Judge Holly J. Fujie, Case Number: 23STCV07922, Date: 2023-11-28 Tentative Ruling

MOVING PARTIES: Defendants Syed Mohammad G. Hossain, M.D. (“Hossain”); Eugene Karpus, M.D. (“Karpus”); Sam Nuthalapaty, M.D. (“Nuthalapaty”); and Monica Keh (“Keh”) (collectively, “Moving Defendants”)

This action arises out of alleged misconduct that occurred during Plaintiff’s admission at two skilled nursing facilities. Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of contract; (2) violation of the Elder/Dependent Abuse Act (the “Elder Abuse Act”); (3) breach of fiduciary duty; (4) fraud; (5) civil remedies under Penal Code section 496; (6) civil remedies under Civil Code section 3345; (7) negligence; and (8) violation of the Patient’s Bill of Rights.

In relevant part, the Complaint alleges: Plaintiff, who was born in 1932, has been cognitively impaired, disabled, and unable to care for her own needs since at least 2016. (See Complaint ¶¶ 28-29.) Beginning in November 2021, pursuant to a contract, Plaintiff was admitted to receive fulltime care at Defendant Saint Vincent Healthcare, LLC (“Saint Vincent”). (Complaint ¶ 31.) Hossain was Plaintiff’s attending doctor during her admission at Saint Vincent. (Complaint ¶ 32.) Saint Vincent agreed to promptly contact Plaintiff’s children in the event of adverse conditions. (Complaint ¶ 31.) Saint Vincent and its attending employees knew that Plaintiff was dependent on them for all of her basic needs. (Complaint ¶ 35.) Plaintiff was discharged from Saint Vincent on or about January 13, 2022. (Complaint ¶ 37.) Beginning on or about April 11, 2022, Plaintiff’s family began to suspect various acts of malfeasance and neglect related to her admission at Saint Vincent that were evidenced by pressure ulcers that Plaintiff had developed. (See Complaint ¶ 37.)

Pursuant to a contract entered into by Plaintiff and Imperial, Plaintiff was admitted to receive fulltime care at Defendant Imperial Care Center (“Imperial”). (Complaint ¶ 40.) During her admission at Imperial, Plaintiff received treatment and care from Nuthalapaty, her attending physician, Keh, a nurse practitioner working under Nuthalapaty, and Karpus, her psychiatrist. (See Complaint ¶¶ 16, 42-43.) While admitted at Imperial, Plaintiff was neglected and received inadequate care that culminated in Plaintiff having a stroke on or about April 12, 2022 that required hospitalization. (See Complaint ¶¶ 44-48.)[1] During Plaintiff’s hospitalization, it was determined that Plaintiff had not been administered medications she was prescribed, and that the failure to administer these medications substantially contributed to her stroke. (Complaint ¶ 48.) After being released from the hospital, Plaintiff was readmitted to Imperial, where she has continued to be subjected to inadequate care and neglect, which has resulted in skin issues, a broken arm, and poor oral hygiene. (See Complaint ¶ 49.)

On September 14, 2023, Hossain filed: (1) a demurrer to the Complaint (the “Hossain Demurrer”); and (2) a motion to strike portions of the Complaint (the “Hossain Motion”).

On September 25, 2023, Karpus filed: (1) a demurrer to the first through sixth and eighth causes of action (the “Karpus Demurrer”); and (2) a motion to strike portions of the Complaint (the “Karpus Motion”).

On September 27, 2023, Keh filed: (1) a demurrer to the second and third causes of action (the “Keh Demurrer”); and (2) a motion to strike portions of the Complaint (the “Keh Motion”).

On September 27. 2023, Nuthalapaty filed: (1) a demurrer to the first through sixth and eighth causes of action (the “Nuthalapaty Demurrer”); and (2) a motion to strike portions of the Complaint (the “Nuthalapaty Motion”).

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrers for uncertainty are disfavored. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) 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. (Id.)

Under California Code of Civil Procedure (“CCP”) section 430.10, subdivision (b), a party may demur to a complaint on the grounds that person who filed the pleading does not have the legal capacity to sue. (CCP § 430, subd. (b).)

The Karpus Demurrer argues that the allegations of the Complaint demonstrate that Plaintiff lacks the legal capacity to sue. A person who lacks the legal capacity to sue includes all of the following: (A) a person who lacks capacity to understand the nature or consequences of the action or proceeding; (B) a person who lacks capacity to assist the person's attorney in the preparation of the case; and (C) a person for whom a conservator may be appointed pursuant to Section 1801 of the Probate Code. (CCP § 372, subd. (a)(4).)

The Court observes that although the Complaint alleges that Plaintiff suffers from numerous mental and physical disabilities, including Alzheimer’s disease, Plaintiff’s legal capacity (or lack thereof) cannot be ascertained from the face of the pleading. The Court therefore declines to sustain the Karpus Demurrer on this basis, although should Plaintiff choose to file an amended pleading, she may appoint a guardian ad litem, as discussed in the Karpus Opposition brief.

The elements of a claim for breach of contract are: (1) the contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) A plaintiff may plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-99.)

A defendant may demur to an action founded upon a contract if it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (CCP § 430.10, subd. (g).)

The Complaint alleges that contracts regarding Plaintiff’s care were entered into upon her admission to Saint Vincent and Imperial. The Complaint does not allege whether these agreements were written, oral, or implied by conduct. Nor does the Complaint allege Moving Defendants’ individual relationships to the alleged contracts. The Court therefore SUSTAINS the Hossain, Karpus, and Nuthalapaty Demurrers to the first cause of action with 20 days leave to amend.

The Elder Abuse Act affords certain protections to elders and dependent adults. (Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1123.) Section 15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff who can prove “by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57,” and who can demonstrate that the defendant acted with “recklessness, oppression, fraud, or malice in the commission of this abuse.” (Id.)

“Neglect” within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) As used in the Elder Abuse 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.) Thus, the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care. (Id.)

The Elder Abuse Act's heightened remedies are available only in limited circumstances. (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 222.) A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse or neglect, and that the defendant committed the abuse with recklessness, oppression, fraud, or malice. (Id.) The 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. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

The Court finds that the Complaint does not allege sufficiently particularized facts to allege violations of the Elder Abuse Act against Moving Defendants. The allegations are generalized, largely consist of legal conclusions, and fail to distinguish the alleged wrongdoing from professional negligence. The Court therefore SUSTAINS the Demurrers to the second cause of action with 20 days leave to amend.

To state a cause of action for breach of fiduciary duty, a plaintiff must allege: (1) the existence of a fiduciary relationship; (2) breach of that relationship; and (3) damages. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.)

A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29.) Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent. (Id.) Before 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. (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140.) Fiduciary duties are imposed by law in certain technical, legal relationships such as those between partners or joint venturers, trustees and beneficiaries, principals and agents, and attorneys and clients. (Id.) A fiduciary duty under common law may arise when one person enters into a confidential relationship with another. (Id.) Every contract to some extent requires each party to repose trust and confidence in the other; one party's right to contingent compensation, standing alone, does not give rise to a fiduciary duty. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 391.) Whether a fiduciary duty exists is generally a question of law. (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 915.) Whether the defendant breached that duty towards the plaintiff is a question of fact. (Id.)

The Complaint does not identify the exact nature of the alleged fiduciary relationship between Plaintiff and Moving Defendants, but the duty appears to be rooted in contract. In light of the Court’s ruling on the first cause of action, the Court SUSTAINS the Demurrers to the third cause of action with 20 days leave to amend.

The elements of intentional misrepresentation are: (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 428.)

The elements of promissory fraud¿ are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promisee. (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.)

Fraud claims must be alleged with particularity. (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 428.) The facts required to be pled are facts that show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The heightened pleading for standard for fraud claims is relaxed if it appears from the nature of the allegations that the defendant must necessarily possess full information, or if the facts lie more in the knowledge of opposing parties. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-85.)

The Complaint does not allege sufficiently specific facts to delineate the bases for the fraud claims against Moving Defendants. Nor does the Complaint allege fraudulent intent. The Court therefore SUSTAINS the Hossain, Karpus, and Nuthalapaty Demurrers to the fourth cause of action with 20 days leave to amend.

In relevant part, Penal Code section 496, subdivision (a) provides that every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Penal Code section 1170. (Pen. Code § 496, subd. (a).) In addition, under Penal Code section 496, subdivision (c), any person who has been injured by a violation of subdivision (a) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees. (Pen. Code § 496, subd. (c).)

The Complaint summarily alleges that Moving Defendants received Plaintiff’s property under false pretenses, but does not identify how any specific conduct amounts to theft or extortion under Penal Code section 496. The Court therefore SUSTAINS the Hossain, Karpus, and Nuthalapaty Demurrers to the fifth cause of action with 20 days leave to amend.

Treble damages may be awarded in actions brought by, or on behalf of, or for the benefit of senior citizens or disabled person to redress unfair or deceptive acts or practices or unfair methods of competition. (Civ. Code § 3345, subd. (a).) Treble damages may be awarded under Civil Code section 3345 only if the statute under which recovery is sought permits a remedy that is in the nature of a penalty. (Clark v. Superior Court (2010) 50 Cal.4th 605, 614.) If a cause of action is brought pursuant to a statute that allows the imposition of a fine or civil penalty or other remedy with the purpose to punish or deter, the court may award treble damages if: (1) the defendant knew or should have known that his conduct was directed to one or more senior citizens or disabled persons; (2) the defendant’s conduct caused one or more senior citizens or disabled persons to suffer loss of 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; and (3) one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant’s conduct because of age, poor health or infirmity and actually suffered substantial damage resulting from the defendant’s conduct. (Civ. Code § 3345, subd. (b).)

As a preliminary matter, Civil Code section 3345 is a remedy rather than a cause of action. In addition, the Complaint does not specify the statute or statutes that form the basis for the request for treble damages. The Court therefore SUSTAINS the Hossain, Karpus, and Nuthalapaty Demurrers to the sixth cause of action with 20 days leave to amend.

The elements of negligence are: (1) duty; (2) breach; (3) causation; and (4) damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

The Hossain Demurrer argues that the negligence claim is not clearly alleged. The Court agrees—the Complaint fails to set forth the duty that was allegedly breached. The Court therefore SUSTAINS the Hossain Demurrer to the seventh cause of action with 20 days leave to amend.

Health and Safety Code section 1430, subdivision (b) permits civil actions to be brought against the licensee of a facility under certain circumstances. (See Health & Saf. Code § 1430, subd. (b).)

The Demurrers argue that the Complaint fails to allege that Moving Defendants are licensees. Plaintiff’s opposition briefs do not address this argument, and the Court therefore finds that Plaintiff has conceded this argument. (See Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1021.) The Court therefore SUSTAINS the Hossain, Karpus, and Nuthalapaty Demurrers to the eighth cause of action with 20 days leave to amend.

Under CCP section 436, a motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436, subds. (a)-(b).)

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] Plaintiff was not assisted with personal hygiene, was inadequately fed, and was not protected from health and safety hazards such as ulcers and infection. (Complaint ¶ 44.)