Judge: Helen Zukin, Case: 21STCV30727, Date: 2023-01-17 Tentative Ruling
Case Number: 21STCV30727 Hearing Date: January 17, 2023 Dept: 207
Background
This is an action for negligence, elder abuse, violation of
patient’s rights, and wrongful death brough by Plaintiffs Jeri Laird, deceased,
by and through her successor in interest Persephone Laird, as well as by
Plaintiff Persephone Laird in her individual capacity (collectively
“Plaintiffs”). Plaintiffs allege Jeri Laird was a resident of a nursing
facility owned and operated by Defendants Windsor Cheviot Hills, LLC and
Survivors Trust Under the Sampson Family Trust (collectively “Defendants”).
Plaintiffs allege Defendants failed to provide required services to Jeri Laird,
ultimately resulting in her death. Plaintiffs operative pleading is the First
Amended Complaint (“FAC”) filed on November 17, 2022, and asserting causes of
action against Defendants for elder abuse, violation of patient rights,
negligence, and wrongful death. Defendants bring this motion to strike certain
allegations in the FAC, including Plaintiffs’ claim for treble damages pursuant
to Civil Code § 3345. Plaintiffs oppose Defendants’ motion.
Request for Judicial Notice
Defendants request the Court take judicial notice of prior
pleadings and filings in this action. Defendants’ request is unopposed and is
GRANTED.
Motion to Strike Standard
Motions to strike are used to
reach defects or objections to pleadings which are not challengeable by
demurrer (i.e., words, phrases, prayer for damages, etc.). (C.C.P. §§ 435, 436
& 437.) A motion to strike lies only where the pleading has irrelevant,
false or improper matter, or has not been drawn or filed in conformity with
laws. (C.C.P. § 436.) The grounds for moving to strike must appear on the face
of the pleading or by way of judicial notice. (C.C.P. § 437.)
Analysis
1. Meet and
Confer Requirement
Before filing a
motion to strike, the moving party is required to “meet and confer in person or
by telephone” with the party who filed the pleading that is subject to the
motion to strike for the purposes of determining whether an agreement can be
reached through a filing of an amended pleading to resolve the objections to be
raised in the demurrer. (C.C.P. § 435.5(a).) The moving party must file a
declaration stating the required meet and confer occurred or showing the
responding party refused to respond or meet and confer in good faith. (C.C.P. §
435.5(a)(3).) Defendants have not satisfied this meet and confer obligation.
Rather than meet and confer in person or by telephone to determine whether an
amended pleading could resolve Defendants’ alleged deficiencies, Defendants
“sent an email and/or letter” to Plaintiffs asking Plaintiffs to stipulate to
the striking of the portions of the FAC which form the basis of this motion.
(Fischler Decl. at ¶4.) Nonetheless, the Court will consider the merits of
Defendants’ motion. (C.C.P. § 435.5(a)(4).)
2. Factual
Allegations Regarding Understaffing of Defendants’ Facility
Defendants move to strike
paragraphs 81-89, 91-98, and 101 of the FAC arguing these are mere conclusions
and speculation devoid of a factual basis. The allegations made in these
paragraphs can be summarized as follows:
Paragraph 81: Defendants had a pattern and practice of
understaffing and undertraining staff to cut costs.
Paragraph 82: Defendants made an intentional choice not
employ staff in accordance with the requirements of California Health and
Safety Code § 1276.5.
Paragraphs 83 and 92: Defendants’ understaffing was
reckless, malicious, and violated California law.
Paragraphs 84-85: Defendants failed to provide the
necessary level and manner of daily care, monitoring, and assessment mandated
by state regulations.
Paragraph 86: Defendants had a pattern of withholding care
from residents of its facility.
Paragraph 87: Defendants flouted staffing regulations to
cut costs.
Paragraph 88: Defendants’ decision to understaff the
facility was made at the corporate level in conscious disregard of patient care
needs. Defendants chose to staff their facility with an insufficient number of
staff who were not properly trained or qualified to provide care for the
facility’s residents.
Paragraph 89: Defendants had a duty to provide adequate
numbers of trained staff.
Paragraphs 91 and 96: Defendants knew or should have known
the facility was operated in a manner to circumvent applicable statutes and
regulations in order to maximize profitability.
Paragraph 93: Defendants falsely represented to decedent Jeri
Laird and her family that they were able to meet her care needs. Defendants
knew these representations were false at the time they were made and Defendants
made the representations to induce decedent to select Defendants’ facility for
their financial gain.
Paragraphs 94 and 95: Defendants’ pattern of understaffing
and withholding care was known to Defendants, their officers, directors, and
managing agents who did not make necessary changes at the facility to correct
these issues.
Paragraph 97: Defendants authorized and ratified the use of
Licensed Vocational Nurses to perform assessments they were not licensed or
qualified to perform.
Paragraph 98: Decedent died as a result of the abuse and
neglect committed by Licensed Vocational Nurses.
Paragraph 101: Defendants acts and omissions constituted
recklessness, fraud, oppression and/or malice.
Defendants characterize these allegations as conclusory and
unsupported by additional factual allegations supporting them. The general rule
is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe
v. City of Los Angeles (2007) 42 Cal.4th 531, 550 [“the complaint
ordinarily is sufficient if it alleges ultimate rather than evidentiary facts”].)
The allegations summarized above are factual in nature and allege Defendants’
facility was deliberately understaffed to maximize Defendants’ profits. These
are ultimate facts regarding Defendants’ operation of the subject facility. The
Court finds no basis to strike these allegations simply because Plaintiffs have
not provided evidentiary facts supporting them. According, Defendants’ motion
to strike paragraphs 81-89, 91-98, and 101 of the FAC
is DENIED.
3. Treble
Damages Under Civil Code § 3345
Defendants also seek to strike
Plaintiffs’ claim for treble damages under Civil Code § 3345. Section 3345
applies “in actions brought by, on behalf of, or for the benefit of senior
citizens or disabled persons, as those terms are defined in subdivisions (f)
and (g) of Section 1761, to redress unfair or deceptive acts or practices or
unfair methods of competition.” (Civ. Code § 3345(a).) Civil Code section
3345(b) allows for a recovery of up to three times the amount of a monetary
award whenever “a trier of fact is authorized by a statute to impose either a
fine, or a civil penalty or other penalty, or any other remedy the purpose or
effect of which is to punish or deter,” if the trier of fact finds any of the
factors identified in the statute to exist.
Defendants argue Plaintiffs have
not provided sufficient allegations of unfair or deceptive acts or business
practices to trigger the application of Civil Code § 3345. Plaintiffs do not
address this argument, and instead spend the bulk of their opposition arguing
they have properly pled claims for punitive damages and enhanced damages under the
Elder Abuse and Dependent Adult Civil Protection Act, neither of which are the
subject of Defendants’ motion to strike.
By its own terms, Civil Code §
3345 applies to fraud and unfair business practices targeting the elderly and
can treble punitive damages as well as statutory fines. Plaintiffs here have
not brought any causes of action alleging fraud or unfair business practices by
Defendants. Rather, the gravamen of Plaintiffs’ FAC concerns alleged
professional negligence and conscious disregard in providing healthcare to
decedent, not unfair or deceptive business practices.
While paragraph 93 asserts
Defendants falsely represented to decedent Jeri Laird and her family
that they were able to meet her care needs, these allegations fall well short
of satisfying the heightened pleading requirements for fraud. Moreover, Plaintiffs
allege the fraud was not just committed against decedent but also “her family.”
The FAC does not allege the ages of decedent’s family members who were
allegedly deceived by Defendants, and thus does not establish that the alleged
victims of this deception were senior citizens for purposes of applying section
3345. Plaintiffs cite to no authority suggesting section
3345 is designed to protect non-senior citizens deceived with regard to the
care of a senior citizen, and the Court is unaware of any.
Further, the language of section
3345 suggests it is only intended to apply to claims of fraud and deceptive
advertising designed to take advantage of elderly persons in commercial
transactions. Section 3345 lists three factors for a court to consider in
deciding whether to increase a statutory fine or penalty. The second such factor
is whether the defendant’s conduct caused senior citizens to suffer “loss or
encumbrance of a primary residence, principal employment, or source of income;
substantial loss of property set aside for retirement, or for personal or
family care and maintenance; or substantial loss of payments received under a
pension or retirement plan or a government benefits program, or assets
essential to the health or welfare of the senior citizen, disabled person, or
veteran.” (Civ. Code, § 3345(b)(2).)
This subdivision shows that the Legislature
intended the statute to apply to deceptive or unfair practices used to induce
senior citizens to enter commercial transactions. Although Plaintiffs do not
rely on subdivision (b)(2), the statutory-interpretation doctrine of noscitur a
sociis (a word is known by its associates) requires the court to consider that
subdivision and how its terms suggest that the terms of other subdivision be
interpreted as limited to the sort of financial transactions of the same
general kind as those identified in subdivision (b). (See, e.g., Kaatz v.
City of Seaside (2006) 143 Cal.App.4th 13, 40 [“‘the meaning of a word may
be enlarged or restrained by reference to the object of the whole clause in which
it is used’”] [citations omitted].)
Accordingly, Courts have concluded section 3345 will apply
only where there is an underlying cause of action for unfair practices. (See,
e.g., Hood v. Hartford
Life & Accident Ins. Co. (E.D. Cal. 2008) 567 F.Supp.2d 1221, 1229 [“The
Bill’s constraining language, restricting application of Section 3345 to causes
of action redressing ‘unfair practices,’ suggests that the cause of action underlying
the Section 3294 claim, or the criteria authorizing application of Section 3294,
must involve unfair practices. If the claim does not, Section 3345 would not be
available”].) While federal cases such as Hood are not binding, the
Court nonetheless finds such authority persuasive here given the lack of
California caselaw squarely on point. (Metalclad Corp.
v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th
1705, 1714 [“the decisions of the lower federal courts, while persuasive, are
not binding on us"].) As Plaintiffs have not asserted a cause of action
redressing unfair practices, the Court finds they cannot seek treble damages
under Civil Code § 3345. Accordingly, Defendants’ motion to strike Plaintiffs’
claim for treble damages under section 3345 is GRANTED.
Plaintiffs request leave to amend. Plaintiffs bear the burden of demonstrating
they can cure the defects in the FAC through further amendment. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiffs have made no such showing
here. As set forth above, Plaintiffs’ opposition did not address their claim
for damages under section 3345 and they have offered no discussion as to how
the FAC may be further amended to properly seek treble damages under that
statute. The Court thus grants Defendants’ motion to strike without leave to
amend.
Conclusion
Defendants’ motion to strike Plaintiffs’ First Amended
Complaint is GRANTED without leave to amend as to Plaintiffs’ claim for treble
damages under Civil Code § 3345 and is otherwise DENIED.