Judge: Michael P. Linfield, Case: 23STCV11217, Date: 2023-10-27 Tentative Ruling

Case Number: 23STCV11217    Hearing Date: January 12, 2024    Dept: 34

SUBJECT:        Motion to Strike Portions of First Amended Complaint

Moving Party: Defendant Christopher Woehrstein

Resp. Party:    Plaintiffs Andrea Faye Washington and Ezekiel Oliver Taylor

SUBJECT:        Demurrer to First Amended Complaint

Moving Party: Defendant Christopher Woehrstein

Resp. Party:    Plaintiffs Andrea Faye Washington and Ezekiel Oliver Taylor

The Demurrer is OVERRULED.

The Motion to Strike is DENIED.

BACKGROUND:

On May 17, 2023, Plaintiffs Andrea Faye Washington and Ezekiel Oliver Taylor filed their Complaint against Defendants DaVita, Inc. and P & I Transportation LLC on causes of action arising from the death of a decedent.

On June 1, 2023, the Court approved Plaintiffs’ amendment to correct the name of Defendant P & I Transportation, Inc. (erroneously sued as P & I Transportation LLC).

On June 2, 2023, Plaintiffs amended their pleading to substitute Doe 1 with P & I Transportation, Inc.

On June 13, 2023, Plaintiffs amended their pleading to substitute Doe 2 with Total Renal Care, Inc.

On August 25, 2023, Plaintiff filed their First Amended Complaint (FAC), which added new allegations, parties, and causes of action.

On September 26, 2023, Defendant P & I Transportation, Inc. filed its Answer to the FAC.

On November 17, 2023, Defendant Christopher Woehrstein filed: (1) Demurrer to First Amended Complaint (“Woehrstein Demurrer”); and (2) Motion to Strike Portions of First Amended Complaint (“Woehrstein Motion to Strike”).

On December 7, 2023, the Court overruled the Demurrer and denied the Motion to Strike of Defendants DaVita, Inc. and Total Renal Care, Inc.

On December 29, 2023, Plaintiffs filed their Consolidated Opposition to Defendant Christopher Woehrstein’s Demurrer and Motion to Strike (“Opposition”).

On January 4, 2023, Defendants Total Renal Care, Inc. and DaVita, Inc. filed their Answer to the FAC.

On January 4, 2023, Defendant Christopher Woehrstein filed his Reply to Opposition to Demurrer and Motion to Strike (“Reply”).

ANALYSIS:

I.          Demurrer

A.      Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)

“A demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50, subd. (a).)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, citations and internal quotation marks omitted.)

B.      Discussion

Defendant Christopher Woehrstein demurs to the first, fourth, sixth, and seventh causes of action in the FAC.

1.      First Cause of Action — Gross Negligence

a.       Legal Standard

“Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant. The conduct alleged must rise to the level of either a want of even scant care or an extreme departure from the ordinary standard of conduct.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082, cleaned up.)

It is established that “California does not recognize a distinct common law cause of action for gross negligence apart from negligence.” (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3.)

b.       Discussion

Defendant Christopher Woehrstein demurs to the first cause of action for gross negligence, arguing: (1) that this is not a legally cognizable cause of action; and (2) that the conduct alleged on the part of Defendant Christopher Woehrstein does not fall within the ambit of medical negligence. (Woehrstein Demurrer, pp. 5:6–11, 6:11–13.)

Among other things, Plaintiffs allege: (1) that Defendants had a duty of care for Decedent; (2) that Defendants breached that duty of care in their various actions, such as refusing to give Decedent (their patient) dialysis care and sending Decedent back home when he was unwell instead of administering treatment or sending him to an emergency room; (3) that Defendants’ actions caused Decedent harm and ultimately led to his untimely death; and (4) that Decedent suffered damages and ultimately death. (FAC, ¶¶ 25–43.)

The allegations are sufficient for a trier of fact to find that the conduct alleged rises to the level of either a want of even scant care or extreme departure from the ordinary standard of conduct.

In addition, gross negligence is a legally cognizable cause of action, and it is irrelevant for the purposes of a demurrer that it is redundant of other causes of action. (Rosencrans, supra, 192 Cal.App.4th at p. 1082; Code Civ. Proc., § 475 [“The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. . . .”].)

        The Court OVERRULES the Woehrstein Demurrer to the first cause of action for gross negligence.

2.      Fourth Cause of Action — Elder Abuse and Neglect

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).)

“‘Goods and services necessary to avoid physical harm or mental suffering’ include, but are not limited to, all of the following:

(a)       “The provision of medical care for physical and mental health needs.

(b)       “Assistance in personal hygiene.

(c)        “Adequate clothing.

(d)       “Adequately heated and ventilated shelter.

(e)       “Protection from health and safety hazards.

(f)         “Protection from malnutrition, under those circumstances where the results include, but are not limited to, malnutrition and deprivation of necessities or physical punishment.

(g)       “Transportation and assistance necessary to secure any of the needs set forth in subdivisions (a) to (f), inclusive.”

(Welf. & Inst. Code, § 15610.35.)

“‘Neglect’ means either of the following:

(1)       “The 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.

(2)       “The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.”

(Welf. & Inst. Code, § 15610.57, subd. (a).)

“Neglect includes, but is not limited to, all of the following:

(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. A person shall not be deemed neglected or abused for the sole reason that the person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3)       “Failure to protect from health and safety hazards.

(4)       “Failure to prevent malnutrition or dehydration.

(5)       “Substantial inability or failure of an elder or dependent adult to manage their own finances.

(6)       “Failure of an elder or dependent adult to satisfy any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.”

(Welf. & Inst. Code, § 15610.57, subd. (b).)

“Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term ‘costs’ includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.” (Welf. & Inst. Code, § 15657, subd. (a).)

b.       Discussion

Defendant Christopher Woehrstein demurs to the fourth cause of action for elder abuse and neglect, arguing: (1) that Plaintiffs have not pleaded facts with the requisite particularity required to bring this cause of action for elder abuse or neglect; (2) that Defendant Christopher Woehrstein did not render custodial care; (3) that Defendant Christopher Woehrstein is not alleged to have been responsible for providing Decedent with custodial care, nor is he alleged to have had a “robust and ongoing” caretaking relationship with Decedent; and (4) that the allegations against Defendant Christopher Woehrstein do not constitute abuse. (Woehrstein Demurrer, pp. 6:25, 7:5, 10:13–19, 11:18–20, 11:22.)

The Court disagrees with these arguments.

First, the allegations previously discussed for gross negligence (such as not providing Decedent [who at the time was an elder] dialysis treatment, not providing Decedent other medical care when he needed it, sending Decedent back home without providing him dialysis treatment and/or other medical care, etc.) are also sufficient for a trier of fact to find that there has been elder abuse and/or neglect (as those terms are defined by statute). The statute does not limit elder abuse to issues of hygiene; it also includes other acts or omissions, such as failure to prevent dehydration and failure to provide medical care.

Second, the pleading sufficiently alleges that Defendant Christopher Woehrstein had a caretaker or custodial relationship for Decedent at the times that the alleged abuse and/or neglect occurred.

Finally, the allegations are pleaded with the sufficient particularity required for this cause of action. 

        The Court OVERRULES the Woehrstein Demurrer to the fourth cause of action for elder abuse and neglect.

3.          Sixth Cause of Action — Intentional Infliction of Emotional Distress

a.       Legal Standard

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

b.       Discussion

Defendant Christopher Woehrstein demurs to the sixth cause of action for intentional infliction of emotional distress, arguing: (1) that Plaintiffs lack standing to maintain the cause of action; and (2) that the there are no allegations on the part of Defendant Christopher Woehrstein that amount to extreme and outrageous conduct. (Woehrstein Demurrer, p. 14:5, 14:21–22.)

The Court again disagrees.

A trier of fact could reasonably find that these allegations — which include Defendant Christopher Woehrstein wrongfully denying care to a dialysis patient who arrived at the patient’s dialysis treatment facility — is extreme and outrageous conduct that exceeds all bounds of that usually tolerated in a civilized community, done with the intention of causing, or reckless disregard of the probability of causing, emotional distress. Similarly, a trier of fact could reasonably find on these allegations that there was suffering of severe or extreme emotional distress and that that suffering was causally linked to the acts or omissions alleged.

As to standing, Defendant Christopher Woehrstein cites Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, 906 for the proposition that Plaintiffs do not have standing because the alleged conduct was directed at Decedent, not Plaintiffs (who were not at the facility when the alleged conduct occurred). (Woehrstein Demurrer, p. 14:5–19.) Among other things, the allegations are that Plaintiffs directly witnessed Decedent’s death minutes after his return from the dialysis facility. (FAC, ¶¶ 84–87.) Whether Defendant Woehrstein’s specific conduct was or was not directed at Plaintiffs is a mixed question of fact and law that is not amenable to resolution on a demurrer.

        The Court OVERRULES the Woehrstein Demurrer to the sixth cause of action for intentional infliction of emotional distress.

4.          Seventh Cause of Action — Negligent Infliction of Emotional Distress

a.       Legal Standard

“The negligent causing of emotional distress is not an independent tort but the tort of negligence.” (Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588 [cleaned up]; see also Christensen v. Super. Ct. (1991) 54 Cal.3d 868, 884.)

b.       Discussion

Defendant Christopher Woehrstein demurs to the seventh cause of action for negligent infliction of emotional distress, arguing that Plaintiffs did not allege to have seen the conduct of Defendant Christopher Woehrstein or have contemporaneous awareness that his conduct was allegedly causing injury to Decedent. (Woehrstein Demurrer, p. 15:21–23.)

“We conclude, therefore, that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress -- a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 667–668, footnotes omitted; see also Bird v. Saenz (2002) 28 Cal.4th 910, 914–915.)

        Here, Plaintiffs allege that Decedent — the husband of Plaintiff Andrea Faye Washington and the father of Ezekiel Oliver Taylor — died in front of Plaintiffs due to Defendants’ acts and/or omissions, which caused Plaintiffs emotional distress. (FAC, ¶¶ 84–87.) These allegations are sufficient to plead a cause of action for negligent infliction of emotional distress under the bystander theory.

The Court OVERRULES the Woehrstein Demurrer to the seventh cause of action for negligent infliction of emotional distress.

C.      Conclusion

The Demurrer is OVERRULED.

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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(1).)

“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.

“(b) 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.)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“A notice of motion to strike a portion of a pleading must 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. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).)

B.      Discussion

Defendant Christopher Woehrstein moves the Court to strike various portions of the FAC that: (1) allege malice, fraud, or oppression; or (2) request exemplary and/or punitive damages. (Woehrstein Motion to Strike, pp. 6:11, 8:21–22.)

The Court disagrees with these arguments.

Plaintiffs are entitled to allege that Defendant Christopher Woehrstein acted with malice, fraud, or oppression and that he should therefore be liable for exemplary and/or punitive damages. It will ultimately be Plaintiffs’ burden to provide that they are entitled to the relief they seek.

C.      Conclusion

The Motion to Strike is DENIED.