Judge: Michael E. Whitaker, Case: 21STCV44789, Date: 2023-08-08 Tentative Ruling

Case Number: 21STCV44789    Hearing Date: August 8, 2023    Dept: 207

TENTATIVE RULING

MOTIONS

Plaintiff Rosanne Goldberg (“Plaintiff”) brings this action against Defendant Westwood Health Care Center, LLC erroneously sued as Country Villa Westwood Nursing Center (“Defendant”), claiming Defendant committed elder abuse and negligence against Plaintiff while in Defendant’s care. 

Defendant demurs to the elder abuse cause of action, on the ground that it fails to plead with particularity facts sufficient to constitute an elder abuse cause of action and is uncertain under Code of Civil Procedure section 430.10, subdivisions (e) and (f).  Defendant also moves to strike from the FAC claims of attorneys’ fees and punitive damages.

Plaintiff opposes both Defendant’s demurrer and motion to strike, and Defendant has replied to oppositions.

ANALYSIS

1.      DEMURRER

Defendant demurs to the first cause of action for elder abuse on the grounds that it is uncertain and Plaintiff failed to plead with sufficient particularity to state a cause of action for elder abuse.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

A.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Here, Defendant argues that the FAC is uncertain because it is not clear whether Plaintiff asserts her Elder Abuse cause of action for physical abuse under Welfare and Institutions Code section 15610.63, for neglect under Welfare and Institutions Code section 15610.57, or abandonment under Welfare and Institutions Code section 15610.05. 

But the FAC contains a list of Defendant’s purported failures of care, including failure to care for Plaintiff’s hygiene, to treat Plaintiff’s injuries and ailments, to adequately medicate Plaintiff, to provide therapy services to Plaintiff, to keep Plaintiff safe from injury, among others.  For the avoidance of doubt, Plaintiff has clarified in Opposition to the Demurrer that Plaintiff alleges neglect.  (Opp. at 3:25-4:4.)  Thus, Defendant does not demonstrate that any portions of the FAC are so bad that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it.  The Court thus declines to sustain Defendant’s demurrer on the basis of uncertainty. 

B.     FAILURE TO STATE A CAUSE OF ACTION

Defendant argues that Plaintiff fails to state a cause of action because (1) Plaintiff fails to plead specific facts supporting her claim of elder abuse; and (2) Plaintiff fails to plead that Defendant entity had advanced knowledge of the conduct of its employees to support punitive damages against it.

Elder Abuse

Under the Elder Abuse Act, “neglect” means “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise” and includes: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.  (2) Failure to provide medical care for physical and mental health needs [….] (3) Failure to protect from health and safety hazards [….]”  (Welf. & Inst. Code, § 15610.57.)

“There is a split of authority on whether the Elder Abuse Act creates an independent cause of action or merely provides additional remedies for some other cause of action.”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 403, fn.6.)  Either way, “[i]n order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.”  (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789; see also Welf. & Inst. Code, § 15657 [providing for the recovery of attorneys’ fees and costs where “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission” of the abuse, neglect, or abandonment].)  Thus, “the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity.”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407.)

Here, Defendant argues that Plaintiff pleads mere legal conclusions, but no specific facts.  To the contrary, the FAC includes the following specific factual allegations, which Defendant has omitted from its discussion of specificity:

·         “Plaintiff is a dependent adult, over the age of sixty-five (65), and was in the custody and care of [Defendant] at all material times.” (FAC ¶ 24)

·         “On or about April 15, 2021, [Plaintiff] was admitted under the care of [Defendant nursing facility]” (FAC ¶ 2)

·         “Plaintiff is a current resident of [Defendant nursing facility]” (FAC ¶ 7); “Plaintiff continues to be in the custody and care of [Defendant]” (FAC ¶ 25)

·         “Because Plaintiff did not ambulate, she required total staff support for, among other things, bed mobility, transfers from bed to wheelchair, dressing, toilet use, personal hygiene, change of diapers, bathing, provisions of food and water, and medication management.” (FAC ¶ 18)

·         On “May 18, 2021, Plaintiff fell, causing injuries, when it was known Plaintiff was a fall risk” (FAC ¶ 6)

·         “on or about 8/28/21, Plaintiff suffered an overdose of medication, when it was already known by defendants that Plaintiff attempted suicide via medications at defendants’ facility” (Ibid.)

·         “on or about 9/10/21, defendants did not check or care for Plaintiff’s foley catheter for 4 days straight” (Ibid.)

·         “on or about 9/13/21 Plaintiff was diagnosed with a UTI and a urologist was ordered; defendants neglected to have Plaintiff seen by a urologist when it was prescribed” (Ibid.)

·         “in January 2022 Plaintiff fell out of bed, was injured, and was left on the ground for approximately 5 hours” (Ibid.)

·         “Despite her complaints of extreme plain, Plaintiff has only been visited by her doctors a handful of times for very brief periods during Plaintiff’s entire tenure under [Defendant’s] custody and care.  Plaintiff has gone days without seeing a certified nursing assistant.”  (FAC ¶ 30)

Defendant also argues that paragraph 29 of the FAC does not specify what type of rehabilitative treatment and physical therapy Defendant failed to provide.  But paragraph 29 specifies that “Plaintiff was suffering from extreme neck, back, shoulders and arm pain” and that Defendant “knew Plaintiff was non-ambulatory and could not help herself with the pain nor any of these injuries and ailments.” 

Defendant further argues that paragraph 31 of the FAC does not specify when Defendant failed to provide food that was compatible with her gastroparesis or what type of food was not compatible.  Plaintiff’s allegation that Defendant “did not provide food to Plaintiff that was compatible with Plaintiff’s gastroparesis, which resulted in regular nausea, vomiting and stomach pain” makes clear that Plaintiff alleges Defendant regularly failed to provide Plaintiff food compatible with her gastroparesis.  Plaintiff is not required to provide a food log in the complaint of every meal she has eaten since being admitted to Defendant’s nursing facility in April 2021.

Therefore, Plaintiff has sufficiently pleaded specific facts of neglect.

            Defendant’s Advance Knowledge

            “The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.”  (Welf. & Inst. Code, § 15657(c).)  Civil Code section 3294, subdivision (b) provides:

An employer shall not be liable for [punitive damages], based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.  With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

            In this regard, Plaintiff has alleged:

·         “The actions of [Defendant] and DOES 1-20, inclusive, were done pursuant to policies, practices, procedures, written or otherwise, established and implemented by and with the advance knowledge, acquiescence, or subsequent ratification of [Defendant] and DOES 1-20, inclusive, by and through its officers, directors, and managing agents.”  (FAC ¶ 37)

·         “After the neglect occurred, an officer, director, and/or managing agent of [Defendant] and DOES 1-20, adopted and approved of the wrongful conduct and neglect, and no employer was reprimanded or terminated because of the wrongful conduct.” (FAC ¶ 38)

·         “[Defendant] and DOES 1-20, inclusive, acted with recklessness, malice, oppression, and/or fraud in the treatment, neglect and abuse of Plaintiff.  Plaintiff is entitled to punitive damages in an amount to be determined according to proof, as well as attorney’s fees and costs pursuant to Welfare and Institutions Code section 15657 and Civil Code Section 3294.”  (FAC ¶¶ 12, 41).

These generic allegations are insufficient to establish that specific officers, directors, or managing agents of Defendant corporation either had advance knowledge of the unfitness of the specific employees that mistreated Plaintiff and employed them anyway with a conscious disregard for the rights or safety of their patients, or that they ratified the employees’ wrongful conduct.

Therefore, the Court sustains Defendant’s demurrer to Plaintiff’s first cause of action.

2.      MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Here, Defendants move to strike those portions of the FAC referencing attorneys’ fees and punitive damages.

Because Plaintiff has not pleaded with sufficient particularity to sustain the elder abuse claim against Defendant or the resulting attorneys’ fees or punitive damages available under the Elder Abuse Act, the court grants Defendant’s motion to strike.

CONCLUSION AND ORDER

The Court sustains Defendant’s Demurrer to the First Cause of Action with leave to amend and grants Defendant’s Motion to Strike with leave to amend.  Plaintiff shall file and serve an amended complaint on or before August 29, 2023.   

Defendants shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  August 8, 2023                                                       ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court