Judge: Richard Y. Lee, Case: 22-01253301, Date: 2022-08-22 Tentative Ruling

Demurrer

Defendant Jorge A. Rivero, M.D.’s Demurrer to the First, Second and Fourth Causes of Action is SUSTAINED with twenty one (21) days leave to amend. 

First Cause of Action for Elder Abuse

The Elder Abuse Act “does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult's relationship with the defendant—not the defendant's professional standing—that makes the defendant potentially liable for neglect.” Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (emphasis added). 

Further, “statutory causes of action must be pleaded with particularity.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

The Complaint alleges in general and conclusory terms “[t]hat Defendants had a substantial caretaking or custodial relationship with Plaintiff, involving ongoing responsibility for his basic needs, which an able-bodies and fully competent adult would ordinarily be capable of managing without assistance. . . .” (Paragraph 75, page 17, lines 16-19; see CACI 3103.)

However, the Complaint did not allege specific facts that Dr. Rivero was in a “substantial caretaking or custodial relationship” with the decedent. Merely alleging that Dr. Rivero was decedent’s primary doctor does not satisfy the pleading requirement. Plaintiff’s lumping of Dr. Rivero in with other defendants who had custodial responsibility does not state an elder abuse cause of action against Dr. Rivero.

Second Cause of Action for Negligence

Plaintiffs stipulated that the negligence cause of action had not been properly pleaded, but requested an opportunity to amend the Complaint. The court will therefore sustain the demurrer with leave to amend.

Fourth Cause of Action for Willful Misconduct

Willful misconduct is not a separate tort from negligence, but rather “‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.)

Further, in order to establish the willful misconduct form of negligence, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Id. at p. 528; Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140.)

Thus, the willful misconduct cause of action is therefore duplicative of the negligence cause of action.

In addition, Plaintiff failed to allege the elements of the willful misconduct theory, including “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Berkley v. Dowds, supra, 152 Cal.App.4th at p. 526; Doe vs. United States Soccer Assn., Inc., supra, 8 Cal.App.5th at p. 1140.)

Motion to Strike

Defendant Jorge A. Rivero, M.D.’s Motion to Strike is GRANTED as to Request to Strike Numbers 1, 2, 6, 7, 11, 12, and 13 with twenty one (21) days leave to amend.  The Motion to Strike is DENIED as moot as to Request to Strike Numbers 3, 4, 5, 8, 9, and 10.

Plaintiff stipulates to Defendant’s Requests to Strike Numbers 1, 2, 6, 7 and 13.

The Demurrer was sustained as to the First, Second and Fourth Causes of Action. 

Request to Strike Numbers 3, 4 & 5 relate to allegations contained in the First Cause of Action and Request to Strike Numbers 8, 9 & 10 relate to allegations contained in the Fourth Cause of Action.

The enhanced remedies for Elder Abuse are not viable as to Dr. Rivero and Code of Civil Procedure section 425.13 bars punitive damages absent a court order.  Therefore, Request to Strike Numbers 11 & 12 are well founded.

Defendant shall give notice of this ruling.