Judge: H. Jay Ford, III, Case: 22STCV02362, Date: 2023-11-14 Tentative Ruling

Case Number: 22STCV02362    Hearing Date: January 18, 2024    Dept: O

Case Name:  Arghavan v. UCLA Health, et al.

SUBJECT:                 DEMURRER W/O MOTION TO STRIKE

MOVING PARTY:   Defendant Azita Arghavan

RESP. PARTY:         Plaintiff Maziar Arghavan

TENTATIVE RULING

            Defendant Azita Arghavan’s Demurrer to the 1^st, 4^th, 5^th, 6^th, 7^th, 8^th, and 9^th Causes of Action of the SAC are OVERRULED. Plaintiff Maziar Arghavan has successfully pleaded all the elements of the 1^st, 4^th, 5^th, 6^th, 7^th, 8^th, and 9^th Causes of Action against Defendant Azita Arghavan..

            As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

            Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

A.        Survival actions brought by Plaintiff on decedent’s behalf

I.           1^st cause of action—fraud/misrepresentation- OVERRULED

            "A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded. [citations omitted]" (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.)

            Here, Plaintiff Maziar Arghavan (“Maziar”) successfully pleaded all the elements of fraud with specificity against Defendant Azita Arghavan (“Azita”) within the Second Amended Complaint (“SAC”).

(1)   Maziar pleads the first element by stating "Defendant Azita Arghavan convinced Decedent to move in with her anyways, misrepresenting to Decedent that Ms. Arghavan would take care of her," and "Defendant Azita Arghavan also represented to Decedent and Plaintiff, Maziar Arghavan, that she would take care of Decedent." (SAC, ¶¶ 24, 47.) Furthermore, Maziar pleads specific facts to show Azita knowingly made a false representation by pleading “[w]hile living with Azita Arghavan, Decedent was mistreated and left uncared for despite the fact that Defendant Azita Arghavan was the Decedent's IHSS worker and she was paid to provide care for the Decedent." (SAC, ¶ 25.)

(2)   Maziar pleads intent to deceive by pleading facts alleging Azita was paid to provide care for Decedent. (SAC, ¶¶ 24, 25.)

(3)   Maziar pleads facts to allege justifiable reliance through pleading that Decedent moved in with Azita thought the alleged misrepresentation that Azita would take care of Decedent. (SAC, ¶¶ 24, 25.)

(4)   Maziar pleads facts to show damages through stating Decedent “was mistreated and left uncared for.” (SAC, ¶¶ 25, 61.)

            Thus, Azita’s Demurrer to the first cause of action for fraud/misrepresentation is OVERRULED.

II.             4^th Cause of Action—Elder Abuse - OVERRULED

            Under the Elder Abuse and Dependent Adult Civil Protection Act, “[a]buse of an elder or a dependent adult means any of the following: (1) physical abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering; (2) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. C. § 15610.07(a)(1)-(3).)

            “Neglect” is defined as: “(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise; (2) The negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise.” (Welf. & Inst. C. §15610.57(a).)

            “‘Neglect includes, but is not limited to, the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; (2) Failure to provide medical care for physical and mental health needs... (3) failure to protect from health and safety hazards; and (4) failure to prevent malnutrition or dehydration...” (Welf. & Inst. C. §15610.57(b)(1)-(4).)

            “Thus, neglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from ‘professional negligence’ in section 15657.2: ‘neglect’ as defined in former section 15610.57 and used in section 15657 does not refer to the performance of medical services in a manner inferior to the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing, but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1999) 20 Cal.4th 23, 34.)

            “As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Supr. Ct. (2004) 32 Cal.4th 771, 783 [“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs.”].)

            “The difficulty in distinguishing between ‘neglect’ and ‘professional negligence’ lies in the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care.” (Delaney, supra, 20 Cal.4th at 34.) “Section 15657 provides the way out of this ambiguity: if the neglect is ‘reckless,’ or done with ‘oppression, fraud or malice,’ then the action falls within the scope of section 15657 and as such cannot be considered simply based on professional negligence within the meaning of section 15657.2.” (Id. at 35; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 [recovery of enhanced remedies under Elder Abuse Act requires plaintiff to prove “by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the neglect.”[.)

            “‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.’” (Delaney, supra, 20 Cal.4th at 31–32.)

            Maziar alleges that Azita was responsible for the basic needs of decedent, and responsibility of being the Decedent’s advocate. (SAC, ¶ 77.) Maziar alleges all Defendants, including Azita, failed to provide goods and services to meet these basic needs, either knowingly or with conscious disregard of the high probability of injury. (SAC, ¶ 81.). Maziar alleges Defendants, including Azita, improperly pressured and coerced Decedent to participate in a drug trial, coerced Decedent to sign forms in english that the Decedent could not understand due to limited English language ability, and Azita mistreated and left Decedent uncared for while Azita was a paid to provide care for Decedent. (SAC, ¶¶ 25, 36, 37, 38, 39, 40.)

            Maziar therefore alleges elder abuse and the requisite mental state as to Azita. Demurrer is OVERRULED as to 4^th cause of action of elder abuse.

III.       5^th cause of action—intentional infliction of emotional distress - OVERRULED

            The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. “Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

            Maziar alleged Azita coerced decedent into participating in a drug trial that required her to undergo painful procedures, including spinal biopsies, undergoing a stem cell transplant and receiving “comfort care only,” and failed to obtain any consent to these procedures. (SAC, ¶ 36.) Further, Maziar alleges that Azita mistreated and left Decedent uncared for despite being a paid caretaker for the Decedent. (SAC, ¶ 25.) Azita was also Decedent’s caretaker and therefore in a position that gave them the power to damage decedent’s interests. Azita’s alleged behavior could be construed as outrageous conduct by a jury. A jury must determine whether such conduct is outrageous for purposes of an IIED claim, particularly given the relationship between the parties and Defendants’ power to damage decedent’s interests. (See Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) Reasonable minds could differ as to whether this conduct is outrageous. The question therefore cannot be determined by the court as an issue of law. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 [affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct].)

            Maziar also alleges that Defendants, including Azita, coerced decedent into participating in a drug trial intentionally, maliciously and “with a reckless disregard of the probability of causing Plaintiff extreme emotional distress.” (SAC, ¶ 89.) Maziar was not required to allege that Azita acted with the specific intent to cause decedent emotional distress. IIED only requires either the intention to cause or reckless disregard of the probability of causing emotional distress. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

            Maziar alleges conduct as to Azita that could be deemed outrageous by reasonable minds. Maziar also alleges reckless disregard for the probability of emotional distress as a result of being forced into a drug trial. Azita’s demurrer as to the 5^th cause of action for IIED is OVERRULED.

IV.       6^th cause of action—healthcare provider negligence leading to injury or death, per CC § 3333.1

            Azita argues this cause of action fails because Maziar fails to allege Azita owed Decedent a fiduciary duty. (Demurrer, p. 8.)  "The elements of a cause of action for breach of fiduciary duty are: (I) existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1044.) "[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law." (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386.) "A fiduciary relationship is created where a person reposes trust and confidence in another and the person in whom such confidence is reposed obtains control over the other person's affairs." (Lynch v. Cruttenden & Co. (1993) 18 Cal.App.4th 802, 809.)

            Maziar alleges Azita “assumed a a fiduciary duty when she invited her elderly mother, the Decedent, to come live with her and by helping the Decedent with medical care decisions.” (SAC, ¶ 108.) Further, Maziar alleges "Defendant Azita Arghavan was the Decedent's IHSS worker and she was paid to provide care for the Decedent." (SAC, ¶ 25.) Thus, Maziar successfully alleges the existence of Azita’s fiduciary duty owed to the Decedent as a caretaker. Maziar pleads breach of the duty (SAC, ¶ 109), and damages proximately caused by the breach (SAC, ¶ 110.) Thus, all the requisite elements of the 6^th cause of action are properly plead.

            Azita’s demurrer to the 6^th cause of action for negligence or healthcare provider negligence leading to injury or death, per CC § 3333.1 is OVERRULED.

B.        Direct actions brought directly by Maziar against Azita for his individual injury

I.            7^th cause of action—negligent infliction of emotional distress

            Plaintiff argues the NIED claim is based on the bystander theory of liability. Only bystanders who contemporaneously witness the injury producing event and are contemporaneously aware that it is causing injury may sue for NIED. (See Bird v. Saenz (2002) 28 Cal.4th 910, 915 [affirming summary judgment of plaintiffs’ bystander NIED claim].)

            "Under the bystander theory, Plaintiffs can obtain recovery by observing the negligently inflicted injury of a third person only if the plaintiff (I) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result, suffers serious emotional distress, defined as a reaction beyond that which would be anticipated in a disinterested witness and that is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 667–68.)

            In Bird, the Supreme Court affirmed dismissal of plaintiffs’ claim for NIED based on their mother suffering and injury due to the improper transaction of their mother’s artery. The Supreme Court noted that neither plaintiff had any sensory awareness of the transection when it occurred, although they witnessed the consequences of the operation. (See Bird ¸ supra, 28 Cal.4th at 916.) The Supreme Court also found that, even if the injury-producing event was redefined as the failure to diagnose and treat the injury after the operation, plaintiffs did not possess the level of medical knowledge necessary to have contemporaneous awareness that decedent was being injured.

            However, Bird also acknowledged a distinction between “the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention” and “misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect.” (Id. at 934.) “Such a failure to provide medical assistance, as opposed to as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson.” (Bird, supra, 28 Cal.4th at 934 [distinguishing Ochoa v. Supr. Ct. (1985) 39 Cal.3d 159); Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, 934 [plaintiffs could not state a claim for bystander NIED based on defendants’ post-operative failure to diagnose and treat decedent-mother for bowl-leak or perforation and post-surgical sepsis].)

            Here, Maziar pleads enough facts to identify the injury producing event for this 7^th cause of action for NIED. Maziar pleads “[w]hile Decedent was at UC Health, Plaintiff Maziar Arghavan saw his mother being denied basic services necessary for hygiene, nutrition, hydration, and movement. He witnessed how the Defendants' failure to take care of her basic needs caused his mother harm,” and incorporates previous allegations in the alleged negligence occurring the bone marrow transplant, the drug trial, and the time period where Decedent was given only comfort care. (SAC, ¶ 40, 41, 44–48, 112.) Maziar successfully pleads all other elements of NIED by pleading he is the son of Decedent (SAC, ¶ 1), was present at the time each of the injury producing events occurred (SAC, ¶112) and as a result suffered severe emotional distress (SAC ¶ 114.) These allegations are distinguishable from Morton since there were multiple negligent events alleged over a period of time. Thus, Maziar has successfully plead the elements of a NIED cause of action.

            Azita’s demurer to the 7^th cause of action for NIED as to Maziar as an individual is OVERRULED.

II.         8^th cause of action—wrongful death  and 9^th Cause of Action—Negligence – OVERRULED

            Azita’s only argument on demurrer to the 8^th cause of action for wrongful death and 9th cause of action for negligence is that it is duplicative.  Azita identifies the 6^th cause of action for negligence as the duplicative cause of action. However, the 6th cause of action was brought on decedent’s behalf as a survival action, while the 8^th and 9th causes of action are brought by Maziar on his own behalf. Thus, the causes of action are not duplicative and the demurrer to both 8^th and 9^th causes of action are OVERRULED.