Judge: Michael E. Whitaker, Case: 24SMCV00779, Date: 2024-10-17 Tentative Ruling

Case Number: 24SMCV00779    Hearing Date: October 17, 2024    Dept: 207

TENTATIVE RULING - NO. 1

MOTIONS

On February 20, 2024, Plaintiff Rita Gold (“Plaintiff”) brought suit against Defendants Dynamic Nursing Services, Inc. (“Dynamic”) and Jewish Family Service of Los Angeles (“JFS”) (together, “Defendants”) alleging three causes of action for (1) elder abuse and neglect; (2) negligence; and (3) negligent hiring, supervision, and retention. 

JFS now demurs all three causes of action for failure to state facts sufficient to constitute a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivision (e).  JFS also moves to strike numerous allegations of, and requests for, punitive and exemplary damages, attorneys’ fees, and costs. 

Plaintiff opposes both motions and JFS replies.

REQUEST FOR JUDICIAL NOTICE

            JFS requests judicial notice of the Complaint filed in this action.[1]    

Judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because the Complaint is part of the Court’s record for this case, the Court may take judicial notice of it.  (Ibid.)   However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) 

Accordingly, the Court takes judicial notice of the existence of the Complaint filed in this matter as a court record, but not the truth of the allegations.

ANALYSIS

1.     DEMURRER

“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 testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See 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.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          First Cause of Action – Elder Adult Abuse

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. Code, § 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. Code, § 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.)

The Complaint alleges:

24. At all relevant times, PLAINTIFF was an "elder" as defined by Welfare and Institution Code Section 15610.27. PLAINTIFF was born on February 17, 1928, making her 95 years old.

25. At all relevant times, PLAINTIFF was a client of DEENDANTS.

26. At all relevant times, the DYNAMIC DEFENDANTS provided PLAINTIFF with home care services.

27. At all relevant times, PLAINTIFF required the use of a walker to ambulate outside of her home and required supervision and assistance to do so as a result of her compromised physical condition and advanced age.

28. The services provided included but were not limited to transporting and accompanying PLAINTIFF on personal errands as PLAINTIFF was not physically able to transport herself independently nor was she physically able to ambulate in to, out of, and around stores independently.

29. At all relevant times, JEWISH FAMILY SERVICE OF LOS ANGELES had provided, oversaw, facilitated and coordinated caregiving assistance services with the DYNAMIC DEFENDANTS for PLAINTIFF.

30. PLAINTIFF was completely dependent on DEFENDANTS for assistance with multiple activities of daily living, including in pertinent part for ambulating, mobility and supervision for the provision of safety while carrying out her activities of daily living.

31. All DEFENDANTS and each of them were to provide "care or services" to PLAINTIFF and/or were to be "care custodians" of PLAINTIFF and in a trust and fiduciary relationship with PLAINTIFF. All DEFENDANTS and each of them provided "care or services" to elderly and/or dependent adult persons, including PLAINTIFF.

32. On or about February 22, 2023, DEFENDANTS' caregiver "Johanna" was providing home care services to PLAINTIFF. PLAINTIFF is informed and believes that Johanna was an affiliated home care aide of DYNAMIC DEFENDANTS as that term is defined by Health and Safety Code Section 1976.12(a). Accordingly, all of the regulations pursuant to the Home Care Services Consumer Protection Act relative to affiliated home care aids were applicable to both Johanna and the DYNAMIC DEFENDANTS.

33. PLAINTIFF used her walker to ambulate from her home to a vehicle while supervised by Johanna. The walker has a seat for the purpose of allowing the user to sit, lock the brakes so that the walker stays stationary and rest while the walker is not in motion. Affixed to the walker is a visually prominent warning sticker that reads: "WARNING: THIS IS A WALKING AID ONLY AND IS NOT TO BE USED AS A TRANSPORTATION DEVICE." The walker does not have back support or leg support like a wheelchair designed and intended for transportation of a sitting individual. Rather, the design is intended, as the warning sticker states, for a user who is standing and walking or sitting in the seat with the walker brakes in the locked position.

34. Johanna did not bring a wheelchair with her in the car when they went to the store.

35. When they arrived at the store, which is located at 8770 West Pico Boulevard, Los Angeles, California 90035. Johanna parked the vehicle in the parking lot and assisted PLAINTIFF out of the vehicle and sat her on the seat of her walker. Johanna then proceeded to push PLAINTIFF while seated from the vehicle toward the store's entrance.

36. During the transit, with Johanna pushing the walker with PLAINTIFF seated in it, the walker fell backward onto the parking lot with PLAINTIFF on it. The fall caused PLAINTIFF to forcefully fall out of the walker seat and land directly on the cement ground. PLAINTIFF was unable to get up from the ground on her own. Paramedics were called to assist, and they helped her back into Joanna's vehicle.

37. PLAINTIFF was later hospitalized and stayed in facilities for several weeks before she could return home. She suffered three vertebrae fractures and was provided a back brace. PLAINTIFF has been rendered practically bedbound, is unable to walk up and down her apartment stairs, relies on regular pain medications, and has been required to hire full time caregivers as she is unable to be home alone in its entirety.

38. All DEFENDANTS and each of them "neglected" PLAINTIFF as that term is defined in California Welfare and Institutions Code § 15610.57 in that all DEFENDANTS themselves, as well as their employees, failed to exercise the degree of care that reasonable persons in a like position would exercise as is more fully alleged herein.

39. Because the purpose of home care organizations services is to assist clients to stay independent, safety measures are of the utmost importance. Indeed, the majority of the initial as well as the ongoing registry training requirements for affiliated home care aides as governed by the State of California through the Department of Social Services focus on safety training for the benefit of clients so as to avoid serious harm and injuries to clients.

40. The DEFENDANTS enacted, authorized and ratified a budget for the DYNAMIC DEFENDANTS, by and through officers and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, wherein clients, including PLAINTIFF, were neglected through deprivation of basic custodial services, including basic supervision and provision of safety and security during the provision of home care services, even though the DEFENDANTS agreed to provide these services, which were required to be provided to clients by state regulation.

41. Due to the budgetary constraints of DEFENDANTS which were enacted, authorized and ratified by the DEFENDANTS, by and through officers and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, DEFENDANTS withheld basic care and services including the basic provision of safety and security services during the provision of home care services owed to clients, including PLAINTIFF.

42. State regulations require home care organizations such as the DYNAMIC DEFENDANTS to provide adequately skilled and trained personnel to ensure provision of care and supervision to meet client needs. Yet, DEFENDANTS' personnel could not and did not provide the services necessary to meet client needs, including sufficient safety precautions and proper use of equipment.

43. As a direct and proximate result of the DEFENDANTS' reckless failure to provide care, including supervision while ambulating with a walker and following general safety warnings for equipment use, PLAINTIFF suffered the physical and mental injuries, emotional distress, and the costs of her resulting care needs as described in greater detail herein. PLAINTIFF'S injuries were in fact avoidable but occurred as the direct and proximate result of DEFENDANTS' neglect.

44. PLAINTIFF is informed and believes that DEFENDANTS, and each of them, failed to report the neglect of PLAINTIFF as required by Health and Safety Code Section 1796.42(e) and Welfare and Institutions Code Section 15630(C). PLAINTIFF is informed and believes that DYNAMIC DEFENDANTS permitted Johanna to continue her employment without any further training and without any disciplinary measures and that Defendant JEWISH FAMILY SERVICE OF LOS ANGELES made no efforts to ensure that its clients were not put under the care of Johanna, thereby continuing to put DEFENDANTS' clients at risk of further preventable occurrences due to Johanna's unfitness as an affiliated home care aide.

45. The DEFENDANTS, by and through officers and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, enacted, authorized and ratified a business plan to retain clients for whom they could not provide sufficient care and services and for whom they could not adequately protect from safety hazards, including but not limited to PLAINTIFF. This reprehensible plan included the failure to adequately hire competent home care aides and the failure to adequately train home care aides to prevent safety hazards, which necessarily resulted in the subsequent failure to ensure that PLAINTIFF was safely provided with home care services. DEFENDANTS allowed PLAINTIFF to be put in the care of a home care aide who was incompetent and could not and would not follow basic safety measures in caring for an elderly client. The DEFENDANTS knew that such a plan created a high probability of serious harm to individuals like PLAINTIFF but disregarded this harm to maximize profits. As a result of the DEFENDANTS' business plan, DEFENDANTS retained PLAINTIFF as a client even though her their home care aide employees could not provide for PLAINTIFF'S basic safety needs. As a direct and proximate cause of the conduct of DEFENDANTS, including the disregard of a high probability of serious harm, PLAINTIFF suffered avoidable pain and suffering.

46. Based upon information received by DEFENDANTS prior to providing home care services to PLAINTIFF, as well as the ostensible health condition of PLAINTIFF during the period in which they were providing services, the DEFENDANTS were aware that they lacked sufficient staff, in both number and training, to protect PLAINTIFF from health and safety hazards and violated the Elder Abuse and Dependent Adult Civil Protection Act (EADACP A) specifically, and without limiting the generality of the foregoing, at California Welfare & Institutions Code§ 15610.57(b)(3).

47. As a result of the DEFENDANTS' failure to provide sufficient staff in number and training to meet PLAINTIFF'S needs, PLAINTIFF suffered injury as alleged herein. The injuries suffered by PLAINTIFF while receiving home care services from and through DEFENDANTS were the result of DEFENDANTS' plan to minimize costs at the expense of their clients such as PLAINTIFF. Integral to this plan was the practice and pattern of staffing incompetent service personnel, many of whom were not properly trained or qualified to care for the elders and/or dependent adults, whose lives were entrusted to them. The plan to disregard adequate staffing and training was designed to reduce overhead and labor costs and foreseeably resulted in the abuse and neglect of many clients of DEFENDANTS, and most specifically, PLAINTIFF.

48. At all times herein mentioned DEFENDANTS had actual and/or constructive knowledge of the unlawful conduct and business practices alleged herein yet represented to the general public and PLAINTIFF that the DYNAMIC DEFENDANTS would provide care which met legal standards. Moreover, such unlawful business practices were mandated, directed, authorized, and/or personally approved by the officers, directors and/or managing agents of the defendants as set forth herein and other management personnel of the DEFENDANTS whose names are presently unknown to the PLAINTIFF and according to proof at time of trial.

49. The DEFENDANTS, by and through the corporate officers, directors and managing agents identified herein and others presently unknown to PLAINTIFF and according to proof at time of trial, ratified the conduct of their co-defendants, in that they were, or in the exercise of reasonable diligence should have been, aware of the incompetent staffing of the DYNAMIC DEFENDANTS, in both number and training, the relationship between incompetent staffing and sub-standard provision of care to clients of the DEFENDANTS including PLAINTIFF, and the DYNAMIC DEFENDANTS' practice of being issued deficiencies by the State of California's Department of Social Services as to their operations in the State of California. Furthermore, the DEFENDANTS, by and through the corporate officers, directors and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, ratified the conduct of themselves and their co-defendants in that they were aware that such understaffing and deficiencies would lead to injury to clients of DEFENDANTS, including PLAINTIFF and insufficiency of financial budgets to lawfully operate DYNAMIC DEFENDANTS' operations. This ratification by the DEFENDANTS is that ratification of the customary practice and usual performance of DEFENDANTS.

50. Upon information and belief, the DEFENDANTS, enacted, established and implemented the financial plan and scheme which led to the DEFENDANTS' operations being understaffed, in both number and training, by way of imposition of financial limitations on the operations in matters such as, and without limiting the generality of the foregoing, the setting of financial budgets which clearly did not allow for sufficient resources to be provided to PLAINTIFF by the DEFENDANTS. These choices and decisions were, and are, at the express direction of the DEFENDANTS' corporate officers, directors and managing agents identified herein and others presently unknown to PLAINTIFF and according to proof at time of trial, having power to bind DEFENDANTS as set forth in Mcinerney v. United Railroads of San Francisco, (1920) 50 Cal.App.538, 12 549

51. The Corporate authorization and enactment of the DEFENDANTS, alleged in the preceding paragraphs, constituted the permission and consent of DEFENDANTS' misconduct, by and through the corporate officers, directors and managing agents identified herein and others presently unknown to PLAINTIFF and according to proof at time of trial, who had within their power the ability and discretion to mandate that DEFENDANTS employ adequate staff to meet the needs of their clients, including PLAINTIFF, as required by applicable rules, laws and regulations governing the operation of home care operations in the State of California. The conduct constitutes ratification of DEFENDANTS' misconduct, which led to injury to PLAINTIFF.

52. The injuries suffered by PLAINTIFF while a client of DEFENDANTS were the result of DEFENDANTS' unlawful and reckless plan and effort to cut costs in their operations and in other ways as alleged, to usurp the sole legal responsibility of the DEFENDANTS' administration and governing body in the planning and operation of DEFENDANTS' operation, and thereby in the undertaking assumed all of the responsibilities of its co-defendants, including the duty of due care and compliance with all legal stands applicable to home care organizations. In doing so, DEFENDANTS knew or should have known that DYNAMIC DEFENDANTS' staff would be unable to comply with the standards for care set forth above, and other legal standards, all at the expense of their clients such as PLAINTIFF. Integral to this plan was the practice and pattern of staffing the home care organization with an insufficient number of service personnel, many of whom were not properly trained or qualified to care for the elders and/or dependent adults, whose lives were entrusted to them. The failure to adequately staff and train was a known consequence of a plan to reduce labor costs and predictably and foreseeably resulted in the abuse and neglect of many clients of DEFENDANTS, and most specifically PLAINTIFF.

53. The violations of the aforesaid DEFENDANTS itself is ratification of the customary practice and usual performance of DEFENDANTS as set forth in Schnafel v. Seaboard Finance Company, (1951) 108 Cal.App.2d 420, 423-424.

54. By information and belief, PLAINTIFF alleges that DEFENDANTS entered into a continuing course of negligent conduct, creating, implementing and enforcing dangerous operational budgets the DEFENDANTS which deprived clients of adequate staffing and care, and caused widespread neglect.

55. At all times relevant hereto the DEFENDANTS were aware that where and when their clientes (sic) require care beyond that which the staff has either the time or the competency to provide, such as PLAINTIFF did, the DEFENDANTS would fail to provide to the clients, such as PLAINTIFF, with the minimal care which they required to maintain their safety, as well as all applicable laws and regulations.

56. Had DEFENDANTS employed sufficient staff, in both numbers and competency, then the injuries to PLAINTIFF as alleged herein would not have occurred. Specifically, had there been sufficient trained staff to comply with applicable rules, laws, and regulations and to safely provide care services to PLAINTIFF, then PLAINTIFF would not have suffered the painful injuries alleged herein; PLAINTIFF would have received proper assistance so as to prevent the suffering of the painful injuries alleged herein; and PLAINTIFF would have received adequate supervision to protect PLAINTIFF from health and safety hazards. As a direct result of the DEFENDANTS' failure to comply with applicable rules, laws, and regulations, PLAINTIFF did not receive the care set forth hereinabove which led to the injuries alleged herein.

57. DEFENDANTS, and each of them, were aware (and thus had notice and knowledge) of the danger to their clients when they violated applicable rules, laws and regulations, yet they acted in conscious disregard of these known perils and at the expense of legally mandated minimum care to be provided to clients of home care organizations in the state of California. In fact, DEFENDANTS and each of them were aware that DYNAMIC DEFENDANTS had received deficiencies for failing to provide care as required by the rules, laws and regulations governing DYNAMIC DEFENDANTS' operations.

58. Prior to the injuries as alleged herein DEFENDANTS was chronically understaffed so as to be in violation of applicable rules, laws, and regulations. This knowledge was transmitted to DEFENDANTS through their corporate officers named herein above through daily reports and other communication mechanisms presently unknown to PLAINTIFF and according to proof at the time of trial.

59. The advanced knowledge of their malfeasance as alleged in the immediately preceding paragraph was accomplished by many means, including lawsuits against the DEFENDANTS alleging inadequate staffing and elder/dependent adult abuse.

60. The advanced knowledge of their malfeasance on the part of the DEFENDANTS as alleged herein was also acquired by way of the issuance of deficiencies to the DYNAMIC DEFENDANTS by the State of California's Department of Social Services. This systemic substandard care led to the injuries to PLAINTIFF as alleged herein.

61. Notwithstanding the knowledge of DEFENDANTS, and their managing agents as alleged herein above, DEFENDANTS consciously chose not to increase staff, in number or training, and as the direct result thereof PLAINTIFF suffered injuries alleged herein. This ignorance, on the part of DEFENDANTS and their corporate officers named identified herein, constituted at a minimum, a reckless disregard for the health and safety of PLAINTIFF.

62. As described herein, the DEFENDANTS as care custodians willfully caused and allowed PLAINTIFF to be injured and maliciously, fraudulently, oppressively, willfully or recklessly caused PLAINTIFF to be placed in situations such that his health would be in danger in doing the acts specifically alleged herein.

(Complaint ¶¶ 24-62.)

            Thus, Plaintiff alleges that JFS and Dynamic were jointly responsible for providing care to Plaintiff, who is 95 years old, and in the course of that care, an aide Dynamic hired (as coordinated by JFS) named Joanna improperly used a walker as a wheelchair while assisting Plaintiff on a shopping trip, and the walker tilted backwards, injuring Plaintiff.  Based on this incident, Plaintiff concludes that Defendants were chronically understaffed of qualified caregivers and acted in furtherance of a scheme to take money without providing adequate care, and on information and belief, this plan was hatched by Defendants’ unnamed corporate officers, directors, and managing agents.

            Plaintiff has failed to allege a claim for elder abuse with requisite particularity.  To begin, Plaintiff merely concludes, but does not allege specific facts demonstrating that Defendants neglected Plaintiff either with knowledge that injury was substantially certain to befall her or with conscious disregard of the high probability of such injury, as is necessary to elevate Plaintiff’s claim from negligence to elder abuse.  “Facts, not conclusions, must be pleaded.”  (Carter, supra, 198 Cal.App.4th at 410.)  Rather, what Plaintiff has alleged is a single incident involving a lapse in judgment that resulted in Plaintiff’s injuries.  There are no facts to suggest that Joanna, Dynamic, JFS, or any of their corporate officers, directors, or managing agents acted with knowledge that injury was substantially certain to befall Plaintiff or consciously disregarded the high probability that it would.

Further, although chronic or severe understaffing can, in extreme circumstances, rise the to the level of recklessness, (Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339; Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.5th 1034), Plaintiff has not alleged any specific facts demonstrating that Defendants were chronically or severely understaffed.  Rather, Plaintiff references a single incident where Joanna used poor judgment, resulting in an injury.  That alone does not demonstrate that Joanna was unqualified or underqualified to provide elder care, or that Defendants were chronically understaffed of qualified caregivers. 

Nor does Plaintiff allege any facts supporting her conclusion that Defendants had a pattern and practice of elder abuse or neglect that rises to the level of recklessness.  Plaintiff argues she is not required “to provide evidence of Defendants [sic] internal management decision making process or the communications that occurred between the Defendants” of which “Defendants have superior knowledge[.]”  While this is true, Plaintiff must nonetheless allege some specific facts supporting her allegations of knowing or reckless conduct on the part of Defendants’ corporate officers, directors, and/or managing agents, which Plaintiff has not done.

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

                                                       ii.          Second and Third Causes of Action – Negligence and Negligent Hiring, Supervision, and Retention

JFS argues that it did not have care or custody of Gold and did not employ Joanna, and therefore it cannot be liable for negligence or negligent hiring, supervision and retention.

Unlike a claim for elder abuse, which has a heightened pleading standard, all that is required to allege a claim of negligence is “ultimate facts.”   Ultimate facts are those “constituting the cause of action” or those upon which liability depends, e.g., duty of care, breach of the duty and causation (damages).  (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “[T]he term ultimate fact generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary facts and from legal conclusions.”  (Central Valley General Hosp. v. Smith (2008) 162 Cal.App.4th 501, 513 [cleaned up]; see also Rodriguez v. Parivar, Inc. (2022) 83 Cal.App.5th 739, 750–751 [“The elements of a cause of action constitute the essential or ultimate facts in a civil case”].)  

Here, Plaintiff alleges:

29. At all relevant times, JEWISH FAMILY SERVICE OF LOS ANGELES had provided, oversaw, facilitated and coordinated caregiving assistance services with the DYNAMIC DEFENDANTS for PLAINTIFF.

30. PLAINTIFF was completely dependent on DEFENDANTS for assistance with multiple activities of daily living, including in pertinent part for ambulating, mobility and supervision for the provision of safety while carrying out her activities of daily living.

31. All DEFENDANTS and each of them were to provide "care or services" to PLAINTIFF and/or were to be "care custodians" of PLAINTIFF and in a trust and fiduciary relationship with PLAINTIFF. All DEFENDANTS and each of them provided "care or services" to elderly and/or dependent adult persons, including PLAINTIFF.

(Complaint ¶¶ 29-31.)

This suffices to allege both a duty and that JFS “oversaw, facilitated and coordinated” the hiring of Joanna to assist Plaintiff.

Therefore, the Court overrules Defendants’ demurrer to the second and third causes 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, Chan moves to strike from the complaint, references to and claims for punitive damages.    

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means 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.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

Moreover, “the imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

            JFS seeks to strike numerous factual allegations from the Complaint on the grounds that they are irrelevant, false, and improper.  JFS’s motion to strike factual allegations is denied.  Although these allegations may lack the requisite particularity to support a cause of action for elder abuse, they are still relevant to Plaintiff’s two other negligence-based causes of action, and are incorporated by reference.  (See Complaint ¶¶ 63, 68.)  Whether those allegations are ultimately proven to be true is for later stages of the litigation.  At this stage, striking those factual allegations is inappropriate.

            With regard to paragraphs 3 and 4 on page 19 (motion to strike numbers 45 and 46), because the Court sustains JFS’s demurrer to the first cause of action, and the requests for punitive and exemplary damages and attorneys’ fees and costs are alleged as to the first cause of action only, the Court denies JFS’s motion to strike as moot.           

Therefore, the Court denies JFS’s motion to strike in its entirety.

3.     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 the Opposition merely states, “Plaintiff respectfully requests the Court grant leave to amend to add the preceding facts and others discovered in litigation.”  (Opp. at p. 11.)  But the preceding pages of Plaintiff’s Opposition do not list any new facts Plaintiff could add to the Complaint. 

Further, Plaintiff’s reference to “other” facts “discovered in litigation” suggests Plaintiff does not yet possess any such facts.  Should Plaintiff uncover facts in discovery that support a claim for elder abuse and/or punitive damages, Plaintiff may move the Court for leave at that time.  In connection with the demurrer, however, leave to amend is denied. 

CONCLUSION AND ORDER

For the reasons stated, the Court sustains JFS’s Demurrer to the first cause of action without leave to amend, but overrules JFS’s Demurrer to the second and third causes of action.   

Further, the Court denies JFS’s motion to strike in its entirety. 

The Court orders JFS to file an Answer to the Complaint on or before November 7, 2024.

JFS shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  October 17, 2024                                                   ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court

TENTATIVE RULING - NO. 2

MOTIONS

On February 20, 2024, Plaintiff Rita Gold (“Plaintiff”) brought suit against Defendants Dynamic Nursing Services, Inc. (“Dynamic”) and Jewish Family Service of Los Angeles (“JFS”) (together, “Defendants”) alleging three causes of action for (1) elder abuse and neglect; (2) negligence; and (3) negligent hiring, supervision, and retention. 

Dynamic now demurs to the first cause of action for failure to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e).  JFS also moves to strike allegations of, and the request for, punitive and exemplary damages.    

Plaintiff opposes both motions and Dynamic replies.

ANALYSIS

1.     DEMURRER

“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 testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See 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.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          First Cause of Action – Elder Adult Abuse

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. Code, § 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. Code, § 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.)

The Complaint alleges:

24. At all relevant times, PLAINTIFF was an "elder" as defined by Welfare and Institution Code Section 15610.27. PLAINTIFF was born on February 17, 1928, making her 95 years old.

25. At all relevant times, PLAINTIFF was a client of DEENDANTS.

26. At all relevant times, the DYNAMIC DEFENDANTS provided PLAINTIFF with home care services.

27. At all relevant times, PLAINTIFF required the use of a walker to ambulate outside of her home and required supervision and assistance to do so as a result of her compromised physical condition and advanced age.

28. The services provided included but were not limited to transporting and accompanying PLAINTIFF on personal errands as PLAINTIFF was not physically able to transport herself independently nor was she physically able to ambulate in to, out of, and around stores independently.

29. At all relevant times, JEWISH FAMILY SERVICE OF LOS ANGELES had provided, oversaw, facilitated and coordinated caregiving assistance services with the DYNAMIC DEFENDANTS for PLAINTIFF.

30. PLAINTIFF was completely dependent on DEFENDANTS for assistance with multiple activities of daily living, including in pertinent part for ambulating, mobility and supervision for the provision of safety while carrying out her activities of daily living.

31. All DEFENDANTS and each of them were to provide "care or services" to PLAINTIFF and/or were to be "care custodians" of PLAINTIFF and in a trust and fiduciary relationship with PLAINTIFF. All DEFENDANTS and each of them provided "care or services" to elderly and/or dependent adult persons, including PLAINTIFF.

32. On or about February 22, 2023, DEFENDANTS' caregiver "Johanna" was providing home care services to PLAINTIFF. PLAINTIFF is informed and believes that Johanna was an affiliated home care aide of DYNAMIC DEFENDANTS as that term is defined by Health and Safety Code Section 1976.12(a). Accordingly, all of the regulations pursuant to the Home Care Services Consumer Protection Act relative to affiliated home care aids were applicable to both Johanna and the DYNAMIC DEFENDANTS.

33. PLAINTIFF used her walker to ambulate from her home to a vehicle while supervised by Johanna. The walker has a seat for the purpose of allowing the user to sit, lock the brakes so that the walker stays stationary and rest while the walker is not in motion. Affixed to the walker is a visually prominent warning sticker that reads: "WARNING: THIS IS A WALKING AID ONLY AND IS NOT TO BE USED AS A TRANSPORTATION DEVICE." The walker does not have back support or leg support like a wheelchair designed and intended for transportation of a sitting individual. Rather, the design is intended, as the warning sticker states, for a user who is standing and walking or sitting in the seat with the walker brakes in the locked position.

34. Johanna did not bring a wheelchair with her in the car when they went to the store.

35. When they arrived at the store, which is located at 8770 West Pico Boulevard, Los Angeles, California 90035. Johanna parked the vehicle in the parking lot and assisted PLAINTIFF out of the vehicle and sat her on the seat of her walker. Johanna then proceeded to push PLAINTIFF while seated from the vehicle toward the store's entrance.

36. During the transit, with Johanna pushing the walker with PLAINTIFF seated in it, the walker fell backward onto the parking lot with PLAINTIFF on it. The fall caused PLAINTIFF to forcefully fall out of the walker seat and land directly on the cement ground. PLAINTIFF was unable to get up from the ground on her own. Paramedics were called to assist, and they helped her back into Joanna's vehicle.

37. PLAINTIFF was later hospitalized and stayed in facilities for several weeks before she could return home. She suffered three vertebrae fractures and was provided a back brace. PLAINTIFF has been rendered practically bedbound, is unable to walk up and down her apartment stairs, relies on regular pain medications, and has been required to hire full time caregivers as she is unable to be home alone in its entirety.

38. All DEFENDANTS and each of them "neglected" PLAINTIFF as that term is defined in California Welfare and Institutions Code § 15610.57 in that all DEFENDANTS themselves, as well as their employees, failed to exercise the degree of care that reasonable persons in a like position would exercise as is more fully alleged herein.

39. Because the purpose of home care organizations services is to assist clients to stay independent, safety measures are of the utmost importance. Indeed, the majority of the initial as well as the ongoing registry training requirements for affiliated home care aides as governed by the State of California through the Department of Social Services focus on safety training for the benefit of clients so as to avoid serious harm and injuries to clients.

40. The DEFENDANTS enacted, authorized and ratified a budget for the DYNAMIC DEFENDANTS, by and through officers and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, wherein clients, including PLAINTIFF, were neglected through deprivation of basic custodial services, including basic supervision and provision of safety and security during the provision of home care services, even though the DEFENDANTS agreed to provide these services, which were required to be provided to clients by state regulation.

41. Due to the budgetary constraints of DEFENDANTS which were enacted, authorized and ratified by the DEFENDANTS, by and through officers and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, DEFENDANTS withheld basic care and services including the basic provision of safety and security services during the provision of home care services owed to clients, including PLAINTIFF.

42. State regulations require home care organizations such as the DYNAMIC DEFENDANTS to provide adequately skilled and trained personnel to ensure provision of care and supervision to meet client needs. Yet, DEFENDANTS' personnel could not and did not provide the services necessary to meet client needs, including sufficient safety precautions and proper use of equipment.

43. As a direct and proximate result of the DEFENDANTS' reckless failure to provide care, including supervision while ambulating with a walker and following general safety warnings for equipment use, PLAINTIFF suffered the physical and mental injuries, emotional distress, and the costs of her resulting care needs as described in greater detail herein. PLAINTIFF'S injuries were in fact avoidable but occurred as the direct and proximate result of DEFENDANTS' neglect.

44. PLAINTIFF is informed and believes that DEFENDANTS, and each of them, failed to report the neglect of PLAINTIFF as required by Health and Safety Code Section 1796.42(e) and Welfare and Institutions Code Section 15630(C). PLAINTIFF is informed and believes that DYNAMIC DEFENDANTS permitted Johanna to continue her employment without any further training and without any disciplinary measures and that Defendant JEWISH FAMILY SERVICE OF LOS ANGELES made no efforts to ensure that its clients were not put under the care of Johanna, thereby continuing to put DEFENDANTS' clients at risk of further preventable occurrences due to Johanna's unfitness as an affiliated home care aide.

45. The DEFENDANTS, by and through officers and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, enacted, authorized and ratified a business plan to retain clients for whom they could not provide sufficient care and services and for whom they could not adequately protect from safety hazards, including but not limited to PLAINTIFF. This reprehensible plan included the failure to adequately hire competent home care aides and the failure to adequately train home care aides to prevent safety hazards, which necessarily resulted in the subsequent failure to ensure that PLAINTIFF was safely provided with home care services. DEFENDANTS allowed PLAINTIFF to be put in the care of a home care aide who was incompetent and could not and would not follow basic safety measures in caring for an elderly client. The DEFENDANTS knew that such a plan created a high probability of serious harm to individuals like PLAINTIFF but disregarded this harm to maximize profits. As a result of the DEFENDANTS' business plan, DEFENDANTS retained PLAINTIFF as a client even though her their home care aide employees could not provide for PLAINTIFF'S basic safety needs. As a direct and proximate cause of the conduct of DEFENDANTS, including the disregard of a high probability of serious harm, PLAINTIFF suffered avoidable pain and suffering.

46. Based upon information received by DEFENDANTS prior to providing home care services to PLAINTIFF, as well as the ostensible health condition of PLAINTIFF during the period in which they were providing services, the DEFENDANTS were aware that they lacked sufficient staff, in both number and training, to protect PLAINTIFF from health and safety hazards and violated the Elder Abuse and Dependent Adult Civil Protection Act (EADACP A) specifically, and without limiting the generality of the foregoing, at California Welfare & Institutions Code§ 15610.57(b)(3).

47. As a result of the DEFENDANTS' failure to provide sufficient staff in number and training to meet PLAINTIFF'S needs, PLAINTIFF suffered injury as alleged herein. The injuries suffered by PLAINTIFF while receiving home care services from and through DEFENDANTS were the result of DEFENDANTS' plan to minimize costs at the expense of their clients such as PLAINTIFF. Integral to this plan was the practice and pattern of staffing incompetent service personnel, many of whom were not properly trained or qualified to care for the elders and/or dependent adults, whose lives were entrusted to them. The plan to disregard adequate staffing and training was designed to reduce overhead and labor costs and foreseeably resulted in the abuse and neglect of many clients of DEFENDANTS, and most specifically, PLAINTIFF.

48. At all times herein mentioned DEFENDANTS had actual and/or constructive knowledge of the unlawful conduct and business practices alleged herein yet represented to the general public and PLAINTIFF that the DYNAMIC DEFENDANTS would provide care which met legal standards. Moreover, such unlawful business practices were mandated, directed, authorized, and/or personally approved by the officers, directors and/or managing agents of the defendants as set forth herein and other management personnel of the DEFENDANTS whose names are presently unknown to the PLAINTIFF and according to proof at time of trial.

49. The DEFENDANTS, by and through the corporate officers, directors and managing agents identified herein and others presently unknown to PLAINTIFF and according to proof at time of trial, ratified the conduct of their co-defendants, in that they were, or in the exercise of reasonable diligence should have been, aware of the incompetent staffing of the DYNAMIC DEFENDANTS, in both number and training, the relationship between incompetent staffing and sub-standard provision of care to clients of the DEFENDANTS including PLAINTIFF, and the DYNAMIC DEFENDANTS' practice of being issued deficiencies by the State of California's Department of Social Services as to their operations in the State of California. Furthermore, the DEFENDANTS, by and through the corporate officers, directors and managing agents and others presently unknown to PLAINTIFF and according to proof at time of trial, ratified the conduct of themselves and their co-defendants in that they were aware that such understaffing and deficiencies would lead to injury to clients of DEFENDANTS, including PLAINTIFF and insufficiency of financial budgets to lawfully operate DYNAMIC DEFENDANTS' operations. This ratification by the DEFENDANTS is that ratification of the customary practice and usual performance of DEFENDANTS.

50. Upon information and belief, the DEFENDANTS, enacted, established and implemented the financial plan and scheme which led to the DEFENDANTS' operations being understaffed, in both number and training, by way of imposition of financial limitations on the operations in matters such as, and without limiting the generality of the foregoing, the setting of financial budgets which clearly did not allow for sufficient resources to be provided to PLAINTIFF by the DEFENDANTS. These choices and decisions were, and are, at the express direction of the DEFENDANTS' corporate officers, directors and managing agents identified herein and others presently unknown to PLAINTIFF and according to proof at time of trial, having power to bind DEFENDANTS as set forth in Mcinerney v. United Railroads of San Francisco, (1920) 50 Cal.App.538, 12 549

51. The Corporate authorization and enactment of the DEFENDANTS, alleged in the preceding paragraphs, constituted the permission and consent of DEFENDANTS' misconduct, by and through the corporate officers, directors and managing agents identified herein and others presently unknown to PLAINTIFF and according to proof at time of trial, who had within their power the ability and discretion to mandate that DEFENDANTS employ adequate staff to meet the needs of their clients, including PLAINTIFF, as required by applicable rules, laws and regulations governing the operation of home care operations in the State of California. The conduct constitutes ratification of DEFENDANTS' misconduct, which led to injury to PLAINTIFF.

52. The injuries suffered by PLAINTIFF while a client of DEFENDANTS were the result of DEFENDANTS' unlawful and reckless plan and effort to cut costs in their operations and in other ways as alleged, to usurp the sole legal responsibility of the DEFENDANTS' administration and governing body in the planning and operation of DEFENDANTS' operation, and thereby in the undertaking assumed all of the responsibilities of its co-defendants, including the duty of due care and compliance with all legal stands applicable to home care organizations. In doing so, DEFENDANTS knew or should have known that DYNAMIC DEFENDANTS' staff would be unable to comply with the standards for care set forth above, and other legal standards, all at the expense of their clients such as PLAINTIFF. Integral to this plan was the practice and pattern of staffing the home care organization with an insufficient number of service personnel, many of whom were not properly trained or qualified to care for the elders and/or dependent adults, whose lives were entrusted to them. The failure to adequately staff and train was a known consequence of a plan to reduce labor costs and predictably and foreseeably resulted in the abuse and neglect of many clients of DEFENDANTS, and most specifically PLAINTIFF.

53. The violations of the aforesaid DEFENDANTS itself is ratification of the customary practice and usual performance of DEFENDANTS as set forth in Schnafel v. Seaboard Finance Company, (1951) 108 Cal.App.2d 420, 423-424.

54. By information and belief, PLAINTIFF alleges that DEFENDANTS entered into a continuing course of negligent conduct, creating, implementing and enforcing dangerous operational budgets the DEFENDANTS which deprived clients of adequate staffing and care, and caused widespread neglect.

55. At all times relevant hereto the DEFENDANTS were aware that where and when their clientes (sic) require care beyond that which the staff has either the time or the competency to provide, such as PLAINTIFF did, the DEFENDANTS would fail to provide to the clients, such as PLAINTIFF, with the minimal care which they required to maintain their safety, as well as all applicable laws and regulations.

56. Had DEFENDANTS employed sufficient staff, in both numbers and competency, then the injuries to PLAINTIFF as alleged herein would not have occurred. Specifically, had there been sufficient trained staff to comply with applicable rules, laws, and regulations and to safely provide care services to PLAINTIFF, then PLAINTIFF would not have suffered the painful injuries alleged herein; PLAINTIFF would have received proper assistance so as to prevent the suffering of the painful injuries alleged herein; and PLAINTIFF would have received adequate supervision to protect PLAINTIFF from health and safety hazards. As a direct result of the DEFENDANTS' failure to comply with applicable rules, laws, and regulations, PLAINTIFF did not receive the care set forth hereinabove which led to the injuries alleged herein.

57. DEFENDANTS, and each of them, were aware (and thus had notice and knowledge) of the danger to their clients when they violated applicable rules, laws and regulations, yet they acted in conscious disregard of these known perils and at the expense of legally mandated minimum care to be provided to clients of home care organizations in the state of California. In fact, DEFENDANTS and each of them were aware that DYNAMIC DEFENDANTS had received deficiencies for failing to provide care as required by the rules, laws and regulations governing DYNAMIC DEFENDANTS' operations.

58. Prior to the injuries as alleged herein DEFENDANTS was chronically understaffed so as to be in violation of applicable rules, laws, and regulations. This knowledge was transmitted to DEFENDANTS through their corporate officers named herein above through daily reports and other communication mechanisms presently unknown to PLAINTIFF and according to proof at the time of trial.

59. The advanced knowledge of their malfeasance as alleged in the immediately preceding paragraph was accomplished by many means, including lawsuits against the DEFENDANTS alleging inadequate staffing and elder/dependent adult abuse.

60. The advanced knowledge of their malfeasance on the part of the DEFENDANTS as alleged herein was also acquired by way of the issuance of deficiencies to the DYNAMIC DEFENDANTS by the State of California's Department of Social Services. This systemic substandard care led to the injuries to PLAINTIFF as alleged herein.

61. Notwithstanding the knowledge of DEFENDANTS, and their managing agents as alleged herein above, DEFENDANTS consciously chose not to increase staff, in number or training, and as the direct result thereof PLAINTIFF suffered injuries alleged herein. This ignorance, on the part of DEFENDANTS and their corporate officers named identified herein, constituted at a minimum, a reckless disregard for the health and safety of PLAINTIFF.

62. As described herein, the DEFENDANTS as care custodians willfully caused and allowed PLAINTIFF to be injured and maliciously, fraudulently, oppressively, willfully or recklessly caused PLAINTIFF to be placed in situations such that his health would be in danger in doing the acts specifically alleged herein.

(Complaint ¶¶ 24-62.)

            Thus, Plaintiff alleges that JFS and Dynamic were jointly responsible for providing care to Plaintiff, who is 95 years old, and in the course of that care, an aide Dynamic hired (as coordinated by JFS) named Joanna improperly used a walker as a wheelchair while assisting Plaintiff on a shopping trip, and the walker tilted backwards, injuring Plaintiff.  Based on this incident, Plaintiff concludes that Defendants were chronically understaffed of qualified caregivers and acted in furtherance of a scheme to take money without providing adequate care, and on information and belief, this plan was hatched by Defendants’ unnamed corporate officers, directors, and managing agents.

            Plaintiff has failed to allege a claim for elder abuse with requisite particularity.  To begin, Plaintiff merely concludes, but does not allege specific facts demonstrating that Defendants neglected Plaintiff either with knowledge that injury was substantially certain to befall her or with conscious disregard of the high probability of such injury, as is necessary to elevate Plaintiff’s claim from negligence to elder abuse.  “Facts, not conclusions, must be pleaded.”  (Carter, supra, 198 Cal.App.4th at 410.)  Rather, what Plaintiff has alleged is a single incident involving a lapse in judgment that resulted in Plaintiff’s injuries.  There are no facts to suggest that Joanna, Dynamic, JFS, or any of their corporate officers, directors, or managing agents acted with knowledge that injury was substantially certain to befall Plaintiff or consciously disregarded the high probability that it would.

Further, although chronic or severe understaffing can, in extreme circumstances, rise the to the level of recklessness, (Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339; Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.5th 1034), Plaintiff has not alleged any specific facts demonstrating that Defendants were chronically or severely understaffed.  Rather, Plaintiff references a single incident where Joanna used poor judgment, resulting in an injury.  That alone does not demonstrate that Joanna was unqualified or underqualified to provide elder care, or that Defendants were chronically understaffed of qualified caregivers. 

Nor does Plaintiff allege any facts supporting her conclusion that Defendants had a pattern and practice of elder abuse or neglect that rises to the level of recklessness.  Plaintiff argues she is not required “to provide evidence of Defendants [sic] internal management decision making process or the communications that occurred between the Defendants” of which “Defendants have superior knowledge[.]”  While this is true, Plaintiff must nonetheless allege some specific facts supporting her allegations of knowing or reckless conduct on the part of Defendants’ corporate officers, directors, and/or managing agents, which Plaintiff has not done.

Therefore, the Court sustains Dynamic’s demurrer to the 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, Chan moves to strike from the complaint, references to and claims for punitive damages.    

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means 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.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

Moreover, “the imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

            Dynamic moves to strike allegations relating to and the request for punitive and exemplary damages, which are made as to the first cause of action only.  Because the Court sustains Defendants’ demurrer to the first cause of action, the Court denies Defendants’ motion to strike as moot.          

3.     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 the Opposition merely states, “Plaintiff respectfully requests the Court grant leave to amend to add the preceding facts and others discovered in litigation.”  (Opp. at p. 11.)  But the preceding pages of Plaintiff’s Opposition do not list any new facts Plaintiff could add to the Complaint. 

Further, Plaintiff’s reference to “other” facts “discovered in litigation” suggests Plaintiff does not yet possess any such facts.  Should Plaintiff uncover facts in discovery that support a claim for elder abuse and/or punitive damages, Plaintiff may move the Court for leave at that time.  In connection with the demurrer, however, leave to amend is denied. 

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Dynamic’s Demurrer to the first cause of action without leave to amend.   Further, the Court denies Dynamic’s motion to strike in its entirety as moot. 

The Court orders Dynamic to file an Answer to the Complaint on or before November 7, 2024.

Dynamic shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  October 17, 2024                                                   ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court