Judge: John J. Kralik, Case: 23BBCV01798, Date: 2025-03-14 Tentative Ruling

Case Number: 23BBCV01798    Hearing Date: March 14, 2025    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Aznive Sarkissian, as heir and representative of The Estate of Kourken Sarkissian (Plaintiff), alleges that she is Decedent Kourken Sarkissian’s (“Decedent”) widow.  Plaintiff alleges on May 9, 2022, Kourken Sarkissian (“Decedent”) was an elder.  Plaintiff alleges that on July 31, 2018, Decedent was transferred to the care and custody of Defendants 13400 Sherman Way, LLC dba Valley Palms Care Center (“Facility”) and Edmond Derderian, M.D.  Plaintiff alleges that Defendants breached their professional duty to care for Decedent and that their acts and omissions constitute elder abuse and neglect. 

The complaint, filed August 4, 2023, alleges a single cause of action for general negligence.

B.     Motions on Calendar

On February 13, 2025, Dr. Derderian filed a demurrer and a motion to strike portions of the complaint.   

On February 28, 2025, Plaintiff filed a single opposition brief.

On March 7, 2025, Dr. Derderian filed a reply brief.

DISCUSSION RE DEMURRER

            Dr. Derderian demurs to the complaint, arguing that it fails to allege sufficient facts and is uncertain as alleged against Dr. Derderian.

First, Dr. Derderian argues that Plaintiff has not filed a CCP § 377.60 or 377.32 declaration stating that she is the sole heir of Decedent and that there are no other heirs.  Thus, he argues that Plaintiff has not proven there are no other heirs.  However, CCP § 377.60 delineates the persons with standing to pursue a wrongful death action, but it does not have a declaration requirement.  In contrast, survival actions require that the plaintiff provide a statement that conforms with section 377.32.  As pointed out by Plaintiff in the opposition, a declaration is not necessary as this is a wrongful death action and this action is not a survival/continuation action.  In the complaint at section 12(b), she alleges that she is Decedent’s widow, which is a proper individual with standing pursuant to CCP § 377.60(a) (including a decedent’s surviving spouse).  

Dr. Derderian also argues that Plaintiff has not complied with Welfare & Institutions Code, § 15657.3.  However, this section only applies “if a conservator has been appointed for the plaintiff [decedent] prior to the initiation of the action for abuse.”  As pointed out by Plaintiff, there are no allegations that Decedent was subject to a conservatorship at the time of the complaint and there is no probate action pending. 

Next, Dr. Derderian argues that the complaint fails to allege sufficient facts for a claim of elder abuse.  He also argues that the allegations are vague as it appears that Plaintiff is attempting to plead elder abuse, negligence, and wrongful death in a single cause of action for general negligence. 

            A plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder or dependent adult.  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.)  The plaintiff must prove by clear and convincing evidence that defendant was guilty of recklessness, oppression, fraud or malice in the commission of the neglect, which applies essentially the equivalent standard to support punitive damages.  (Id.; Welf. & Inst. Code, § 15657.)  The enhanced remedies are available only for acts of egregious abuse against elder or dependent adult.  (Carter, supra, 198 Cal.App.4th at 405.) “‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur” and 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 v. Baker (1999) 20 Cal.4th 23, 31-32.)  Unlike negligence, recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions.  (Id. at 31.)

            There are several factors that must be pled with particularity, including: (1) defendants had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) defendants knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (3) defendants 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 (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness); and (4) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.  (Carter, supra, 198 Cal.App.4th at 406-407.)

            The allegations of the complaint are sparse.  On page 4 of the complaint, Plaintiff alleges that Decedent was an elder (¶1); Decedent was transferred to Defendant’s care and custody on July 31, 2018 for 24-hour care and supervision where he was totally dependent on Defendants (¶2); Defendants breached their duty to Decedent by failing to attend to his health and safety needs (¶3); and Defendants’ actions and omissions constituted elder abuse and neglect (¶4).  The allegations fail to state what each Defendant did and how Dr. Derderian specifically is liable for elder abuse/neglect and/or negligence.  The allegations are generalized without any specifics on Defendants’ actions.  The demurer is sustained with leave to amend.

DISCUSSION RE MOTION TO STRIKE

            Dr. Derderian moves to strike paragraphs 11(g) and 14(a)(2) on page 3 of the complaint.  Paragraph 11(g) seeks heightened remedies under Welfare & Institutions Code, § 15657.  Paragraph 14(a)(@) seeks punitive damages. 

            In light of the ruling on the demurrer, the motion to strike is taken off-calendar as moot.

CONCLUSION AND ORDER

Defendant Edmond Derderian, M.D.’s demurrer is sustained with 20 days leave to amend.

Defendant Edmond Derderian, M.D.’s motion to strike taken off-calendar as moot.

Defendant shall provide notice of this order.

DATED: March 14, 2025                                                       ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court