Judge: Mel Red Recana, Case: 23STCV01396, Date: 2024-08-01 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 23STCV01396 Hearing Date: August 1, 2024 Dept: 45
Hearing
date: August 1, 2024
Moving
Party: Defendant Care for the Elderly,
Inc.
Responding
Party: Plaintiff Jae Ro
Demurrer
with Motion to Strike First Amended Complaint
The Court
considered the moving papers, opposition, and reply.
The
demurrer is OVERRULED.
The
motion is DENIED. Defendant Care for the Elderly, Inc., dba Grand Park
Convalescent Hospital is ordered to file an Answer to the First Amended
Complaint within 20 days.
Background
On June 2, 2023,
Plaintiff Jae Ro (“Plaintiff”), as Successor in Interest to Youngchae Ro
(“Decedent”) and individually filed the operative First Amended Complaint
(“FAC”) against Defendants Care for the Elderly, Inc. dba Grand Park Convalescent
Hospital, erroneously sued as Care for the Elderly, Inc. (“Grand Park”);
Eun Joo Yoon, M.D. (“Doctor Yoon”); and DOES 1 through 40 and 42 through 80,
inclusive for: (1) Negligence; (2) Reckless and Willful Neglect – Dependent
Adult and Elder Abuse; (3) Violation of Patient Bill of Rights; and (4)
Wrongful Death.
On September 15,
2023, Grand Park filed the instant Demurrer and Motion to Strike First Amended
Complaint. On June 5, 2024, Plaintiff filed oppositions to both moving papers.
On June 11, 2024, Grand Park filed replies.
Legal
Standard
Demurrer
“The primary function of a pleading is to give the other party notice so
that it may prepare its case [citation], and a defect in a pleading that
otherwise properly notifies a party cannot be said to affect substantial
rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿
“A¿demurrer¿tests the legal sufficiency of the factual allegations in a
complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719,
725.) The Court looks to whether “the complaint alleges facts sufficient to
state a cause of action or discloses a complete defense.” (Id.) The
Court does not “read passages from a complaint in isolation; in reviewing a
ruling on a demurrer, we read the complaint ‘as a whole and its parts in their
context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214
Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded
factual allegations, facts that reasonably can be inferred from those expressly
pleaded and matters of which judicial notice has been taken.” (Harris, supra,
56 Cal.4th p. 240.) “The court does not, however, assume the truth of
contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp
Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿¿¿
¿ A general demurrer may be brought
under Code of Civil Procedure section 430.10, subdivision (e) if insufficient
facts are stated to support the cause of action asserted or under section
430.10, subdivision (a), where the court has no jurisdiction of the subject of
the cause of action alleged in the pleading. All other grounds listed in
Section 430.10, including uncertainty under subdivision (f), are special
demurrers. Special demurrers are not allowed in limited jurisdiction courts.
(Code Civ. Proc., § 92, subd. (c).)¿¿¿
¿ Leave to amend must be allowed where
there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Id.)¿¿
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(b)(1).)
“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.” (Code Civ. Proc., § 436(a).)
Discussion
Meet and Confer
Prior to filing
a demurrer or motion to strike, the demurring or moving party is required to
meet and confer with the party who filed the pleading demurred to or subject to
the motion to strike for the purposes of determining whether an agreement can
be reached through a filing of an amended pleading that would resolve the
objections to be raised in the demurrer or motion to strike. (Code Civ. Proc.,
§§ 430.41, 435.5.)¿¿¿
Here, Grand Park
advances the declaration of its counsel of record, Peter E. Theophilos,
attesting to the meet and confer efforts following the Court’s June 18, 2024
order. Theophilos states the parties met and conferred telephonically on June
21, 2024. (Theophilos Decl., ¶2.) Theophilos further states at the conclusion
of the conference call, the parties did not reach an agreement resolving the
objections raised in the demurrer and motion to strike. (Id. at ¶3.)
Therefore, the
Court finds that Grand Park met and conferred with Plaintiff as required by the
Code of Civil Procedure Sections 430.1 and 435.5.
Demurrer to FAC
Grand
Park demurs to the second cause of action on the grounds that it fails to state
sufficient facts to constitute a cause of action against Grand Park and is
uncertain. Specifically, Grand Park contends the second cause of action lacks
the requisite specificity and particularity to maintain a claim for statutory
elder abuse. Grand Park argues mere conclusory statements that Grand Park
neglected Plaintiff are insufficient and allegations about understaffing do not
show neglect or abuse. As such, Grand Park asserts these allegations amount to
nothing more than negligence. Finally, Grand Park contends simply alleging the
state and federal provisions of standards of care and concluding Grand Park
failed to adhere to them is inadequate to support a statutory elder abuse
claims.
Second Cause of Action
for Reckless and Willful Neglect – Dependent Adult and Elder Abuse
“The Elder Abuse
Act makes certain enhanced remedies available to a plaintiff who proves abuse
of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’”
(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th
396, 404.) “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).” (Id. at 406-407.) “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.” (Id.)
However, “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.” (Id.)
The FAC alleges Defendants
DOEs 21-40, inclusive were agents, managerial agents, and/or employees of Grand
Park and DOES 1 to 20, inclusive. (FAC ¶5.) Decedent was under the care of
Grand Park as the nursing facility’s resident and relied on them to meet her
basic human needs as she was chair or bed-bound. (FAC ¶¶ 5, 11, 23.) The FAC
further alleges Defendants including Grand Park and DOES 1 through 40,
inclusive, failed to treat Decedent’s urinary tract infection, causing her to
suffer the pain of the infection from January to August 2022. (FAC ¶23a.) The
FAC further alleges Defendants including Grand Park and DOES 1 through 40, failed
to provide the necessary goods and services to Decedent to avoid physical harm
and suffering. (FAC ¶23b.) The FAC further alleges Defendants including Grand
Park and DOES 1 through 40, failed to adequately supervise Decedent, allowing
her to suffer falls including on January 11, 2022, resulting in a hip fracture.
(FAC ¶23c.) The FAC further alleges Defendants including Grand Park and DOES 1
through 40, failed to follow doctor’s orders that Decedent be repositioned at
least once every two hours, resulting in a pressure ulcer on January 17, 202, right
heel pressure injury on February 13, 2022, and septic shock in August 2022. (FAC
¶23d.) The FAC also alleges Defendants including Grand Park and DOES 1 through
40, knew their purported misconduct would result in weight loss, dehydration,
pressure ulcers, sepsis, and septic shock. (FAC ¶23a-d.) The FAC also alleges
Decedent lost an extreme amount of weight and dehydrated in August 2022. (FAC
¶23b.) The FAC also alleges the Department of Health and Human Services
(“DHSS”) found numerous violations at Grand Park including failure to maintain
infection prevention and control system; delaying reporting of violations; and
not properly discipling staff upon conducting an evaluation/investigation. (FAC
¶25a-n.)
Assuming the
truth of the FAC allegations, one could reasonably infer that Grand Park
through managing agents that employees were engaging in wrongful conduct.
Further, that Grand Park was responsible for the basic needs of Decedent who
could not care for herself and engaged in conduct that failed to meet those
needs. Moreover, that Grand Park knew there was a high probability of injury to
Decedent if those needs were not met. Lastly, that Grand Park’s conduct caused
Decedent pain and suffering in the form of at least pressure ulcers, urinary
tract infection, hip fracture, septic shock, and dehydration. As such, the FAC
states sufficient facts to support the second cause of action for elder abuse
under the Welfare and Institutions Code.
Therefore, the
demurrer is OVERRULED.
Motion
to Strike
Grand Park moves
to strike the second cause of action (FAC ¶¶22-29), prayer for punitive
damages, and prayer for attorneys’ fees. The motion is made on the grounds that
Plaintiff’s second cause of action is insufficient to support a claim for
punitive damages and attorneys’ fees.
To state a claim
for punitive damages under Civil Code section 3294, a plaintiff must allege
specific facts showing that the¿defendant has been guilty of malice, oppression
or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)
The basis for punitive damages must be pled with specificity; conclusory
allegations devoid of any factual assertions are insufficient. (Id.) A
motion to strike may lie where the facts alleged, if proven, would not support
a finding that the defendant acted with malice, fraud or oppression. (Turman
v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)
However, “Subdivision (b) thus authorizes the imposition of punitive damages on
an employer in three situations: (1) when an employee was guilty of oppression,
fraud or malice, and the employer with advance knowledge of the unfitness of
the employee, employed him or her with a conscious disregard of the rights or
safety of others, (2) when an employee was guilty of oppression, fraud or
malice, and the employer authorized or ratified the wrongful conduct, or (3)
when the employer was itself guilty of the oppression, fraud or malice.” (Weeks
v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151.)
“Malice” is
defined in section 3294(c)(1) as “conduct which is intended by the defendant to
cause injury” or “despicable conduct which is carried on by the defendant with
a willful and conscious disregard of the rights or safety of others.”
“Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting
a person to cruel and unjust hardship in conscious disregard of that person’s
rights.” The term “despicable” has been defined in the case law as actions that
are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) “Fraud”
is defined in section 3294(c)(3) as “an intentional misrepresentation, deceit,
or concealment of a material fact known to the defendant with the intention on
the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.”
To prove that a
defendant acted with “willful and conscious disregard of the rights or safety
of others,” it is not enough to prove negligence, gross negligence or even
recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.)
Rather, a plaintiff must allege facts demonstrating that “the defendant acted
in such an outrageous and reprehensible manner that the jury could infer that
he [or she] knowingly disregarded the substantial certainty of injury to
others.” (Id. at 90). Further, the allegations must be sufficient for a
reasonable jury to conclude that Defendant’s conduct was “despicable” defined
as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court
(1994) 8 Cal. 4th 704, 725.)
As discussed
above, Plaintiff’s FAC states sufficient facts to support the second cause of
action for elder abuse. The FAC alleges DOES 21-40 are employees of Grand Park.
(FAC ¶5.) The FAC further alleges Grand Park and DOEs 1 through 40, inclusive,
or through their agents and employees failed to assist Decedent in personal
hygiene, provision of food, clothing, shelter; failed to provide medical care
for physical and mental health needs; failed to protect her from health and
safety hazards; and failed to prevent malnutrition or dehydration. (FAC¶¶24-25a-n.)
The FAC also alleges defendants’ managing agents were aware of understaffing,
which was insufficient to meet the needs of Decedent. Although the FAC goes on
to allege “Defendants” failed to treat Decedent for a urinary tract infection,
failed to reposition her causing pressure ulcers and septic shock, and allowed
her to suffer from falls leading to a hip fracture, a reasonable jury could
infer that such conduct was committed by Grand Park’s employees.
Therefore, the
motion to strike is DENIED.
It
is so ordered.
Dated: August 1, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court