Judge: Melvin D. Sandvig, Case: 22STCV15693, Date: 2024-05-14 Tentative Ruling

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Case Number: 22STCV15693    Hearing Date: May 14, 2024    Dept: F47

Dept. F47

Date: 5/14/24

Case #22STCV15693

 

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed 11/3/23.

Joinder filed 3/19/24.

 

MOVING PARTY: Defendants Sylmar Health & Rehabilitation Center, Inc. dba Sylmar Health & Rehabilitation Center (erroneously served as Sylmar Health & Rehabilitation Center, Inc., and as Sylmar Health & Rehabilitation Center); David Slavin and Daniel Hrenciuc

 

JOINING PARTY: Defendant Golden State Health Centers, Inc.

 

RESPONDING PARTY: Plaintiff Melvin Rosales, individually and as heir and successor-in-interest to Enriqueta Raymond, deceased

 

NOTICE: ok

 

Demurrer is to the entire complaint:

            1.  Wrongful Death (Elder Abuse – Welfare & Institutions Code 15600, et seq.)

            2.  Violations of Elder Abuse Act (Welfare & Institutions Code 15600, et seq. – Survival                 Claim)

            3.  Violations of Health & Safety Code 1430(b) (Survival Claim)

            4.  Wrongful Death (Negligence)

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking portions of the complaint regarding attorneys’ fees and punitive damages.

 

RULING: The joinder is granted.  The demurrer is sustained with 30 days leave to amend.  The motion to strike is placed off calendar as moot.

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of the care and treatment provided to Enriqueta Raymond (Decedent) at Defendant Sylmar Health & Rehabilitation Center, Inc. dba Sylmar Health & Rehabilitation Center, erroneously served as Sylmar Health & Rehabilitation Center, Inc. and as Sylmar Health & Rehabilitation Center, (Sylmar Health/the Facility), a skilled nursing facility.  The complaint alleges that Decedent was “admitted to the Facility for physical therapy, mental rehabilitation, and other limiting conditions.”  (Complaint ¶27).  Additionally, the complaint alleges that  Decedent arrived at Sylmar Health “with critical needs arising from mental health irregularities and physical limitations.”  (Complaint ¶29).  Defendant David Slavin (Slavin) is alleged to have worked for and served as an administrator for Sylmar Health and/or had custodial obligations with respect to Decedent.  (Complaint ¶7).  Defendant Daniel Hrenciuc (Hrenciuc) is alleged to have worked for and served as the director of nursing at Sylmar Health and/or had custodial obligations with respect to Decedent.  (Complaint ¶8). 

 

On 5/11/22, Plaintiff Melvin Rosales, Decedent’s son and successor-in-interest (Plaintiff), filed this action against Sylmar Health, Slavin, Hrenciuc, Golden State Health Centers, Inc. (collectively, Defendants) and nominal defendant Gail Swalley (Decedent’s daughter) alleging causes of action for: (1) Wrongful Death (Elder Abuse – Welfare & Institutions Code 15600, et seq.); (2) Violations of Elder Abuse Act (Welfare & Institutions Code 15600, et seq. – Survival Claim); (3) Violations of Health & Safety Code 1430(b) (Survival Claim) and (4) Wrongful Death (Negligence).  After Plaintiff’s counsel failed to respond to Defendants’ meet and confer efforts regarding issues Defendants’ have with the complaint, on 11/3/23, Sylmar Health, Slavin and Hrenciuc filed and served the instant demurrer to the entire complaint and motion to strike which seeks to strike portions of the complaint regarding attorneys’ fees and punitive damages.

(See Allyn Decl.).  The demurrer and motion to strike were originally scheduled for hearing on 12/15/23 when this action was pending in Department 30 of the Spring Street Courthouse.  The matters were continued to 1/23/24 in Department 30.  Thereafter, the action was deemed PI complicated, transferred to Department F47 in the Chatsworth Courthouse and the hearing on the demurrer and motion to strike were rescheduled for 5/14/24.

 

Plaintiff has opposed the demurrer and motion to strike and Sylmar Health, Slavin and Hrenciuc filed replies to the oppositions.  After the filing of the oppositions and replies, on 3/19/24, Defendant Golden State Health Centers, Inc. (Golden State), represented by the same counsel and Sylmar Health, Slavin and Hrenciuc, filed and served a notice of joinder in the demurrer and motion to strike as Golden State had not been served with the complaint until after the demurrer and motion to strike were filed. 

 

ANALYSIS

 

Since Plaintiffs have not objected to the joinder which was filed and served after the opposition and reply papers, the Court finds that since Golden State’s interests align with the other Defendants it is in the interests of justice and judicially economy to allow Golden State to join in the demurrer and motion to strike. 

 

A demurrer may be based on the grounds that a complaint fails to allege sufficient facts to constitute a cause of action and/or the complaint is uncertain.  CCP 430.10(e), (f). 

 

1st cause of action – Wrongful Death (Elder Abuse – Welfare & Institutions Code 15600, et seq.) & 2nd cause of action – Violations of Elder Abuse Act (Welfare & Institutions Code 15600, et seq. – Survival Claim)

 

An elder abuse claim is a statutory cause of action and, therefore, must be specifically pleaded.  See Carter (2011) 198 CA4th 396, 406-407, 410; Covenant Care, Inc. (2004) 32 C4th 771, 790.  Here, Plaintiff fails to plead the necessary specific facts to support these statutory based claims.

 

Without providing supporting facts, the complaint concludes that Defendants “withheld and failed to provide Decedent with basic and necessary practices and care to ensure Decedent was free from repeated injuries”; “withheld and failed to provide basic necessary care to protect Decedent from health and safety hazards”; “withheld and failed to implement or provide policies, procedures, and safety measures necessary to prevent Decedent’s exposure to illnesses and infections”; “failed to observe and report changes of conditions to family and physicians and/or withheld and failed to provide observation and reporting procedures to address illnesses and infections”; as well as “other conduct to be discovered or specified later.”  (See Complaint ¶¶ 45a-i; 61a-i; 80a-i).  Decedent died on 2/11/21. (Complaint ¶32).  Plaintiff does not allege the specific dates of Decedent’s residency at Sylmar Health.     

 

Additionally, the complaint does not allege any facts which show any specific act or omission to act on Defendant’s part was carried out with malice, oppression, or fraud as required by the Elder/Dependent Adult Abuse Act.  See Welfare & Institutions Code 15657; Covenant Care, Inc., supra at 788.

 

The complaint also makes allegations of understaffing and claims that Sylmar Health failed to hire, train and supervise sufficient numbers of caregiving staff.  (Complaint ¶¶45g, 45h, 61g, 61h, 80g, 80h).  However, Plaintiff fails to include facts which show that these alleged failures amounted to more than professional negligence.  See Worsham (2014) 226 CA4th 331, 338; Delaney (1999) 20 C4th 23, 34.

 

Further, to establish an elder abuse claim against an entity defendant, such as Sylmar Health, a plaintiff must allege facts showing that an officer, director or managing agent of the entity was involved in the abuse, authorized the abuse, ratified the abuse, or hired the person who did the abuse with advance knowledge of that persons unfitness and hired the person with a conscious disregard of the rights and safety of others.  See Welfare & Institutions Code 15657(c); Civil Code 3294(b).  Here, Plaintiff has failed to plead facts showing that an officer, director or managing agent of Defendant had advance knowledge of the unfitness of any employee who engaged in recklessness, malice, oppression or fraud. 

 

3rd cause of action – Violations of Health & Safety Code 1430(b) (Survival Claim)/Violation of Residents’ Bill of Rights

 

Health & Safety Code 1430(b) provides for a civil remedy for patients and residents of a skilled nursing facility or intermediate care facility for violation of Patient Rights in Section 72527 of Title 22 of the Code of Regulations, or any other right provided for by federal or state law or regulation.  Section 72527 provides a list of 26 specific rights.

 

As with the 1st and 2nd statutory based causes of action, Plaintiff has failed to plead the violation of Health & Safety Code 1430(b) claim with the requisite specificity.  (See Complaint ¶¶66-85).  Instead, Plaintiff improperly relies on conclusions without the necessary factual support.  Id. 

 

4th cause of action – Wrongful Death/Negligence

 

The elements of a wrongful death cause of action are: (1) a wrongful act or neglect on the part of one or more persons that (2) causes (3) the death of another person.  Civil Code 377.60; Barrett (1990) 222 CA3d 1176, 1185-1186.  Where the facts alleged regarding the wrongful conduct and injury do not naturally give rise to an inference of causation, the plaintiff must plead specific facts explaining how the conduct caused or contributed to the injury and death of the decedent.  Bockrath (1999) 21 C4th 71, 78.

 

While the complaint alleges that Decedent died on 2/11/21, it does not state the actual cause of death.  The complaint also does not include sufficient facts to show a causal connection between the conduct allegedly committed by Defendants and Decedent’s death.

 

CONCLUSION

 

The joinder is granted.  The demurrer is sustained.  Due to the liberal policy of allowing leave to amend and since this is only the original complaint, Plaintiff is given the opportunity to try to cure the defects in the pleading. 

 

The motion to strike is placed off calendar as moot due to the ruling on the demurrer.

 

A First Amended Complaint is due to be filed and served within 30 days.