Judge: Peter A. Hernandez, Case: 23PSCV01080, Date: 2024-05-30 Tentative Ruling
Case Number: 23PSCV01080 Hearing Date: May 30, 2024 Dept: K
1. Defendant
Sunwest Bank’s Demurrer to Plaintiffs’ Complaint is SUSTAINED. The court will
hear from counsel for Plaintiffs as to whether leave to amend is requested, and
as to which cause(s) of action, and will require an offer of proof if so.
2. Defendant Sunwest Bank’s Motion to Strike Portions of Plaintiffs’ Complaint is DENIED as MOOT.
Background
Betty was a resident at The Claremont Hacienda from January 2022 through April 6, 2022. Betty suffered multiple falls during her residency, with the last fall resulting in a hip fracture which ultimately led to her June 19, 2022 death.
On April 11, 2023, Plaintiffs filed a complaint, asserting causes of action against The Claremont Hacienda, Claremont Senior Living, LLC (“CSL”), Momentum Senior Living, LLC (“Momentum”) and Does 1-50 for:
1.
Elder Abuse
2.
Negligence
3.
Breach of Contract
4.
Willful Misconduct
5.
Wrongful Death
On September 13, 2023, the court ordered Momentum dismissed without prejudice, pursuant to Plaintiffs’ counsel’s oral request.
On December 15, 2023, Plaintiffs filed an “Amendment to Complaint,” wherein West Bay Senior Living, LLC was named in lieu of Doe 1.
On March 25, 2024, Plaintiffs filed another “Amendment to Complaint,” wherein Sunwest Bank was named in lieu of Doe 21.
The Final Status Conference is set for March 11, 2025. Trial is set for March 25, 2025.
1. Demurrer
Legal Standard
A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)
When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)
Discussion
Sunwest Bank (“Bank”) demurs, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first through fifth causes of action in Plaintiffs’ complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.
Request for Judicial Notice
The court rules on Bank’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit 1 (i.e., Articles of Organization and Statements of Information filed with the California Secretary of State for CSL); Granted as to Exhibit 2 (i.e., Articles of Organization and Statements of Information filed with the California Secretary of State for Momentum) and Granted as to Exhibit 3 (i.e., Statement and Designation of Out-of-State Stock Corporation and Statements of Information filed with the California Secretary of State for Bank.
Merits
Again, Bank was named in lieu of Doe 21 via an “Amendment to Complaint” filed March 25, 2024. Plaintiffs have alleged that Does 21-30 “were the owners, officers, administrators, managers, and/or members of CSL” (Complaint, ¶ 9) and that CSL is a limited liability company (“LLC”) that held the license for The Claremont Hacienda, a 24-hour residential care facility for the elderly (Id., ¶ 5).
Bank first asserts that it was not CSL’s officer, administrator or manager pursuant to Corporations Code § 17704.07, Black’s Law Dictionary’s definition of “administrator” and as evidenced by judicially noticeable documents. Bank also asserts that an LLC is considered a separate legal entity, distinct from its members and manager, “with separate and distinct liabilities and obligations” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 220), and that a member or manager of an LLC cannot be held liable for the “debts, obligations, or other liabilities” of that LLC “whether arising in contract, tort, or otherwise” solely because of its status as a member of manager. (Corp. Code § 17703.04, subd. (a).) Plaintiffs ignore these arguments in their opposition, implicitly conceding their merit. (Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 90 [failing to respond to an argument implicitly concedes its merit.).
Plaintiffs instead urge that Bank was operating as a joint enterprise with the other defendants. “A joint venture is an undertaking by two or more persons jointly to carry out a single business enterprise for profit.” (Weiner v. Fleischman (1991) 54 Cal.3d 476, 482 [internal quotations and citation omitted].) “There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise.” (Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1049 [quotations and citation omitted]). Plaintiffs have failed to set forth any factual allegations that would support a joint venture theory of liability against Bank, instead stating in conclusory terms that “THE CLAREMONT HACIENDA; CLAREMONT SENIOR LIVING, LLC; MOMENTUM SENIOR LIVING, LLC; and DOES 1 through 50, inclusive, were operating as a single unit and joint enterprise in operating a resident care facility for the elderly under the name THE CLAREMONT HACIENDA during the relevant time period of Ms. NOTTOLI’s admission from approximately January 2022 through April 6, 2022 making all Defendants jointly and severally liable for the injuries suffered by Ms. NOTTOLI.” (Complaint, ¶ 12). “Bare conclusions devoid of any supporting facts. . . are insufficient to withstand demurrer.” (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481).
Bank’s demurrer to Plaintiffs’ complaint is sustained on this basis.
2. Motion to Strike
Based on the ruling made on the demurrer, Bank’s motion to strike is denied as moot.