Judge: John J. Kralik, Case: 23BBCV01374, Date: 2024-04-05 Tentative Ruling

Case Number: 23BBCV01374    Hearing Date: April 5, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiffs Keli Michaels and Denise Murphy (“Plaintiffs”) allege that Frank Timothy Murphy (“Decedent”) was an elder at all relevant times and the father of Plaintiffs.  Defendant Las Casitas Assisted Living Facility (“Facility”) is alleged to be a business that provides long term custodial and skilled care as licensed skilled nursing facility.  Defendants Sheila Gonzalez and Manual Gonzalez are alleged to be the owners, operators, and administrators of Facility.  Plaintiffs allege that Decedent’s injuries arose out of the organization, management, operation, and control of the Facility by Defendants. 

Plaintiffs allege that Decedent was 81 years old when he was admitted to Facility and enjoyed the residents and area.  Plaintiffs allege that Keli Michaels observed that the staff kept the doors to the residential rooms open and requested that Decedent’s door be kept closed, but Defendants refused.  Plaintiffs allege that Facility is surrounded by a large amount of vegetation in which rodents could live and hide and that there were no barriers to prevent vermin from entering the courtyard.  On February 15, 2023 at 10:27 a.m., Keli Michaels received a call from manager “Patricia” stating that a rat had bit Decedent’s hand.  Plaintiffs allege that emergency personnel did not transport him to the hospital, but Keli Michaels had to help transport Decedent to urgent care.  Plaintiffs allege that she observed that Decedent has been bitten by vermin multiple times and even on his neck and head.  Plaintiffs allege that the day after being admitted to the hospital, Decedent had a change of condition and showed signs of a stroke.  After his release from the hospital, Decedent was admitted to A Paradise Valley, a nursing home facility, where he was greatly incapacitated.  On April 2, 2023, Decedent died and his death was attributed to “Essential Primary Hypertension” and Alzheimer’s, though he did not have issues with high blood pressure prior to the rat incident. 

The first amended complaint (“FAC”), filed February 7, 2024, alleges causes of action for: (1) elder abuse; and (2) wrongful death.

B.    Motion on Calendar

On February 27, 2024, Defendants filed a motion to strike portions of the FAC.

On March 25, 2024, Plaintiffs filed an untimely opposition brief.

On March 28, 2024, Defendants filed a notice of non-opposition, stating that Defendants were not in receipt of an opposition brief from Plaintiffs.   On April 2, 2024, Defendants filed a reply brief. 

REQUEST FOR JUDICIAL NOTICE

            Defendants request judicial notice of: (1) the FAC.  The request is granted.  (Evid. Code, § 452(d).) 

DISCUSSION

            Defendants move to strike paragraphs 28, 30, and 34, and the prayer for damages at paragraph 4.  The allegations at issue seek punitive damages against Defendants. 

A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages.  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted "with oppression, fraud and malice" toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  Specific factual allegations are required to support a claim for punitive damages.  (Id.)

Civil Code § 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud.  Section 3294(c) defines the terms in the following manner:

(1)  "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2)  "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3)  "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. 

In the FAC, Plaintiffs allege that Defendants’ conduct was despicable and was carried out in conscious disregard for the rights and safety of Decedent.  (FAC, ¶28.)  Plaintiff alleges that Defendants had a duty to ensure safe, minimum services and oversight of Decedent, have policies and procedures in place to ensure basic services and oversight were implemented to assure Decedent’s health and safety, and employ and train staff.  (Id.)  Plaintiffs allege that Defendants’ conduct subjected Decedent to cruel and unjust hardship in conscious disregard of his rights, such as by leaving his door open to the outdoors, which was unsafe.  (Id., ¶29.)  Plaintiffs allege that Keli Michaels requested that Decedent’s room be kept closed to protect him as Decedent had difficulty with protecting himself from the forces outdoors.  (Id.)  Plaintiffs allege that Defendants’ acts and omissions amount to recklessness, oppression, and/or malice.  (Id., ¶34.) 

Defendants argue that though the subject incident involves “repulsive rodent(s),” it is their conduct that should be the focus of the punitive damages allegations.  (Mot. at p.4.)  They argue that the allegations amount to a single instance of failing to bandage Decedent’s arm, a single failure to preclude rodents from accessing Decedent’s room, and the failure to be in his room when the incident occurred.  (Id.)  They argue that this at most amounts to gross negligence, but does not meet the standard for punitive damages.  In opposition, Plaintiffs argue that the allegations must be taken as true and that the incident occurred as a result of a direct failure of Defendants to abide by the direct warnings of Plaintiffs. 

Here, while the circumstances involved are indeed unique, Plaintiffs have not alleged sufficient facts to show that the allegations rise to the level of malice or oppression.  Plaintiffs have not alleged specific facts showing that Defendants intended to cause Decedent injury or acted despicably in a willful or conscious disregard to Decedent’s safety.  Plaintiffs allege that Keli Michaels requested that Decedent’s room be kept shut and Defendants did not keep the door shut, but this at most amounts to negligence or gross negligence, as opposed to malice or oppression. 

            Thus, the motion to strike is granted with leave to amend. 

CONCLUSION AND ORDER

Defendants Las Casitas Assisted Living Facility, Sheila Gonzalez, and Manual Gonzalez’s motion to strike portions of the FAC is granted with 20 days leave to amend.