Judge: Gregory Keosian, Case: 23STCV25362, Date: 2024-03-06 Tentative Ruling
Case Number: 23STCV25362 Hearing Date: March 6, 2024 Dept: 61
Defendant
Alvarado Terrace Care Center’s Demurrer and Motions to Strike Portions of the
Complaint is SUSTAINED as to the third and fourth causes of action with 30 days
leave to amend. The motion to strike is DENIED.
Defendant
Martin Luther King Jr. – Los Angeles (MLK-LA) Healthcare Corporation’s Demurrer
and Motion to Strike Portions of the Complaint is SUSTAINED as to the third
cause of action, with l30 days eave to amend. The motion to strike is GRANTED
with leave to amend as to the prayer for attorney fees.
Defendants 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.)
Defendant Alvarado Terrace Care Center (ATCC) demurrers to
the third and fourth causes of action contained in the Complaint, on the
grounds that Plaintiffs Heriverto Padilla, Jose Ramon Padilla, Juana Padilla,
Alfonso Castro, and Willy Hernandez’s (Plaintiffs) claims for elder abuse fail
to state facts constituting reckless neglect as required under Welfare &
Institutions Code § 15657, and that the claim for violating the patient’s bill
of rights is not pleaded with requisite specificity. (Demurrer at pp. 5–9.)
Defendant Martin Luther King Jr. – Los Angeles (MLK-LA) Healthcare Corporation
(MLK) demurrers to the third cause of action for elder abuse, on the grounds
that Plaintiffs fail to allege conduct constituting neglect, or ratification of
the alleged misconduct by MLK’s managing agents. (Demurrer at pp. 4–8.)
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 conduct alleged for each Defendant is as follows. It is
alleged that after having custody of Decedent Maria Hernandez (Decedent) for
some weeks, Defendant MLK made the decision to prematurely transfer her to
ATCC’s facility, despite her not being in the proper condition. (Complaint ¶¶
27, 31.) ATCC, meanwhile, failed to implement proper safety protocols to
prevent Decedent from falling. (Complaint ¶ 34.)
Defendants are incorrect to argue
that Plaintiffs claims are substantively for medical negligence, rather than
neglect. “Neglect” is defined in the elder abuse statute as, among other
things, the “[f]ailure to protect from health and safety hazards.” (Welf. &
Inst. Code § 15610.57, subd. (b)(3).) Liability for elder abuse thus may arise
when a facility fails to take reasonable fall-prevention measures, as alleged
against Defendant ATCC. (See Norman v. Life Care Centers of America,
Inc. (2003) 107 Cal.App.4th 1233, 1248; Fenimore v. Regents of
University of California (2016) 245 Cal.App.4th 1339, 1349.) Likewise,
neglect may be found when one having custody of an elder fails “to provide
medical care for physical and mental health needs.” (Welf. & Inst. Code
§ 15610.57, subd. (b)(2).) It follows that a facility that unilaterally,
prematurely, and reckless terminates the custodial relationship with the elder,
as MLK is alleged to have done here, may be liable for neglect. (Complaint ¶ 41
[MLK discharged Decedent despite ‘knowing that she was frail and needed close
monitoring with additional medical treatment.”].)
However, Defendants are correct that the claims are infirm
for other reasons. Plaintiffs do no plead facts showing that ATCC’s conduct was
reckless or malicious, as necessary under Welfare & Institutions Code §
15657, but only that ATCC “failed to take safety precautions” and “failed to
provide immediate lifesaving treatment.” (Complaint ¶ 34.) Plaintiffs do not
allege that ATCC acted with “deliberate disregard of the high degree of
probability that an injury will occur,” or any facts upon which this claim might
be based. (Fenimore, supra, 245 Cal.App.4th at p.
1347.) Plaintiffs do not allege that ATCC knew of any risks to Decedent, or
that their acts constituted the violation of any particular regulation
governing the facility, as formed the basis for neglect in Fenimore, supra,
245 Cal.App.4th at p. 1348. Likewise, as MLK notes in demurrer, the
availability of enhanced remedies under the elder abuse statute requires a
showing of corporate responsibility in keeping with Civil Code § 3294, subd.
(b), i.e. the direction or ratification of the unlawful conduct by an officer
managing agent. (Welf. & Inst. Code § 15657, subd. (c).) Here, although
Plaintiffs in opposition argue that the discharge of Decedent “was done by an
officer, director or managing agent of MLK,” no such allegation appears in the
Complaint. (Opposition at p. 5.)
The demurrers are therefore SUSTAINED as to the third cause
of action, with leave to amend.
ATCC’s demurrer to the fourth cause of action is also
persuasive. The facts supporting a statutory claim for violation of the
Patient’s Bill of Rights must be pleaded with particularity. (See Carter, supra, 198 Cal.App.4th at p. 407
[applying rule to elder abuse claims].) Here, Plaintiffs do not plead which right
or regulation Defendant alleged violated. They instead list every patient right declared in title 22, section 72527 of the California
Code of Regulations, including those plainly having no application to the
present case, such as the right “[t]o have visits from members of the clergy.”
(Complaint ¶ 59.) The demurrer to the fourth cause of action is therefore
SUSTAINED with leave to amend.
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 ATCC’s motion to
strike is simply duplicative of its demurrer, and is DENIED as moot in light of
the ruling in its favor on the demurrer. Defendant MLK, however, moves to
strike the prayer for attorney fees sought under Welfare & Institutions
Code § 15657. (Motion at pp. 3–4.) The court agrees that since an award of
attorney fees is contingent upon a properly pleaded claim for elder abuse
(Welf. & Inst. Code § 15657, subd. (a)), and because Plaintiffs have not
pleaded such a claim against MLK, the motion to strike is properly GRANTED with
leave to amend.