Judge: Helen Zukin, Case: 22SMCV00962, Date: 2023-02-16 Tentative Ruling
Case Number: 22SMCV00962 Hearing Date: February 16, 2023 Dept: 207
Background
Plaintiff Kyle Simmons, by and through his conservator Terry
Allison (“Plaintiff”) brings this action against Defendants New Vista Pac
Operator LLC, New Vista Pac HB Operator, LLC, and New
Vista Pac MM Operator, LLC (collectively “Defendants”) and others, alleging he
suffered injuries while admitted to a health care facility owned, operated, and
managed by Defendants. Plaintiff’s Complaint alleges three causes of action
against Defendants for: (1) dependent adult abuse, (2) violation of Health
& Safety Code § 1430(b), and (3) negligence.
Defendants bring this demurrer to
the first and second causes of action alleged in Plaintiff’s Complaint, arguing
they fails to state sufficient facts to constitute causes of action against
them and are uncertain pursuant to Code Civ. Proc. § 430.41(e)-(f). Defendants
separately move to strike portions of Plaintiff’s Complaint, including Plaintiff’s
claims for punitive damages and attorney’s fees. Plaintiff opposes Defendants’
demurrer and motion to strike.
Demurrer Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) 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 on 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.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
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.) “All that is required of a plaintiff, as a matter
of pleading, even as against a special demurrer, is that his complaint set
forth the essential facts of the case with reasonable precision and with
sufficient particularity to acquaint the defendant with the nature, source and
extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
A special demurrer for uncertainty under Section 430.10(f) is disfavored
and will only be sustained where the pleading is so unintelligible that a
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th
612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can
be clarified under modern discovery procedures.” (Id.)
Motion to Strike Standard
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike 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.
(Id., § 436(b).) The grounds for a
motion to strike are: the pleading has irrelevant, false, or improper matter,
or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the
face of the pleading or by way of judicial notice. (Id. § 437.)
Analysis
1. Meet and
Confer
Before filing a
demurrer or a motion to strike, the demurring or moving party is required to
“meet and confer in person or by telephone” with the party who filed the
pleading demurred to or the pleading 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. §§ 430.41 and 435.5.) Defendants have not satisfied these meet and
confer obligations in bringing the instant demurrer and motion to strike.
Defendants sent a single piece of written correspondence to counsel for Plaintiff
which did not include any request to set an in person or telephonic meet and
confer as required by statute. (Alvarado Decl. at ¶¶4-8.) Nonetheless, the
Court will consider the merits of Defendants’ demurrer and motion to strike.
(C.C.P. §§ 430.41(a)(4), 435.5(a)(4).) The parties are advised that in the
future the Court will deny any motion filed without a meet and confer that
includes oral communication between counsel and/or the parties.
2. Defendants
New Vista Pac HB Operator, LLC and New Vista Pac MM Operator, LLC
Defendants argue New Vista Pac HB
Operator, LLC and New Vista Pac MM Operator, LLC do not provide health care,
are not licensed health care providers, and are not custodial caregivers, and
thus cannot be held liable on any of Plaintiff’s claims. This is a factual
question beyond the purview of a demurrer. Defendants have not shown these
claims as to their corporate functions are apparent on the face of Plaintiff’s Complaint
and have not asked the Court to take judicial notice of any documents
establishing the factual assertions they have made regarding their corporate
function. The Court thus overrules Defendants’ demurrer based on the respective
corporate functions of New Vista Pac HB Operator, LLC and New Vista Pac MM
Operator, LLC.
3. Dependent Adult Abuse and Neglect
To plead dependent adult abuse, the
plaintiff must allege “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 [citations]; (2) knew of conditions that made
the elder or dependent adult unable to provide for his or her own basic needs [citations];
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) [citations].” (Carter v. Prime Healthcare
Paradise Valley LLC¿(2011) 198 Cal.App.4th 396, 406-07.) “The plaintiff must
also allege . . . that the neglect caused the elder or dependent adult to suffer
physical harm, pain or mental suffering.” (Id.¿at 407.) “[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.¿[quoting¿Covenant Care, Inc. v. Superior Court¿(2004)
32 Cal.4th 771, 790].)¿¿
“‘[N]eglect’ within the meaning of
Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct
from ‘professional negligence.’” (Covenant Care, supra, 32 Cal.4th at 783.)¿“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.’”¿ (Id.) “Neglect includes the
failure to assist in personal hygiene, or in the provision of food, clothing,
or shelter; the failure to provide medical care for physical and mental health
needs; the failure to protect from health and safety hazards; and the failure
to prevent malnutrition or dehydration.” (Sababin v. Superior Court
(2006) 144 Cal.App.4th 81, 88.)
In order to distinguish elder
abuse from professional¿negligence, there must be a showing of recklessness, fraud,
malice, or oppression. (Id.) “Oppression, fraud, and malice involve intentional,
willful, or conscious wrongdoing of a despicable or injurious nature.” (Carter,
supra, 198 Cal.App.4th¿at 405 [internal quotation marks omitted].) Recklessness
requires deliberate disregard of a high degree of probability an injury will occur.
(Id.) The enhanced remedies for elder abuse are only available for “acts
of egregious abuse against elder and dependent adults.” (Id.)¿There must
be an allegation of authorization or ratification on the part of a managing agent
in order to recover damages for dependent adult abuse against corporate defendants.
(See Civ. Code, § 3294; Cal.¿Welf. & Inst. Code, § 15657(c).)
The Complaint alleges the following:
Plaintiff was admitted to Defendants’ facility in March 2021 after he was
involved in a serious car crash. (Complaint at ¶15.) Plaintiff was limited in
his mobility and safety awareness due to multiple health conditions, including
physical and cognitive injuries sustained in the crash. (Id.) Defendants
“failed to exercise the degree of care that a reasonable person in a like
position would exercise” and failed to implement “several necessary
interventions to protect PLAINTIFF from the development of infection.” (Id.
at ¶¶17, 20.) Plaintiff alleges Defendants also failed “to provide staff in
adequate numbers and with sufficient training.” (Id. at ¶20.) On March
31, 2021, Plaintiff was found in his room with a fever of approximately 106
degrees, which caused him to suffer severe and chronic brain injuries. (Id.
at ¶23.)
Plaintiffs also claim Defendants chose
to understaff their facility in order “to avoid increased costs of care.” (Id.
at ¶¶31-33.) The Complaint also claims
this choice was made at the corporate level in conscious disregard for the
likelihood of physical harm and injury to residents such as Plaintiff, who was
harmed by this choice. (Id. at ¶¶33-35.)
Defendants argue these allegations
are insufficient to state a claim for elder abuse against them. The Court
agrees. The central allegation of elder abuse appears to stem from the claims
that Defendants’ facility was understaffed and/or not adequately staffed, and
that Defendants failed to implement unspecified plans or procedures. But the
Complaint does not allege facts showing how this alleged conduct caused or
contributed to Plaintiff’s development of a fever or the injuries caused by the
fever. Plaintiff does not identify any medical care which was allegedly
withheld from him. Indeed, the Complaint alleges Plaintiff was transferred to a
hospital to receive care when he developed the fever. (Complaint at ¶23.) Nor
does the Complaint include any factual allegations as to any practices or
procedures which could have been undertaken to prevent Plaintiff from
contracting a fever which were not utilized or implemented because of these
alleged staffing issues.
As set forth above, dependent
adult abuse is a statutory claim which must be pled with specificity.
Plaintiff’s assertion of conclusory allegations that Defendants breached duties
toward him without identifying specific facts identifying those breaches and
resulting harm to Plaintiff are insufficient. Accordingly, the Court SUSTAINS
Defendants’ demurrer to the first cause of action for dependent adult abuse. As
the Court finds this insufficiency could be cured by further amendment, the
Court will grant Plaintiff leave to amend this cause of action.
4. Health
& Safety Code § 1430(b)
Plaintiff’s
second cause of action is for violation of patient’s rights under Health and
Safety Code § 1430. Section 1430(b)(1) provides “[a] current or former resident
or patient of a skilled nursing facility . . . 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(b).) “The licensee shall be
liable for the acts of the licensee’s employees.” (Id.) Violation of
section 1430 is an allegation of statutory violations and thus must be pled
with particularity. (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 604.)
As with
the claim of dependent adult abuse, Defendants allege Plaintiff’s claim of
violation of section 1430 is not pled with sufficient factual specificity. In
response Plaintiff points to the allegations of his first cause of action for
dependent adult abuse as setting forth all facts necessary to state a cause of
action under Health and Safety Code § 1430. (Opposition at 18.) As with the
cause of action for dependent adult abuse, the Court finds these allegations are
insufficient to plead a cause of action for violation of patient’s rights under
Health and Safety Code § 1430. The Complaint here merely provides a list of
patient’s rights and states in conclusory fashion that Defendants violated each
of these rights without providing factual allegations as to how Defendants are
alleged to have violated these rights or how such violation resulted in harm to
Plaintiff. Accordingly, the Court SUSTAINS Defendants’ demurrer to this cause
of action with leave to amend.
5. Uncertainty
Defendants alternatively demurrer
on the basis of uncertainty pursuant to Code Civ. Proc. §430.41(f). As set
forth above, a demurrer is uncertain where the challenged pleading is so
unintelligible that Defendants cannot reasonably determine what claims are
being asserted against them. The Court finds the Complaint is not
unintelligible and advises Defendants of the claims being directed against
them. Defendants’ demurrer for uncertainty is OVERRULED.
6. Motion to
Strike
Defendants move to strike the
allegations of Plaintiff’s first and second causes of action, as well as
Plaintiff’s claims for punitive damages and attorney’s fees. The Court has
sustained Defendants’ demurrer to the first and second causes of action with
leave to amend and thus DENIES Defendants’ motion to strike the allegations of
those causes of action as moot. As Plaintiff’s claims for punitive damages will
stand or fall with the first and second causes of action, the Court GRANTS
Defendants’ motion to strike Plaintiff’s claim for punitive damages with leave
to amend. Plaintiff’s claim for attorney’s fees will likely also stand or fall
with those same causes of action. However, even where a claim for attorneys’
fees is unsupported by the pleadings, courts are not required to strike such a
claim before a plaintiff has the “opportunity to determine, through discovery,
whether a basis for recovery exists.” (Camenisch v. Superior Court
(1996) 44 Cal.App.4th 1689, 1699.) The Court thus DENIES Defendants’ motion to
strike Plaintiff’s claim for attorney’s fees.
Defendants also move to strike
paragraphs 4-8 and 11 of Plaintiff’s Complaint on the basis that they are
“legal conclusions unsupported by facts.” The Court finds Decedents have failed
to establish these paragraphs are false, irrelevant, or improper within the
meaning of Code Civ. Proc. § 436. A plaintiff is not required to support every
allegation contained in the introductory paragraphs of a Complaint with factual
assertions. 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 Court thus DENIES
Defendants’ request to strike these paragraphs on the basis that they are
unsupported by evidentiary facts.
Conclusion
Defendants’ demurrer to Plaintiff’s first and second causes
of action is SUSTAINED with 30 days’ leave to amend. Defendant’s motion to
strike is GRANTED with 30 days’ leave to amend as to Plaintiff’s claim for
punitive damages and is otherwise DENIED.