Judge Lynette Gridiron Winston, Case Number: 22PSCV01623, Date: 2023-10-24 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV01623, Date: 2023-10-24 Tentative Ruling

1. Defendant Sistine Manor, Inc. dba Springville Residential Care for the Elderly’s Demurrer to Plaintiff’s Second Amended Complaint; and
2. Defendant Sistine Manor, Inc. dba Springville Residential Care for the Elderly’s Motion to Strike Plaintiff’s Second Amended Complaint

The Court SUSTAINS the demurrer to Plaintiff’s First Amended Complaint. The Court will allow Plaintiff to make an offer of proof as to why leave to amend should be granted.

Defendant is ordered to give notice of the Court’s ruling and file a proof of service of same within five calendar days of the Court’s order.

This is an elder abuse case. On November 2, 2022, Plaintiff Kung Alan Chang (Plaintiff), by and through her guardian ad litem, Kelly Chang, filed this action. On November 27, 2023, Plaintiff filed the operative Second Amended Complaint (SAC) against Defendant Sistine Manor, Inc. dba Springville Residential Care for the Elderly (Defendant),[1] and Does 1 through 100, alleging a single cause of action for elder abuse and neglect.

On December 22, 2023, Defendant filed a demurrer and motion to strike the SAC. On January 16, 2024, Plaintiff filed an opposition to the demurrer, but not to the motion to strike.[2] Defendant did not file a reply.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendant’s efforts to meet and confer satisfactory. (Asiryan Decl., ¶¶ 2-5.)

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). (Welf. & Inst. Code § 15600 et seq.) The EADACPA defines “neglect” as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code § 15610.57.) Neglect under the EADACPA “refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89, quotation marks and citation omitted, italics in original.)

Several factors “must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) 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). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (quotation marks and internal citations omitted).)

Defendant demurs to the SAC on the grounds that it fails to plead facts with sufficient particularity, fails to plead facts amounting to egregious abuse or neglect, and fails to plead facts sufficient to show that Defendant acted with recklessness, oppression, fraud, or malice. Defendant also contends the SAC fails to plead facts that show involvement by an officer, director, or managing agent of a corporate defendant, and that Kelly Chang lacks standing to bring a survival action on behalf of Plaintiff, who died on December 9, 2022.

Elder abuse claims must be pled with sufficient particularity. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410, internal citation omitted.) The Court finds that the SAC pleads facts with sufficient particularity to support Plaintiff’s elder abuse claim here. Plaintiff alleges that Defendant (1) had responsibility for meeting the basic needs of Plaintiff, such as lodging, daily meals and snacks, housekeeping, … as well as personal care services such as bathing, dressing, eating, toileting, incontinence care, mobility, grooming and medication assistance (at ¶ 11) and nutrition, hydration, hygiene and medical care (at ¶13); (2) knew that Plaintiff had become totally bedridden requiring full time care, which made Plaintiff unable to provide for her own basic needs (at ¶¶ 12, 14); and (3) denied or withheld goods or services necessary to meet Plaintiff’s basic needs, either with knowledge that injury was substantially certain to befall Plaintiff or with conscious disregard of the high probability of such injury by monitoring Plaintiff daily and not addressing the bed sores and failing to manually reposition Plaintiff every two hours (at ¶¶15-19). Plaintiff also alleges that the neglect caused Plaintiff to suffer physical harm, such as bed sores and decubitus ulceration (at ¶¶ 17-18). These allegations are sufficient to state a cause of action for elder abuse and neglect.

The Court finds that Plaintiff has pled with specificity facts demonstrating that Defendant denied or withheld goods or services, either with knowledge that injury was substantially certain to befall Plaintiff or with conscious disregard of the high probability of such injury, and that Plaintiff has pled a causal link with specificity.

The Court, however, finds that Plaintiff fails to allege sufficient facts to establish employer liability through ratification. The SAC again contains no factual allegations to show involvement or ratification by an officer, director, or managing agent of Defendant. Plaintiff’s references to “managing agent” are vague and conclusory, and are insufficient to satisfy the heightened pleading requirements. (See SAC, ¶¶ 18, 39.)

Finally, as for lack of capacity, the Court notes that lack of capacity is a separate ground for a demurrer compared to failure to state a cause of action. (See Code Civ. Proc., § 430.10, subds. (b), (e).) Defendant’s demurrer only cited failure to state a cause of action as the grounds for this demurrer. (Notice, 2:4-6; see also Code Civ. Proc., § 430.60 [“A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.”]; Cal. Rules of Court, rule 3.1320, subd. (a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”]) Accordingly, lack of capacity is not a basis for sustaining Defendant’s demurrer.

Nevertheless, the Court finds that the SAC is subject to demurrer for the other reasons stated above. Therefore, the Court SUSTAINS the demurrer to Plaintiff’s Second Amended Complaint. The Court will allow Plaintiff to make an offer of proof at the hearing on the demurrer as to why leave to amend should be granted.

“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 435.5, subd. (b)(2).)

Per Code of Civil Procedure section 435.5, subdivision (a), Defendant was required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendant’s efforts to meet and confer satisfactory. (Asiryan Decl., ¶¶ 2-5.)

In light of the Court sustaining the demurrer to the SAC, Defendant’s motion to strike is moot.

The Court SUSTAINS the demurrer to Plaintiff’s First Amended Complaint. The Court will allow Plaintiff to make an offer of proof as to why leave to amend should be granted.

Defendant is ordered to give notice of the Court’s ruling and file a proof of service of same within five calendar days of the Court’s order.

[1] Defendant is alleged to be two separate entities in the SAC, i.e., Sistine Manor, Inc. and Springville Residential Care for the Elderly. (SAC, ¶¶ 3-4.) However, Defendant’s prior filings and the instant demurrer and motion to strike show that it is only one entity, as the name “Springville Residential Care for the Elderly” is only a dba of Sistine Manor, Inc.

[2] Plaintiff also attempted to file a Third Amended Complaint on January 16, 2024, but it was rejected by the clerk’s office because Plaintiff did not have leave of the Court to do so. (Notice of Rejection of Electronic Filing (1/18/24).)