Judge: Lynette Gridiron Winston, Case: 24PSCV00515, Date: 2025-01-14 Tentative Ruling
Case Number: 24PSCV00515 Hearing Date: January 14, 2025 Dept: 6
CASE NAME: Jose Herrera v. Emanate Health Medical Center d/b/a Emanate Health Inter-Community Hospital, et al.
Defendant Emanate Health Medical Center’s Demurrer with Motion to Strike to Plaintiff’s Complaint
TENTATIVE RULING
The Court OVERRULES Defendant Emanate’s demurrer to the First Cause of Action. The Court SUSTAINS Defendant Emanate’s demurrer to the Second Cause of Action with 20 days’ leave to amend.
The Court summarily DENIES Defendant Emanate’s motion to strike without prejudice.
Defendant Emanate is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a medical malpractice and elder abuse case. On February 20, 2024, plaintiff Jose Herrera (Plaintiff) filed this action against defendants Emanate Health Medical Center d/b/a Emanate Health Inter-Community Hospital (Emanate), West Covina Care, Inc. d/b/a Beacon Healthcare Center, NAHS Holding, Inc., NAHS Southeast, Inc., West Covina Care, Inc. and Does 1 through 50, alleging causes of action for negligence, violations of the Elder and Dependent Adult Civil Protection Act, and violations of resident rights.
On November 21, 2024, Emanate demurred and moved to strike the complaint. On December 31, 2024, Plaintiff opposed the demurrer and motion to strike. On January 7, 2025, Emanate 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 (Donabedian).) 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. at pp. 993-994.)
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 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.)
PRELIMINARY ISSUES – Demurrer
The Court notes that Emanate’s notice combines the grounds for demurrer into the same paragraph, which is improper. “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.” (Cal. Rules of Court, rule 3.1320, subd. (a).) The Court will still consider the demurrer, but admonishes Emanate to comply with the requirements of the California Rules of Court going forward.
The Court further notes that Emanate combined its demurrer and motion to strike into the same document, which the Court finds confusing and problematic. The Court requests Emanate health to separate those motions going forward.
DISCUSSION – Demurrer
Meet and Confer
Per Code of Civil Procedure section 430.41, subdivision (a), Emanate 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 Emanate’s efforts to meet and confer sufficient. (Raphelt Decl., ¶¶ 2-3.)
First Cause of Action – Negligence
To state a cause of action for negligence in a medical matter, the plaintiff must allege facts demonstrating: (1) the duty of the professional to use the same skill as other medical professionals; (2) breach; (3) proximate cause; and (4) damages. (Tortorella v. Castro (2006) 140 Cal.App.4th 1, 3, fn. 2.)
Emanate demurs to the First Cause of Action for negligence on the grounds that the complaint is uncertain and fails to state a cause of action. Emanate contends that Plaintiff’s complaint lumps all of the defendants together with only conclusory allegations. Emanate contends it is not clear how the alleged negligence led to the amputation of Plaintiff’s remaining toes, and that Plaintiff does not identify any specific nurses or facts showing he required care at the times he was allegedly unattended. Emanate further contends the complaint does not allege facts that the nursing staff did not provide adequate care to Plaintiff.
In opposition, Plaintiff contends the complaint pleads the negligence claim with particularity. Plaintiff contends that he alleges he was under Emanate’s care and a duty was owed to ensure that each care worker received adequate training and treated Plaintiff with respect, dignity and without abuse. Plaintiff contends Emanate breached that duty by denying or withholding goods or services necessary to meet Plaintiff’s basic needs by leaving him unattended, failing to properly dress the amputation site or provide proper wound care, failing to implement a reasonable care plan for his infections and wounds, and failing to provide adequate staff for his hygiene and skin care. Plaintiff contends these breaches caused him physical harm and mental suffering with multiple infections and worsening wounds to the amputation site on his foot.
The Court finds the complaint adequately alleges facts to state a cause of action for negligence against Emanate. The complaint alleges that Plaintiff was admitted to Emanate due to a problem with his foot, which led to amputation of some of his toes. (Compl., ¶¶ 26-27.) The complaint alleges Plaintiff was a resident of Emanate following the amputation of those toes, during which nursing staff frequently left him unattended for lengthy periods of time, which led to infections and worsening of his wounds at the amputation site on his foot. (Compl., ¶¶ 31-32.) The complaint then alleges that he was later readmitted to Emanate, in which the remaining toes on his foot were amputated. (Compl., ¶ 33.) The Court finds these allegations sufficient.
Accordingly, the Court OVERRULES the demurrer to the First Cause of Action.
Second Cause of Action – Violations of the Elder and Dependent Adult Civil Protection Act
Elder abuse claims must be pleaded with particularity. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410, internal citation omitted (Carter).) 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, supra, 198 Cal.App.4th at pp. 406-407, quotation marks and internal citations omitted.)
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).)
Emanate demurs to the Second Cause of Action for violations of the Elder and Dependent Adult Civil Protection Act on the grounds that it is uncertain and fails to state facts sufficient to constitute a cause of action. Emanate contends Plaintiff has not pleaded particular facts amounting to a conscious or willful act of egregious neglect, but at most show incompetence, which are insufficient for elder abuse. Emanate also contends Plaintiff’s complaint fails to establish what conduct, if any, was authorized or ratified by an officer, director, or managing agent of Emanate.
Emanate contends that Plaintiff fails to plead specific and particular allegations regarding Plaintiff’s alleged infection and the related negligent care and treatment, and what caused Plaintiff’s infections. Emanate contends Plaintiff’s allegations sound in negligence, and that the adequacy and appropriateness of care is not an elder abuse matter. Emanate then contends Plaintiff fails to plead sufficient facts to show that Emanate acted with recklessness, oppression, fraud, or malice. Emanate contends Plaintiff’s conclusory allegations fail to identify what Emanate intentionally or reckless did to cause Plaintiff’s injuries. Emanate contends that Plaintiff’s allegations of inadequate training comprise professional negligence, not elder abuse. Emanate further contends that nowhere in the complaint does Plaintiff allege facts showing that an officer, director, or managing agent of Emanate authorized or approved wrongful conduct, and that is unclear from the complaint who, if anyone, allegedly authorized and approved the alleged wrongful conduct, what alleged wrongful conduct was approved, when, how, and why they did so, and in what manner that conduct was authorized or approved.
In opposition, Plaintiff contends that he alleged what led to his admission to Emanate’s facility and the amputation of his toes, that he had a history of various health problems which made him dependent on Emanate’s staff, and that Emanate knew he was in a compromised physical state. Plaintiff contends that Emanate was aware of Plaintiff’s high risk for complications and that he depended on Emanate for his hygiene, skin care, nutrition, mobility, and rehabilitation. Plaintiff contends Emanate knew of his conditions that made him unable to provide for his basic needs, and that Plaintiff alleged Emanate’s nursing staff frequently left him unattended for lengthy periods of time, which led to infections and worsening wounds on his foot, and that Emanate’s staff failed to properly dress his wounds by leaving the amputation site exposed for nearly a month. Plaintiff contends Emanate failed to provide him with proper infection prevention and wound care by failing to monitor his treatment, document his skin conditions, and notify his family of his condition, as well as failing to provide hygiene and skin care. Plaintiff contends this recklessness caused his infections and worsening wounds to his toes and feet and that Emanate knew its care plans were inadequate for Plaintiff’s needs.
Plaintiff further contends the complaint sufficiently pleads facts showing involvement by an officer, director, or managing agent of Emanate by way of its Director of Nursing, Melissa Howard, and/or its administrator, Rajesh Sharma. Plaintiff contends the complaint clearly sets forth how Emanate’s managing agents authorized or ratified Plaintiff’s abuse, in that they knew Emanate’s employees were ignoring policies and procedures necessary for Plaintiff’s care and safety, and for staffing, supervision, and monitoring of patients. Plaintiff contends Emanate’s managing agents took no corrective action to ensure the staff was following the relevant policies and procedures, and that they ratified that conduct by failing to take any reasonable action to implement proper protocols to protect against severe injury.
The Court finds the complaint pleads sufficient facts regarding the underlying care or lack thereof. The complaint alleges that Emanate: (1) had responsibility for meeting Plaintiff’s basic needs, such as hygiene, skin care, safety, and medical care following his initial amputation, (Compl., ¶¶ 6, 34, 38); (2) knew that Plaintiff was unable to provide for his basic needs and required care from Emanate, (Compl., ¶¶ 6-7, 29); 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 failing to provide hygiene and skin care, leaving him unattended for extended periods of time, and leaving his wound exposed for nearly a month, (Compl., ¶¶ 31-32, 34, 38). Plaintiff also alleges that Emanate’s actions led to him incurring infections and to the worsening of wounds on the amputation site, and that he eventually had his remaining toes on his foot amputated. (Compl., ¶¶ 31-33, 35-36, 38.)
But, the Court finds the complaint does not allege sufficient facts demonstrating employer liability. While the complaint names a couple of ostensibly higher ranking employees, it contains no allegations linking them to the alleged misconduct, nor does it contain any allegations demonstrating that they were aware of or ratified the alleged misconduct. (See Compl., ¶ 10.) Ms. Howard is only mentioned once in the complaint, while Ms. Sharma is mentioned only twice, and one of those times is as Emanate’s agent for service of process. (Compl., ¶¶ 10, 17.) It is not enough that Ms. Howard and Ms. Sharma may be managing agents. Plaintiff needs to allege particular facts showing that they were aware of Plaintiff’s alleged mistreatment and that they authorized or ratified that alleged mistreatment that caused Plaintiff’s alleged harm. (See Welf. & Inst. Code, § 15657, subd. (c).); Civ. Code, § 3294, subd. (b); Carter, supra, 198 Cal.App.4th at pp. 406-407, 410.)
Based on the foregoing, the Court SUSTAINS the demurrer to the Second Cause of Action with leave to amend.
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
Meet and Confer
Per Code of Civil Procedure section 435.5, subdivision (a), Emanate 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 Emanate’s efforts to meet and confer sufficient. (Raphelt Decl., ¶¶ 2-3.)
Punitive Damages
Emanate contends that Plaintiff improperly requests punitive damages, which are barred under Code of Civil Procedure section 425.13, subdivision (a). However, Emanate fails to quote the language and portion of the complaint that it seeks to strike, as is required by Rule 3.1322, subdivision (a), of the California Rules of Court. (Cal. Rules of Court, rule 3.1322, subd. (a).) Moreover, Emanate’s memorandum of points and authorities addresses only the issues for the demurrer, and does not address the issue of Plaintiff’s punitive damages claim, other than to state in a conclusory manner that it is improper. (See generally, Memorandum of Points and Authorities (11/21/24).)
Based on the foregoing, the Court summarily DENIES Emanate’s motion to strike without prejudice.
CONCLUSION
The Court OVERRULES Defendant Emanate’s demurrer to the First Cause of Action. The Court SUSTAINS Defendant Emanate’s demurrer to the Second Cause of Action with 20 days’ leave to amend.
The Court summarily DENIES Defendant Emanate’s motion to strike without prejudice.
Defendant Emanate is ordered to give notice of the Court’s ruling within five calendar days of this order.