Judge: Gregory Keosian, Case: 22STCV29880, Date: 2023-09-12 Tentative Ruling
Case Number: 22STCV29880 Hearing Date: September 12, 2023 Dept: 61
Defendants Gem Healthcare LLC’S Demurrer and Motion to
Strike Portions of the Complaint is OVERRULED. The motion to strike is GRANTED
as to the prayer for injunctive relief, with leave to amend, and is otherwise
DENIED.
Defendants to provide notice.
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311:
“We treat the demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law. . . . Further, we
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Id. at
p. 318; see also Hahn. v. Mirda
(2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.
[Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if
the complaint, liberally construed, can state a cause of action under any
theory or if there is a reasonable possibility the defect can be cured by
amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendant Gem Healthcare (Defendant) demurrers to the
Complaint of Plaintiff Monica Lopez (Plaintiff), brought on her own behalf and
on behalf of Socorro Lopez, the Decedent in this action. Defendant argues that
the Complaint fails to plead a claim for elder abuse with sufficient
particularity, and does not allege conduct of sufficient severity or malice to
form the basis for a claim. (Demurrer at pp. 11–16.) Defendant further argues
that Plaintiff fails to allege facts supporting their claim for willful
misconduct in their negligence claim. (Demurrer at pp. 17–18.) Defendant
finally argues that the third cause of action for violation of resident’s rights,
though based on statutory theories, fails to plead facts supporting each
violation with particularity. (Demurrer at pp. 18–19.)
To state a claim for elder
abuse by neglect, “[t]he plaintiff must allege (and ultimately prove by clear
and convincing evidence) facts establishing that the defendant: (1) had
responsibility for meeting the basic needs of the elder or dependent adult,
such as nutrition, hydration, hygiene or medical care; (2) knew of conditions
that made the elder or dependent adult unable to provide for his or her own
basic needs; and (3) denied or withheld goods or services necessary to meet the
elder or dependent adult's basic needs, either with knowledge that injury was
substantially certain to befall the elder or dependent adult (if the plaintiff
alleges oppression, fraud or malice) or with conscious disregard of the high
probability of such injury (if the plaintiff alleges recklessness). (Carter v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 406–07, citations omitted.)
“[T]he facts constituting the
neglect and establishing the causal link between the neglect and the injury must
be pleaded with particularity, in accordance with the pleading rules governing
statutory claims.” (Id. at p. 407,
internal quotation marks omitted.)
The Complaint here alleges that
Decedent was admitted to Defendant’s facility for physical rehabilitation after
surgery in January 2022. (Complaint ¶ 15.) Until her removal to a hospital in
February 2022, Defendant failed to provide Decedent with adequate nutrition and
hydration, failed to monitor her condition, and failed to assist with
Decedent’s daily hygiene. (Complaint ¶ 16.) Defendant also failed to take
appropriate action to prevent the development of pressure sores on Decedent’s
body. (Complaint ¶¶ 25–29.) Decedent
died one day after being removed from Defendant’s facility, when she was found
to suffer from severe dehydration, respiratory failure, and cardiogenic shock.
(Complaint ¶ 17.) It is alleged that Defendant’s staff knew that Decedent was
dependent upon them for medical and custodial care, including the need for
nutrition and hydration. (Complaint ¶ 15.) However, Defendant failed to abide
by applicable regulations requiring adequate minimum staffing at its facility,
which substantially caused Decedent’s injury. (Complaint ¶¶ 50–53.)
These allegations are adequate to
state a claim for elder abuse and neglect. Among the definitions of “neglect”
contained in the elder abuse statute are “[f]ailure to assist in personal
hygiene, or in the provision of food, clothing, or shelter,” and “[f]ailure to
prevent malnutrition or dehydration.” (Welf. & Inst. Code § 15610.57, subd.
(b)(1), (4).) The above allegations fall squarely within the grounds for which
relief for neglect is available. Defendant’s reliance upon the facts of the Carter
decision is inapposite, as those facts are distinguishable. (Demurrer at p.
12.) In Carter, the only conduct that was pleaded to have caused injury
to the decedent elder was that the hospital “did not administer the antibiotics
[the decedent] needed to treat his pneumonia and did not have the proper size
endotracheal tube in the crash cart,” conduct which the court held amounted to
medical negligence rather than neglect. (Carter, supra, 198
Cal.App.4th at p. 408.) This is far removed from the allegations of
consistent failure to provide hydration, nutrition, and hygiene here. Indeed,
the Carter court cited an example of elder abuse from another case, in
which neglect was found to lie where the facility “ignored a medical care plan
requiring the facility to check the dependent adult's skin on a daily basis and
failed to notify a physician when pressure ulcers and other skin lesions
developed.” (Carter, supra, 198 Cal.App.4th at p. 406,
citing Sababin v. Superior Court (2006) 144 Cal.App.4th 81,
83–87.) Added to this are allegations of understaffing, which have been held to
support requisite allegations of recklessness by the officers and managing
agents of a defendant facility. (See
Fenimore v. Regents of University of California (2016) 245 Cal.App.4th
1339, 1348–49 [“The trier of fact should decide whether a knowing pattern and
practice of understaffing in violation of applicable regulations amounts to
recklessness.”].)
The demurrer is therefore
OVERRULED as to the first cause of action for elder abuse.
Defendant argues that
Plaintiff’s second cause of action for negligence and willful misconduct fails,
because there are no facts to support allegations that Defendant acted with
either “a positive intent to harm another or to do an act with an active and
absolute disregard for the consequences.” (Demurrer at p. 17.)
Willful misconduct is a form of
negligence. "It is not a separate tort [from negligence], but simply an
aggravated form of negligence, differing in quality rather than degree from
ordinary lack of care. Its pleading requirements are similar to negligence but
stricter. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526, internal
citations and quotation marks omitted.) Although negligence ordinarily may be
pleaded in general terms, “The act or omission must be even more specifically
described in order to raise it to the level of willful misconduct.” (Id.
at p. 528.) “No claim of willful
misconduct can be stated without alleging the specific act or omission that
caused the injury. In addition, three essential elements must be present to
raise a negligent act to the level of willful misconduct: (1) actual or
constructive knowledge of the peril to be apprehended, (2) actual or
constructive knowledge that injury is a probable, as opposed to a possible,
result of the danger, and (3) conscious failure to act to avoid the peril.” (Ibid.,
internal quotation marks omitted.)
The Complaint contains these
requisite elements. Defendant is alleged to have known of the peril to Decedent
resulting from the failure to provide adequate food, water, and hygiene.
(Complaint ¶ 84.) Defendant is alleged to have known that failing to provide
for these requirements posed a probability, not just a possibility, of harm.
(Complaint ¶¶ 81, 84, 87.) Finally, it is alleged that Defendant consciously
failed to avoid the peril by failing to monitor and alleviate Plaintiff’s
physical needs; failing to train and supervise the staff who were responsible
for providing for same; and failing to adequately staff the facility.
(Complaint ¶ 85.) The demurrer is therefore OVERRULED as to the second cause of
action.
Defendant finally argues that the
third cause of action for violation of resident’s rights — which is to say 12
regulatory provisions requiring, among other things, that Defendant take
measure to prevent bedsores, create and follow health plans for patients in
their care, and provide necessary fluids. (Complaint ¶¶ 93a–93l.)
Defendant cites authority for the proposition that when a claim, like this one,
“relies for recovery upon a purely statutory liability it is indispensable that
he plead facts demonstrating his right to recover under the statute. The
complaint must plead every fact which is essential to the cause of action under
the statute.” (Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184,
207.)Yet the Complaint here does plead the facts necessary for liability
under the statute. Defendant’s argument is to point to the Complaint’s
quotations from the relevant regulations and state that they are alleged
without factual support, while ignoring that this cause of action incorporates
the same allegations that support Plaintiff’s claims for elder abuse and
negligence. (Complaint ¶ 90.)
The demurrer is therefore OVERRULED.
II.
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. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall 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. (California Rules of
Court Rule 3.1322.)
The grounds for a motion to
strike shall appear on the face of the challenged pleading or form any matter
of which the court is required to take judicial notice. (Code Civ. Proc., §
437(a)). The court then may strike out any irrelevant, false, or improper
matter inserted in any pleading and strike 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. (Code Civ. Proc., § 436.) When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend. (Perlman v. Municipal Court
(1979) 99 Cal.App.3d 568, 575.)
Defendant moves to strike the
Complaint’s prayers for punitive damages, attorney fees, and injunctive relief
under Health & Safety Code § 1430. (Motion at pp. 9–16.)
The arguments as to punitive
damages and attorney fees fail, as they are premised upon this court’s
rejection of Plaintiff’s claim for elder abuse pursuant to Defendant’s
demurrer, which has been overruled. Plaintiff’s
pleading of an elder abuse claim requires allegations of intent requisite to
establish punitive damages, which in turn permit a prevailing plaintiff to
recover attorney fees. (Welf. & Inst. Code § 15657, subd. (a).) As
Plaintiff has alleged such a claim, these arguments fail as well.
However, Defendant’s argument
with respect to the claim for injunctive relief under Health & Safety Code
§ 1430 is persuasvie, and unanswered in opposition. The relevant statutory
language is as follows:
A current or
former resident or patient of a skilled nursing facility, as defined in
subdivision (c) of Section 1250, or intermediate care facility, as defined in
subdivision (d) of Section 1250, 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. The suit shall be brought in a court of competent jurisdiction. The
licensee shall be liable for the acts of the licensee's employees. The licensee
shall be liable for up to five hundred dollars ($500), and for costs and
attorney fees, and may be enjoined from permitting the violation to continue.
(Health & Saf. Code, §
1430, subd. (b).) The statute thus identifies a class of persons who may bring
suit — “[a] current or former resident or patient” — and the subject matter of
that suit — “violat[ions of] any rights of the resident or patient” as set
forth in other sources. The subsection then describes how the defendant
licensee or facility may be liable for certain acts, to a certain monetary
penalty, attorney fees, and may be subject to injunction for a continuing
violation.
On its face, the statutory
language concerns suits by residents or former residents to vindicate their own
rights, i.e. “any rights of the resident or patient,” not suits by residents to
vindicate the rights of others. The statute does not provide that a plaintiff
may seek an injunction with no prospective impact on their own rights. (See Scripps Health v. Marin (1999) 72
Cal.App.4th 324, 332 [“[T]he express codified purpose of a prohibitory
injunction is to prevent future harm to the applicant by ordering the defendant
to refrain from doing a particular act.”].)
Accordingly, the motion to
strike is GRANTED with leave to amend as to the prayer for injunctive relief,
and is otherwise DENIED.