Judge: Mark A. Young, Case: 24SMCV02741, Date: 2025-06-10 Tentative Ruling

Case Number: 24SMCV02741    Hearing Date: June 10, 2025    Dept: M

CASE NAME:           Tambor, et al., v. Skirball Hospice, et al. 

CASE NO.:                24SMCV02741

MOTION:                  Demurrer and Motion to Strike the First Amended Complaint  

HEARING DATE:   6/10/2025

Defendant Prompt Healthcare Inc. demurs to the First Amended Complaint (“FAC”) of Plaintiffs Rina Tambor and Matthew Tambor, successors in interest to Yona Tambor (Decedent).

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.) 

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)  

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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 

“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.) 

ANALYSIS 

First Cause of Action – Personal Injury Survival (Medical Negligence)

Defendant argues that the first cause of action for medical negligence is barred by the statute of limitations. “A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer.” (Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823.) When a complaint “merely shows that the action may have been barred,” however, no demurrer will lie. (Los Angeles County v. Security First National Bank of Los Angeles (1948) 84 Cal.App.2d 575, 580.)

The statute of limitations for medical malpractice is three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (CCP §340.5; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 413.) CCP section 364 provides that “[n]o action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” (CCP §§ 364(a), 365 [a failure to comply “shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein”]; see also Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 268-69 [failure to comply is merely a ground for discipline for the attorney who failed to comply].) A plaintiff has effectively one year and ninety days in which to file the lawsuit if the plaintiff serves a notice of intent within the last ninety days of the limitations period. (CCP § 364(d); Woods v. Young (1991) 53 Cal.3d 315, 325.) 

In the FAC, Plaintiffs allege a survivorship claim for medical malpractice. Plaintiffs are Decedent’s children and her successors in interest. (FAC ¶¶ 13, 16.) The FAC alleges the events giving rise to this cause of action occurred from April 15, 2022, until Decedent’s death on March 25, 2023. (FAC ¶¶ 4, 14.) Defendants held themselves out as licensed health care providers. (FAC ¶ 7.) Defendants provided or agreed to provide proper health care and treatment, or ancillary services. (FAC ¶ 8.) Defendants held themselves out as licensed registered nurses, licensed vocational nurses, practical nurses, registered technicians, nurse practitioners, and other paramedical personnel. (FAC ¶ 9.) Defendants provided home health care and hospice care to Decedent. (FAC ¶ 10.) Defendants allegedly caused damages to Plaintiffs/Decedent by negligently: a) treating, examining, testing, diagnosing, caring, advising, supervising, handling and managing Decedent; b) managing, maintaining, operating, supervising, selecting and controlling the health care providers, practitioners and its staff/equipment; c) providing health care, nursing and attendant care to Decedent; d) failing to inform, explain, warn or advise Decedent of the dangers, hazards, risks and complications of the various health care procedures, care and treatment to be performed; e) failing to guard and protect Decedent; f) withholding facts and information from Decedent necessary to enable her to form an intelligent, free, real and informed consent to the procedures, care and treatment; and g) conducting themselves as to proximately cause, permit and allow Decedent to suffer medical harm, injury and damages. (FAC ¶ 11.) As a result, Decedent required medical and related health care services. (FAC ¶ 15.)

            The general allegations establish that Defendant’s medical negligence occurred prior to March 25, 2023. At the latest, the claim would have accrued by March 25, 2023. Plaintiffs provide a conclusory allegation that they complied with Code of Civil Procedure section 364. (FAC ¶ 12.) The FAC does not state that Plaintiffs sent this section 364 notice to Defendant within 90 days of filing suit. Thus, the statute of limitations was not extended 90 days under the pled facts. Thus, Plaintiffs had until March 25, 2024, to bring this medical malpractice action against Defendant. This action was untimely filed on June 7, 2024.  The action is therefore barred by the statute of limitations under the pled facts. Plaintiffs must plead additional facts to establish that the limitations period was extended by 90 days to make the claim timely.

            Accordingly, the demurrer is SUSTAINED with leave to amend as to the first cause of action.

Second Cause of Action for Elder Abuse and Neglect

To establish a claim for Elder Abuse and Neglect under the statute, a plaintiff must allege the following: (1) plaintiff is an elder or dependent adult; (2) defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (3) defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (4) defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either: (a) with knowledge that injury was substantially certain to befall the elder or dependent adult malice, oppression, or fraud; or (b) with conscious disregard of the high probability of such injury recklessness; and (5) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407; Welf. & Inst. Code, § 15610.07.) Elder abuse must be pleaded with particularity in accordance with the pleading rules governing statutory claims. (Ibid.) 

“Neglect” within the meaning of section 15610.57 covers an area of misconduct distinct from professional negligence. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)  “As used in the Act, neglect 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.’” (Id.) The Act “does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) “It is the nature of the elder or dependent adult’s relationship with the defendant—not the defendant’s professional standing—that makes the defendant potentially liable for neglect.” (Id.)   

The FAC alleges only conclusions in support of the Elder Abuse cause of action. While Decedent was over the age of 90 in 2022, and thus qualified as an elder under the Act at all times (FAC ¶ 19), there are no facts which establish a caretaking or custodial relationship between Defendant and Decedent. The FAC only generically alleges that each Defendant “had the care, custody or control and/or stood in a position of trust with the Decedent.” (FAC ¶ 20.) The FAC alleges further conclusions that “Defendants each willfully, intentionally, and/or recklessly caused or permitted Decedent to be injured and/or to be placed in a situation such that her health was in danger.” (FAC ¶ 21.) Defendants allegedly “created circumstances or conditions likely to produce great bodily harm, and said Defendants willfully caused or permitted Decedent to suffer, and inflicted upon her, unjustifiable physical pain, injuries, damages, suffering and indignity.” (FAC ¶ 22.) Each Defendant is, in some unspecified way, responsible for physical abuse, neglect, and/or abandonment resulting in physical harm and mental pain and suffering. (FAC ¶ 23.) This includes “depriving Decedent of needed medical care at home, failing to ensure that said staff was adequately trained, and failing to properly treat and care Decedent”. (Id.) Defendants allegedly failed to exercise a reasonable degree of care for Decedent, including a willful and deliberate failure to provide “needed medical care”, to “appropriately treat or care for Decedent in light of her bed sores”, and to provide care in accordance with her plan of care. (FAC ¶ 24.) As a result, Decedent suffered damages. (FAC ¶¶ 25-27.)

            The above conclusions do not allege specific facts that Defendant undertook a responsibility for meeting the basic needs of Decedent, such as nutrition, hydration, hygiene or medical care. At best, the FAC states that Decedent developed bedsores due to Defendant’s unspecified medical negligence. (FAC ¶ 24.) Plaintiffs need to allege additional facts to establish a caretaking/custodial relationship.

The claim is not barred by the statute of limitations. A plaintiff must bring an action for elder abuse within 2 years of accrual. (CCP § 335.1; Benun v. Superior Ct., (2004) 123 Cal. App. 4th 113, 126.) The cause accrued, at the latest, on March 25, 2023. Plaintiffs therefore had until March 25, 2025, to bring the elder abuse claim. The claim was timely brought on June 7, 2024.

            Accordingly, the demurrer is SUSTAINED with leave to amend as to the second cause of action.

Motion to Strike

            Defendants filed a proposed order granting their motion to strike along with a notice of non-opposition, but the motion to strike was not filed.