Judge Holly J. Fujie, Case Number: 24STCV19884, Date: 2025-03-06 Tentative Ruling

RESPONDING PARTY: Plaintiffs Guitta Kohan, individually and as successor-in-interest to Vajdieh Masserat and Afsoon Pegahi (“Plaintiffs”)

Plaintiffs sue defendants Coastal Health Care, Inc. dba Brentwood Health Care Center, David Weaver, Mitchell Taylor, Barlow Respiratory Hospital, Amit Rohan, David Nelson, MD and Does 1 through 250 (collectively, “Defendants”) pursuant to an August 7, 2024, complaint (“Complaint”) alleging causes of action for: (1) elder abuse by neglect; (2) negligence; (3) medical malpractice; (4) violation of patients’ bill of rights [Health & Safety Code § 1430 subd. (b)]; (5) wrongful death [neglect]; (6) wrongful death [negligence]; and (7) negligent infliction of emotional distress. This action arises from allegations that Defendants failed to provide adequate care and medical treatment to the Vajdieh Masserat (“Decedent”).

On November 18, 2024, Dr. Nelson filed the instant demurrer (“Demurrer”) and Motion to Strike (the “Motion”). On February 19, 2025, Plaintiffs filed an opposition (the “Opposition”) and on February 27, 2025, Nelson filed a reply (the “Reply”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code of Civil Procedure (“CCP”) § 430.10, subd. (e).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

To establish a claim for Elder Abuse and Neglect under the statute, a plaintiff must allege the following: (1) plaintiff is an elder or dependent adult; (2) defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (3) defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (4) defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either: (a) with knowledge that injury was substantially certain to befall the elder or dependent adult malice, oppression, or fraud; or (b) with conscious disregard of the high probability of such injury recklessness; and (5) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407; Welf. & Inst. Code, § 15610.07.) Elder abuse must be pleaded with particularity in accordance with the pleading rules governing statutory claims. (Carter, supra, 198 Cal.App.4th at 407.)

A claim of “neglect” by a person having the “care or custody” of an elder under the Elder Abuse Act requires a caretaking or custodial relationship where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance, which entails more than casual or limited interactions. (Winn v. Pioneer Medical Group, Inc (2016) 63 Cal.4th 148, 158; see Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779, 783.) Neglect covers misconduct that is distinct from, but potentially overlapping with, professional negligence. (Delaney v. Baker (1999) 20 Cal.4th 23, 33.)

Dr. Nelson argues that the demurrer should be sustained because Plaintiffs have not alleged a custodial relationship between Dr. Nelson and the Decedent. (Demurrer, pp. 5:15-7:7.) Dr. Nelson also argues that Plaintiffs have not alleged any abuse, oppression, fraud or malice by Dr. Nelson sufficient to state an elder abuse cause of action. (Demurrer, pp. 7:8-8:10.)

Plaintiffs have failed to state sufficient facts in relation to Dr. Nelson’s caretaking or custodial relationship with the Decedent. The Elder Abuse and Dependent Adult Civil Protection Act (the “Elder Abuse Act”) “does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” (Winn, supra, 63 Cal.4th at p. 152.) Neglect “requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.” (Id. at 160.)

A person’s status as a physician does not categorically immunize the person from liability for elder abuse; but neglect may not be brought irrespective of a physician’s caretaking or custodial relationship with an elder patient. (Id. at 165 [discussing disapproval of Mack v. Soung (2000) 80 Cal.App.4th 966, 975].)

In Winn, plaintiffs did not establish that defendants had a caretaking or custodial relationship with a decedent when plaintiffs asserted only that defendants intermittently treated the decedent at outpatient clinics operated by plaintiffs. (Id.)

Plaintiffs’ allegations here fail to sufficiently allege a caretaking or custodial relationship between the Decedent and Dr. Nelson. The Complaint states generally that Dr. Nelson “was the primary care physician for Decedent,” “was responsible to ensure Decedent received all the medical care she required,” and was responsible for implementing “interventions that would prevent harm.” (Compl., ¶ 11.) The Complaint states that Dr. Nelson was a ‘care custodian’ of Decedent and that Decedent “was dependent on her ‘care custodians’ for food, shelter, medical treatment, physical hygiene, and assistance with all activities of daily life, due to her medical conditions.” (Compl., ¶ 23.) The Complaint states generally that all the Defendants acted as care custodians to Decedent. Plaintiffs’ allegations in the Complaint, however, fail to state any facts on the frequency with which Decedent was treated by Dr. Nelson, or specific facts to illustrate the nature of Dr. Nelson’s caretaking or custodial relationship with the Decedent.

In addition, the Complaint does not allege any specific facts nor acts of reckless misconduct sufficient for liability for neglect under the Elder Abuse Act. “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.) Plaintiffs provide several allegations against all Defendants generally. The Complaint alleges that Defendants knew that Decedent had a pressure injury but failed to reposition Decedent every two hours, leaving “Decedent lying in bed for prolonged periods” and failed to assist Decedent with her personal hygiene. (Compl., ¶¶ 69-70, 75, 84.)

Statutory causes of action like the Elder Abuse Act must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) In context of the Elder Abuse Act, the court in Covenant Care found sufficient particularity pled when the complaint contained “detailed and specific factual allegations of elder abuse.” (Id. at 777.) The plaintiff in Covenant Care provided “detailed and specific factual allegations” including particular instances and descriptions of the decedent’s neglect, by, for example, a particular instance of ordering discharge of the decedent, along with asserted lack of care. (Id.) Such particular instances of neglect have not been pled against Dr. Nelson. Plaintiffs’ Complaint mentions repeated instances of neglect, without particular facts as to any instance. (Compl., ¶¶ 70-72, 77-78.) Plaintiffs’ assertions without any particular facts as to any instance, is not sufficient “to apprise the defendant of the factual basis for the claim against him.” (See Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) Furthermore, the Complaint alleges that failure to properly reposition and care for Decedent was due in part to inadequate staffing. (Complaint, ¶¶ 153-170.) Understaffing amounts to professional negligence, not elder abuse. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 338.)

Thus, the Demurrer to the first cause of action is SUSTAINED, with leave to amend.

As Plaintiffs failed to state a claim for elder abuse by neglect, in part because they have not sufficiently alleged reckless conduct, their wrongful death cause of action based upon the same necessarily fails as well.

Thus, the Demurrer to the fifth cause of action is SUSTAINED, with leave to amend.

A negligent infliction of emotional distress claim requires showing the plaintiff “(1) 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-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

The Complaint alleges that Plaintiffs are the Decedent’s children, complained to Defendants, including Dr. Nelson, that Decedent was constipated, and were present when a doctor performed a surgical procedure on the Decedent attempting to remove the bowel impaction. (Compl. ¶¶ 91, 96-107.) Plaintiffs have sufficiently alleged a close relationship to the injury victim, contemporaneous awareness of Decedent’s injury and inadequate treatment, and emotional distress.

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Dr. Nelson moves to strike certain portions of the Complaint referencing punitive damages, treble damages and attorney’s fees. Specifically, Dr. Nelson moves to strike the following:

2. Page 43, lines 2-3: “…decedent requests that punitive damages be assessed against defendants…”

3. Page 43, line 24: “…punitive damages should be assessed against defendants…”

4. Page 51, lines 19-20: “…treble damages pursuant to Civil Code section 3345 should be assessed against defendants…”

5. Page, 58, prayer for damages, first cause of action, item 3 - “Attorney’s fees and costs…”

6. Page, 58, prayer for damages, first cause of action, item 4 - “For exemplary and punitive damages…”

7. Page, 58, prayer for damages, first cause of action, item 5 - “For treble damages…”

As the Court has sustained the Demurrer to the Elder Abuse Act causes of action, with leave to amend, the Motion to Strike is MOOT.

Defendant David Nelson, MD’s Demurrer to the first and fifth causes of action is SUSTAINED, with 30 days leave to amend. The Demurrer is OVERRULED as to the seventh cause of action. The Motion to Strike is MOOT.

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.

Hon. Holly J. Fujie

Judge of the Superior Court