Judge: Michael P. Linfield, Case: 22STCV32439, Date: 2022-12-19 Tentative Ruling
Case Number: 22STCV32439 Hearing Date: December 19, 2022 Dept: 34
SUBJECT: Demurrer and Motion to Strike
Moving Party: Defendant
Martin Luther King Jr. Healthcare Corporation
Resp. Party:
Plaintiff Fatimah Muhammad
Defendant’s
Demurrer is SUSTAINED leave to amend as to the fourth cause of action. The
Demurer is OVERRULED as to the first, second, and third causes of action.
Defendant’s Motion to Strike is DENIED.
BACKGROUND:
On November 14, 2022, Defendant Martin
Luther King Jr. Healthcare Corporation filed: (1) Demurrer; (2) Motion to
Strike; and (3) Declaration.
On December 5, 2022, Plaintiffs
filed: (1) Opposition to the Demurrer; and (2) Opposition to the Motion to
Strike.
On December 12, 2022, Defendant
filed: (1) Reply to Demurrer; and (2) Reply to Motion to Strike.
ANALYSIS:
I.
Demurrer
A.
Legal
Standard
A demurrer is a pleading used to test the legal sufficiency of
other pleadings. It raises issues of law, not fact, regarding the form or content
of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for the purpose of the ruling
on the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)
A demurrer can be used only to challenge defects that appear on
the face of the pleading under attack; or from matters outside the pleading
that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.)
No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).
A demurrer is brought under Code of Civil Procedure section 430.10 (grounds),
section 430.30 (as to any matter on its face or from which judicial notice may
be taken), and section 430.50(a) (can be taken to the entire complaint or any
cause of action within).
A demurrer may be brought under Code of Civil Procedure section
430.10, subdivision (e) if insufficient facts are stated to support the cause
of action asserted. A demurrer for uncertainty (Code of Civil Procedure section
430.10, subdivision (f)), is disfavored and will only be sustained where the
pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (Khoury v. Maly's of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)
B. Discussion
Defendant demurs as to
the first, second, third, and fourth causes of action in Plaintiffs’ Complaint.
(Demurrer, p. 3:2–11.) Defendant argues that these causes of action are not
supported by sufficient facts and are uncertain. (Id.)
1. Elder
Abuse
a. Legal
Standard
“‘Elder’ means any person residing
in this state, 65 years of age or older.” (Welf.
& Inst. Code, § 15610.27.)
“‘Abuse of an elder or a
dependent adult’ means any of the following:
(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)(1)–(3).)
“‘[N]eglect’ within the meaning of Welfare and
Institutions Code section 15610.57 covers an area of misconduct distinct
from ‘professional negligence.’ As used in the Act, neglect refers not to the
substandard performance of medical services but, rather, to the ‘failure of
those responsible for attending to the basic needs and comforts of elderly or
dependent adults, regardless of their professional standing, to carry out their
custodial obligations.’ Thus, the statutory definition of ‘neglect’ speaks not
of the undertaking of medical services, but of the failure
to provide medical care. Notably, the other forms of
abuse, as defined in the Act—physical abuse and fiduciary abuse—are forms of
intentional wrongdoing also distinct from ‘professional negligence.’” (Covenant
Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 783, emphases in original,
quoting Delaney v. Baker (1999) 20 Cal.4th 23, 34.)
Certain enhanced remedies are available for this cause of
action “[w]here it is proved by clear and convincing evidence that a defendant
is liable . . . and that the defendant has been guilty of recklessness,
oppression, fraud, or malice in the commission of this abuse . . . .” (Welf. &
Inst. Code, § 15657.)
b. Analysis
Plaintiff alleges: (1)
that Tauheedah Salaam, the Decedent, was born on August 25, 1949 (Complaint, ¶
20); (2) that on October 2, 2021, the Decedent was admitted to Defendant’s
Hospital due to issues with non-Covid pneumonia and shortness of breath (Id.
at ¶ 26); (3) that prior to admission Decedent also suffered from
Alzheimer’s Disease and Osteoporosis (Id.); (4) that Defendant
wrongfully withheld medical care from Decedent, including by leaving Decedent unattended
between October 2 and October 13, 2021 (Id. at ¶ 28); (5) that on
October 13, 2021, when Decedent was discharged to Plaintiff Muhammad, Plaintiff
discovered that Decedent had open wounds (Id. at ¶¶ 30–31); (6) that
Defendant discharged Decedent to Plaintiff without discharge papers,
instructions for future care, or indication that Decedent had a pressure ulcer
requiring wound care (Id. at ¶ 30); (7) that under Defendant’s care,
Decedent suffered an unstageable pressure ulcer, dehydration, malnutrition,
infection and bruising (Id. at ¶ 25); and (8) that these injuries were
the direct and proximate cause of Decedent’s premature death on October 25,
2021 (Id. at ¶¶ 25, 102.)
In its Demurrer
and in its Reply, Defendant cites multiple cases for the proposition that
Plaintiff’s allegations are for professional negligence rather than in elder
abuse. (See Covenant Care, Inc., supra, at 783; see also Worsham
v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 337–38; see also Carter
v. Prime Healthcare (2011) 198 Cal.App.4th 396, 408–09.)
The Court
disagrees with Defendant’s view of the allegations and how they pertain to case
law.
In Covenant
Care, the Supreme Court found the following conduct met the elements of the
Elder Abuse Act: “(1) [failing] to provide an elderly man suffering from
Parkinson’s disease with sufficient food and water and necessary medication;
(2) [leaving] him unattended and unassisted for long periods of time; (3)
[leaving] him in his own excrement so that ulcers exposing muscle and bone
became infected; and (4) [misrepresenting and failing] to inform his children
of his true condition.” (Carter, supra, at 405, discussing Covenant
Care, supra, at 778.)
In Worsham,
the Court of Appeal affirmed the judgment of the Trial Court, which sustained
without leave a demurrer in the situation where a plaintiff complained of elder
abuse on allegations that the plaintiff (an elderly patient) fell and broke her
arm and rebroke her hip due to understaffing and undertraining.
In Carter, the Court
of Appeal affirmed the judgment of the Trial Court, which sustained without
leave a demurrer in the situation where a plaintiff complained of elder abuse
on allegations that the plaintiff (an elderly patient) had been left “wet and
cold for extended periods of time”, “often left in unfamiliar surroundings”,
and not provided “sufficient nutrition or hydration”. (Carter, supra,
at 401, 414.)
The allegations
at hand – which are that Decedent suffered from Defendant’s 11-day failure to
attend to her as opposed to Decedent suffering from Defendant’s negligent
actions – bring this case closer to Covenant Care than to Carter or
Worsham. In addition, these allegations are sufficient for a trier of
fact to find by clear and convincing evidence that Defendant acted recklessly
in the commission of this alleged abuse. (Welf. & Inst. Code, § 15657.)
Assuming as true these
allegations for the purposes of the Demurrer, Plaintiffs provide sufficient and
certain allegations for the first cause of action for elder abuse to survive.
The Court
OVERRULES the Demurrer as to the first cause of action for elder abuse.
2. Negligence
a. Legal
Standard
In order to state a claim for negligence, Plaintiff must allege
the elements of (1) “the existence of a legal duty of care,” (2) “breach of
that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014)
228 Cal.App.4th 664, 671.)
b. Analysis
Among other allegations
discussed above, Plaintiff has alleged that Decedent was admitted to
Defendant’s Hospital, that Defendant failed to care for Decedent, and that
Defendant’s failure to care for Decedent led to various injuries, including
Decedent’s premature death.
Assuming as true these
allegations for the purposes of the Demurrer, Plaintiffs provide sufficient and
certain allegations for the second cause of action for negligence to survive.
The Court
OVERRULES the Demurrer as to the second cause of action for negligence.
3. Negligent
Hiring and Supervision
a. Legal
Standard
The elements of a cause of action for negligent hiring, retention,
or supervision are: (1) the employer’s hiring, retaining, or supervising an
employee; (2) the employee was incompetent or unfit; (3) the employer had
reason to believe undue risk of harm would exist because of the employment; and
(4) harm occurs. (Evan F. v. Hughson
United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)
b. Analysis
Plaintiff alleges: (1)
that Defendant hired, supervised, and/or retained multiple named employees
(Complaint, ¶ 73); (2) that these employees were unfit to perform their duties
and that this unfitness created a risk to elderly and infirm individuals
admitted to Defendant’s Hospital (Id. at ¶ 74); (3) that Defendant knew
or should have known of these employees’ unfitness through various mechanisms,
such as pre-employment interview processes, reference checks, probationary
period job performance evaluations, and other processes (Id. at ¶ 75);
(4) that Defendant failed to properly and completely conduct these processes (Id.
at ¶¶ 76–77); and (5) that because of Defendant’s such failure, Decedent
was harmed. (Id. at ¶¶ 78–79).
Assuming as true
these allegations for the purposes of the Demurrer, Plaintiffs provide sufficient
and certain allegations for the third cause of action for negligent hiring and
supervision to survive.
The Court
OVERRULES the Demurrer as to the third cause of action for negligent hiring and
supervision.
4. Fraud
a.
Legal
Standard
The facts constituting the
alleged fraud must be alleged factually and specifically as to every element of
fraud, as the policy of “liberal construction” of the pleadings will not
ordinarily be invoked. (Lazar v. Super.
Ct. (1996) 12 Cal.4th 631, 645.)
To properly allege fraud against a corporation, the plaintiffs
must plead the names of the persons allegedly making the false representations,
their authority to speak, to whom they spoke, what they said or wrote, and when
it was said or written. (Tarmann v. State
Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
b. Analysis
Plaintiffs argue: (1)
that Defendant made representations to the Department of Public Health in order
to secure their annual renewal license to operate their Hospital (Complaint, ¶
82); (2) that Defendant’s representations were knowingly false (Id. at ¶
84); (3) that Defendant made these representations to avoid reporting “adverse”
events so that it could defraud the Department of Public Health (Id. at
¶ 86); (4) that the Department of Public Health relied on the accuracy of these
representations (Id. at ¶ 89); (5) that Decedent relied on the fact that
Defendant’s Hospital was licensed by the Department of Public Health (Id. at
¶ 94); and (6) that Decedent suffered injury as a direct result of Defendant’s
breaches (Id. at ¶ 95).
Plaintiffs do not meet
the specific pleading standard required for a cause of action of fraud levied
against a corporation. Specifically, Plaintiffs have not stated who made the
false representations, what was their authority to speak, what was said or
written, and when it was said or written. The Court also notes that Plaintiff has listed
Defendant’s “failure to report the ‘adverse event’ involving MUHAMMAD” is “an
example” of Defendant’s fraudulent conduct.
(Complaint, ¶ 85.) However, this
could not be the basis of any fraudulent conduct upon which Plaintiff is suing,
because Plaintiff could not have relied on conduct that occurred after Salaam’s
admission to the hospital.
The Court SUSTAINS with
leave to amend the Demurer as to Plaintiffs’ fourth cause of action for fraud.
C. Conclusion
Defendant’s
Demurrer is SUSTAINED leave to amend as to the fourth cause of action. The Demurer
is OVERRULED as to the first, second, and third causes of action.
II.
Motion to Strike
A.
Legal
Standard
Any party, within the time allowed to respond
to a pleading, may serve and file a notice of motion to strike the whole or any
part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a
portion of a pleading shall quote in full the portions sought to be stricken
except where the motion is to strike an entire paragraph, cause of action,
count or defense. (California Rules of Court Rule 3.1322.)¿¿
The grounds for a motion to strike shall
appear on the face of the challenged pleading or form any matter of which the
court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The
court then may strike out any irrelevant, false, or improper matter inserted in
any pleading and strike out all or any part of any pleading not drawn or filed
in conformity with the laws of this state, a court rule, or an order of the
court. (Code Civ. Proc., § 436.) When the defect which justifies striking a
complaint is capable of cure, the court should allow leave to amend. (Perlman
v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)¿¿
B.
Analysis
Defendants request that the Court strike the following items
from the Complaint:
(1)
Paragraphs 24 and
63, which include the phrase “maliciously, fraudulently, oppressively,
willfully, and/or recklessly”;
(2)
Paragraphs 66 and
97, which include the phrase “punitive damages”; and
(3)
Plaintiffs’ prayer
for relief on page 22 for “punitive and/or treble damages”.
(Motion to Strike,
p. 2:5–11.)
Whether or not Defendant acted
maliciously, fraudulently, oppressively, willfully, and/or recklessly is certainly
relevant to this matter. The Court DENIES Defendant’s Motion to Strike as to paragraphs
24 and 63.
In addition, Plaintiffs’ Complaint
contains allegations that if proven to be true would be sufficient for grants
of attorney’s fees, punitive damages, and treble damages. The Court DENIES
Defendant’s Motion to Strike as to paragraph 66 and 97, as well as to
Plaintiffs’ prayer related prayer for relief.
C.
Conclusion
Defendant’s Motion to Strike is DENIED.