Judge: Jon R. Takasugi, Case: 24STCV01900, Date: 2024-06-26 Tentative Ruling

Case Number: 24STCV01900    Hearing Date: June 26, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ demurrer is SUSTAINED:

-        Defendants’ demurrer is OVERRULED as to Alta Hospitals.

-        Defendants’ demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND, as to the first cause of action, and overruled as to the third cause of action.

Defendants’ motion to strike is GRANTED as to the punitive damages prayer, and moot as to attorney fees.

Plaintiff’s motion for trial preference is GRANTED.

           On 1/24/2024, Plaintiff Lillian H. Michaels, in and through her Guardian Ad Litem, John Michael (Plaintiff), filed a petition against Southern California Hospital at Culver City, Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City, and Alta Hospitals System, LLC (Alta) (collectively, Defendants), alleging: (1) elder abuse; (2) negligence; and (3) willful misconduct.

           On 5/28/2024, Defendants demurred to Plaintiff’s Complaint as to all causes of action against Alta and the first and third causes of action against the remaining Defendants. Defendants also moved to strike portions of Plaintiff’s Complaint.

           On 6/5/2024, Plaintiff filed a motion for trial preference.

           For ease, the Court has consolidated its analysis of all motions into a single ruling.

Discussion

           Defendants argue that Plaintiff is barred from pursuing a claim against Alta arising from medical services rendered because Alta is statutorily precluded from rendering professional services. Defendants also argue that Plaintiff’s causes of action are insufficiently pled.

           As for the first contention, a business rendering “professional” services requiring a license, registration or certification under the Business and Professions Code cannot operate as an LLC unless expressly authorized by statute. Pursuant to Corp. Code, § 13401(a), “’[p]rofessional services’ means any type of professional services that may be lawfully rendered only pursuant to a license, certification, or registration authorized by the Business and Professions Code, the Chiropractic Act, or the Osteopathic Act.” And pursuant to Corp. Code, § 17701.04(b), “[a] domestic or foreign limited liability company may render services that may be lawfully rendered only pursuant to a license [or] certificate . . . authorized by the Business and Professions Code, the Chiropractic Act [or] the Osteopathic Act, . . . if the applicable provisions of the Business and Professions Code, the Chiropractic Act, [or] the Osteopathic Act . . . authorize a limited liability company or foreign limited liability company to hold that license [or] certificate. Finally, pursuant to Corp. Code, § 17701.04(e), “[n]othing in this title shall be construed to permit a domestic or foreign limited liability company to render professional services, as defined in subdivision (a) of Section 13401[.]”

           Accordingly, given the language of sections 13401(a) and 17701.04(b) and (e), a business that provides services requiring a license or certification pursuant to Business and Professions Code may conduct its activities as a limited liability company if the services rendered require only a nonprofessional, occupational license. (87 Ops.Cal.Atty.Gen. 109 (2004).)

Here, Defendant argues that Defendant Alta Hospital System, LLC is statutorily precluded from rendering professional services (i.e. medical services).

           However, in opposition, Plaintiff notes that it alleges a joint enterprise relationship between Defendants, Alta Hospital System, LLC and Southern California Hospital at Culver City, alleging that both share control of the operation and profits of the facility. (Complaint ¶ 8.) Accordingly, Plaintiff has alleged sufficient facts at the pleading stage to show that “Defendant Alta Hospital Systems, LLC is operating Southern California Hospital at Culver City as a joint enterprise [and] therefore each wrongful act and omission from any joint venture which controls Southern California Hospital at Culver City is subject to liability.” (Opp., 15: 5-8.)

           The Court now turns to the causes of actions asserted against the remaining Defendants.

           As for the claim for elder and dependent adult abuse, Defendants argue that Plaintiff has failed to allege physical abuse or negligent with the requisite particularity. The Court agrees.

As defined under Welf. & Inst. Code § 15610.63, physical abuse of an elderly adult includes: (1) battery as defined in Penal Code § 242 as any willful and unlawful use of force or violence upon the person of another; (2) unreasonable physical restraint, or prolonged or continual deprivation of food or water; or (3) use of physical or chemical restraint or psychotropic medication for punishment or for any unauthorized period or purpose. (Welf. & Inst. Code § 15610.63(b), (d), and (f).)

Furthermore, as defined under Welf. & Inst. Code § 15610.57(a), neglect means negligent failure of any person having the care or custody of an elder to exercise that degree of care that a reasonable person in a like position would exercise. Neglect includes failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; failure to provide medical care for physical and mental health needs; failure to protect from health and safety hazards; and failure to prevent malnutrition or dehydration. Welf. & Inst. Code § 15610.57(b).

Here, Plaintiff alleges that Defendants: (1) pushed Plaintiff to perform exercises in physical therapy sessions despite her diagnosis of bursitis and complaints of pain, (2) failed to document her fall which occurred on July 8, 2022 and failed to report it to the physician resulting in her undergoing surgical debridement, (3) understaffed and undertrained nursing staff, and (4) violated regulatory provisions of C.C.R. §§ 70215, 70217, and 70263. Even accepted as true, these allegations could not show neglect or abuse. Rather, they show negligence.

As to the cause of action for willful conduct, Defendants argue that this is not a cognizable legal theory of liability but rather an element of a theory of liability. The Court disagrees. The Court looks to the substance of the cause of action, rather than the title affixed to the claim. Here, Defendants themselves set forth the elements that Plaintiff must prove in order to prevail on this claim: “In order to establish willful misconduct, plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140.) Given that Plaintiff must establish elements here that would not be established through the ordinary negligence claim, it is not duplicative. Moreover, Defendants is on notice of the theory of liability being advanced by this claim.

Based on the foregoing, Defendants’ demurrer is overruled as to Alta. Defendants’ demurrer is sustained, with 15 days leave to amend, as to the first cause of action, and overruled as to the third cause of action.

Motion to Strike

           Defendants move to strike Plaintiff’s prayer for punitive damages and attorney fees and costs.

           After review, the Court agrees the provisions should be struck.

           As for the first contention, Plaintiff has failed to comply with the procedures set forth in CCP section 415.13(a). CCP section 425.13(a) provides in relevant part:

In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages 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 damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.  

           Here, Plaintiff has not complied with the statutory requirement under CCP section § 425.13(a) of obtaining a court order to allow for punitive damages claim in the Complaint. While Plaintiff argues that her allegations are sufficient to satisfy section 425.13, section 415.13 clearly requires a separate motion to be filed.

           As for the second contention, Plaintiff’s attorney fees claim is based on her Elder Abuse claim. As set forth above, the Court found that claim insufficiently pled. Given that leave to amend was granted, Defendants’ motion is moot as to this request.

           Based on the foregoing, Defendants’ motion to strike is granted as to the punitive damages prayer, and moot as to attorney fees.

Motion for Trial Preference

           Plaintiff seeks trial preference pursuant to CCP section 36a, given her age (86 years) and her health. Defendant filed a notice of non-opposition, but requested that the Court “set the Trial date in this matter as close as possible to the nine month period of time provided for healthcare providers from the date of the hearing on this matter, late March of 2025.” (Non-Opp., 2: 3-5.) The Court grants both requests.

It is so ordered.

Dated:  June    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.