Judge Randy Rhodes, Case 21STCV08390 2023-04-17 Tentative Ruling

RELIEF REQUESTED: Moving Defendant demurs to the second cause of action in Plaintiff’s fourth amended complaint (“4AC”). Moving Defendant moves to strike portions of the 4AC relating to Plaintiff’s second cause of action, punitive damages, and attorney fees related thereto.

TENTATIVE RULING: Moving Defendant’s demurrer is overruled. Moving Defendant’s motion to strike is denied. Moving Defendant shall file and serve his answer to Plaintiff’s fourth amended complaint within 30 days.

Moving Defendant is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

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 (“Holy Cross”). 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 Holy Cross, resulting in his development of urinary tract infections, sepsis, and pressure ulcers. Moving Defendant was, at all relevant times, a licensed surgeon and the Medical Director of the Holy Cross Inpatient and Outpatient Rehabilitation Unit, and provided care to Plaintiff during his hospitalization. (4AC ¶¶ 32–34.) Plaintiff alleges that, as such, Moving Defendant reviewed Plaintiff’s medical chart and documented Plaintiff’s risks, problems, treatment options, and his plan of care. (4AC ¶ 155.)

On 3/3/21, Plaintiff filed his 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 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 for (1) Medical Negligence and (2) Dependent Adult Abuse/Neglect against the same defendants.

On 6/28/22, the Court sustained a demurrer to Plaintiff’s second cause of action in the FAC with leave to amend. On 7/18/22, Plaintiff filed his third amended complaint (“TAC”), alleging the same causes of action for (1) Medical Negligence and (2) Dependent Adult Abuse/Neglect against the same defendants.

On 12/6/22, the Court sustained a demurrer to Plaintiff’s TAC with leave to amend. On 12/27/22, Plaintiff filed his 4AC, alleging the same causes of action for (1) Medical Negligence and (2) Dependent Adult Abuse/Neglect against the same defendants.

On 1/30/23, Moving Defendant filed the instant demurrer with motion to strike. On 3/23/23, Plaintiff filed his opposition thereto. On 3/28/23, Moving Defendant filed his reply.

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).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendant’s counsel declares that on 1/24/23, she sent Plaintiff’s counsel an email in an attempt to meet and confer about the issues raised in the instant demurrer and motion to strike, but received no response. (Decl. of Rebecca G. Goldstein, ¶ 3.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

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 Plaintiff’s¿4AC 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 for Dependent Adult Abuse/Neglect against Moving Defendant,¿and (2) Plaintiff’s second cause of action is uncertain.

Plaintiff alleges in his second cause of action that Defendants, including Moving Defendant, committed neglect and physical abuse against him in violation Welfare and Institutions Code section 15600 et seq. (the Elder Abuse and Dependent Adult Civil Protection Act, or the “Act”). (4AC ¶¶ 65–204.) 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.)

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. 7:16–25.) 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 v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155, 158.)

In his 4AC, Plaintiff alleges that he was “totally dependent on the named Defendants and HOLY CROSS’s staff for all activities of daily living ("ADLs"), and to devise a care plan to meet his individualized needs and implement a care plane to provide for these conditions and to protect him from health and safety hazards.” (4AC, ¶ 71.)

Moving Defendant argues that Plaintiff cannot show a custodial relationship giving rise to a cause of action under the Act because all of Plaintiff’s allegations against him describe “physician care, involving medical decision-making. It was not custodial caretaking; it was not dependent adult abuse.” (8:2–3 [emphasis in original].)

While the Court generally agrees with Moving Defendant that Plaintiff’s factual allegations against Moving Defendant describing the professional medical services Moving Defendant directly provided to Plaintiff as his treating physician do not give rise to a finding of custodial caretaking, Plaintiff has also alleged claims against Moving Defendant in his capacity as a medical director/hospital administrator. (4AC ¶¶ 162–165.)

As Plaintiff observes, Moving Defendant’s role as the Medical Director of the Holy Cross Inpatient and Outpatient Rehabilitation Unit makes him a “care custodian” as defined by the Act. (Welf. & Inst. Code § 15610.17.) The Court notes that Moving Defendant does not address this argument in his reply papers. Therefore, the Court finds that Plaintiff has sufficiently alleged that Moving Defendant is a care custodian giving rise to liability under the Act.

Plaintiff may therefore maintain a cause of action against Moving Defendant for a violation of the Act by alleging facts relating to “the deprivation … of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code § 15610.07, subd. (a)(2).) The Court finds that Plaintiff has sufficiently alleged facts thereto in paragraphs 156 through 167 of the 4AC, which allege, inter alia, that Moving Defendant “had advance knowledge of the unfitness of the persons providing care to Mr. Jabakjuryan and employed them with a conscious disregard of the rights and safety of others, authorized or ratified the wrongful conduct.” (4AC ¶ 164.)

Based on the foregoing, the Court finds that Plaintiff has sufficiently alleged facts to support a cause of action against Moving Defendant for Dependent Adult Abuse/Neglect under Welfare and Institutions Code section 15610.07, subdivision (a)(2). Accordingly, the demurrer is overruled on this basis. The Court notes the parties’ arguments regarding such issues as concealment and physical abuse, but declines to reach those issues based on its above finding in favor of Plaintiff.

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.)

In applying the stringent standard for demurrers filed on this ground, the Court finds that Plaintiff’s complaint is not “so incomprehensible” that Moving Defendant cannot respond, especially given the extensive analyses Moving Defendant has offered in attacking the pleading. Even where a complaint is in some respects uncertain, ambiguities can be clarified under modern discovery procedures. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Accordingly, the demurrer is overruled on this basis.

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) The parties are required to meet and confer at least five days before the date a motion to strike must be filed, otherwise the moving party is granted a 30-day extension to file the motion. (Ibid.)

Here, as previously mentioned, Moving Defendant’s counsel declares that on 1/24/23, she sent Plaintiff’s counsel an email in an attempt to meet and confer about the issues raised in the instant demurrer and motion to strike, but received no response. (Goldstein Decl., ¶ 3.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 435.5, subdivision (a).

While Moving Defendant moves to strike the entirety of Plaintiff’s second cause of action, the Court notes that he has made no substantive argument thereto in his motion to strike. To the extent that Moving Defendant seeks to strike Plaintiff’s second cause of action for the reasons set forth in his demurrer, the motion is denied as the Court overrules the instant demurrer.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” (Code Civ. Proc. § 425.13.) Here, the parties disagree as to whether Code of Civil Procedure section 425.13 applies, thereby requiring Plaintiff to separately move for punitive damages.

Moving Defendant argues that “plaintiff’s allegations clearly arise out of the medical care and treatment rendered by” Moving Defendant, so section 425.13 applies and Plaintiff must therefore seek leave of court to recover punitive damages, which he has not done. (Mot. to Strike 8:1–6.) In opposition, Plaintiff argues that he “has alleged a claim under the Dependent Adult Abuse Act against Lupo, and because the conduct alleged is not contemplated by MICRA, Jabakjuryan is not required to comply with section 425.13 before seeking punitive damages.” (Pl.’s Opp. to MTS, 8:13–15.)

The Court agrees with Plaintiff that his allegations against Moving Defendant under the Act may give rise to the recovery of punitive damages separate from his allegations against Moving Defendant for professional medical negligence.[1] As such, the Court finds that Code of Civil Procedure section 425.13 does not apply, and leave of court is not required for Plaintiff to seek the recovery of punitive damages.

Under the Act, 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. (Welf. & Inst. Code § 15657; Winn, 63 Cal.4th at 152.) The Court notes that Moving Defendant does not address Plaintiff’s argument that his prayer for punitive damages is properly derived from his valid cause of action against Moving Defendant for a violation of the Act.

Plaintiff alleges in his 4AC that Moving Defendant, in his capacity as a hospital administrator, was responsible for overseeing all patient care and acting to remedy any substandard patient care, but violated his duties under the Act when he, inter alia, “failed to ensure that Mr. Jabakjuryan received the care he required from the Wound Care team in that he allowed Dr. Hanpeter to continue to care for the HAPI despite the fact that doing so violated PROVIDENCE's Wound Care Policies and Procedures; he knew that Dr. Hanpeter was not a member of the Wound Care team and was unqualified to provide appropriate care; and the wound was worsening. During that time, as well, Dr. Lupo deprived Mr. Jabakjuryan of necessary care when he failed to take steps to ensure that Mr. Jabakjuryan received care necessary to correct his malnutrition and dehydration and these conditions worsened.” (4AC ¶ 156.)

The Court finds that the conduct alleged by Plaintiff may reasonably be considered malicious or oppressive, in “conscious disregard for” Plaintiff’s rights or safety. (Turman, 191 Cal.App.4th at 63.) Based on the foregoing, the Court finds that Plaintiff has sufficiently alleged facts to support his prayer for punitive damages against Moving Defendant under the Act. Accordingly, the motion to strike Plaintiff’s prayer for punitive damages is denied.

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, while Moving Defendant moves to strike Plaintiff’s prayer for attorney fees, the Court notes that he has made no substantive argument thereto in his motion to strike.

As Plaintiff observes, the Act authorizes a plaintiff who proves that a defendant is liable for physical abuse, neglect, or abandonment, and “has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse,” to recover reasonable attorney's fees and costs. (Welf. & Inst. Code § 15657, subd. (a).) As the Court finds that Plaintiff has sufficiently alleged a violation of the Act against Moving Defendant, in addition to oppressive or malicious conduct, Plaintiff is thereby entitled to seek recovery of reasonable attorney fees and costs. Accordingly, the motion to strike Plaintiff’s prayer for attorney fees is denied.

Moving Defendant’s demurrer is overruled. Moving Defendant’s motion to strike is denied. Moving Defendant shall file and serve his answer to Plaintiff’s fourth amended complaint within 30 days.

[1] Plaintiff’s first cause of action alleges against Defendants medical negligence. Moving Defendant does not demur nor move to strike any portion of Plaintiff’s first cause of action.