Judge Lynette Gridiron Winston, Case Number: 23PSCV00920, Date: 2023-09-28 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00920, Date: 2023-09-28 Tentative Ruling

Case Number: 23PSCV00920 Hearing Date: September 28, 2023 Dept: 6

CASE NAME: Rebeca Delgado de Gonzalez v. LA Downtown Medical Center, LLC dba West Covina Medical Center D/P SNF

1. Defendant LA Downtown Medical Center, LLC’s Demurrer to Plaintiffs’ First Amended Complaint; and
2. Defendant LA Downtown Medical Center, LLC’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint

TENTATIVE RULING
The Court OVERRULES the demurrer as to the First and Second Causes of Action.

The Court DENIES the motion to strike.

The Court orders Defendant to file an Answer to the First Amended Complaint within ten calendar days of this order.

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

BACKGROUND
This is a wrongful death case. Plaintiffs Rebeca Delgado De Gonzalez (Rebeca), by and through her successor in interest Jorge Gonzalez, and Jorge Gonzalez, individually (together, Plaintiffs), filed this action on March 29, 2023, against Defendant LA Downtown Medical Center, LLC dba West Covina Medical Center D/P SNF, alleging causes of action for elder abuse, negligence/willful misconduct, violation of residents’ rights, and wrongful death. After the Court sustained a demurrer as to the First and Second Causes of Action and a motion to strike requests for attorney’s fees and punitive damages with leave to amend, Plaintiffs filed the operative First Amended Complaint on July 3, 2023, alleging the same causes of action against Defendant.

On August 3, 2023, Defendant filed a demurrer and motion to strike to the FAC. On September 14, 2023, Plaintiffs opposed the demurrer and motion to strike. On September 21, 2023, Plaintiffs replied.

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. (Donabedian, supra, 116 Cal.App.4th at p. 994.)

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.)

PRELIMINARY ISSUES
Defendant’s reply was due on September 20, 2023 based on the September 28, 2023 hearing date. (Code Civ. Proc., § 1005, subd. (b).)[1] It was instead filed on September 21, 2023, and is therefore untimely. Nevertheless, the Court exercises its discretion to still consider the reply. (Cal. Rules of Court, rule 3.1300(d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) The Court admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward.

DISCUSSION – Demurrer
Meet and Confer
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 sufficient. (Weissman Decl., ¶ 3.)

Analysis
Defendant demurs to the First and Second Causes of Action on the grounds that they fail to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.41, subd. (e).)

First Cause of Action – Elder Abuse
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].)

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 citations omitted].)

Defendant contends the FAC fails to state sufficient facts to support Plaintiff’s elder abuse claim based in part on the sham pleading doctrine. The sham pleading doctrine applies as follows:

“It is axiomatic that the function of a demurrer is to test the legal sufficiency of the pleading by raising questions of law. [Citation.] It is also well established that, when reviewing a judgment entered following the sustaining of a demurrer without leave to amend, the appellate court must assume the truth of the factual allegations of the complaint. [Citation.] However, an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. [Citations.] In these circumstances, the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint. [Citations.]” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.)

More specifically, Defendant contends the original Complaint contained multiple allegations regarding Defendant’s alleged failure to provide proper medical services as opposed to proper custodial care. (See Sababin, supra, 144 Cal.App.4th at pp. 88-89.) For example, the original Complaint alleged Defendant failed to provide the correct insulin dosage to Rebeca, failed to timely recognize and treat an infection, failed to timely notify Rebeca’s physician of chest x-ray results, and failed to timely recognize and treat and monitor Rebeca’s signs and symptoms of a severe respiratory infection. (Original Complaint, ¶¶ 25-32.) Defendant also contends the FAC makes inconsistent allegations about a care plan. For example, Paragraph 39 of the original Complaint alleged Defendant failed to develop and implement a care plan, whereas paragraph 25 of the FAC now alleges that Defendant had developed care plans to implement for Rebeca’s needs. (See Original Complaint, ¶ 39; FAC, ¶ 25.)

The purpose of the sham pleading doctrine “is to enable the courts to prevent an abuse of process. The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751.) The Court finds that the sham pleading doctrine does not apply in this case. The doctrine does not prevent Plaintiffs from pleading additional facts to support a different theory of liability. Here, Plaintiffs’ FAC provides additional facts to show an alleged failure to provide proper custodial care, rather than proper medical services, which is why leave to amend was granted.

In addition, the Court does not find inconsistent allegations regarding the care plan. In the original Complaint, Plaintiffs allege that Defendant failed to develop and/or implement a care plan regarding signs of infection. (See Original Complaint, ¶ 39.) In the FAC, Plaintiffs now allege that Defendant developed a care plan to implement when attending to Rebeca’s needs regarding respiratory functions (FAC, ¶ 25), and then failed to follow their plan. (FAC, ¶¶ 26-37.) Such allegations are not inconsistent and do not rise to the level of a sham pleading. Moreover, the facts alleged in the FAC are presumptively within Defendant’s knowledge or are ascertainable by invoking discovery procedures. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; see also Code Civ. Proc., § 452 [“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”].)

The FAC provides sufficient specific facts to demonstrate neglect as defined in Welfare and Institutions Code section 15610.57, subd. (a). (See FAC, ¶¶ 18-40.) For example, Plaintiffs allege that Defendant violated various regulations, including but not limited to 42 CFR Section 483.50(b)(2)(i), (ii) and was issued deficiencies for such violation. (FAC, ¶¶ 39, 48.). Plaintiffs also allege that Defendant had a care plan, violated the plan, and suggests a knowing pattern of violating the care plan. (FAC, ¶¶ 24, 30-36.) As the Court has held, “a violation of staffing regulations here may provide a basis for finding neglect. Such a violation might constitute a negligent failure to exercise the care that a similarly situated reasonable person would exercise, or it might constitute a failure to protect from health and safety hazards….” (See Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1348-1349 citing Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1244; Norman and Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 522-523.) “[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

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

The Court further finds that Plaintiffs allege sufficient facts to establish employer liability through ratification. Plaintiffs allege that Defendant’s officers, directors and/or managing agents learned of the wrongful conduct and took no action to remedy it. (See FAC, ¶¶ 63, 67, 68 and 69.) Plaintiffs also allege that they knew the facility was understaffed and intentionally took no action to correct the staffing in order to increase profits and revenue to the detriment of the residents, including Rebeca. (FAC, ¶¶ 11-14, 67-69.)

For these reasons, the Court OVERRULES the demurrer to the First cause of action.

Second Cause of Action – Negligence/Willful Misconduct
The pleading requirements of a cause of action for willful misconduct are “similar to negligence but stricter.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) To plead a claim for willful misconduct, in addition to the elements of ordinary negligence, “three essential elements must be present. . .: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Id. at 528 [internal quotations and citation omitted]; see Williams v. Carr (1968) 68 Cal.2d 579, 584 [“willful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences”].)

Similar to the elder abuse cause of action, this cause of action alleges sufficient facts demonstrating that Defendant’s actions were intentional with knowledge that serious injury would probably result or with wanton and reckless disregard of its consequences. As with the elder abuse claim, Plaintiff alleges that Defendants had a duty under federal and state regulations to provide care and treatment within the statutory standards of care, and Defendants consciously disregarded their duty knowing that their actions would pose a probability that Rebeca would sustain serious injuries. (FAC, ¶¶ 88-98.) In particular, Plaintiff alleges Defendants “knew that their failure to provide care and treatment within the standard of care (including the standard as expressed in federal and state statutes and regulations governing the role of the Defendants’ facility) would, given GONZALEZ’S physical and mental condition coupled with the high degree of dependence upon the Defendants, pose the probability that GONZALEZ would sustain serious physical and mental injuries.” (FAC, ¶ 94.) Plaintiff alleges that Defendants failed to monitor Rebeca and deprived her of timely access to needed emergency medical care in violation of their statutory duty. (FAC, ¶ 91.) Plaintiff also alleges that Defendants failed to maintain adequate nursing and support staff in violation of the statutorily required ratios. (FAC, ¶95.) The Court finds that Plaintiff’s allegations are sufficient to state a cause of action for willful misconduct. Nothing further is required at the pleading stage.

Therefore, the Court OVERRULES the demurrer to the Second 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.)

PRELIMINARY ISSUES
As mentioned above, Defendant’s reply was late, but the Court will still consider it. (Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, rule 3.1300(d); Juarez, supra, 24 Cal.App.5th at p. 1202.)

DISCUSSION – Motion to Strike
Meet and Confer
Per Code of Civil Procedure section 435.5, subdivision (a), Defendant was required to meet and confer before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendant’s efforts to meet and confer sufficient. (Weissman Decl., ¶ 3.)

Analysis
For the reasons discussed with the demurrer to the First cause of action, the Court finds Plaintiffs have alleged sufficient facts that, if proven, would support a finding that Defendant’s conduct was reckless and done with malice and that Defendant engaged in “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) (See Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal. App. 4th 426, 432 “In order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.”)

The FAC contains sufficient allegations to support an award of punitive damages and attorney’s fees against Defendant as employer. Moreover, because the gravamen of Plaintiffs’ action is violation of the Elder Abuse Act, Code of Civil Procedure section 425.13 does not apply. (Country Villa, supra, 120 Cal.App.4th at 435; Covenant Care Inc. v. Superior Court (2004) 32 Cal.4th 771, 779.)

Accordingly, the motion to strike Paragraphs 84 and 86 of the FAC and Paragraphs 4 and 5 of the Prayer is denied.

CONCLUSION
The Court OVERRULES the demurrer as to the First and Second Causes of Action.

The Court DENIES the motion to strike.

The Court orders Defendant to file an Answer to the First Amended Complaint within ten calendar days of this order.

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

[1] September 22, 2023 was a court holiday, i.e., Native American Day.