Judge: Gary Y. Tanaka, Case: 22TRCV00220, Date: 2022-12-06 Tentative Ruling
Case Number: 22TRCV00220 Hearing Date: December 6, 2022 Dept: B
LOS ANGELES SUPERIOR COURT –
SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday,
December 6, 2022
Department B Calendar No. 7
PROCEEDINGS
James
Cragg, et al. v. Silverado Beach Cities, LLC, et al.
22TRCV00220
1. Hicham Siouty, M.D.’s Demurrer to Complaint
2. Hicham Siouty, M.D.’s Motion to Strike Portions of
Complaint
TENTATIVE RULING
Hicham Siouty, M.D.’s Demurrer to
Complaint is overruled.
Hicham Siouty, M.D.’s Motion to Strike Portions of
Complaint is denied.
Background
Plaintiff filed the Complaint on March 22, 2022. Plaintiff alleges the following facts. In 2021, Plaintiff’s decedent, Dorris Cragg,
was enrolled at Silverado Beach Cities, a residential care facility for the
elderly. During a visit on April 7,
2021, Plaintiff discovered decedent incoherent, with bruises on her head. Decedent was transferred to Little Company of
Mary-Torrance. Decedent was diagnosed
with a subdural hematoma, severe sepsis from a urinary tract infection,
dehydration, and acute renal failure. Decedent
died four days after being admitted to hospice care. Silverado staff claimed that Mrs. Cragg hit
herself in the face. During the week she
was at Silverado, Mrs. Cragg allegedly received medical examinations from Susan
Taus, N.P. and Hicham Siouty, M.D. Dr.
Siouty was also Silverado's Medical Director. These individuals failed to intervene on
decedent’s behalf. Plaintiff alleges
causes of action for: 1. Elder Abuse and Neglect (Survival Action); 2.
Negligence/Professional Negligence; 3. Wrongful Death.
Meet and Confer
Defendant set forth
meet and confer declarations in sufficient compliance with CCP § 430.41 and CCP
§ 435.5. (Decls., Beth Ann Neri.)
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.
First Cause of Action for Elder Abuse and Neglect
As to the first cause of action for Elder Abuse and
Neglect, the demurrer is overruled. Plaintiff states sufficient facts to state
a cause of action. The alleged facts are
sufficient 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 "consciou
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.
A brief summary of the facts set forth by Plaintiff in
the Complaint related to the care and treatment, and ultimate demise of
Plaintiff’s decedent was set forth above. However, the Complaint is replete
with additional facts specifically naming demurring Defendant. As noted above, as to demurring Defendant,
Defendant is alleged to have treated Plaintiff at Silverado and is named as a
Medical Director of Silverado. Plaintiff
alleges that Defendant “knew that Mrs. Cragg had sustained serious injuries
while in the care of SILVERADO, [and] failed to provide the medical care she
required and/or failed to have her timely transferred to a hospital for medical
evaluation and treatment.” (Complaint, ¶ 18.) Defendant also allegedly failed to notify
decedent’s family of decedent’s conditions. (Complaint, ¶ 19.) Defendant also allegedly failed to provide for
decedent’s dietary and nutritional needs, and failed to notify decedent’s
family that decedent had become malnourished. (Complaint, ¶¶ 29-34.) Defendant also allegedly failed to adequately
report changes in decedent’s medical condition. (Complaint, ¶ 28.) Defendant also allegedly
violated decedent’s statutory patients’ rights. (Complaint, ¶¶ 38-39.) Plaintiff has alleged the requisite particularized
facts to support his contention that Defendant’s 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 Defendant 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 provide the necessary
factual allegations to support Plaintiff’s contention that Defendant egregiously
withheld medical care. Defendant’s arguments that the allegations merely
support negligence and do not establish a custodial relationship are based on
facts that are outside the scope of the pleading itself. Defendant appears to argue that he only
treated Plaintiff on one occasion and could not have had the necessary
custodial relationship. This, however,
is not a factual allegation in the Complaint. It appears that Defendant will undoubtedly
challenge the factual assertions of the Complaint. However, the allegations of the Complaint, in
fact, appear to set forth the requisite custodial relationship and egregious
conduct. Whether or not the evidence
will ultimately support these allegations are not pertinent in ruling on a
demurrer.
Therefore, the factual allegations do support Plaintiff’s
contention that Defendant acted with a deliberate and knowing conduct of indifference
in conscious disregard for the rights and safety of Plaintiff. See,
Carter, 198 Cal.App.4th at 405-07 (outlining examples of the
type of egregious conduct that would support an Elder Abuse cause of
action). Plaintiff has alleged facts
that go beyond negligence, but which would, instead, demonstrate willful or
reckless misconduct. See, Id.
Thus, Plaintiff has alleged sufficient facts of
conduct which rises to the level of despicable and egregious behavior to allow Plaintiff
the heightened remedies and prayer for attorney’s fees available under the
Elder Abuse Act. Therefore, the demurrer
to the first cause of action is overruled.
Motion to Strike
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading.
CCP § 436(a). The court may also
strike 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. CCP § 436(b).
The grounds for a motion to strike are that the pleading has irrelevant,
false or improper matter, or has not been drawn or filed in conformity with
laws. CCP § 436. The grounds for moving to strike must appear
on the face of the pleading or by way of judicial notice. CCP § 437.
The notice of motion merely states the following:
“[D]efendant ... does file this instant Motion to Strike Plaintiff’s Complaint
as to any claim for attorneys fees and punitive damages.” (Notice of Motion, pages 1-2.) Defendant fails to comply
with Cal. Rules of Court, Rule 3.1322 which states: “A notice of motion to strike
a portion of a pleading must quote in full the portions sought to be stricken
except where the motion is to strike an entire paragraph, cause of action,
count, or defense. Specifications in a
notice must be numbered consecutively.” The
full portion of the items sought to be stricken is not quoted verbatim, nor can
it be determined whether the cited portion is to a specific paragraph based on
the vague nature of the notice which merely states that it requests stricken
“any” claim for attorneys’ fees and punitive damages.
In any event, based on the ruling to the demurrer above,
the Court has already determined that a claim for punitive damages is
adequately stated based on the requisite conduct to meet the cause of action
for Elder Abuse. Stating facts to meet
the heightened level to state a prayer for punitive damages is a requirement to
state a cause of action under the Elder Abuse Act. In addition, Plaintiff is not required to
comply with CCP § 425.13 when the gravamen of the action is under the Elder
Abuse Act. Covenant Care, Inc. v.
Superior Court (2004), 32 Cal.4th 771, 790. Finally, attorneys’ fees are available under
the Elder Abuse Act. Wel. & Inst.
Code 15657(a).
Therefore, the Motion to Strike is denied.
Defendant is ordered to file and serve an Answer within
10 days of this date.
Plaintiff is ordered to give notice of this ruling.