Judge Lynette Gridiron Winston, Case Number: 23PSCV03769, Date: 2024-06-12 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV03769, Date: 2024-06-12 Tentative Ruling

CASE NAME: Kelly Chang, individually and as successor-in-interest to the Estate of Kung Alan Chang v. Sistine Manor, Inc., et al.

Defendant Sistine Manor, Inc. dba Springville Residential Care for the Elderly’s Demurrer to Plaintiff’s First Amended Complaint

The Court SUSTAINS the demurrer to the First Cause of Action in the First Amended Complaint without leave to amend. Defendant must file an Answer to the First Amended Complaint within 20 days of the Court’s order.

The Court GRANTS the motion to strike, and hereby strikes the requests for attorney fees and punitive damages in the First Amended Complaint, located on page 12, lines 23 and 24 of the FAC, respectively.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is an elder abuse case regarding the decedent Kung Alan Chang (Decedent). On November 2, 2022, Plaintiff Kelly Chang, individually and as successor-in-interest to the Estate of Kung Alan Chang (Plaintiff), filed this action. On December 5, 2023, Plaintiff filed the operative First Amended Complaint (FAC) against defendants Sistine Manor, Inc. dba Springville Residential Care for the Elderly (Defendant),[1] Ping Sheng Chang, Sherry Lin, Thomas Chang, Shu Ping Chang, Lu Shang Chang, and Does 1 through 100, alleging two causes of action for elder abuse and neglect resulting in wrongful death and medical malpractice resulting in wrongful death.

On May 2, 2024, Defendant moved to strike portions of the FAC. On May 7, 2024, Defendant demurred to the FAC. On May 30, 2024, Plaintiff opposed the demurrer. Plaintiff did not oppose the motion to strike. On June 5, 2024, Defendant replied to Plaintiff’s opposition to the 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 pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); 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, 1046-1047.)

The Court notes that Defendant filed its demurrer five days after Defendant filed its motion to strike. They should have been filed together. (See Code Civ. Proc., § 435.5, subd. (b)(3); Cal. Rules of Court, rule 3.1322, subd. (b).) The Court will still consider the demurrer, but admonishes Defendant to comply with the requirements of the Code of Civil Procedure and California Rules of Court going forward.

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendant’s meet-and-confer efforts sufficient. (Asiryan Decl., ¶¶ 2-4.)

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 First Cause of Action for elder abuse and neglect resulting in wrongful death for failure to state a cause of action and for uncertainty. Defendant contends the FAC fails to plead facts showing egregious abuse or neglect, facts showing that Defendant acted with recklessness, oppression, fraud, or malice, and facts showing involvement by an officer, director, or managing agent of a corporate defendant.

Defendant also contends this cause of action is uncertain and duplicative of the elder abuse cause of action asserted in the related case of LASC Case Number 22PSCV01623 (the Related Case). Defendant contends it already filed several demurrers to Plaintiff’s elder abuse cause of action in the Related Case, which this Court sustained with leave to amend. Defendant contends both claims arise from the same set of facts and transactions, care, services, and alleged negligent conduct, and that Plaintiff may not assert that same cause of action here. Defendant further contends Kelly Chang does not have standing to bring survival action on behalf of Plaintiff Kung Alan Chung, who died on December 9, 2022, because Kelly Chang failed to file a declaration required under Code of Civil Procedure section 377.32.

In opposition, Plaintiff contends the FAC pleads sufficient facts to support a cause of action for elder abuse. Plaintiff contends the allegations of the FAC make it clear that Decedent suffered major health problems due to bed sores she contracted due to Defendant’s failure to properly care for her while she was in Defendant’s care. Plaintiff contends the FAC alleges that Defendant acted with recklessness, oppression, fraud, or malice, and that the owner of the facility was explicitly told of Decedent’s decline, but did nothing to remedy the situation. Plaintiff contends the FAC pleads sufficient facts to show Defendant acted with recklessness, oppression, fraud, or malice, and that the FAC alleges Defendant’s managing agents ratified this conduct. Plaintiff contends Plaintiff notified the director/manager of the nursing home multiple times of Decedent’s decline.

Plaintiff further contends this cause of action for elder abuse is not duplicative of the one in the Related Case. Plaintiff contends Defendant is attempting to deprive Plaintiff of attorney’s fees and is engaging in gamesmanship by arguing the causes of action are duplicative. Plaintiff contends this Court held in the other case that the allegations were sufficient to state a cause of action for elder abuse, and that Plaintiff has the right to seek damages for elder abuse from when Decedent was alive and for elder abuse and neglect following her death. Plaintiff also contends she has standing by virtue of being a guardian ad litem for Decedent’s estate, and indicates that Plaintiff has filed and served the declaration and death certificate.

Elder abuse claims must be pleaded with sufficient particularity. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410, internal citation omitted.) The Court finds the FAC pleads sufficient facts with respect to the underlying care or lack thereof. The FAC alleges that Defendant: (1) had responsibility for meeting the basic needs of Decedent, such as nutrition, hydration, hygiene, medical care, lodging, daily meals and snacks, housekeeping, security, laundry, utilities, transportation, recreation, bathing, dressing, eating, toileting, incontinence care, mobility, grooming, medication assistance, and manually repositioning patients, (FAC, ¶¶ 17, 19, 24); (2) knew that Decedent had become totally bedridden requiring full time care, which made Decedent unable to provide for her own basic needs, (Id., ¶ 18); and (3) denied or withheld goods or services necessary to meet Decedent’s basic needs, either with knowledge that injury was substantially certain to befall Decedent or with conscious disregard of the high probability of such injury by monitoring Decedent daily, not addressing the bed sores, and failing to manually reposition Decedent every two hours, (Id., ¶¶ 22-25, 41). Plaintiff alleges Decedent was ambulatory before residing at Defendants’ facility and that during her residency, she became bedridden requiring full time care. (Id., ¶ 18.) Plaintiff alleges Decedent developed bed sores and decubitus ulcerations on her back because she was left in her own urine and feces for extended periods of time and that Defendants left Decedent unattended and unassisted for long periods of time in her own excrement so that ulcers exposing muscle and bone became infected. (Id., ¶ 21.) Plaintiff also alleges that the neglect caused Plaintiff to suffer physical harm in the form of bed sores and decubitus ulceration. (Id., ¶ 21.) Thus, the Court finds that the FAC pleads facts with sufficient specificity demonstrating that Defendant denied or withheld goods or services, either with knowledge that injury was substantially certain to befall Decedent or with conscious disregard of the high probability of such injury, and that Plaintiff has pleaded a causal link with sufficient specificity.

But, despite the foregoing, the Court finds that the FAC fails to allege sufficient facts to establish employer liability. Before any damages may be imposed against an employer for an employee’s conduct, an officer, director, or managing agent of the employer must have had advance knowledge of the employee’s unfitness and a conscious disregard of the rights of others or authorized or ratified the wrongful conduct. (See Welf. & Inst. Code, § 15657, subd. (c).); Civ. Code, § 3294, subd. (b).) The FAC contains no factual allegations to show advanced knowledge of or authorization or ratification of the alleged misconduct by an officer, director, or managing agent of Defendant. The FAC’s references to “managing agents” are vague and conclusory, and are insufficient to satisfy the heightened pleading requirements. (FAC, ¶¶ 24, 42.)

More importantly, the Court finds this cause of action to be duplicative of the elder abuse cause of action asserted in the Related Case.[2] This case arises from the exact same set of facts as the Related Case. Plaintiff is the same plaintiff in the Related Case and Defendant is the same defendant. (FAC, ¶¶ 2-5; Third Amended Complaint, LASC Case No. 22PSCV01623, ¶¶ 2-5.) Plaintiff is complaining of the same care or lack thereof that Plaintiff allegedly received from Defendant and the same alleged injuries incurred during the same three-month period starting on December 28, 2020. (FAC, ¶ 17; Third Amended Complaint, LASC Case No. 22PSCV01623, ¶ 12.) Plaintiff’s opposition cites no legal authority to support the contention that Plaintiff is allowed to file a separate elder abuse claim for when Decedent was alive and then again once Decedent died. (Opp., 6:1-23.)

“At common law, personal tort claims expired when either the victim or the tortfeasor died. Today, a cause of action for wrongful death exists only by virtue of legislative grace. The statutorily created wrongful death cause of action does not effect a survival of the decedent's cause of action[. Instead,] it gives to the representative a totally new right of action, on different principles. The cause of action for wrongful death belongs not to the decedent [or prospective decedent], but to the persons specified [by statute]. It is a new cause of action that arises on the death of the decedent and it is vested in the decedent's heirs.... A cause of action for wrongful death is thus a statutory claim. Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 (Quiroz), internal quotations and citations omitted, brackets in original.)

“Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. [Citation.] The survival statutes do not create a cause of action. Rather, [t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased." (Quiroz, supra, 140 Cal.App.4th at p. 1264, brackets in original.)

"A cause of action that survives the death of a person passes to the decedent's successor in interest and is enforceable by the 'decedent's personal representative or, if none, by the decedent's successor in interest.' (Code Civ. Proc., § 377.30.) In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent's cause of action are limited by statute to 'the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.' (Code Civ. Proc., § 377.34, italics added.)" (Quiroz, supra, 140 Cal.App.4th at pp. 1264-1265.)

However, damages for the decedent’s pain, suffering, or disfigurement are expressly recoverable in a survivor action under the Elder Abuse Act if "it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse... (See Welf. & Inst. Code., § 15657, subds. (a) & (b)." (Quiroz, supra, 140 Cal.App.4th at p. 1265.)

Thus, Plaintiff may only assert a survivor cause of action for elder abuse to recover the loss or damage to Decedent prior to her death. Any claim for damages for the loss of companionship and for other losses suffered as a result of Decedent's death must be sought in a wrongful death action by the specified heirs.

Hence, Plaintiff cannot assert this duplicative elder abuse cause of action in this case since it is already proceeding in the Related Case. (Third Amended Complaint, LASC Case No. 22PSCV01623, ¶¶ 10-41; Answer (3/26/24), LASC Case No. 22PSCV01623.) Accordingly, the Court finds this to be sufficient grounds in and of itself not only to sustain the demurrer to this cause of action, but to do so without leave to amend.

With respect to Plaintiff’s standing under Code of Civil Procedure section 377.32, this is ultimately a moot point in light of the foregoing, but the Court does note that Code of Civil Procedure section 377.32 does not state that the declaration has to be attached to or submitted concurrently with the complaint. It only states that it must be executed and filed, among other things. (See Code Civ. Proc., § 377.32.) Plaintiff filed attached a declaration to the opposition, which ostensibly would satisfy this requirement. (Opp., Ex. A.)[3].

Based on the foregoing, the Court SUSTAINS the demurrer to the First Cause of Action without leave to amend.

“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.)

Per Code of Civil Procedure section 435.5, subdivision (a), Defendant was required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendant’s meet-and-confer efforts sufficient. The Court does not Defendant’s meet-and-confer efforts sufficient, as there is no indication Defendant attempted to meet and confer in person, by telephone, or by video conference. (Asiryan Decl., ¶¶ 2-4.) Nevertheless, the Court may not deny a motion to strike for failure to adequately meet and confer. (Code Civ. Proc., § 435.5, subd. (a)(4).) The Court admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward.

A claim for punitive damages is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression, or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64 (Turman).)

Defendant moves to strike Plaintiff’s request for punitive damages in the prayer for relief on the grounds that Plaintiff has failed to allege sufficient facts showing oppression, fraud, or malice, for the same reasons set forth in the demurrer to the FAC. Plaintiff contends the FAC contains conclusory allegations and fails to allege facts showing that Defendant’s staff intentionally or recklessly caused Plaintiff’s alleged injuries. Plaintiff also contends the FAC fails to allege sufficient facts showing that Defendant’s officer, director, or managing agent was involved, and thereby has failed to allege facts showing Defendant had advanced knowledge of the alleged misconduct or authorization or ratification of it. Plaintiff did not oppose this motion to strike.

The Court agrees that the FAC fails to support Plaintiff’s request for punitive damages with respect to the First Cause of Action for elder abuse, but not necessarily for the reasons Defendant argues. As noted above, the Court sustained the demurrer to the First Cause of Action for elder abuse because the FAC fails to allege facts demonstrating advanced knowledge of or authorization or ratification of the alleged misconduct by an officer, director, or managing agent of Defendant, and because the First Cause of Action is duplicative of Plaintiff’s elder abuse claim in the Related Case. Thus, the First Cause of Action does not provide a basis for recovery of punitive damages here. (See Turman, supra, 191 Cal.App.4th at p. 64.)

However, the Court notes that the request for punitive damages in the prayer for relief in the FAC is not tied only to the First Cause of Action for elder abuse, but rather is a general request for punitive damages. (FAC, 12:23.) The Court reads this to mean that it is also requested in connection with the Second Cause of Action for medical malpractice. (See FAC, ¶¶ 47-51.) But, requests for punitive damages in medical malpractice claims against health care providers requires the plaintiff to first obtain the Court’s permission under Code of Civil Procedure section 425.13. (Code Civ. Proc., § 425.13, subd. (a) [“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.”]) Plaintiff may obtain the Court’s permission via noticed motion. (Id. [“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.”]) Since Plaintiff has not filed a motion or otherwise obtained the Court’s permission to request punitive damages in this case, the Court finds the request for punitive damages improper.

Therefore, the Court GRANTS the motion to strike Plaintiff’s request for punitive damages, located on page 12, line 23 of the FAC.

A party who prevails on an elder abuse claim may recover attorney’s fees. (Welf. & Inst. Code, § 15657, subd. (a).)

Defendant moves to strike Plaintiff’s request for attorney’s fees in the FAC on the grounds that the FAC does not allege facts to support such a request. Defendant reiterates the argument that the FAC does not allege enough facts to show Defendant engaged in reckless, malicious, oppressive, or fraudulent acts as required under Welfare and Institutions Code section 15657. Plaintiff did not oppose this motion to strike.

The Court finds Plaintiff is not entitled to attorney’s fees here, although not for the reasons Defendant argues. As noted above, the Court sustained the demurrer to the First Cause of Action for elder abuse in the FAC without leave to amend. Without that cause of action, Plaintiff may not recover attorney’s fees under Welfare and Institutions Code section 15657. (See Welf. & Inst. Code, § 15657, subd. (a).) The Court is also unaware of any legal authority that authorizes recovery of attorney’s fees against an opposing party based on a medical malpractice claim, and Plaintiff did not provide any such authority.

Based on the foregoing, the Court GRANTS the motion to strike Plaintiff’s request for attorney’s fees, located on page 12, line 24 of the FAC.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] Defendant is alleged to be two separate entities in the FAC, i.e., Sistine Manor, Inc. and Springville Residential Care for the Elderly. (FAC, ¶¶ 4-5.) However, Defendant refers to itself as Defendant Sistine Manor, Inc. dba Springville Residential Care for the Elderly in its motions. (Notice of Demurrer, 1:28-2:1; Notice of Motion to Strike,

[2] The Court notes that another action pending between the same parties on the same cause of action is a separate basis for demurrer under Code of Civil Procedure section 430.10, subdivision (c). (Code Civ. Proc., § 430.10, subd. (c).)

[3] The Court also notes as it did in ruling on Defendant’s demurrer to the Second Amended Complaint in the Related Case that lack of capacity is a separate basis for demurrer under Code of Civil Procedure section 430.10, subdivision (b). (Order re Tentative Ruling (1/29/24), LASC Case Number 22PSCV01623; Code Civ. Proc., § 430.10, subd. (b).) This should have been stated in the demurrer portion of Defendant’s notice of demurrer. (Notice of Demurrer, 2:6-10; Code Civ. Proc., § 430.60; Cal. Rules of Court, rule 3.1320, subd. (a).) The Court admonishes Defendant to comply with the requirements of the Code of Civil Procedure and California Rules of Court going forward.