Thelma Mallory, et al. v. All Care Home Health Provider, et al.

(1) DEFENDANTS’ DEMURRER TO THE COMPLAINT

(2) DEFENDANTS’ MOTION TO STRIKE

 

MOVING PARTY: Defendants All Care Home Health Provider, Belinda McCullough, and Tadesse Yihun

RESPONDING PARTY(S): Plaintiffs Thelma Mallory, et al.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Decedent Lottie Perkins was under the care of Defendants All Care Home Health Provider, Oasis Home Health Care Agency, Inc., Belinda McCullough, and Tadesse Yihun to provide home nursing services for her basis care needs. Plaintiffs are the biological children of Ms. Perkins, and bring this action individually and as the decedent’s successors in interest. Plaintiffs allege Defendants failed to exercise due care in treating the decedent, resulting in pressure ulcers and eventual sepsis. Ms. Perkins died from these injuries on January 12, 2023. Plaintiffs assert causes of action for (1) elder abuse and neglect, (2) negligence/willful misconduct, and (3) wrongful death.

Defendants now demurrer to the Complaint and move to strike portions therein. Plaintiffs opposed.

TENTATIVE RULING:

Defendants’ Demurrer to the First Cause of Action for Elder Neglect is SUSTAINED.   

Defendants’ Demurrer to the Second Cause of Action, construed as a standalone cause of action for Willful Misconduct, is SUSTAINED.

Whether or not leave to amend is granted will depend upon the offer of proof made by Plaintiff at the hearing which would demonstrate a reasonable possibility of a successful amendment, consistent with this ruling.

Defendants’ Demurrer to the Second Cause of Action, construed as a standalone cause of action for negligence, is OVERRULED.

Defendants’ Motion to Strike is GRANTED. Whether or not leave to amend is granted will depend upon the offer of proof made by Plaintiffs at the hearing which would demonstrate a reasonable possibility of a successful amendment, consistent with this ruling.

Defendants are ordered to give notice, unless waived.

DISCUSSION:

Demurrer to the Complaint

I. Meet and Confer

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

III. Analysis

Defendants demurrer to the First and Second Causes of action in the Complaint. Each is addressed in turn.

A. First Cause of Action for Elder Abuse and Neglect

First, Defendants argue Plaintiffs have failed to allege the essential elements for elder abuse and neglect with the requisite specificity. Specifically, Plaintiffs first contend the pleading lacks specific allegations as to the existence of a custodial relationship or causation. 

As a general rule, “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Ct. (2004) 32 Cal. 4th 771, 790; Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal. App. 5th 1234, 1261 [statutory causes of action must be pleaded “with reasonable particularity”].)

The Elder Abuse Act defines abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst.Code, § 15610.07, subd. (a)); or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., § 15610.07, subd. (b)). The Act defines neglect as “[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.” (Id., § 15610.57, subd. (a)(1).) “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.... [¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration.” (Id., § 15610.57, subd. (b).) “[W]hen the medical care of an elder is at issue, ‘the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.’” (Carter, supra, 198 Cal. App. 4th at 404–05.) “[N]eglect as a form of abuse under the Elder Abuse Act refers ‘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.’ ” (Id. at 404.) “[T]he facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 407.) “It must be determined, on a case-by-case basis, whether the specific responsibilities assumed by a defendant were sufficient to give rise to a substantial caretaking or custodial relationship.” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405.)

Here, Plaintiffs allege the decedent was hospitalized from September 7, 2022 to September 12, 2022, after “falling and sustaining an injury.” (Compl. ¶ 20.) Upon being discharged, Defendants were hired to provide home nursing services “on an ongoing basis and as her needs dictated.” (Id. ¶ 21.) Defendants were aware that Decedent “was completely dependent on others for all of her Activities of Daily Living (“ADLs”) including feeding, grooming, toileting, transferring, bathing and dressing.” (Id. ¶ 22.) 

On September 21, 2022, Defendant Yihun, a registered nurse, “visited Decedent at her home and conducted an assessment of Decedent’s needs, conditions, abilities and limitations.” (Id.) This was the first and only visit by Defendnat Yihun. (Id. ¶ 27.) Thereafter, Defendant McCullough, a licensed vocational nurse, visited the Decedent’s home on October 7, 2022, October 12, 2022, October 14, 2022, October 18, 2022, October 20, 2022, October 24, 2022, October 27, 2022, November 1, 2022, November 2, 2022, November 7, 2022 and November 8, 2022—the only one to do so. (Id. ¶ 25.) 

While in Defendant’s custody, the decedent’s condition “began to decline” (Id. ¶ 23.) Specifically, Plaintiffs allege Defendants “failed to implement a care plan which appropriately addressed Decedent’s risk for skin breakdown.” (Id.) As a result, “pressure ulcers developed on Decedent’s sacrum and coccyx.” (Id.) Defendants then allegedly failed to take steps to treat or prevent the pressure ulcers and failed to notify the decedent’s doctors or family. (Id.) 

By November 8, 2022, the Decedent’s family learned of the pressure ulcers. (Id. ¶ 24.) That day, the Decedent “was hospitalized with various ailments and conditions, including sepsis.” (Id.) On January 12, 2023, Ms. Perkins died in the hospital “from the wounds that developed on her sacrum and coccyx, the sepsis that developed, the surgery she underwent and the difficulty breathing she experienced as a result of the chain of events.” (Id.) 

Considering these allegations, Plaintiffs have sufficiently alleged a custodial relationship and that Defendants were the proximate cause of the Decedent’s injuries. 

Next, Defendants argue that Plaintiffs have failed to plead facts demonstrating that Defendants’ alleged conduct was reckless, oppressive or malicious. “The Elder Abuse Act makes certain enhanced remedies available to a plaintiff” who proves “‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorney fees and costs. (Id., § 15657, subd. (a).)”  (Worsham v. O'Connor Hosp. (2014) 226 Cal. App. 4th 331, 336.) 

Here, while Plaintiffs have clearly plead facts demonstrating garden variety negligence, Plaintiffs have not pled particularized facts showing recklessness, oppression, fraud, or malice. Plaintiffs’ “[u]se of such terminology [as fraudulently and recklessly] cannot cure [the] failure to point out exactly how or in what manner the [Defendants have] transgressed.” (Carter, supra, 198 Cal. App. 4th at 410.) After all, “[f]acts, not conclusions, must be pleaded,” and it must be done with “particularity.” (Id.) 

Accordingly, Defendants’ Demurrer to the First Cause of Action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

 

Whether or not leave to amend is granted will depend upon the offer of proof made by Plaintiffs at the hearing which would demonstrate a reasonable possibility of a successful amendment, demonstrating specific facts that Defendants acted with recklessness, oppression, fraud, or malice.

B. Second Cause of Action for Negligence/Willful Misconduct

Defendants next argue the second cause of action for negligence/willful misconduct is deficient because it is unclear whether Plaintiffs are alleging only “garden variety negligence” or the heightened form of willful misconduct. If Plaintiffs are alleging willful misconduct, Defendants argue, then Plaintiffs have failed to plead the necessary “intent” element. Moreover, Defendants note that the cause of action references “negligence per se” and cites to various inapplicable statutes and regulations. (See Compl. ¶¶ 57, 58.)

In opposition, Plaintiffs assert that the second cause of action “contains allegations regarding negligence, negligence per se, and willful misconduct,” and that Plaintiffs are permitted to allege three different theories of liability.

When characterizing a complaint or cross-complaint, it is policy to “emphasiz[e] substance over form.” (Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386.) Accordingly, consistent with that policy, the court construes the second cause of action as two separate causes of action for (1) negligence and (2) willful misconduct.

1. Negligence

“[T]he well-known elements of any negligence cause of action [are] duty, breach of duty, proximate cause and damages. [Citations.]” (Berkley v. Dowds (2007) 152 Cal. App. 4th 518, 526.) 

2. Willful Misconduct

“Willful misconduct” is “not a separate tort” from negligence, but simply “an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.” (Id.) “Its pleading requirements are similar to negligence but stricter.” (Id.) A plaintiff must plead “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]’ ” (Id. at 312.)

Here, although Plaintiffs’ allegations amount to negligence, Plaintiffs have failed to plead facts amounting to willful misconduct, and in particular, a “conscious failure” to treat the Decedent. Plaintiffs’ allegations on the point are conclusory and cannot meet the “stricter” pleading standard.

Accordingly, Defendant’s Demurrer to the Willful Misconduct cause of action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

 

Whether or not leave to amend is granted will depend upon the offer of proof made by Plaintiffs at the hearing which would demonstrate a reasonable possibility of a successful amendment, demonstrating specific facts that Defendants acted with recklessness, oppression, fraud, or malice.

3. Negligence Per Se

Finally, Defendants argue that the Complaint’s reference to “negligence per se” is uncertain. “Negligence per se is an evidentiary doctrine, rather than an independent cause of action.”  (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210 (citing Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1285-86)).  It can be applied to establish a breach of due care under a cause of action sounding in negligence.  (Id.)  If the negligence per se doctrine is applicable in this matter, it will be properly addressed as part of the standalone negligence cause of action.  The court at this stage need not address the validity of negligence per se because “a demurrer cannot rightfully be sustained to part of a cause of action.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047; Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained”].)  

Motion to Strike

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

II. Analysis 

Defendants move to strike various portions of the Complaint seeking or referencing punitive damages. (See Notice of Motion.) Defendants argue Plaintiffs have failed to plead specific facts to support an award of punitive damages. Plaintiffs filed an untimely opposition to the motion to strike on May 28, 2024. (CCP § 1005(b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing”].) The court exercises its discretion to consider the untimely opposition as it does not change the disposition of the motion.

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 

As defined in § 3294(c):

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. 

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

(3) “Fraud” means that a defendant intentionally misrepresented or concealed a material fact and did so intended to harm a plaintiff.

“When the defendant is a corporation, ‘[a]n award of punitive damages against a corporation ... must rest on the malice of the corporation's employees. But the law does not impute every employee's malice to the corporation.’ [Citation.] Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. (Civ.Code, § 3294, subd. (b).)” (Wilson v. S. California Edison Co. (2015) 234 Cal. App. 4th 123, 164.)

Here, as discussed more fully in the Ruling on the demurrer, Plaintiffs have not alleged facts entitling them to punitive damages. The allegations suggesting malice, oppression, or fraud are conclusory and unsupported by specific factual allegations. 

Accordingly, Defendants’ Motion to Strike is GRANTED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

 

Whether or not leave to amend is granted will depend upon the offer of proof made by Plaintiffs at the hearing which would demonstrate a reasonable possibility of a successful amendment, demonstrating specific facts that Defendants acted with recklessness, oppression, fraud, or malice.

IT IS SO ORDERED.

Dated:   June 7, 2024 ___________________________________