Judge: Melvin D. Sandvig, Case: 23CHCV02301, Date: 2024-07-18 Tentative Ruling

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Case Number: 23CHCV02301    Hearing Date: July 18, 2024    Dept: F47

Dept. F47

Date: 7/18/24

Case #23CHCV02301

 

DEMURRER & MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

 

Demurrer & Motion to Strike filed on 5/28/24.

 

MOVING PARTY: Defendants Pacifica SL Santa Clarita LLC dba Pacifica Senior Living Santa Clarita erroneously sued as Pacifica Senior Living aka Pacifica Senior Living Newhall aka Pacifica Senior Living Santa Clarita; Pacifica Living Management LLC; W Lyons LLC; Pacifica Companies LLC dba Pacifica Senior Living Santa Clarita

 

RESPONDING PARTY: Plaintiff Rose Adele Cavanagh

 

NOTICE: ok

 

Demurrer is to the 1st, 2nd, 4th and 5th causes of action in the First Amended Complaint:

            1.  Dependent and Elder Abuse/Neglect

            2.  Willful Misconduct

            3.  Negligence

            4.  Unfair Business Practices (Business & Professions Code 17200, et seq.)

            5.  Battery

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking the following portions of the First Amended Complaint:

 

Page 18, Lines 15-19:

 

 “3. For punitive damages (also known as exemplary damages), according to proof;

4. For attorneys fees and costs, according to proof, as permitted by Welfare & Institutions Code §15657;

5. For restitutionary disgorgement pursuant to Bus. & Prof. Code §§ 17200, et seq.;

6. For treble damages pursuant to Civil Cod §3345”

 

RULING: The demurrer is sustained and the motion to strike is granted, both, with 30 days leave to amend.   

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises from the care and services provided to Plaintiff Rose Adele Cavanagh (Plaintiff) beginning on 7/24/20 while she was a resident at Defendant Pacifica Senior Living Santa Clarita (the Facility), a residential care facility for the elderly.  Plaintiff alleges that all defendants owned, operated, managed and/or controlled the Facility.  (FAC ¶¶11, 14-15).

 

Plaintiff alleges that between 9/13/20 through 12/10/20, while she was in the care and custody of Defendants, she developed a Stage 2 wound on her coccyx because she was not properly turned.  (FAC ¶19).  Plaintiff alleges that due to the worsening of the wounds she was transferred out of Defendants’ care on 5/21/21 until 6/4/21 when she returned.  (FAC ¶¶20-21).  Plaintiff alleges that on 8/28/21, she had developed a Stage 1-2 wound on her buttocks due to Defendants’ failure to turn and reposition her throughout the day as required.  (FAC ¶22). 

 

Plaintiff alleges that on 5/5/22, Defendants’ employee “forcefully transferred Plaintiff from her bed to her wheelchair when her left leg was stuck in the bed – snapping Plaintiff’s left tibia and fibula requiring surgery.”  (FAC ¶24).

 

On 8/2/23, Plaintiff filed this action against Defendants Pacifica SL Santa Clarita LLC dba Pacifica Senior Living Santa Clarita erroneously sued as Pacifica Senior Living aka Pacifica Senior Living Newhall aka Pacifica Senior Living Santa Clarita; Pacifica Living Management LLC; W Lyons LLC; Pacifica Companies LLC dba Pacifica Senior Living Santa Clarita (collectively, Defendants) for: (1) Negligence and (2) Elder Abuse.  In response to Defendants’ demurrer and motion to strike addressing the original complaint, on 3/20/24, Plaintiff filed the operative First Amended Complaint against Defendants for: (1) Dependent and Elder Abuse/Neglect, (2) Willful Misconduct, (3) Negligence, (4) Unfair Business Practices (Business & Professions Code 17200, et seq.) and (5) Battery. 

 

After Plaintiff’s counsel failed to respond to Defendants’ meet and confer efforts regarding the First Amended Complaint, on 5/28/24, Defendants filed and served the instant demurrer to the 1st, 2nd, 4th and 5th causes of action in the First Amended Complaint and motion to strike which seeks to strike portions of the First Amended Complaint regarding punitive/exemplary damages, attorneys’ fees and costs under Welfare & Institutions Code 15657, restitutionary disgorgement pursuant to Business and Professions Code 15657 and treble damages pursuant to Civil Code 3345.  The demurrer and motion to strike were originally scheduled for hearing on 7/9/24.  On 6/21/24, Plaintiff filed a combined opposition to the demurrer and motion to strike but failed to serve the document on Defendants.  After Defendants’ filed and served notices of non-opposition to the demurrer and motion to strike on 6/27/24, Plaintiff served the opposition on Defendants on 6/27/24, 2 days late.  See CCP 1005(b).

 

On 7/2/24, Plaintiff filed an ex parte application to continue the hearing by at least 2 court days to allow Defendants to file a reply.  On 7/5/24, the Court granted the ex parte application, continued the hearing on the demurrer and motion to strike to 7/18/24 and allowed Defendants until 7/15/24 to file and serve a reply.  Despite having 11 court days to file and serve a reply after receiving the opposition, Defendants still argue that Plaintiff’s failure to oppose the demurrer and motion to strike requires that the Court sustain the demurrer in its entirety.  (See Reply, p.2:22-p.3:1). 

 

The Court finds that continuing the hearing on the demurrer and motion to strike and allowing Defendants additional time to file and serve their reply cured any prejudice Defendants may have suffered by the delayed service of the opposition.  As such, the Court considered the opposition arguments in ruling on the demurrer and motion to strike. 

The Court further notes that the memorandum of points and authorities filed in support of the demurrer exceeds the 15-page limit by 5 pages without court approval.  See CRC 3.1113(d), (e).  Despite the foregoing rule violation, the Court has considered the entirety of the opposition.  See CRC 3.1113(g); CRC 3.1300(d). 

 

The parties are warned that failure to comply with the filing requirements in the future (i.e., timeliness, length of memorandums) may result in papers not being considered.

 

ANALYSIS

 

1st cause of action – Dependent and Elder Abuse/Neglect

 

Statutory causes of action such as dependent adult/elder abuse/neglect must be pleaded with particularity.  Covenant Care, Inc. (2004) 32 C4th 771, 790; Carter (2011) 198 CA4th 396, 410.  To recover for dependent adult/elder abuse/neglect, a plaintiff must prove by clear and convincing evidence that the defendant is liable for physical abuse as defined by Welfare & Institutions Code 15610.63 or neglect as defined by Welfare & Institutions Code 15610.57, and that the defendant is guilty of recklessness, oppression, fraud, or malice in the commission of the abuse/neglect.  See Welfare & Institutions Code 15657; Delaney (1999) 20 C4th 23, 31-32; Covenant Care, supra at 785.

 

Plaintiff has failed to plead facts to establish the necessary egregious and willful misconduct by Defendant to state a claim for dependent adult/elder abuse by Defendants.  With regard to the pressure wounds suffered by Plaintiff while a resident at the Facility, Plaintiff admits that she suffered from such injuries before she entered the Facility.  (FAC ¶¶16-17).  Additionally, Plaintiff does not allege that Defendants completely failed to care for her or treat the wounds.  Rather, Plaintiff alleges that she was “not properly turned” and “not receiving proper care.”  (FAC ¶19).  While such allegations are sufficient to support a claim for negligence, they are insufficient to state a claim for elder abuse/neglect.  See Carter, supra 406-407, 410. 

 

The allegations regarding the incident that occurred on 5/5/22 which resulted in Plaintiff suffering a broken leg are also insufficient to support a claim for elder abuse/neglect.  Again, while the allegations are sufficient to state a claim for negligence, they do not show the type of egregious and willful misconduct necessary to state this statutory claim.  (FAC ¶24); See Cochrum (2018) 25 CA5th 1034, 1044-1045; Delaney, supra 31-32, 35; Civil Code 3294(c).

 

Even if Plaintiff had pled the type of egregious conduct necessary to state a claim for elder abuse/neglect, she has not pled sufficient facts to show the requisite authorization and/or ratification of such conduct by any of the entity defendants.  See Welfare & Institutions Code 15657(c); Civil Code 3294(b).  Rather, Plaintiff merely concludes that the conduct alleged was authorized and/or ratified by managerial employees of Defendants.  (See FAC ¶¶41, 50, 60).  Plaintiff has not pled that any employee was unfit or that Pacifica Santa Clarita or any other Defendant was aware of any wrongful conduct by an employee or knowingly hired any unfit employee or authorized or ratified any act of the alleged abuse/neglect.  The vague allegations do  not comply with the requirement that each specific element must be pled to state a cause of action for elder abuse/neglect.  See Covenant Care, supra at 790.  

2nd cause of action – Willful Misconduct

 

Plaintiff’s willful misconduct cause of action is duplicative of her negligence and/or elder abuse causes of action.  (See FAC ¶43).  In Berkley (2007) 152 CA4th 518, relied on by Plaintiff to support her argument that the claim is not duplicative, the Court of Appeal held that willful misconduct “is not a separate tort, but simply “ ‘ “an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.’”  Id. at 526 internal citations omitted.  To the extent that such a claim could be deemed a different claim from negligence due to the stricter pleading requirements, the claim is duplicative of the elder abuse/neglect cause of action which must be based on willful misconduct, as set forth above.  (See FAC ¶46 whereat Plaintiff refers to the Elder/Dependent Adult Abuse Act in the willful misconduct cause of action).  Whether included in the negligence claim or the elder abuse/neglect claim, Plaintiff has failed to allege sufficient facts to support the following required elements for a claim based on willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.  Simmons (1976) 62 CA3d 341, 360. 

 

4th cause of action – Unfair Business Practices (Business & Professions Code 17200, et seq.)

 

A claim for unfair business practices may be based on unlawful, unfair or fraudulent business practices.  See Business & Professions Code 17200; Daugherty (2006) 144 CA4th 824, 837.  In order for a private plaintiff to recover on such a claim, there must be a causal connection between the harm suffered and the unlawful business activity.  Daro (2007) 151 CA4th 1079, 1099.  No such connection exists when the plaintiff would have suffered the same harm whether or not the defendant complied with the law.  Id.

 

This cause of action is based, at least in part, on Plaintiff’s claims of abuse and neglect which form the basis of her insufficient elder abuse/neglect claim.  (See FAC ¶63).  As such, this claim fails for the same reasons as the 1st cause of action.  Plaintiff has not alleged sufficient facts to establish that the harm she allegedly suffered was caused by Defendants’ purported failure to comply with various laws.  (See FAC ¶¶28, 34).

 

5th cause of action – Battery

 

The elements of a battery cause of action are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.  So (2013) 212 CA4th 652, 669.        

 

While not entirely clear from the allegations within the 5th cause of action, it appears that this claim is based on the 5/5/22 transfer incident which resulted in Plaintiff suffering a broken leg.  Plaintiff has failed to allege facts to support the necessary elements of a battery claim.  Based on the totality of the allegations in the First Amended Complaint, it is clear that Plaintiff consented to being touched by Defendants’ employees for her care, including being transferred from her bed to her wheelchair.  (See FAC ¶¶17, 24, 72).  Also, Plaintiff has not alleged facts which show that Defendants/Defendants’ employee touched plaintiff with the intent to harm or offend plaintiff. 

 

Motion to Strike

 

Plaintiff has failed to allege sufficient facts to support the damage allegations Defendants seek to have stricken.  The prayers for punitive/exemplary damages, attorneys’ fees and costs under Welfare & Institutions Code 15657, restitutionary disgorgement pursuant to Business and Professions Code 15657 and treble damages pursuant to Civil Code 3345 relate to the 1st, 2nd, 4th and 5th causes of action which, as noted above, are insufficiently pled.

 

CONCLUSION

 

The demurrer is sustained and the motion to strike is granted.  Due to the liberal policy of allowing leave to amend and since this is the first time the Court is ruling on the sufficiency of Plaintiff’s pleading, Plaintiff is given the opportunity to try to cure the defects in the First Amended Complaint.  A Second Amended Complaint is due to be filed and served within 30 days.