Judge: Michael J. Strickroth, Case: 2022-01253701, Date: 2023-08-28 Tentative Ruling
Demurrer to Amended Complaint
Defendant Regents of the University of California’s Demurrer to the Second Cause of Action for Elder Abuse in the First Amended Complaint is OVERRULED.
“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” Redfearn v. Trader Joe’s Co. (2018) 20 Cal. App. 5th 989, 996. The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” Id. The Court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” Id. “A demurrer must dispose of an entire cause of action to be sustained.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119.
Defendant demurs to the Complaint’s second cause of action for elder abuse on the grounds it fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 410.10(e) and (f). Specifically, Defendant contends the second cause of action fails to plead facts demonstrating Defendant acted with recklessness, oppression, fraud or malice.
California’s Elder Abuse Act (the “Act”) defines dependent adult abuse as either “(a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Welfare and Institutions Code §15610.07.) Physical abuse of a dependent adult is defined by Welfare and Institutions Code section 15610.63, subdivision (d) as “unreasonable physical constraint, or prolonged or continual deprivation of food or water.”
For conduct to constitute neglect within the Act, Plaintiff must allege facts establishing 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 . . . or with conscious disregard of the high probability of such injury.” Id. “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 (2011) 198 Cal.App.4th 396, at 406-407 (Carter).
Here, the standards announced in Carter have been met. The Complaint alleges Plaintiff was admitted to Defendant’s facility on or about 12/22/20 and tested positive for COVID-19 following admission. Defendant’s employees/agents charged with Plaintiff’s care ignored him because of his age and struggles with COVID. (FAC ¶ 17.) Defendant allegedly forced a “do not resuscitate” order on Plaintiff against his wishes and those of his family. (Id.) In addition, Defendant left him to lie unattended in a hospital bed for so long that he developed pressure sores on his sacrum and lower back. (Id.) Plaintiff was also allegedly discharged even though a nurse indicated she felt he was not ready/safe for discharge. The nurse’s note indicated the hospital CEO chose otherwise and decided to transfer him to Defendant Kindred. (Id.)
Assuming the cited facts are true, such acts could suggest Defendant breached its duties to Plaintiff in a reckless, fraudulent, oppressive, or malicious manner. Therefore, the demurrer to the second cause of action of the First Amended Complaint is OVERRULED.
Plaintiff to give notice.
Motion to Strike Portions of Complaint
Defendant Regents of the University of California’s Motion to Strike Portions of the Complaint is GRANTED.
Code of Civil Procedure § 436 provides in pertinent part: "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” “Irrelevant matter” includes allegations not essential to the claim. Code Civ. Proc. §431.10(b). A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.
Government Code section 818 states: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damage imposed primarily for the sake of example and by way of punishing the defendant.” The Regents of the University of California are a public entity of the State of California and are therefore exempt from punitive damage claims.
Plaintiff does not dispute the Defendant is a public entity and/or otherwise oppose the imposition of punitive damages or treble damages on Defendant. Thus, the motion to strike is GRANTED and the Court orders the following to be stricken from the FAC:
· Page 9, paragraph 33; “As a further direct and proximate result of Defendants’ reckless neglect, oppressive and willful misconduct and failure to provide care to Plaintiff, which was done with malice and in conscious disregard for Plaintiff’s well-being, Plaintiff is entitled to an award of punitive damages against Defendants, and each of them, under Civil Code §3294.”
· Page 9, paragraph 34; “As a further direct and proximate result of Defendants’ reckless neglect, oppressive and willful misconduct and failure to provide care to Plaintiff, which was done with malice and in conscious disregard for Plaintiff’s well-being, and particularly because of Plaintiff’s poor health and infirm status, plaintiffs are entitled to an award of treble damages against Defendants, and each of them, pursuant to Civil Code §3345.”
· Page 10, Prayer for Relief as to the Second Cause of Action, Prayer 6; “For treble damages;”; and
· Page 10, Prayer for Relief as to the Second Cause of Action, Prayer 8; “For punitive damages”.
Moving party defendant to give notice.
Further and additionally, on the court’s own motion, Regent’s motion to compel responses to form interrogatories (ROA 99) set for hearing on 10/2/2023 and Regent’s motion to compel responses to special interrogatories (ROA 100) set for hearing on 10/9/2023 are both continued to 10/16/2023, at 1:45 PM, in C15. Regents to give notice.