Judge: James L. Crandall, Case: 22-01239408, Date: 2022-08-25 Tentative Ruling

1.    Demurrer to Complaint:

2.    Motions to Strike Portions of Complaint:

1.    Demurrer

Defendants, 2210 Santa Ana Opco LLC dba Advanced Rehab Center of Tustin and Jadeite Management, LLC’s (Moving Defendants) Demurrer to the Complaint’s First, Third, Fourth and Fifth Causes of Action is SUSTAINED with 20 days leave to amend.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Additionally, a defendant may demurrer on the grounds that the pleading is uncertain. (Code Civ. Proc., § 430.30, subd. (f).)

The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.)

“When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

“Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Request for Judicial Notice

Moving Defendants request judicial notice of Plaintiff Robert O’Grady’s Death Certificate, attached to the Successor-In-Interest Declaration filed in Support of the Complaint. [ROA 4]

Moving Defendants’ request is granted. The existence and legal significance of this document is a proper matter for judicial notice. (Evidence Code § 452, subd. (h).)

Meet and Confer Efforts

Moving Defendants submit the declaration of their counsel, Tiffany A. Le Melle to demonstrate compliance with their statutory meet and confer requirements.

Ms. Le Melle attests that she sent Plaintiffs’ counsel a meet and confer letter on February 25, 2022 outlining the arguments raised in Defendants’ demurrer and motion to strike. (Le Melle Declaration, ¶ 2, Ex. A.) Subsequently, Ms. Le Melle attempted to call Plaintiffs’ counsel to discuss the letter on two occasions but was unable to reach Plaintiffs’ counsel. (Le Melle Declaration, ¶ 3.)

The Le Melle Declaration is sufficient for purposes of Code of Civil Procedure sections 430.41 and 435.5.

First Cause of Action for Elder Abuse

An elder for purposes of the Elder Abuse and Dependent Adult Civil Protection Act (“EADCPA”) (Welf. & Inst. Code § 15600 et seq.) is “any person residing in this state, 65 years or older.” (Welf. & Inst. Code § 15610.27.)

Abuse of an elder or a dependent adult” under the EADCPA means any of the following:

(1)“Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting 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, or (3) Financial abuse, as defined in Section 15610.30.”

For conduct to constitute neglect within the EADCPA, Plaintiff must allege facts establishing that defendant “(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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 . . . or with conscious disregard of the high probability of such injury.” (Id.)

“Facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity.’” (Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, at 406-407.)

Moving Defendants allege that Plaintiffs failed to plead facts sufficient to state a claim for elder abuse because the Complaint fails to allege any facts which establish that Moving Defendants’ care and treatment of Plaintiff Robert O’Grady resulted in any injury to Robert O’Grady or the worsening of any of his preexisting medical conditions. (Demurrer, 11-16.)

Plaintiffs argue that the first cause of action is sufficiently pled because the first cause of action alleges that Moving Defendants were responsible for assisting Robert O’Grady with ADLs but repeatedly failed to do so. (Opposition, 7-8.) For example, Plaintiffs point to paragraphs 76-88 of the Complaint as evidence that the Complaint is sufficiently pled. According to Plaintiffs, these paragraphs allege that Moving Defendants failed to provide Robert O’Grady with assistance with basic needs such as personal hygiene and toileting.

Additionally, Plaintiffs argue that elder abuse neglect can be shown when a defendant “fails to protect the elder adult from health and safety hazards.” (Opposition, 11.) Plaintiffs cite to Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85 for this argument.

Plaintiffs also argues that Complaint sufficiently alleges a basis for enhanced remedies under the EADCPA because it alleges deliberate understaffing. Plaintiffs cite to Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1348-1349 for this argument.

Finally, Plaintiffs argue that the Complaint sufficiently alleges ratification because the Complaint at paragraphs 98-114 alleges that the Director of Nursing, Administrator, and charge nurses all acted in concert to understaff and insufficiently train the facility to increase profits. (Opposition, 13-14.)

In reply, Defendants argue that neither Samantha B. nor Fenimore demonstrate that the Complaint is sufficiently pled. (Reply, 6-7.)

For example, Defendants argue that the Complaint did not allege how Defendants, specifically, failed to protect Robert O’Grady from health and safety hazards. Additionally, the Complaint’s allegations about understaffing are insufficient to demonstrate elder abuse because they discuss staffing ratios from 2020, when Robert O’Grady was not a resident.

Here, the Complaint alleges that Defendant Advanced Rehab Center is “in the business of providing long-term care as a 24-hour facility.” (Complaint, ¶ 5.)

Defendant Jadeite Management, LLC is alleged to be the “owner, operator, licensee, management company, consulting company, manager, and/or alter-egos” of Advanced Rehab Center and responsible for “the operations management” of Advanced Rehab Center. (Complaint, ¶¶ 7-8.)

Plaintiff Robert O’Grady was 85 years old at all relevant times and an elder within the meaning of the EADCPA. (Complaint, ¶¶ 18-19.)

Robert O’Grady was “totally dependent” upon defendants, including Advanced Rehab Center and Jadeite Management LLC for “food, shelter, medical treatment, physical hygiene, and assistance with all daily life.” (Complaint, ¶ 20.)

On April 23, 2021, Robert O’Grady was admitted to Advanced Rehab Center. (Complaint, ¶ 76.) “He was assessed as requiring limited assistance with ambulating and extensive assistance with dressing, toileting, hygiene, bathing and transferring.” (Id.) Additionally, Robert O’Grady was assessed as having multiple unstageable pressure wounds, but Defendant Advanced Rehab Center “failed to put [him] on a turning/repositioning schedule.” (Complaint, ¶ 77.)

On May 4, 2021, Robert O’Grady was readmitted to Advanced Rehab Center with various medical conditions and was assessed to need assistance with “dressing, toileting, hygiene, bathing, and transferring.” (Complaint, ¶ 80.)

During readmission, Defendants allegedly failed to keep Plaintiff Robert O’Grady on a “toileting program” and provide “assistance with toileting and hygiene needs,” resulting in him developing a urinary tract infection (Complaint, ¶¶ 82, 97.)

Additionally, Defendants Advanced Rehab Center and Jadeite Management intentionally failed to adequately staff and train their facility employees. (Complaint, ¶¶ 92-96.) Defendants’ wrongful actions were ratified by their managing agents, who are alleged to include the Administrator and Director of Nursing. (Complaint, ¶¶ 106-114.)

The court finds that the first cause of action is insufficiently pled.

The Complaint fails to allege how Moving Defendants, engaged in actions that caused or contributed to Plaintiff Robert O’Grady’s injuries or death. The Complaint alleges that Moving Defendants failed to put Plaintiff Robert O’Grady on a turning/repositioning program and failed to put him on a “toileting program.” Moving Defendants’ alleged failure to use a toileting program resulted in Plaintiff developing a UTI, and there are no allegations about what happened due to the alleged failure to use a turning/repositioning program.

Further, The Complaint alleges that Plaintiff Robert O’Grady was readmitted to Advanced Rehab Center on May 4, 2021, and transferred out on May 14, 2021, with respiratory distress, “just over six hours” after Advanced Rehab Center had noted him as not having signs or symptoms of distress. (See Complaint, ¶ 83.) There are no allegations about what happened between May 4, 2021, to May 14, 2021, or how Moving Defendants’ actions caused or contributed to Plaintiff Robert O’Grady’s respiratory distress or eventual death on May 20, 2021.

Such allegations are insufficient to state a cause of action for elder abuse under the EADCPA.

Additionally, the court agrees with Defendants that Samantha B. does not support Plaintiffs’ arguments in opposition. Samantha B. is procedurally inapposite, as it discusses the issue of whether there was substantial evidence that a mental health hospital failed to protect its patients from “health and safety hazards” and whether this also constitutes a violation of the EADCPA. (Samantha B., supra, 77 Cal.App.5th at 99.)

Further, the court also agrees with Defendants that Fenimore does not support Plaintiffs’ opposition. While the cited portion of Fenimore does stand for the proposition that allegations of understaffing may be sufficient to plead recklessness for purposes of the EADCPA, here, the Complaint completely fails to plead how Moving Defendants’ actions caused or contributed to Plaintiff Robert O’Grady’s injuries or death.

Therefore, Defendants’ demurrer to the first cause of action is SUSTAINED.

Third Cause of Action for Violation of Patient’s Bill of Rights

Moving Defendants argue that the third cause of action is insufficiently pled for the same reasons the first cause of action is insufficiently pled.

Having sustained the demurrer to the first cause of action, the court now SUSTAINS the demurrer to the third cause of action for the same reasons stated.

Fourth Cause of Action for Willful Misconduct

“Three essential elements must be present to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Simmons v. Southern Pacific Transportation Co. (1976) 62 Cal.app.3d 341, 360.)

 “The act or omission must be even more specifically described in order to raise it to the level of willful misconduct.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528.)

Moving Defendants argue that the fourth cause of action is duplicative of the first cause of action and is thus insufficiently pled. (Demurrer, 19.) Alternatively, Moving Defendants argue that the third cause of action is insufficiently pled because the Complaint only includes conclusory allegations of willful, malicious, or reckless conduct against Moving Defendants.

Plaintiffs argue that the fourth cause of action is not duplicative and is a sufficiently pled separate cause of action. (Opposition, 14-15.) According to Plaintiffs, the first cause of action alleges that Moving Defendants’ misconduct arises to the level of recklessness, which is also sufficient to support a claim for willful misconduct. (Id.)

The court finds that the fourth cause of action is insufficiently pled. The Complaint alleges at paragraph 157 that all Defendants engaged in willful misconduct by engaging a variety of statutory violations. This is insufficient, as it does not sufficiently allege what actions Moving Defendants engaged in which constitute willful misconduct.

Therefore, the demurrer to the fourth cause of action is SUSTAINED.

Fifth Cause of Action for Wrongful Death

“The elements of a wrongful death cause of action are “(1) a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of [another] person.’ ” (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051, 1060.)

Moving Defendants argue that the fifth cause of action is insufficiently pled as to them because the Complaint does not allege how these Moving Defendants’ actions caused Plaintiff Robert O’Grady’s death from pneumonia and respiratory failure. (Demurrer, 20.) Moving Defendants also argue that pursuant to Health and Safety Code section 103550, the death certificate creates a presumption that Moving Defendants did not cause Plaintiff Robert O’Grady’s death. Plaintiff Robert O’Grady’s death certificate indicates that he suffered from “respiratory failure” which was “minutes in duration” and pneumonia, “months in duration.”

Plaintiffs argue that the demurrer to the fifth cause of action should be overruled because the death certificate only creates a rebuttal presumption of the cause of death. (Demurrer, 15.) Thus, the death certificate is not conclusive evidence that Plaintiff Robert O’Grady died of other causes.

The court finds that the fifth cause of action is insufficiently pled because the Complaint has not pled that Moving Defendants’ actions cause Plaintiff Robert O’Grady’s death for the same reasons discussed above with regard to the first cause of action.

Therefore, the demurrer to the fifth cause of action is SUSTAINED.

Moving parties are to give notice.

2.Motion to Strike

Defendants, 2210 Santa Ana Opco LLC dba Advanced Rehab Center of Tustin and Jadeite Management, LLC’s Motion to Strike Portions of the Complaint is DENIED as to the request to strike paragraphs 100-102 and Prayer for Relief, Paragraph 5 and MOOT as to the remaining requests.

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, 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. (b) Strike out 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.”

The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Kamerlingh (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].)

Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, sub. (b)(1).)

The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Moving Defendants move to strike all the following from the Complaint:

1. Page 20, lines 13-20: The entirety of paragraph 100.

2. Page 20, lines 21-25: The entirety of paragraph 101.

3. Page 20, line 26 through page 21, line 1: The entirety of paragraph 102.

4. Page 40, line 25: “general damages”.

5. Page 40, line 27: “punitive/ exemplary damages pursuant to California Welfare & Institutions Code § 15647, et seq.”.

6. Page 41, line 6: “attorney’ fees and costs of suit… pursuant to Welfare & Institutions Code §15657(a)”.

7. Page 41, line 10: “general damages”;

8. Page 41, line 13: “attorney fees and costs pursuant to California Health & Safety Code §1430(b)”;

9. Page 41, line 20: “general damages”;

10. Page 41, line 22: “punitive damages”;

11. Page 41, line 24: “general damages.”

(Notice of Motion, 1-2.)

Request to Strike Irrelevant Allegations

Moving Defendants argue that paragraphs 100-102 of the Complaint should be stricken because they reference Defendants’ staff’s hourly wage, the staff turnover rate, and the ratio of CNAs to RN’s, all of which are irrelevant because they do not pertain to Plaintiffs’ allegations against Moving Defendants. (Motion, 17-18.)

In opposition, Plaintiffs argue that paragraphs 100-102 are relevant to show that Defendants engaged in systemic understaffing, and thus, should not be stricken. (Opposition, 15.)

The court agrees with Plaintiffs that paragraphs 100-102 should not be stricken, as they are not irrelevant. Pursuant to Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1348-1349, allegation of understaffing are relevant towards an elder abuse claim under the EADCPA.

Therefore, Defendants’ motion is denied as to this request.

Request to Strike Punitive Damages, General Damages and Attorney’s Fees

Moving Defendants move to strike the Complaint’s request for general damages, punitive damages and attorney’s fees as to each cause of action.

The court finds Moving Defendants’ motion moot as to the request to strike damages pertaining to the first, third, fourth and fifth causes of action. As discussed above, the court sustains Moving Defendants’ demurrer to these causes of action. Therefore, the request to strike damages from these causes of action is MOOT.

As to the request to strike general damages pertaining to the Complaint’s second cause of action, the motion is DENIED. Moving Defendants do not demonstrate why the request for general damages should be stricken from the second cause of action. Specifically, Moving Defendants do not argue how this cause of action is insufficiently pled, or why Plaintiffs are not entitled to general damages based on the second cause of action.

In summary, Defendants, 2210 Santa Ana Opco LLC dba Advanced Rehab Center of Tustin and Jadeite Management, LLC’s (Moving Defendants) Motion to Strike Portions of the Complaint is DENIED as to the request to strike paragraphs 100-102 and Prayer for Relief, Paragraph 5 (Notice of Motion, 1-3, 7) and MOOT as to the remaining requests.

Moving Defendants are to give notice.

Future Events:

8/4/23 - MSC

9/5/23 – Jury Trial