Judge: Nathan Nhan Vu, Case: 30-2023-01311157, Date: 2023-08-21 Tentative Ruling
Demurrer
Defendant Fountain Valley Regional Hospital and Medical Center’s Demurrer to Plaintiff’s Complaint is SUSTAINED as to the 1st Cause of Action with 21 days leave to amend.
Defendant Fountain Valley Regional Hospital and Medical Center (Defendant Hospital) demurs to the 1st Cause of Action for Elder Abuse pursuant to Welfare and Instutitions Code §§ 15600, et seq., of the Complaint filed by Plaintiff Maria Guadalupe Torres.
Standard for Demurrer
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)
Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)
1st Cause of Action (Elder Abuse)
A cause of action brought under the Elder Abuse Act (Act) allows the plaintiff to seek certain enhanced remedies when the plaintiff proves 1) “by clear and convincing evidence” that 2) “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 3) the defendant committed the abuse with “recklessness, oppression, fraud, or malice.” (Welf. & Inst. Code, § 15657, subd. (a).)
The rule that “statutory causes of action must be pleaded with particularity” applies to claims made under the Elder Abuse Act. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)
Neglect
The Act defines “neglect” to mean ”[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.” (Welf. & Inst. Code, § 15610.57 subd. (a)(1);see also Welf. & Inst. Code, § 15610.27 [defining “elder” as “person residing in this state, 65 years of age or older”].)
Examples of neglect include, but are not limited to, 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.
(Welf. & Inst. Code § 15610.57, subd. (b).)
The Supreme Court has interpreted the purposes and legislative history of Section 15657 and determined that “the statute was not meant to encompass every course of behavior that fits either legal or colloquial definitions of neglect.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 160.) Instead, the Act seeks to guard against “certain situations [that] place elders and dependent adults at heightened risk of harm” and for which “heightened remedies relative to conventional tort remedies are appropriate as a consequence.” (Id. at pp. 160-161; see also Delaney v. Baker (1999) 20 Cal.4th 23, 36-37.)
Therefore, “neglect [as a form of abuse under the Act] 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.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, quoting Delaney v. Baker, supra, 20 Cal.4th at p. 34.) “Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Superior Ct., supra, 32 Cal.4th at p. 783, italics original.)
In addition, “[t]o recover the enhanced remedies under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder.” (Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, 405, citations omitted.) Instead,
[The plaintiff] must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. “Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur.
(Delaney v. Baker, supra, 20 Cal.4th at p. 31, citations omitted.)
As the Supreme Court has explained, “[i]n order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 789.) Thus, “the enhanced remedies are available only for ‘acts of egregious abuse against elder and dependent adults.’” (Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, 405, quoting Delaney v. Baker, supra, 20 Cal.4th at p. 34.)
Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396 applied these principles. In that case, the decedent was treated at both a hospital and a skilled nursing facility before he passed away. (See id. at pp. 401-402.) The Court of Appeal affirmed the trial court’s ruling sustaining the hospital’s demurrer because plaintiffs had not alleged any facts to show that the hospital had neglected the decedent. (Id. at pp. 407-407.)
The Court of Appeal held that while plaintiffs had alleged that there had been a “failure to treat [decedent’s] pressure ulcers, administer prescribed antibiotics or stock the crash cart; false documentation; purposefully inadequate testing for medications,” plaintiffs had not plead facts sufficient to show that any of this conduct rose to the level of neglect. (Id. at pp. 408-410.) The Court of Appeal also ruled that standard professional negligence was not sufficient to amount to neglect. (Ibid.)
Defendant Hospital argues that the allegations of the Complaint are not sufficient to allege “neglect” under Carter v. Prime Healthcare Paradise Valley and the above case law.
Here, the Complaint alleges, in general and conclusory terms that mirror the language of the Elder Abuse Act, that Defendant Hospital breached various duties owed under the Act. (See Complaint, ¶¶ 31, 38-49.) However, the Complaint fails to allege any evidentiary facts to establish any of these conclusions or to establish how Defendant Hospital breached those duties.
The Complaint also lumps together the conduct of both defendants, making it difficult to ascertain what actual conduct Plaintiff alleges that Defendant Hospital engaged in that constitutes elder abuse. Indeed, the most specific factual allegation that applies to Defendant Hospital alone is that Plaintiff entered Defendant Hospital for increased swelling and pain. (See Compl., ¶ 16.)
There are no factual or particularized allegations as to how long Plaintiff stayed at Defendant Hospital, whether or not any symptoms increased, what alleged medical care was given and/or withheld while Plaintiff was admitted at Defendant Hospital, etc. Plaintiff’s generic allegations are insufficient to allege an elder abuse cause of action against Defendant Hospital. The Complaint thus fails to plead this statutory claim with the required particularity.
For the same reasons, Plaintiff’s allegations are insufficient to make out neglect by Defendant Hospital because, at most, it rises only to the level of standard professional negligence. There are no allegations here that Defendant Hospital committed acts of egregious abuse against Plaintiff or that Defendant Hospital’s conduct was reckless, oppressive, fraudulent, or malicious.
Care or Custody
In addition, plaintiff cannot make out “neglect” unless the plaintiff was under the “care or custody” of the defendant. The Supreme Court has held that this requires plaintiff to prove “the existence of a robust caretaking or custodial relationship — that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158.) This means that “the distinctive relationship contemplated by the Act entails more than casual or limited interactions.” (Ibid.)
In determining whether such a relationship exists, “the focus . . . is on the nature and substance of the relationship between an individual and an elder or a dependent adult.” (Ibid.) The court noted that the “defendant’s professional standing or expertise” was not as important as whether “ an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs” or “the defendant[] had explicitly assumed responsibility for attend to the elders’ basic needs.” (Id. at pp. 158-160.)
The Complaint only contains general allegations that both Defendants were the “care custodians” of Plaintiff. (See Compl., pp. 11, 50.) There are almost no allegations of evidentiary facts that explain the details of the Hospital’s care and custody relationship with Plaintiff. At a minimum, there are insufficient allegations to show that Defendant Hospital “assumed a significnat ,easure of responibility for attend to one or more of [Plaintiff’s] basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.
The court must sustain the demurrer as to the first cause of action.
Leave to Amend
“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
Further, “for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” (Eghtesad v. State Farm General Insurance. Co. (2020) 51 Cal.App.5th 406, 411, quoting King v. Mortimer (1948) 83 Cal.App.2d 153, 158; see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 [“Only rarely should a demurrer to an initial complaint be sustained without leave to amend.”].)
Because this demurrer is addressed to an original complaint and there is a reasonable possibility that plaintiff can amend the complaint to allege a cause of action by adding specific factual allegations with respect to Defendant Hospital, the court will grant leave to amend.
Motion to Strike
Defendant Fountain Valley Regional Hospital and Medical Center’s Motion to Strike Portions of Plaintiff’s Complaint is taken OFF CALENDAR.
Defendant Fountain Valley Regional Hospital and Medical Center (Defendant Hospital) moves to strike an allegation relating to punitive damages and the prayer for punitive damages contained in the Complaint filed by Plaintiff Maria Guadalupe Torres.
In light of the court’s ruling on the Defendant Hospital’s Demurrer to the Complaint, the Motion to Strike Portions of Plaintiff’s Complaint is now moot and shall be taken off calendar.
Defendant Hospital shall give notice of this ruling.