintiff alleges that the numerous Defendants abused, neglected, and wrongfully caused the death of his mother, June Horwich.  Plaintiff alleges causes of action for: 1. Elder Abuse; 2. Wrongful Death.  

            Meet and Confer

            Defendants Michael Roosin, M.D., et al. set forth meet and confer declarations in sufficient compliance with CCP § 430.41.  (Decls., Keren Bavilski, Melissa Trujillo).  

            Defendant Cynthia L. Williams, M.D. set forth a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl., David J. Masutani).

            Defendant Holly M. Emge set forth a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl., Holly M. Emge).

            Demurrer

            A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

            Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant demurs to the second, fifth, and eighth causes of action on the ground that the causes of action fail to state facts sufficient to constitute a cause of action and that the causes of action are uncertain.

            Each of the demurring Defendants demur to the first and second causes of action of Plaintiff’s First Amended Complaint.

            First Cause of Action for Elder Abuse and Neglect

            As to the first cause of action for Elder Abuse and Neglect, Defendants’ demurrers are sustained with 20 days leave to amend.  Plaintiff fails to state sufficient facts to state a cause of action.  The alleged facts are insufficient to establish the necessary standard of egregious conduct to meet the requisite level of conduct to constitute neglect or abuse to state a cause of action under the Elder Abuse Act.

            A cause of action under Welf. & Inst. Code § 15600 et seq. (“Elder Abuse Act”) must be alleged with particularity.    See, Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.   Acts that constitute simply professional negligence do not constitute elder abuse.  “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve "intentional," "willful or "conscious" wrongdoing of a "despicable" or "injurious" nature.”  Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.   “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.”  See, Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.  “[W]hether a determination that medical care should be provided is made by a health care provider or not, it is the defendant's relationship with an elder or a dependent adult—not the defendant's professional standing or expertise—that makes the defendant potentially liable for neglect.”  Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158.

            Welf. & Inst. Code, § 15610.17 states:

            ““Care custodian” means an administrator or an employee of any of the following public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff:

            (a) Twenty-four-hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

            (b) Clinics.

            (c) Home health agencies.

            (d) Agencies providing publicly funded in-home supportive services, nutrition services, or other home and community-based support services.

            (e) Adult day health care centers and adult day care.

            (f) Secondary schools that serve 18- to 22-year-old dependent adults and postsecondary educational institutions that serve dependent adults or elders.

            (g) Independent living centers.

            (h) Camps.

            (i) Alzheimer's Disease day care resource centers.

            (j) Community care facilities, as defined in Section 1502 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.

            (k) Respite care facilities.

            (l) Foster homes.

            (m) Vocational rehabilitation facilities and work activity centers.

            (n) Designated area agencies on aging.

            (o) Regional centers for persons with developmental disabilities.

            (p) State Department of Social Services and State Department of Health Services licensing divisions.

            (q) County welfare departments.

            (r) Offices of patients' rights advocates and clients' rights advocates, including attorneys.

            (s) The office of the long-term care ombudsman.

            (t) Offices of public conservators, public guardians, and court investigators.

            (u) Any protection or advocacy agency or entity that is designated by the Governor to fulfill the requirements and assurances of the following:

            (1) The federal Developmental Disabilities Assistance and Bill of Rights Act of 2000, contained in Chapter 144 (commencing with Section 15001) of Title 42 of the United States Code,1 for protection and advocacy of the rights of persons with developmental disabilities.

            (2) The Protection and Advocacy for the Mentally Ill Individuals Act of 1986, as amended, contained in Chapter 114 (commencing with Section 10801) of Title 42 of the United States Code,2 for the protection and advocacy of the rights of persons with mental illness.

            (v) Humane societies and animal control agencies.

            (w) Fire departments.

            (x) Offices of environmental health and building code enforcement.

            (y) Any other protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults.”

            Welf. & Inst. Code, § 15657.3 states, in relevant part:

            “(d)(1) Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:

            (A) An intestate heir whose interest is affected by the action.

            (B) The decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.

            (C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, “an interested person” does not include a creditor or a person who has a claim against the estate and who is not an heir or beneficiary of the decedent's estate.

            (2) If the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate, as those terms are defined in subdivision (c) of Section 1064 of the Probate Code, is alleged to have committed abuse of the elder or dependent adult, the persons described in subparagraphs (A), (B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse. This paragraph does not require the court to resolve the merits of an elder abuse action for purposes of finding that a plaintiff who meets the qualifications of subparagraphs (A), (B), and (C) of paragraph (1) has standing to commence or maintain such an action.”

            Plaintiff fails to state facts to establish that each of the demurring Defendants were care custodians of decedent.  Most of the named Defendants do not qualify under the categories of care custodians noted above.  Further, as to the named Defendants who may qualify as an individual who provides health services to an individual, Plaintiff has not alleged facts to show that these individuals maintained a caretaking responsibility for decedent.  Plaintiffs cannot bring a claim of neglect under the Elder Abuse Act unless the defendant health care provider has a caretaking or custodial relationship with the elder or dependent adult.  Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 165 (holding that a medical practitioner’s mere providing of sub-standard care does not rise to the level of elder abuse or neglect absent a custodial relationship).

            In addition, Plaintiff has failed to allege the requisite particularized facts to support his contention that Defendants conduct rises to the level of despicable and egregious behavior to allow Plaintiff the heightened remedies available under the Elder Abuse Act.     Providing negligent medical care to an elderly and/or dependent patient does not constitute elder abuse unless Plaintiff alleges facts to establish that Defendants acted with the necessary culpable mental state under the Act.  See, Mack v. Soung (2000) 80 Cal.App.4th 966, 972-74.  For example, with respect to medical care providers, who are not also care custodians, elder abuse generally involves the “egregious withholding of medical care.”  Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 786-87.  Here, the allegations do not provide the necessary factual allegations to support Plaintiff’s contention that Defendants egregiously withheld medical care.  Therefore, the factual allegations do not support Plaintiff’s contention that Defendants acted with a deliberate and knowing conduct of indifference in conscious disregard for the rights and safety of Plaintiff.  See, Carter, 198 Cal.App.4^th at 405-07 (outlining examples of the type of egregious conduct that would support an Elder Abuse cause of action). 

            Therefore, the demurrers to the first cause of action are sustained with 20 days leave to amend.   

            Second Cause of Action for Wrongful Death

            Defendants’ demurrers are sustained with 20 days leave to amend.  Plaintiff fails to state facts sufficient to state a cause of action.

            “To prevail [on the] claim of wrongful death, plaintiffs must prove (1) a wrongful act or neglect on the part of one or more persons [(that is, negligence)] that (2) cause[s] (3) the death of [another] person. A person may be liable either for (1) his own negligence, in which case he is directly liable for the resulting death, or (2) someone else's negligence, in which case he is vicariously liable because—in the eyes of the law—the other person's negligence is deemed to be his own. A person acts negligently only if he had a duty to use due care and breached that duty.” Musgrove v. Silver (2022) 82 Cal.App.5th 694, 705 (internal citations and quotations omitted; emphasis in original).

            “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:  (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent's parents.”  Code Civ. Proc., § 377.60.

            Here, as to Defendants Pamela Roosin, Michael Roosin, M.D., Robert Horwich, and Jill Horwich, Plaintiff fails to state facts to establish a duty of care.  Plaintiff alleges that all Defendants “undertook the care and treatment of the Decedent and render professional services in the care and treatment of Decedent...” (FAC, ¶ 126.)  However, Plaintiff has merely set forth conclusions regrading the imposition of a duty of care rather than competent facts.

            As to Michael Roosin, M.D. and Cynthia L. Williams, M.D., the allegations of the First Amended Complaint show a bar based on the statute of limitations set forth in California Code of Civil Procedure Section 340.5. Code Civ. Proc., § 340.5 states, in relevant part: “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

            “[T]he term ‘injury,’ as used in section 340.5, means both ‘a person's physical condition and its negligent cause. The word “injury” for purposes of section 340.5 is a term of art that refer[s] to the damaging effect of the alleged wrongful act and not to the act itself. The injury is not necessarily the ultimate harm suffered, but instead occurs at the point at which appreciable harm [is] first manifested.” Brewer v. Remington (2020) 46 Cal.App.5th 14, 24 (internal citations and quotations omitted; emphasis in original).

            Here, the alleged acts complained of against demurring Defendants commenced in 2015 and decedent appeared to suffer injury in August 2018 when she suffered a heart attack.  Plaintiff alleges decedent died on September 1, 2018. Thus, the allegation show that Plaintiff had a suspicion of wrongdoing at least by September 1, 2018.  However, the Complaint was filed on August 28, 2020.  Plaintiff failed to file the action within the one-year statute of limitations pursuant to CCP § 340.5.

            In addition, as against Defendant Williams, M.D. and Defendant Emge, there are insufficient facts to demonstrate a duty of care, breach, and causation.  Plaintiff has only alleged vague and uncertain allegations that they somehow helped or assisted in decedent’s demise.  However, facts as to what specific conduct that these Defendants undertook in the providing of care to decedent are lacking.

            Therefore, the demurrers to the second cause of action are sustained with 20 days leave to amend.

            The Court notes that the original Complaint consisted of 9 pages. The First Amended Complaint, including exhibits, is 409 pages.  The body of the FAC is 35 pages. While the amended complaint is extremely more lengthy than the original Complaint, the bulk of the newly added allegations consist of a series of grievances asserted by Plaintiff regarding Defendants and other individuals with respect to the various Probate Court matters that have arisen since June Horwich’s death.  Most of these allegations provided no actual competent facts to support the causes of action and have not cured the defects that existed in the original Complaint.

            Defendants’ Demurrers are sustained with 20 days leave to amend.

            Defendant Pamela Roosin and Michael Roosin, M.D. are ordered to give notice of this ruling.