Judge: Lynette Gridiron Winston, Case: 22STCV21045, Date: 2023-10-05 Tentative Ruling

Case Number: 22STCV21045    Hearing Date: October 12, 2023    Dept: 6

CASE NAME: Phyllis Brost, et al. v. Vitas Healthcare, et al.

.      Defendant Wiefels & Son, Inc. d/b/a All Caring Solutions’ Demurrer to Plaintiffs’ Third Amended Complaint; and

.      Defendant Wiefels & Son, Inc. d/b/a All Caring Solutions’ Motion to Strike Portions of Plaintiffs’ Third Amended Complaint

TENTATIVE RULING

                The Court OVERRULES the demurrer of Defendant All Caring Solutions as to the Fifth and Sixth Causes of Action. 

                 The Court GRANTS the motion to strike paragraph 109, lines 2-3, but DENIES the motion to strike paragraph 133, lines 4-5 and Prayer for Relief, paragraph 6 at page 37, line 16. 

Defendant All Caring Solutions must file an Answer to the Third Amended Complaint within 20 calendar days of the Court’s order. 

                  Plaintiffs are ordered to give notice of the Court’s order herein and provide proof of service of same within five calendar days of the Court’s order. 

BACKGROUND

This case arises from the death of James Elmer Brost (Decedent) and the alleged mishandling of his corpse. On June 28, 2022, Plaintiffs Phyllis Brost, Angelique Barnum, and James Jr.[1] (collectively, Plaintiffs) filed this action against Defendants Vitas Healthcare (Vitas), Wiefels & Son, Inc. d/b/a All Caring Solutions, (All Caring Solutions), Michael Bobadilla (Bobadilla), Paradise Transportation and Funeral Services (Paradise), and Juan Reatiga (Reatiga) (collectively, Defendants). 

                  On August 19, 2022, Plaintiffs filed the First Amended Complaint (FAC). On February 6, 2023, the Court sustained the demurrer of Vitas with leave to amend as to the First Amended Complaint, and continued the hearing on Defendant All Caring Solution’s demurrer for the failure to meet and confer. 

                  On March 6, 2023, Plaintiffs filed the Second Amended Complaint (SAC). On June 21, 2023, the Court overruled Vitas’ demurrer to the Third and Fourth Causes of Action of the SAC, but sustained with leave to amend as to the Fifth Cause of Action. The Court also sustained All Caring Solutions’ demurrer to the Fifth and Sixth Causes of Action of the SAC with leave to amend. 

                  On July 17, 2023, Plaintiffs filed the operative Third Amended Complaint (TAC), alleging causes of action for negligence/wrongful death, negligence/survival, statutory violation of California’s Civil Elder Abuse/Neglect Protection Act (Wel. & Inst. Code § 15600, Et. Seq) – Survival, willful misconduct, negligent mishandling and wrongful retention of a corpse, and intentional mishandling and retention of a corpse. 

                  On October 5, 2023, the Court sustained Vitas Healthcare’s demurrer to the Fifth Cause of Action without leave to amend. 

On August 18, 2023, All Caring Solutions filed the instant demurrer to the Fifth and Sixth Causes of Action of the TAC and a motion to strike. On September 28, 2023, Plaintiffs opposed the demurrer and motion to strike. On October 5, 2023, All Caring Solutions replied to both oppositions. 

LEGAL STANDARD - Demurrer

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.) 

DISCUSSION – Demurrer

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), the parties were required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds All Caring Solutions’ efforts to meet and confer to be sufficient. (Koger Decl., ¶ 4.) 

Fifth Cause of Action – Negligent Mishandling and Wrongful Retention of a Corpse (Negligent Infliction of Emotional Distress)

Negligent mishandling of human remains is a tort of negligence. The name is merely “convenient terminology descriptive of the context in which the negligent conduct occurred.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.) Thus, “when damages are sought for negligently inflicted emotional distress, the tort is negligence regardless of the specific name that may be used to describe the tort, and that the elements of duty, breach of duty, causation and damages must be pleaded and proven.” (Id., at p. 882.) 

All Caring Solutions contends it is not liable for the actions of Defendant Bobadilla, who was purportedly employed by Defendant Paradise, not All Caring Solutions, citing TAC, ¶¶ 8, 33, 37. The Court finds All Caring Solutions’ arguments here to be unpersuasive. 

The Court finds that All Caring Solutions is arguing the facts of the case rather than dealing with the specific allegations of the TAC, which the Court must assume to be true on a demurrer. (Donabedian, supra, 116 Cal.App.4th at p. 994.) On a demurrer, a “court’s function is limited to testing the legal sufficiency of the complaint” such that “a demurrer is  simply not the appropriate procedure for determining the truth of disputed facts.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) Just as the Court found in its prior ruling on the demurrer to the SAC, the Court finds the TAC alleges sufficient facts establishing an employment relationship between All Caring Solutions and Bobadilla. (TAC, ¶¶ 8, 95; see Order Tentative Ruling (6/21/23).) 

The Court further finds that the TAC resolves issues identified in the Court’s prior ruling, namely that Plaintiffs have now alleged facts showing that All Caring Solutions knew or should have known that Bobadilla was unfit or incompetent to handle Decedent’s corpse, which is required to hold the employer vicariously liable for its employee’s torts committed within the scope of the employment. (See Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1210-1211.) More specifically, the TAC alleges that, following the incident, James Jr. spoke with Alex, the alleged owner or manager of All Caring Solutions, who told James Jr. that Bobadilla was an employee of All Caring Solutions, that Alex had trained Bobadilla, that Bobadilla was new to the job, and that he was going to terminate Bobadilla. (TAC, ¶ 95.) The Court finds these allegations sufficient to show that All Caring Solutions knew or should have known Bobadilla was not fit for this job. “Liability results ... not because of the relation of the parties but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment....’ [Citations.]” (Federico, supra, 59 Cal.App.4th at p. 1214, italics in original.) 

The Court further finds that Plaintiffs have sufficiently alleged that they suffered serious emotional distress as a result of the alleged mishandling of Decedent’s corpse. (TAC, ¶¶ 34, 35, 36, 89, 90, 91, 107, 108.)

Based on the foregoing, the Court OVERRULES the demurrer to the Fifth Cause of Action. 

Sixth Cause of Action – Intentional Mishandling and Wrongful Retention of a Corpse (Intentional Infliction of Emotional Distress)

The elements of the tort of Intentional Infliction of Emotional Distress (IIED) are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct....” (Catsouras v. Dep’t of California Highway Patrol (2010) 181 Cal.App.4th 586, 874-875.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.) 

“Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, citing Rest.2d Torts, § 46, com. d.) Said differently, the test for judging outrageous conduct is less an analytical, bright-line test but rather one that appears “more intuitive.” (KOVR-TV, Inc., supra, 31 Cal.App.4th at p. 1028.) Furthermore, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware.” (Catsouras, supra, 181 Cal.App.4th 856 at p. 875). 

In ruling on the demurrer to this cause of action in the SAC, the Court found that Plaintiffs sufficiently alleged the extreme and outrageous conduct, but failed to allege sufficient facts showing they experienced severe emotional distress. Thus, the Court will review the allegations of the TAC to determine if sufficient facts have now been pled to show that Plaintiffs suffered severe emotional distress. “Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) 

All Caring Solutions contends that the TAC fails to allege facts showing that Bobadilla intended to cause anyone emotional distress and that it fails to plead severe emotional distress. All Caring Solutions also contends in particular that the TAC does not allege the incident with Bobadilla having occurred in the presence of Plaintiff Phyllis. 

First, with respect Bobadilla’s intentions, the Court finds All Caring Solutions is again attempting to argue the facts rather than address the allegations of the TAC, and otherwise ignores that the TAC alleges Bobadilla’s actions occurred in the presence of at least Plaintiffs James Jr. and Angelique. (TAC, ¶¶ 114-117.) The TAC also alleges that All Caring Solutions refused to release Decedent’s corpse until Plaintiffs paid them over $400.00, despite their knowledge that the corpse was to be transported to Todd Memorial Chapel but was not. (TAC, ¶¶ 88, 92, 93, 107, 129, 130.) These allegations show conduct directed at Plaintiffs Phyllis and James, Jr. and conduct with reckless disregard of the probability of causing emotional distress. Thus, the Court finds the TAC contains sufficient allegations to show the requisite intent. 

Moreover, the Court finds that Plaintiffs allege sufficient facts of severe emotional distress. “[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.” (Fletcher, supra, 10 Cal.App.3d at p. 397.) The TAC alleges that Plaintiffs suffered “serious emotional distress including suffering, anguish, horror, nervousness, grief, anxiety, worry, shock, humiliation and shame.” (TAC, ¶ 131.) The TAC further alleges that Phyllis has been deeply angered and depressed, lost many nights of sleep, lost her appetite and has been anxious. (TAC, ¶ 132.) The TAC also alleges that James, Jr. and Angelique were in tears and shock and disbelief, and have suffered sleepless nights, sudden incidents of crying, extreme anger, feelings of helplessness and sadness. (TAC, ¶132.) These allegations are sufficient to show serious emotional distress. 

Based on the foregoing, the Court OVERRULES the demurrer to the Sixth Cause of Action. 

LEGAL STANDARD – Motion to Strike

“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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “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.” (Id., § 436.) 

DISCUSSION – Motion to Strike

Meet and Confer

Per Code of Civil Procedure section 435.5, subdivision (a), the parties were 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 All Caring Solutions’ efforts to meet and confer to be sufficient. (Koger Decl., ¶ 2.) 

Analysis                 
“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” 

              Defendant All Caring Solutions seeks to strike Plaintiffs’ prayer for punitive damages from paragraph 109, lines 2-3; paragraph 133, lines 4-5; and Prayer for Relief, at page 37, line 16 of the TAC. The Court finds that Plaintiffs have not alleged any basis for an award of punitive damages based on a claim for negligence as stated in the Fifth cause of action. Thus, the Court will strike the request for punitive damages from paragraph 109, lines 2-3. 

              However, since the Court overruled the demurrer to the Sixth cause of action for IIED, such cause of action does provide a basis for punitive damages. The TAC alleges sufficient facts to show that All Caring Solutions acted with malice or oppression based on the conduct alleged in support of the IIED claim. (TAC, ¶¶ 113-125.) Therefore, the Court denies the motion to strike the request for punitive damages in paragraph 133, lines 4-5 and Prayer for Relief, paragraph 6 at page 37, line 16. 

CONCLUSION

              The Court OVERRULES the demurrer of Defendant All Caring Solutions as to the Fifth and Sixth Causes of Action. 

              The Court GRANTS the motion to strike paragraph 109, lines 2-3, but DENIES the motion to strike paragraph 133, lines 4-5 and Prayer for Relief, paragraph 6 at page 37, line 16. 

Defendant All Caring Solutions must file an Answer to the Third Amended Complaint within 20 calendar days of the Court’s order.

              Plaintiffs are ordered to give notice of the Court's order herein and provide proof of service of same within five calendar days of the Court's order.