Judge: Mark A. Young, Case: 22STCV04131, Date: 2023-07-20 Tentative Ruling
Case Number: 22STCV04131 Hearing Date: January 16, 2024 Dept: M
CASE NAME: Cheverez v.
Serenity Care Health Group, et al.
CASE NO.: 22STCV04131
MOTION: Demurrer
to the First Amended Complaint
HEARING DATE: 1/16/2024
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
MEET
AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet
and confer in person or by telephone with the party who filed the pleading to
attempt to reach an agreement that would resolve the objections to the
pleading. (CCP §§ 430.41, 435.5.) In their demurrer, Defendant Binko Corp. and Serenity Care Health Group cite their
counsel’s declaration as providing for the meet and confer efforts made prior
to the demurrer. However, counsel does not explain what meet and confer efforts
were made prior to filing the demurrer. Instead, the declaration posits
evidentiary facts which are improper to consider on demurrer. In opposition,
Plaintiff claims that Defendants never reached out to meet and confer about the
First Amended Complaint. In reply, defense counsel provides a meet and confer
declaration, though they state the exact dates that the parties underwent meet
and confer efforts. (See Supp. Spinger Decl.)
On this occasion, the Court will proceed to address the merits of the
demurrer despite the insufficiency of the meet and confer. The Court cautions
the parties that a code-compliant meet and confer effort is required for each
demurrer and motion to strike on subsequent pleadings.
REQUEST
FOR JUDICIAL NOTICE
Defendants request judicial notice of Binko’s
2015 license to operate and maintain a residential care facility, which is Exhibit
A to the Spinger declaration. However, Defendants failed to separately request
judicial notice. In any event, the exhibit is noticeable under Evidence Code §
452(c), as an official act of the state of California. Accordingly, notice is
GRANTED. The remainder of the declaration is not subject to notice and will not
be considered on demurrer.
Analysis
Defendant Binko Corp. and Serenity Care Health Group to Plaintiff’s
fourth cause of action for Failure to Provide Patient Records (Health &
Safety Code §123110(b)).
Under Health & Safety Code section 123110(a), “any adult patient of a
health care provider, any minor patient authorized by law to consent to medical
treatment, and any patient's personal representative shall be entitled to
inspect patient records upon presenting to the health care provider a request
for those records and upon payment of reasonable costs[.]” The Health &
Safety Code defines “health care provider” to mean any of the categories
provided in section 123105(a), which includes licensed health facilities,
clinics, home health agencies, physicians, surgeons, podiatrists, dentists,
psychologists, optometrists, chiropractors, marriage and family therapists, clinical
social workers, physical therapists, occupational therapists, professional
clinical counselors, speech-language pathologists and audiologists, physician
assistants, and nurse practitioners. Health & Safety Code section 1250
defines a “health facility” as any “facility, place, or building that is
organized, maintained, and operated for the diagnosis, care, prevention, and
treatment of human illness, physical or mental…”
The first amended complaint (FAC) alleges that in March 2021, Plaintiff
requested that Defendants provide her with Decedent’s medical records. (FAC ¶
52.) Defendants did not respond to Plaintiff’s request in any way, including to
inform her of the reasonable cost of complying with her request. (¶ 53.)
Defendants argue that they are not health care providers pursuant to
Health & Safety Code § 123110(b). Indeed, Plaintiff does not allege Binko
or SCHG provided any health care services or otherwise meet the above criteria
for liability under section 123110. According to the FAC, Serenity operates a
series of assisted living facilities, including Bentley Manor. (FAC ¶ 4.) Binko
also operates the Bentley Manor assisted living facility. (¶ 5.) Decedent lived
at the Bentley Manor until her death. (¶23.) Decedent entrusted her health and
welfare to Defendants in providing housing and care. (¶19.)
Defendants argue that they are instead residential care facility for the
elderly (“RCFE”). Health & Safety Code section 1569.2(o)(1) defines a RFCE as
“a housing arrangement chosen voluntarily by persons 60 years of age or over, or
their authorized representative, where varying levels and intensities of care
and supervision, protective supervision, or personal care are provided, based
upon their varying needs, as determined in order to be admitted and to remain
in the facility.” Examining the above allegations in the light most favorable
to Plaintiff, Defendants meet the definition of RCFE and not health care
providers. An RCFE is not defined as a “health care provider” under section 123105(a),
or a “health facility” under section 1250. (See Hutcheson v. Eskaton
Fountain Wood Lodge (2017) 17 Cal. App. 5th 937, 953 [“a residential care
facility for the elderly is not a ‘health facility,’ […] and thus it does not
qualify as a ‘health care provider’…”].)
Plaintiff does not proffer any facts which would show that Defendants
rendered healthcare to Decedent or could otherwise be considered health care
providers.
Accordingly, the demurrer is SUSTAINED without leave to amend.