Judge: Michael E. Whitaker, Case: 22SMCV01099, Date: 2024-01-05 Tentative Ruling

Case Number: 22SMCV01099    Hearing Date: January 5, 2024    Dept: 207

TENTATIVE RULING

MOTION

Plaintiffs Sanford Aaronson by and through his Successor in Interest, Kelli Florman; and Tina Florman, by and through her Guardian Ad Litem, Kelli Florman (collectively, “Plaintiffs”) brought this action against Defendant Ocean Park Healthcare LLC dba Ocean Park Healthcare (“Defendant”), alleging (1) Elder abuse and Neglect; (2) Violation of Resident Rights; (3) Negligence; and (4) Wrongful Death. 

Defendant now moves for judgment on the pleadings as to the first, second, and third causes of action for failure to state facts sufficient to constitute a cause of action.

Plaintiffs filed an affirmative notice of non-opposition.

LEGAL STANDARDS

            Motion for Judgment on the Pleadings

A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.) 

Elder Abuse and Neglect

The Elder Abuse Act defines “Abuse of an elder or a dependent adult” as

(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. 

(3) Financial abuse, as defined in Section 15610.30.

(Welf. & Inst., § 15610.07, subd. (a).)

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. § 15610.57.)  “[T]he 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 (hereafter Carter).)

To prevail on a claim for neglect under the Elder Abuse Act, “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).”  (Carter, supra, 198 Cal.App.4th at pp. 406–407 [citations omitted].)  “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. at p. 407.)

Moreover, to prevail on an elder abuse claim with respect to an employer, a plaintiff must allege facts demonstrating oppression, fraud, or malice, pursuant to Civil Code section 3294.  (See Welf. & Inst., § 15657, subd. (c).)

Medical Negligence

“Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)  “Thus, in any medical malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.”  (Ibid.)

The Code of Civil Procedure defines “Health care provider” as “any person licensed or certified pursuant to Division 2 (commencing with section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.  (Code Civ. Proc., § 340.5(1).)  “Health care provider” includes the legal representatives of a health care provider.”  (Ibid.)

Further, “Professional negligence” is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”  (Code Civ. Proc., § 340.5(2).)

ANALYSIS

1.      Motion for Judgment on the Pleadings

Defendant contends Plaintiffs failed to adequately plead a cause of action for elder abuse, especially as to the employer elder care facility with requisite particularity.  Defendant further contends Plaintiffs failed to adequately plead a cause of action for statutory violations of the Patient Bill of Rights with requisite particularity, because the amended complaint merely lists various bill of rights statutes, but does not allege violations of those statutes.  Finally, Defendant argues Plaintiffs fail to adequately allege that Defendant’s conduct fell below the relevant standard of care or that Defendant’s conduct proximately caused decedent’s injuries to establish a claim for medical negligence.

Plaintiffs have filed an affirmative notice of non-opposition to Defendant’s motion, effectively conceding that the second amended complaint (“SAC”) fails to adequately plead causes of action for elder abuse, statutory violations of the patient bill of rights, or negligence as to Defendant.

2.      Leave to Amend

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet this burden, as Plaintiff does not address whether leave should be granted.

CONCLUSION AND ORDER

The Court grants Defendant’s unopposed motion for judgment on the pleadings in its entirety as to the first, second, and third causes of action without leave to amend, and orders such causes of action dismissed with prejudice as to Defendant.

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

DATED:  January 5, 2024                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court