Judge: Joel L. Lofton, Case: 22AHCV00771, Date: 2023-03-06 Tentative Ruling

Case Number: 22AHCV00771    Hearing Date: March 6, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     March 6, 2023                         TRIAL DATE: No date set.

CASE:                         SAMI HAKIM by and through his Successor-in-Interest, Hilda Hakim; Hilda Hakim, an individual; HYATT HAKIM, an individual; and ANGEL HAKIM, an individual, v. LOMA LINDA UNIVERSITY HEALTH; BRUCE M. TOPOROFF, M.D.; MUSTAFA KADHIM HUSSEIN BALDAWI, M.D.; MELISSA D. MCCABE, M.D.; HUAYONG HU, M.D. RAMESH CHANDER BANSAL, M.D.; SHARMIN KALAM, M.D.; SAHIBZADI MAHRUKH NOOR, M.D.; CORY JAMES TOOMASIAN, M.D., FELIPE JOSE ZINKEWICH, M.D.; JENNIFER L. MOHR, PA-C; and DOES 1 THROUGH 200, inclusive.

CASE NO.:                 22AHCV00771

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendant Loma Linda University Health (“Loma Linda”)

RESPONDING PARTY:      Plaintiffs Sami Hakim, by and through his successor-in-interest Hilda Hakim, Hilda Hakim, Hyatt Hakim, and Angel Hakim (“Plaintiffs”).

SERVICE:                              Filed November 14, 2022

OPPOSITION:                       Filed December 2, 2022

REPLY:                                   Filed December 8, 2022

RELIEF REQUESTED

            Loma Linda demurrers to Plaintiffs’ first cause of action for Dependent Adult Abuse.

            Loma Linda moves to strike Plaintiffs’ prayers for punitive damages.

BACKGROUND

             This case arises out of Plaintiffs’ claim that Defendants failed to properly administer medical care to Sami Hakim, a dependent adult (“Decedent”). Plaintiffs allege that on July 14, 2021, Decedent presented to Loma Linda for a procedure to replace an ascending aorta. Plaintiffs allege that Decedent required the assistance of a cardiopulmonary bypass machine (“CBM”). Plaintiffs allege that after the procedure, Decedent exhibited significant bleeding. Plaintiffs allege that Defendants attempted to place Decedent back on the CBM but were unable to because the CBM had become clotted.

            Plaintiffs allege that Defendants failed to administer the proper amount of heparin, a blood thinning agent, and protamine, a blood clotting agent. Plaintiffs allege that Defendants did not have a backup CBM ready and spent a significant amount of time changing the CBM. Plaintiffs allege that Decedent suffered from extended periods of low blood pressure and oxygen deprivation. Plaintiffs allege that Decedent died on September 13, 2021.

            Plaintiffs filed this complaint on October 6, 2022, alleging three causes of action for (1) dependent adult abuse, (2) negligence, and (3) wrongful death.

TENTATIVE RULING

Loma Linda’s demurrer to Plaintiffs’ first cause of action is SUSTAINED with leave to amend.

            Loma Linda’s motion to strike Plaintiffs’ prayers for punitive damages is GRANTED with leave to amend.

REQUEST FOR JUDICIAL NOTICE

            Loma Linda’s requests for judicial notice of Exhibit 1 through 4 are granted pursuant to Evidence Code section 452, subdivision (c). Plaintiffs’ objections are overruled.

LEGAL STANDARD

Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  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, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)   

DISCUSSION

            Loma Linda demurrers to Plaintiffs’ first cause of action for dependent adult abuse. Loma Linda argues that Plaintiff fails to sufficiently plead a cause of action for violation of the Elder Abuse and Dependent Adult Civil Protection Act, Welfare and Institutes Code section 15610, et seq. (“the Act”).

Plaintiff alleges Loma Linda “neglected” Decedent as defined by Welfare and Institutes Code section 15610.57. The act defines neglect as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code section 15610.57, subd. (a)(1).) “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.’ [Citation.] Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)

            In Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07, the Court held that to sufficiently plead a cause of action alleging a violation of the Act, the plaintiff must plead that the defendant “(1) had responsibility for meeting the basic needs of the elder or dependent adult . . .; (2) knew of the 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 . . ..”

            Plaintiffs allege that Defendants had improperly provided medical care to Decedent because the CBM used during Decedent’s operation had become clotted, a backup CBM was not available, Defendants had to spend time changing the CBM, and Defendants failed to administer the appropriate combination of heparin and protamine. (Complaint ¶¶ 36-38.)

            The allegations in the present case are like the allegations in Carter, supra, where the plaintiffs had alleged that the decedent died because the hospital did not administer antibiotics to treat pneumonia and did not have the proper size endotracheal tube in the crash cart. (198 Cal.App.4th at p. 408.) The Court stated that the allegations “indicate the Hospital did not deny services to or withhold treatment from [the decedent]—on the contrary, the staff actively undertook to provide treatment intended to save his life.” (Ibid.) Plaintiffs complaint, as currently alleged, alleges that Defendants provided negligent medical care as opposed to denied or withheld treatment.

            In opposition, Plaintiffs rely on the ruling in Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349, that held that allegations of a pattern and practice of understaffing could supply a sufficient basis to allege recklessness. In Fenimore, the plaintiffs had alleged that the decedent had fallen within minutes of entering the hospital, the hospital had attempted to mislead the decedent’s family about the nature of the fall, and the hospital provided no medical attention for further assessment for four days after the decedent’s fall. (Id. at pp. 1343-44.) The plaintiffs also alleged that the hospital had violated various regulations applicable to training requirements for staff and the number of staff necessary, which the plaintiffs alleged caused the decedent’s injuries. (Id. at p. 1344.)

            In the present case, Plaintiffs alleged that Loma Linda was “aware of the understaffing and sub-standard provision of care to residents and patients of their hospitals”. (Complaint ¶ 20.) Plaintiffs also allege that the understaffing resulted in harm to Decedent. (Id. ¶ 45.)

            “[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.” (Covenant, supra, 198 Cal.App.4th at p. 407.) In their attempt to plead a cause of action for violation of the Act, Plaintiffs allege that Defendants provided improper medical services because the CBM was clotted, and no backup was ready. Plaintiffs also allege that Loma Linda engaged in a pattern and practice of understaffing. However, Plaintiffs provide no factual allegations establishing the causal link between the neglect and the injury. The mere juxtaposition of the two claims is insufficient to plead facts with the required particularity.

            Thus, Plaintiffs have failed to allege facts sufficient to plead a cause of action for Dependent Adult Abuse. Loma Linda’s demurrer is sustained with leave to amend.

            Motion to Strike

            Loma Linda also moves to strike Plaintiffs’ prayer for punitive damages. Plaintiffs seeks punitive damages pursuant to Welfare and Institutions Code section 15657, subdivision (a), and Code of Civil Procedure section 3294.

“No claim for punitive or exemplary damages against a religious corporation or religious corporation sole shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed. The court may allow the filing of an amended pleading claiming punitive or exemplary damages on a motion by the party seeking the amended pleading and upon a finding, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established evidence which substantiates that plaintiff will meet the clear and convincing standard of proof under Section 3294 of the Civil Code.” (Code Civ. Proc. section 425.14)

Here, because the court has sustained Loma Linda’s demurrer to Plaintiff’s first cause of action for Dependent Adult Abuse, Plaintiffs currently have no grounds to seek punitive damages pursuant to Welfare and Institutions Code section 15657. Additionally, the court has not entered an order allowing Plaintiff to plead a claim for punitive damages against Loma Linda.

In opposition, Plaintiffs argue that Loma Linda is seeking to use extrinsic evidence because the documents in Loma Linda’s requests for judicial notice are not subject to judicial notice. However, documents such as a corporation’s article of incorporations “are properly the subject of judicial notice as documents reflecting official acts of the executive department of the State of California.” (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483-84.) Loma Linda’s Exhibits 1 through 4 establish that it is a religious corporation, and Plaintiffs have not obtained an order allowing them to seek punitive damages against Loma Linda pursuant to Code of Civil Procedure section 425.14.

Loma Linda’s motion to strike Plaintiffs’ prayer for punitive damages is sustained.

CONCLUSION

            Loma Linda’s demurrer to Plaintiffs’ first cause of action is SUSTAINED with 20 days leave to amend from notice of this ruling.

            Loma Linda’s motion to strike Plaintiffs’ prayers for punitive damages is GRANTED with 20 days leave to amend from notice of this ruling.

            Moving Party to give notice.

Dated:   March 6, 2023                                   ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org