Judge: Robert B. Broadbelt, Case: 22STCV29914, Date: 2023-10-24 Tentative Ruling

Case Number: 22STCV29914    Hearing Date: October 24, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals (erroneously sued as Kaiser Permanente Panorama City Medical Center and Kaiser Permanente Palmdale Medical Center), and Southern California Permanente Medical Group

RESPONDING PARTY:       Plaintiff Fernando Lara

(1)   Demurrer to First Amended Complaint

(2)   Motion to Strike Portions of First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer.  The court considered the moving and opposition papers filed in connection with the motion to strike.  No reply papers were filed as to the motion to strike.

BACKGROUND

Plaintiff Fernando Lara (“Plaintiff”) filed the operative First Amended Complaint in this action on March 24, 2023, against defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Kaiser Permanente Panorama City Medical Center, and Kaiser Permanente Palmdale Medical Center (“Defendants”), alleging three causes of action for (1) professional negligence, (2) dependent adult abuse, and (3) fraud and concealment.

Defendants now move the court for an order (1) sustaining their demurrer to the First Amended Complaint, and (2) striking from the First Amended Complaint Plaintiff’s requests for attorney’s fees and punitive damages and the related allegations.

DEMURRER

The court sustains Defendants’ demurrer to the First Amended Complaint because the allegations indicate that Plaintiff does not have legal capacity to sue since (1) if a person who lacks legal capacity to make decisions is a party to an action, “that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case[,]” (2) Plaintiff alleges that he is an incompetent adult due to congenital disorders, and further alleges that he, as a person “who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age[,]” is a “dependent adult” as defined by statute, and (3) Plaintiff appears to concede that he lacks legal capacity to make decisions and requires a guardian ad litem by stating, in his opposition, that “this is easily cured by filing a Guardian Ad Litem, which Plaintiff is willing to complete.”  (Code Civ. Proc., §§ 430.10, subd. (b), 372, subd. (a); FAC ¶¶ 1-2; Welf. & Inst. Code, § 15610, subd. (a) [defining dependent adult].)

The court sustains Defendants’ demurrer to the second cause of action for dependent adult abuse/neglect because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts establishing, with the requisite particularity, that Defendants “denied or withheld goods or services necessary to meet [Plaintiff’s] basic needs, either with knowledge that injury was substantially certain to befall [Plaintiff][,]” in order to allege oppression, fraud, or malice, “or with conscious disregard of the high probability of such injury” in order to allege recklessness.  (Code Civ. Proc., § 430.10, subd. (e); Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 [discussing elements to allege neglect within the meaning of the Elder Abuse Act], 407 [“the 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”].)

The court sustains Defendants’ demurrer to the third cause of action for fraud and concealment on the ground of uncertainty because it is ambiguous and unintelligible since Plaintiff appears to plead two theories of fraud (i.e., intentional misrepresentation and concealment) in one cause of action, and instead should plead those claims separately.  (Code Civ. Proc., § 430.10, subd. (f); FAC ¶¶ 68 [Plaintiff relied on the representation that Defendants could provide Plaintiff with adequate care], 69-70 [Defendants concealed from Plaintiff their inadequate staffing and underfunding].)

MOTION TO STRIKE

Defendants request that the court strike Plaintiff’s prayers for attorney’s fees and punitive damages and the related allegations from the First Amended Complaint.

The court grants Defendants’ motion to strike Plaintiff’s prayer for punitive damages because (1) the allegations of malice, fraud, recklessness, and oppression, and the requests for punitive damages set forth in paragraphs 51-52, 55, 61-63, and 83-84 are included within the second and third causes of action, to which the court has sustained Defendants’ demurrer and therefore those allegations are removed from the First Amended Complaint, and (2) Plaintiff has not pleaded facts establishing that Defendants are guilty of oppression, fraud, or malice in connection with the remaining cause of action for professional negligence.  (Civ. Code, § 3294, subd. (a).)

The court grants Defendants’ motion to strike Plaintiff’s prayer for attorneys’ fees pursuant to Welfare and Institutions Code section 15657 because the court has sustained Defendants’ demurrer to the sole cause of action alleged under the Elder Abuse Act and therefore Plaintiff cannot recover attorneys’ fees under that statute.

ORDER

The court sustains defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals (erroneously sued as Kaiser Permanente Panorama City Medical Center and Kaiser Permanente Palmdale Medical Center), and Southern California Permanente Medical Group’s demurrer to plaintiff Fernando Lara’s First Amended Complaint.

The court grants defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals (erroneously sued as Kaiser Permanente Panorama City Medical Center and Kaiser Permanente Palmdale Medical Center), and Southern California Permanente Medical Group’s motion to strike portions of plaintiff Fernando Lara’s First Amended Complaint.

The court grants plaintiff Fernando Lara 20 days leave to file a Second Amended Complaint that cures the deficiencies set forth above.

The court orders defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals (erroneously sued as Kaiser Permanente Panorama City Medical Center and Kaiser Permanente Palmdale Medical Center), and Southern California Permanente Medical Group to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 24, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court