Judge: Mark H. Epstein, Case: 23SMCV04069, Date: 2024-01-05 Tentative Ruling

Case Number: 23SMCV04069    Hearing Date: January 5, 2024    Dept: I

The demurrers are OVERRULED IN PART AND SUSTAINED WITHOUT LEAVE IN PART.  The motion to strike is GRANTED.

This is an elder abuse case brought against defendant.  The claim is that decedent suffered from known medical conditions that required a proper diet and soft, bite-sized foods with thin liquids and allegedly defendants were told to initiate aspiration protocols for decedent.  Plaintiff asserts that defendants failed to provide the necessary assistance at meals and that plaintiff would often feed himself.  According to plaintiff, defendant was reminded of the risk whenever a family member came to visit.  Even so, plaintiff contends, defendant failed to take the appropriate steps.  Plaintiff further contends that defendant understaffed even knowing of the risk that presented.  On June 5, decedent was found with coffee ground emesis and was in respiratory distress.  Plaintiff asserts that defendants did not promptly call 911 for life-saving emergency care.  Eventually, decedent was transferred to UCLA where he was diagnosed with acute renal failure after blood work showed a number of problems, at least some stemming from aspiration related pneumonia.  Defendant died on June 7.

Defendants demur to the elder abuse cause of action and the “willful misconduct” cause of action.  Defendants contend that this is a simple negligence case, albeit with tragic consequences.  They argue that the “neglect” in the elder abuse statutes is not mere negligence, but requires a more systemic failure that rises to the level of the failure to provide medical care or failure to protect from health and safety hazards rising to the level of recklessness.  The court agrees generally with the standard defendants articulate.  But such a standard can be met by showing a pattern or, at least potentially, the deliberate understaffing even knowing of the risks that the understaffing presents.  (Sababin v. Superior Court (2006) 144 Cal.App.4th 81.)  As plaintiff points out, that much has been alleged here.  The court finds that the allegations, read as a whole and liberally, are sufficient to rise to the level needed.  Of course, whether plaintiff will be able to prove it is another question, but not one plaintiff need answer yet. 

The court understands defendants’ position that this stuff is easy to allege and that virtually every case of negligence will be converted into elder abuse.  But the court is not so sure defendants are correct.  There are details alleged here; this is not just taken from the form file.  Second, even were defendants correct, that is not a problem this court can solve.  If the allegations are sufficient, then they are.  At this stage of the proceedings, all inferences are drawn in plaintiff’s favor.  That is not to say that a cookie-cutter complaint would survive; it would not.  But that is not what we have here.  The demurrer to this cause of action is OVERRULED.

The demurrer to the willful misconduct cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.  The court is not aware of any such cause of action.  It could be that plaintiff means to allege a different thing, and, if so, the court will discuss whether leave to amend should be given.

The motion to strike goes to punitive damages.  Putting aside the enhanced damages that might be available for elder abuse (which is not the motion’s target), the court agrees that section 425.13 governs here.  As such, it would appear that punitive damages cannot be pled and the motion to strike is therefore GRANTED.  However, this is without prejudice to a 425.13 motion being made down the line.

Defendants to answer within 30 days.