Judge Kerry Bensinger, Case 21STCV09595 2023-02-22 Tentative Ruling

On March 11, 2021, plaintiff Kevin Young filed this action against defendants Bay Crest Care Center (sued and served as “Baycrest Care Center”), Sharon Care Center, Marina Raikhel, M.D., Reza Ghanian, M.D., and Torrance Memorial Medical Center (collectively, “Defendants”) for medical negligence. In the Complaint, Plaintiff alleges that “Defendants failed to meet their respective standard of care applicable to them in their care, treatment and diagnosis of Plaintiff” which caused Plaintiff “to be sore sick and lame.”

On January 13, 2023, defendant Bay Crest Care Center (“Bay Crest”) filed the instant demurrer and motion to strike the entire Complaint on the grounds that the Complaint is uncertain and fails to allege facts sufficient to constitute any cause of action against Bay Crest. No opposition has been filed.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted or if the pleading is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) “Uncertain” includes ambiguous and unintelligible. (Code Civ. Proc., § 430.10, subd. (f).)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole 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); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 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.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) The Court finds that Bay Crest has satisfied the meet and confer requirement. (See Laughlin Decl., ¶ 4.)

Bay Crest argues that the Complaint is subject to special demurrer because it is ambiguous, unintelligible, and uncertain. The Court agrees. The Complaint alleges medical negligence and elder dependent abuse against all Defendants, yet Plaintiff does not indicate on his Civil Case Cover Sheet that this is also an elder dependent abuse action. Further, Plaintiff alleges that he notified Defendants of his intent to bring suit for medical negligence on December 11, 2020. However, the Complaint does not state when Bay Crest, or any other defendant, “failed to meet their respective standard of care applicable to them in their care, treatment and diagnosis of Plaintiff.” There are no dates of treatment alleged, which, among other things, prevents a determination of the timeliness of Plaintiff’s action. Nor does Plaintiff set forth sufficient facts for Bay Crest or any defendant to discern what treatment or care each rendered to Plaintiff which failed to meet the applicable standard of care. The Complaint is uncertain.

Bay Crest further argues that Plaintiff fails to allege facts sufficient to state a claim for medical negligence because Plaintiff has not alleged an act or omission by Bay Crest that breached any duty of care owed to Plaintiff.

The elements of a medical negligence cause of action are “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. [Citation.]” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238, fn. 3.)

A review of the Complaint reveals that Plaintiff fails to allege any facts describing what conduct is at issue and when it occurred. Although it is sufficient to plead “that the thing done was negligently done,” Plaintiff must still identify what act or omission is at issue. (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 155-156.) Accordingly, the Court finds that Plaintiff fails to state a claim for medical negligence.

The Court examines the sufficiency of the Complaint to the extent that Plaintiff intends to pursue a cause of action for elder or dependent adult abuse.

Bay Cress argues that Plaintiff fails to allege facts sufficient to state a claim for elder or dependent adult abuse.

“Abuse of an elder or a dependent adult” means (1) physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (2) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (3) financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code. (Welf. & Inst. Code, § 15610.07.) Section 15657 of the Welfare and Institutions Code authorizes certain remedies where it is proven by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or abandonment, and that the defendant is guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Thus, elder or dependent adult abuse is a cause of action distinct from causes of action based on professional negligence because reckless, fraudulent, or malicious conduct “refers to a subjective state of culpability greater than simple negligence.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31.)

Here, Plaintiff bases his elder dependent abuse cause of action upon the same facts undergirding his medical negligence claim. In order to state a claim for elder dependent abuse, Plaintiff must allege facts that show Bay Crest’s conduct rises to the level of elder or dependent abuse as defined by Section 15610.07 of the Welfare and Institutions Code and whether such conduct was undertaken with recklessness, oppression, fraud, or malice. Plaintiff does not so allege. Accordingly, the Court finds that Plaintiff fails to state a claim for elder and dependent adult abuse.

Based on the foregoing, Defendant Bay Crest Care Center’s demurrer is sustained.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court