Judge: John J. Kralik, Case: 23BBCV00582, Date: 2023-09-29 Tentative Ruling
Case Number: 23BBCV00582 Hearing Date: September 29, 2023 Dept: NCB
North Central District
|
joseph daniel burt as a
trustee of the trust of barbara a. burt, et al., Plaintiffs, v. icc convalescent corp. dba
imperial care center, Defendant. |
Case No.: 23BBCV00582 Hearing Date: September 29, 2023 [TENTATIVE]
order RE: demurrer; motion to
strike |
BACKGROUND
A.
Allegations
Plaintiffs Joseph Daniel Burt as trustee on
behalf of the Trust of Barbara A. Burt, Denies Ann Parenteau as
successor-in-interest to Barbara Ann Burt and as trustee commenced this action
against Defendant ICC Convalescent Corp. dba Imperial Care Center (“Defendant”)
on behalf of Barbara Ann Burt (“Decedent”).
Plaintiffs allege that Decedent was admitted to Defendant in February
2021 and she was legally blind, had an ongoing liver disorder since August 2020,
and was non-ambulatory. Plaintiffs
allege that Decedent was a victim of elder abuse and neglect by Defendant and
its staff because they failed to take her to her hepatologist appointment for
her liver care, abused and neglected her when she wanted to make phone calls,
left her unsupervised such that she would fall out of her wheelchair or have
excessive pain and breakdowns in her legs from extended sitting, ignoring Mr.
Burt’s calls about his mother’s care, discontinuing physical therapy and
failing to reevaluate Decedent, failing to maintain her hygiene, failing to
provide records, and failing to treat lesions, sores, and drop foot.
The complaint, filed March 13, 2023, alleges
causes of action for: (1) elder abuse and neglect (Welf. & Inst. Code, §
15600 et seq.); (2) violation of resident rights (Health & Saf.
Code, § 1430(b)); (3) negligence; and (4) violation of Unfair Competition Law
(Bus. & Profs. Code, § 17200 et seq.).
B.
Motions
on Calendar
On July 26, 2023, Defendant filed a demurrer
and motion to strike portions of the complaint.
On September 19, 2023, Plaintiffs filed untimely
opposition briefs.
DISCUSSION RE DEMURRER
Defendant demurs to the 4th cause
of action for violation of unfair competition law against Defendant. Defendant argues that the 4th cause
of action fails to allege sufficient facts and is improperly alleged against a
healthcare provider in the context of this case because the UCL is intended to
safeguard competition and is not applicable to professional negligence actions.
The purpose of
the UCL is to protect both consumers and competitors by promoting fair
competition in commercial markets for goods and services. (Buller
v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) Section 17200 defines unfair competition to
mean and include “any unlawful, unfair or fraudulent business act or practice
and unfair, deceptive, untrue or misleading advertising and any act prohibited
by [the false advertising law (§ 17500 et seq.)].” (Id.) Since section 17200 is written in the
disjunctive, a business act or practice need only meet one of the three
criteria, i.e., unlawful, unfair, or fraudulent, to be considered unfair
competition under the UCL. (Id.)
Defendant
argues that case law supports a finding that allegations of unfair business
practices in the context of healthcare law and regulatory violation should not
be adjudicated in the trial court as
these subjects are within the jurisdiction of the Department of Health
Services. Defendant relies on Alvarado
v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292.
However, the Court finds Alvarado
distinguishable. In Alvarado, the
Court of Appeal held that the trial court’s decision to abstain from
adjudicating a class action controversy, which sought restitution and
injunctive relief to require owners and operators of a skilled nursing facility
to comply with certain nursing hour requirements pursuant to Health &
Safety Code, § 1276.5. The Court of
Appeal stated: “Adjudicating this class
action controversy would require the trial court to assume general regulatory
powers over the health care industry through the guise of enforcing the UCL, a
task for which the courts are not well-equipped.” (Alvarado v. Selma Convalescent
Hospital (2007) 153 Cal.App.4th 1292, 1303–1304.) In reaching its decision, the Court of Appeal
relied on Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17
Cal.App.4th 1284. In Samura, the
Court of Appeal found that it was improper for the trial court to assume
regulatory power over Kaiser where the Legislature entrusted such power
exclusively to the Department of Corporations.
(Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17
Cal.App.4th 1284, 1301.) The Samura
court stated that the trial court could not assume general regulatory powers
over health maintenance organization to enforce the Knox-Keene Health Care
Service Plan Act of 1975 (Health & Safety Code, § 1340 et seq.) under
the guise of enforcing Business & Professions Code, § 17200. (Id. at 1301-02 [“To the extent that the order on appeal is based on portions
of the Knox–Keene Act having a purely regulatory import, it improperly invades
the powers that the Legislature entrusted to the Department of Corporations.”].)
Here, the issues
raised in Alvarado and Samura are not at issue in this case. For example, this action does not seek
injunctive relief with respect to nursing hour requirements and does not ask
the Court to undertake a regulatory position over such requirements. Similarly, Plaintiffs do not appear to be
requesting that the Court assume regulatory power that has been exclusively
entrusted to a particular regulatory department. Rather, in the 4th cause of
action, Plaintiffs allege that Defendant engaged in unfair conduct by falsely
misrepresenting their services and ability to care for Decedent, when they
lacked the ability to adequately care for her.
(Compl., ¶¶117-118.) They allege
Defendant engaged in fraudulent conduct with its misrepresentations, which
caused Plaintiffs and Decedent to pay for Defendant’s services. (Id., ¶¶123-124.) They allege Defendant engaged in unlawful
conduct by using false advertisement, marketing, omissions, and misrepresentations
in violation of section 17500 to induce Plaintiffs to pay for Defendant’s
services. (Id., ¶129.) Plaintiffs have not requested that the Court
undertake regulatory functions, but instead allege that Defendant has engaged
in unfair, unlawful, and fraudulent conduct by making misrepresentations that
they could care for Decedent, when they lacked the ability to do so, which
resulted in Plaintiffs and Decedent incurring payments for Defendant’s
allegedly inadequate services and additional costs to try to move Decedent to a
different hospital/facility.
The Court will
allow the UCL claim to remain. As such,
the demurrer to the 4th cause of action is overruled.
DISCUSSION RE MOTION TO STRIKE
Defendant moves to
strike: (1) paragraph 102 (at page 20, lines 27-28) and (2) the prayer for
damages at page 27, line 3 seeking treble damages in connection with the elder
abuse claim. Defendant seeks treble
damages pursuant to Civil Code, § 3345 in connection with the 1st
cause of action for elder abuse.
Civil
Code, § 3345(a) states that this section applies to senior citizens, disabled
persons, and veterans to redress unfair or deceptive acts or practices or
unfair methods of competition. Section
(b) states:
(b) Whenever a trier of fact is authorized
by a statute to impose either a fine, or a civil penalty or other penalty, or
any other remedy the purpose or effect of which is to punish or deter, and the
amount of the fine, penalty, or other remedy is subject to the trier of fact's
discretion, the trier of fact shall consider the factors set forth in paragraphs (1) to (3), inclusive, in addition to
other appropriate factors, in determining the amount of fine, civil penalty or
other penalty, or other remedy to impose. Whenever the trier of fact makes an
affirmative finding in regard to one or more of the factors set forth in paragraphs (1) to (3), inclusive,
it may impose a fine, civil penalty or other penalty, or other remedy in an
amount up to three times greater than authorized by the statute, or, where the
statute does not authorize a specific amount, up to three times greater than
the amount the trier of fact would impose in the absence of that affirmative
finding.
(1) Whether the defendant knew or should
have known that their conduct was directed to one or more senior citizens, disabled persons, or
veterans.
(2) Whether the defendant's conduct caused
one or more senior citizens, disabled persons, or veterans to suffer: loss or 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 or a government
benefits program, or assets essential to the health or welfare of the senior
citizen, disabled person, or veteran.
(3) Whether one or more senior citizens, disabled persons, or
veterans are substantially more vulnerable than
other members of the public to the defendant's conduct because of age, poor
health or infirmity, impaired understanding, restricted mobility, or
disability, and actually suffered substantial physical, emotional, or economic
damage resulting from the defendant's conduct.
(Civ. Code, § 3345(b).)
Defendant argues
that this action is for Defendant’s alleged negligent care to Decedent while
she was in a nursing facility and/or elder abuse. It argues that treble damages under Civil
Code, § 3345 is inappropriate as Welfare & Institutions Code, § 15657
provides the types of damages for an elder abuse claim. Defendant also argues that determining
whether a healthcare violation occurred is the responsibility of the Department
of Public Health and is not proper for the Court to adjudicate.
Section 3345 allows for
treble damages in cases involving unfair or deceptive acts or practices or
unfair methods of competition against a senior citizen. (As noted above, the Court has overruled the
demurrer to the 4th cause of action, such that Plaintiff may have a
viable claim for unfair competition.) As
discussed above, Plaintiffs’ claims in the complaint do not involve a request
that the Court undertake regulatory functions of the healthcare sphere, but
instead Plaintiffs’ claims are specific to Defendant’s facility and its alleged
misrepresentations in its ability to provide adequate care to Decedent and its
failure to provide such care. Whether
such facts can ultimately be proven and whether Plaintiffs will be entitled to
damages will be determined beyond the pleading stage.
In the motion to strike,
Defendant argues that it would amount to a double recovery for Plaintiffs to
recover punitive damages and then allow them to treble the punitive damages
under Civil Code, § 3345. However, this
issue can be adequately addressed with appropriate jury instructions at the
time of trial.
At this time, the Court will allow the
allegations for treble damages. Thus,
the motion to strike is denied.
CONCLUSION AND ORDER
Defendant ICC Convalescent Corp. dba Imperial Care Center’s demurrer to
the 4th cause of action in the complaint is overruled.
Defendant’s motion to strike is denied.
Defendant is ordered to answer within 10 days of this order.
Defendant shall provide notice of this order.