Judge: Gregory Keosian, Case: 23STCV06483, Date: 2024-02-26 Tentative Ruling
Case Number: 23STCV06483 Hearing Date: March 12, 2024 Dept: 61
Defendants
Miracle Mile Healthcare Center and Renew Health Consulting Services, LLC’s
Demurrer and Motion to Strike Portions of the First Amended Complaint are
SUSTAINED and GRANTED, with leave to amend, as to the second cause of action
for elder abuse and the prayer for punitive damages, attorney fees, and general
damages against Defendant Renew Health Consulting Services, LLC. The demurrer
and motion to strike are otherwise OVERRULED and DENIED.
Plaintiff to give 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) 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.)
Defendants Miracle Mile Healthcare Center, LLC (MM) and
Renew Health Consulting Services, LLC (Renew) demurrer to the first and third
causes of action for elder abuse and violation of patient’s bill of rights
contained in the First Amended Complaint (FAC) of Plaintiffs Terrice
McClinton-Montgomery and his successor in interest Leyonyi McClinton
(Plaintiffs). They argues that the FAC fails to plead conduct constituting
reckless neglect or employer ratification, and further fails to state facts
sufficient to state a claim for violating patient rights.
To state a claim for elder
abuse, “[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 FAC here adequately
reckless neglect within the meaning of the elder abuse statute against MM.
Despite having knowledge of probable injury from pressure sores, and having a
skin integrity care plan, MM failed to inspect Plaintiff’s skin and reposition
her every two hours, resulting in the progression of pressure sores while
Plaintiff was at the facility to Stage III or Stage IV.. (FAC ¶¶ 29–36.) It is
alleged that the cause of this neglect was intentional understaffing of the
facility by MM’s corporate leadership, in violation of applicable minimum
staffing requirements. (Complaint ¶ 36.) These allegations suffice to state
neglect: failure to prevent pressure ulcers is among the forms of neglect that
elder abuse may take ((See Delaney v. Baker (1999) 20 Cal.4th
23, 27 [holding elder abuse claim for neglect proved when understaffed facility
resulted in leaving decedent in urine and feces for long periods of time, and
the creation of severe bedsores]), and deliberate understaffing has been held
sufficient against demurrer to allege conduct constituting recklessness. (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.”].)
MM
argues that Plaintiff fails to allege that an officer of MM directed or
ratified the conduct, as required under Welfare & Institutions Code §
15657, subd. (c), and Civil Code § 3294, subd. (b). (Motion at pp. 14–15.) The
FAC, however, alleges such corporate ratification, both in those terms and by
reference to understaffing decisions. (FAC¶ 36.) Although MM argues that elder
abuse claims must be pleaded with specificity, the facts concerning corporate
ratification lie more in the knowledge of Defendant itself, and less specificity of pleading is required as
to elements of a defendant’s mental state, as these facts are not readily in a
plaintiff’s possession and “lie more in the knowledge of the opposite
party.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California
(2016) 245 Cal.App.4th 821, 838.)
The allegations against Renew,
however, are insufficient. Only one allegation is levied against Renew in the
FAC: the contention that it “owned, managed, controlled, maintained, and/or
operated Miracle Mile.” (FAC ¶ 5.) No other conduct is alleged on the part of
Renew that is not alleged against all Defendants in toto. Plaintiff makes no
argument in opposition as to the sufficiency of these allegations against
Renew.
The demurrer to the first cause
of action is therefore OVERRULED as to Miracle Mile, and SUSTAINED with leave
to amend as to Renew.
Defendants also argue that the
third cause of action for violating the Patient’s Bill of Rights is
insufficiently pleaded. That claim is derived from Health & Safety Code§
1430, which provides:
A current or
former resident or patient, or the legal representative, personal
representative, or successor in interest of 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 Section 72527 or
73523 of Title 22 of the California Code of Regulations, or any other right
provided for by federal or state law or regulation.
(Health & Safety Code §
1430, subd. (b).)
The claim here is sufficiently
pleaded. The FAC identifies which provision of law and right allegedly owed to
MM’s patients was violated. (FAC ¶¶ 88a–88k.) These allegations are not
presented in a vacuum, but incorporate prior allegations of MM’s alleged
wrongdoing. (FAC ¶ 85.) The claim is therefore specifically stated against MM.
Defendants argue that the claim
should not be pleaded against Renew, because Renew is not “the licensee of a
facility.” (Demurrer at p. 18.) This claim, however, is pleaded only against
MM, and Renew is not included.
Accordingly, the demurrer is SUSTAINED with leave to
amend as to the second cause of action for elder abuse asserted against Renew,
but otherwise 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.)
Defendants argue that Plaintiffs cannot seek enhanced remedies
available under the Elder Abuse Act — such as punitive damages, attorney fees,
and general damages — because Plaintiffs have not pleaded an adequate claim for
elder abuse. (Motion at pp. 7–12.)
These arguments may be considered together, as they are
essentially one argument: that Plaintiff has failed to allege facts
constituting recklessness, malice, oppression, or fraud under Civil Code §
3294, which is the standard applicable to enhanced remedies under Welfare &
Institutions Code § 15657, subd. (a). Punitive damages are allowed in
non-contract cases when a defendant is guilty of “oppression, fraud, or malice
. . . .” (Civ. Code § 3294.) The terms are defined as:
“Malice”
means conduct which is 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.
“Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
“Fraud”
means 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.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
The resolution of Defendant’s arguments on
demurrer also resolves their arguments on the motion to strike. The FAC alleges
that MM despite knowledge of Decedent’s risk of pressure sores, failed to
monitor and turn Decedent with adequate frequency to prevent the sores’
progression to greater severity. The FAC further alleges that this was the
result of deliberate understaffing at the facility. As explained with reference
to the demurrer, these allegations are sufficient against MM.
They are, however, insufficient as against
Defendant Renew. None of the above conduct is alleged against Renew, and Renew
is alleged only to the owner and manager of MM.
The motion to strike is
therefore GRANTED as to Renew, with leave to amend, and otherwise DENIED.