Judge: Randy Rhodes, Case: 21STCV08390, Date: 2022-12-06 Tentative Ruling
Case Number: 21STCV08390 Hearing Date: December 6, 2022 Dept: F51
Dept. F-51
Date: 12/6/22
Case #21STCV08390
DEMURRER WITH MOTION TO STRIKE
Demurrer with Motion to Strike Filed: 9/19/22
MOVING PARTY: Defendant David Hanpeter, M.D. (“Moving
Defendant”)
RESPONDING PARTY: Plaintiff Petros Jabakjuryan
(“Plaintiff”)
NOTICE: OK
RELIEF REQUESTED: Moving Defendant demurs to the
second cause of action in Plaintiff’s third amended complaint (“TAC”). Moving Defendant
moves to strike portions of the TAC relating to Plaintiff’s second cause of
action, punitive damages, and attorney fees related thereto.
TENTATIVE RULING: Moving
Defendant’s demurrer is SUSTAINED with 20 days leave to amend. Moving
Defendant’s motion to strike is therefore moot.
I.
BACKGROUND
Procedural
On 3/3/21, Plaintiff filed the original complaint, alleging
against 11 named defendants causes of action for: (1) Medical Negligence; (2) Dependent
Adult Abuse/Neglect; and (3) Loss of Consortium.
On 8/12/21, following a stipulation filed by the parties,
Plaintiff filed his first amended complaint (“FAC”) against the same 11 named
defendants, for (1) Medical Negligence and (2) Dependent Adult Abuse/Neglect.
On 2/2/22, after the Court sustained demurrers by two
defendants to Plaintiff’s second cause of action in the FAC with leave to amend,
Plaintiff filed his second amended complaint (“SAC”), alleging the same causes
of action against the same 11 named defendants.
On 6/28/22, the Court sustained Moving Defendant’s demurrer
to Plaintiff’s second cause of action in the FAC with leave to amend. On 7/18/22,
Plaintiff filed his TAC, alleging the same causes of action against the same 11
named defendants.
On 9/19/22, Defendant filed the
instant demurrer. On 9/20/22, Defendant filed his motion to strike. On 11/21/22,
Plaintiff filed his opposition. On 11/29/22, Defendant filed his reply.
Factual
This action arises out of the
medical care and treatment received by Plaintiff in and around 2/20/21.
Plaintiff alleges that after being in a car accident which resulted in a
fracture of his cervical spine and a fracture and dislocation of his thoracic
spine, he was transported by paramedics to Providence St. Joseph Medical
Center. Plaintiff alleges he was later transferred to Providence Holy Cross
Medical Center. Plaintiff alleges that he should have been sedated and other
measures should have been taken to stabilize his spine, but the named
defendants failed to do so. Plaintiff alleges that at some point, he moved
and/or was moved by hospital staff, and the movement allegedly pinched and
permanently damaged his spinal cord.
Plaintiff also alleges that
defendants, collectively, willfully failed to provide adequate care during his
hospitalization at Providence Holy Cross which resulted in the development of
urinary tract infections, sepsis, and pressure ulcers. Moving Defendant was
Plaintiff’s admitting and attending physician during his hospitalization. (TAC
¶ 9.) Plaintiff alleges that, as such, Moving Defendant examined him on a
daily/near daily basis, documented that he physically examined Plaintiff’s
body, wrote plans, and spoke with or should have spoken with Plaintiff’s other
care providers about changes that needed to be made to his care. (TAC ¶¶ 67–105.)
II.
DEMURRER
Meet-and-Confer
Before filing its demurrer, “the demurring party shall
meet and confer in person or by telephone with the party who filed the pleading
that is subject to demurrer for the purpose of determining whether an agreement
can be reached that would resolve the objections to be raised in the demurrer.”
(Code Civ. Proc. § 430.41, subd. (a).) If the parties are unable to meet and
confer at least five days before the responsive pleading is due, that deadline
may be extended by 30 days if “a declaration stating under penalty of perjury
that a good faith attempt to meet and confer was made and explaining the
reasons why the parties could not meet and confer” is filed and served. (Ibid.)
On 8/2/22, Moving Defendant’s counsel attempted to
contact Plaintiff’s counsel by telephone to discuss the issues raised in the
demurrer, but no contact was made. (Decl. of Joseph J. Looney, ¶ 8.) On
8/11/22, Moving Defendant’s counsel sent Plaintiff’s counsel a letter via email
detailing such issues, but “direct contact did not result.” (Ibid.) Therefore,
counsel has satisfied the preliminary meet and confer requirements of
Code of Civil Procedure section 430.41, subdivision (a).
Legal Standard
As a general matter, a party may respond to a
pleading against it by demurrer on the basis of any single or combination of
eight enumerated grounds, including that “the pleading does not state
facts sufficient to constitute a cause of action” and is uncertain, meaning
“ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and
(f)).
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 pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Ibid.) The
only issue a demurrer is concerned with is whether the complaint, as it stands,
states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.)
Here, Moving Defendant demurs to the
second cause of action alleged in Plaintiffs’ TAC under Code of Civil
Procedure section 430.10, subdivisions (e) and (f), arguing that (1) Plaintiff
fails to allege facts sufficient to state a cause of action
against Moving Defendant under Welfare & Institutions Code Section 15600,
et seq., and (2) Plaintiff’s second cause of action is uncertain.
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Analysis
Plaintiff alleges in his second cause of action that Moving
Defendant committed neglect and physical abuse in violation Welfare and
Institutions Code section 15600 et seq. (the Elder Abuse and Dependent Adult
Civil Protection Act, or the “Act”). (FAC ¶¶ 43–105.) The Act defines, in
relevant part, abuse of a dependent adult as either “(1) Physical abuse,
neglect, … or other treatment with resulting physical harm or pain or mental
suffering;” or “(2) The deprivation by a care custodian of goods or services
that are necessary to avoid physical harm or mental suffering.” (Welf. &
Inst. Code § 15610.07, subd. (a).)
A statutory cause of action such as Dependent Adult Abuse/Neglect
must be pled with particularity. (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 790; Intrieri v. Superior Court (2004) 117 Cal.App.4th
72, 82.) A plaintiff who can prove by clear and convincing evidence that (1)
the defendant is liable for physical abuse, neglect, or abandonment as defined by
the Act; and that (2) the defendant acted with “recklessness, oppression,
fraud, or malice in the commission of this abuse,” can recover heightened
remedies under the Act. (Welf. & Inst. Code § 15657; Winn v. Pioneer
Medical Group, Inc. (2016) 63 Cal.4th 148, 152.)
A. Failure to Allege Facts Sufficient to
State a Cause of Action
Custodial Relationship
Moving Defendant argues that he cannot be liable to
Plaintiff for dependent adult neglect because Plaintiff fails to allege the
existence of a caretaking or custodial relationship between the parties. (Dem.
7:19–20.) The definition of a “care custodian” under the Act includes administrators,
employees, and those who otherwise provide care and services to dependent
adults in facilities including hospitals. (Welf. & Inst. Code § 15610.17.)
For a healthcare provider to be liable for dependent adult neglect, the claim
requires a caretaking or custodial relationship wherein the defendant assumed
significant responsibility for attending to one or more of those basic needs of
the dependent adult that an able-bodied and fully competent adult would
ordinarily be capable of managing without assistance. (Winn, 63 Cal.4th
at 155, 158.)
Plaintiff alleges that he was “totally dependent on the
named Defendants and HOLY CROSS’s staff for all activities of daily living
("ADLs"), including bathing, grooming, hygiene, toileting, nutrition,
hydration, turning and repositioning, assessment, and protection from health
and safety hazards.” (TAC, ¶ 44.) The fact that Moving Defendant may qualify as
a “care custodian” under the Act does not necessarily mean that he had the type
of caretaking or custodial relationship with Plaintiff required to state a
claim dependent adult abuse based on neglect. (Welf. & Inst. Code §§
15610.17, 15610.57; Winn, 63 Cal.4th at 158.)
Moving Defendant argues that Plaintiff cannot show a
custodial relationship giving rise to a cause of action under the Act because
“the specialized physician services provided by [Moving Defendant] were not the
services of a custodial caretaker.” (Def.’s Reply, 4:27–28.) The Court agrees
with Moving Defendant that Plaintiff’s factual allegations against Moving
Defendant all describe professional medical services Moving Defendant provided
to Plaintiff as Plaintiff’s attending physician, which are separate from the attendance
to Plaintiff’s “basic needs.” (Def.’s Reply, 4:23–28, 6:18–20 (“the services
that [Moving Defendant] provided as a physician were not the services that an
able-bodied person would be able to provide for himself.”))
Plaintiff’s allegations against Moving Defendant claim
that the medical care he received from Moving Defendant fell below an
acceptable standard of care, as well as established hospital policies and
procedures. (TAC ¶¶ 79–105.) Essentially, “Plaintiff alleges that [Moving
Defendant] neglected and abused him by failing to provide him with timely and
appropriate medical assessments and care.” (Dem. 22:20–21.) As Moving Defendant
observes, these allegations against him more appropriately support a cause of
action for professional negligence, which is alleged in Plaintiff’s first cause
of action. (Id., 18:13–23:2.)
Neglect
The Act defines “neglect” as “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.” (Welf. & Inst. Code § 15610.57, subd. (a).) “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.’” (Covenant Care, 32 Cal.4th at 783.) Under
the Act, neglect “speaks not of the undertaking of medical services, but of the
failure to provide medical care.” (Ibid.; Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.)
Here, as the Court found in sustaining Moving Defendant’s
previous demurrer to Plaintiff’s SAC, the facts alleged in the TAC “against Dr.
Hanpeter concern the alleged deficient care and treatment provided by Dr.
Hanpeter to Plaintiff and the choices of care Dr. Hanpeter made, rather than
the systematic and deliberate withholding of care, required to state a claim
for dependent adult abuse.” (6/28/22 Minute Order; TAC ¶¶ 67–105.) As set forth
above, Moving Defendant was not responsible for Plaintiff’s “basic needs,” but
his medical needs that may only be provided by a qualified medical
professional. Accordingly, the Court finds that Plaintiff has not sufficiently pled
that Moving Defendant violated the “neglect” prong of the Act.
Physical Abuse
Examples of “physical abuse” under
the Act include assault, battery, sexual assault, and “unreasonable physical
constraint, or prolonged or continual deprivation of food or water.” (Welf. & Inst. Code § 15610.63.)
Plaintiff alleges that Moving Defendant physically abused him by failing to
update Plaintiff’s medical care plan concerning malnutrition and dehydration,
and by unreasonably ordering Plaintiff to be kept in physical restraints for
more than one week. (TAC ¶¶ 101–102, 105.) Plaintiff argues that his physical
constraint “was unreasonable because there were other, more reasonable methods
[including sedation] available and because Dr. Hanpeter ordered the use of physical
restraints rather than treating the root cause of the problem requiring the
restraints in the first place (delirium, agitation and pain).” (Id., ¶
105.)
The Court agrees with Moving
Defendant that these allegations are more appropriately characterized as Moving
Defendant’s failure to provide appropriate medical care as Plaintiff’s
attending physician, in support of Plaintiff’s Medical Negligence cause of
action. (Def.’s Reply, 9:5–8.) Moreover, as Moving Defendant observes,
Plaintiff alleges only that Moving Defendant improperly wrote medical orders,
which does not amount to the direct and egregious physical abuse described by
the Act. (Id., 8:28–9:8.) Accordingly,
the Court finds that Plaintiff has not sufficiently pled that Moving Defendant
violated the “physical abuse” prong of the Act.
Concealment
Plaintiff argues that Moving Defendant’s alleged
concealment of Plaintiff’s deteriorating medical condition from Plaintiff and
his family gives rise to liability under the Act. (Pl.’s Opp., 10:19–11:26.)
The Act instead requires “mandated reporters,” which include care custodians
and health practitioners caring for dependent adults, to report suspected
violations of the Act to local law enforcement agencies. (Welf. & Inst.
Code § 15610.63.)
While Moving Defendant qualifies as
a “mandated reporter” under the Act, Plaintiff cannot allege that Moving
Defendant violated his reporting requirements because Plaintiff fails to allege
that Moving Defendant had knowledge of any violations of the Act by any parties.
In the event that Plaintiff is referring to Moving Defendant’s own alleged
violations of the Act, Plaintiff’s reasoning is flawed because, as set forth
above, he has failed to allege facts to sufficiently support this cause of
action as against Moving Defendant. Therefore, Plaintiff’s argument on this
ground fails.
Accordingly, Moving Defendant’s
demurrer to Plaintiff’s second cause of action for Dependent Adult
Abuse/Neglect under Welfare and
Institutions Code section 15600 et seq. thereto is sustained because Plaintiff
fails to allege facts sufficient to support this cause of action.
B. Uncertainty
Generally speaking, “demurrers for uncertainty are
disfavored and thus are strictly construed because ambiguities can reasonably
be clarified under modern rules of discovery. Such demurrers are granted only
if the pleading is so incomprehensible that defendant cannot reasonably
respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual
allegations sufficiently apprising defendant of the issues it is being asked to
meet, a demurrer for uncertainty should be overruled or plaintiff given leave
to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d
135, 139 fn.2.)
Here, Moving Defendant argues that Plaintiff’s TAC is uncertain
pursuant to Code of Civil Procedure section 430.10, subdivision (f) because
Plaintiff is unclear as to which
defendant committed the alleged acts giving rise to his second cause of action.
(Dem. 15:10–23.) Moving Defendant further argues that Plaintiff’s factual
allegations against him are overly broad and conclusory in nature. (Dem.
17:3–5.) Plaintiff argues in opposition that his allegations need not be specific
as to each defendant’s conduct, particularly where “many of the specific facts
about [Plaintiff’s] care and treatment are presumably within the sole knowledge
and possession of the defendants.” (Pl.’s Opp., 12:12–14.)
In applying the stringent standard for demurrers filed on
this ground, the Court agrees with Plaintiff and finds that the ambiguities
alleged by Moving Defendant are not “so incomprehensible” that he cannot
respond. Accordingly, the demurrer is overruled on this ground.
C. Leave to Amend
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Id.; Lewis v.
YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any
reasonable possibility that the plaintiff can state a good cause of action, it
is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
Here, as Moving Defendant observes, the Court previously
sustained numerous demurrers to Plaintiff’s cause of action for Dependent Adult
Abuse/Neglect as against three different physicians, including Moving
Defendant. (1/13/22, 5/9/22, 5/11/22, and 6/28/22 Minute Orders.) As such,
Plaintiff has been afforded two opportunities to amend his complaint to cure
the defects discussed by the Court therein. (Ibid.)
The Court notes that Plaintiff was able to amend his SAC
to add 41 paragraphs worth of additional factual allegations after the Court
sustained the most recent demurrer. Therefore, Plaintiff has demonstrated a
“reasonable possibility” that he may further amend his Complaint successfully
to state a cause of action for Dependent Adult Abuse/Neglect.
Accordingly, under the Court’s liberal policy of granting
leave to amend, the Court grants Plaintiff 20 days leave to amend.
III.
MOTION TO STRIKE
Because the motion to strike
concerns Plaintiff’s second cause of action and prayers for relief related
thereto, it is moot based on the ruling on the demurrer.
CONCLUSION
Moving Defendant’s demurrer is
SUSTAINED with 20 days leave to amend. Moving Defendant’s motion to strike is
therefore moot.