MOVING PARTIES: Defendant DP Care, Inc. dba Case Valle 

RESPONDING PARTY: Plaintiffs Jamshid Nazarian, deceased, by and through his personal/legal representative, Carineh Nazarian; Carineh Nazarian, individually; and Gohar Nazarian, individually. 

Defendant DP Care, Inc. dba Case Valle’s Demurrer to Plaintiffs’ First Amended Complaint 

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.  

BACKGROUND 

This is an elder abuse case. On August 22, 2023, plaintiffs Jamshid Nazarian (Decedent), deceased, by and through his personal/legal representative, Carineh Nazarian; Carineh Nazarian, individually; and Gohar Nazarian, individually (collectively, Plaintiffs), filed this action against defendant DP Care, Inc. d/b/a Case Valle (Defendant) and Does 1 through 100, alleging causes of action for elder abuse, negligence, and wrongful death. After the court sustained Defendant’s demurrer to the original complaint, Plaintiffs filed the operative First Amended Complaint (FAC) on January 4, 2024 against Defendant and Does 1 through 100, alleging cause of action  for elder abuse, negligence, wrongful death, medical battery, and false imprisonment. 

On February 5, 2024, Defendant demurred to the First, Fourth, and Fifth Causes of Action in the FAC, and moved to strike Plaintiffs’ requests for punitive damages and attorney fees. On March 15, 2024, Plaintiffs opposed the demurrer and motion to strike. On March 19, 2024, Defendant filed a reply to both oppositions. 

REQUEST FOR JUDICIAL NOTICE 

The court GRANTS Defendant’s request for judicial notice, (Evid. Code, § 452, subd. (d)) but takes judicial notice only as to the existence, content, and authenticity of such documents and does not take judicial notice of the truth of the factual matters asserted therein. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.) 

LEGAL STANDARD – Demurrer 

A demurrer is a pleading used to test the legal sufficiency of other pleadings.¿It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).¿(Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.¿(Id.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.)¿No other extrinsic evidence can be considered.¿(Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.)¿The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]) 

DISCUSSION – Demurrer 

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer in person or by telephone with Plaintiffs regarding the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The court finds Defendant’s meet-and-confer efforts were not conducted in person or by telephone. (Asiryan Decl., ¶¶ 2-3.) Nevertheless, the court will still consider the demurrer, but admonishes Defendant to comply with the meet and confer requirements in the future. 

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (the Act). (Welf. & Inst. Code § 15600 et seq.) 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.” (Welf. & Inst. Code, § 15610.57.) Neglect under the Act “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. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89, quotation marks and citation omitted, italics in original.) The Act defines “physical abuse” as, among other things, “[u]nreasonable physical constraint, or prolonged or continual deprivation of food or water.” (Welf. & Inst. Code, § 15610.63, subd. (d).)  

Several factors “must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, quotation marks and internal citations omitted.) 

Defendant demurs to the First Cause of Action for elder abuse on the grounds that the FAC fails to allege facts sufficient to constitute a cause of action. Defendant contends Plaintiffs failed to plead facts amounting to egregious abuse or neglect, arguing that the FAC contains vague and unclear allegations and is otherwise unclear as to how Plaintiff specifically caused Decedent’s injuries and his alleged fall and skin damages.  Defendant contends the FAC fails to plead facts sufficient to meet and heightened pleading standard for an elder abuse claim, and that it fails to allege how Defendant’s staff intentionally and recklessly neglected Decedent or how their alleged misconduct caused his alleged injuries. 

The FAC includes three paragraphs alleging that Defendant tied Decedent’s hands to his bed for ten days straight as punishment and without legal authority and that this act was performed without Decedent’s consent or a physician’s order, and constitutes a pattern of physical and emotional abuse that was malicious and done in disregard to Decedent’s safety and well-being.  Plaintiffs further allege that the patter of restraint resulted in Decedent developing sores, bruising, and suffering emotionally. (Id.) The court finds these allegations to be sufficient to demonstrate physical abuse by an unreasonable physical constraint. (Welf. & Inst. Code, § 15610.63, subd. (d).)  

Plaintiffs also allege that they complained to Defendant’s staff, namely Lila, the Director of Nursing, about Decedent’s hands being tied to his bed, and that Defendant purportedly said it had the right to constrain Decedent. (FAC, ¶ 24.) The court finds these allegations sufficiently particular. (See Carter, supra, 198 Cal.App.4th at pp. 406-407.) 

Accordingly, the Court OVERRULES the demurrer to the First Cause of Action. 

Following the sustaining of a demurrer to a complaint, the plaintiff may not add a new cause of action to the amended complaint unless it directly responds to the court’s reasoning for sustaining the earlier demurrer. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) 

Defendant demurs to the Third and Fourth Causes of Action of the FAC for medical battery and false imprisonment, respectively, on the grounds that they exceed the scope of the court’s prior order on December 18, 2023, which sustained Defendant’s demurrer to the First Cause of Action for elder abuse with leave to amend. (Request for Judicial Notice, Ex. A.) Defendant contends Plaintiffs were required to obtain leave of court before adding these causes of action. 

 In opposition, Plaintiffs contend the new causes of action are within the scope of the court’s prior order, as they relate to Defendant’s alleged abuse of Decedent.  The court’s prior order permitted Plaintiffs to file an amended complaint correcting defects in their elder abuse claim. (Request for Judicial Notice, Ex. A.) The new causes of action do not directly respond to the court’s reasoning for sustaining the earlier demurrer. (Patrick, supra, 167 Cal.App.4th at p. 1015.) The court sustained the demurrer because the original complaint did not allege specific facts showing how the incidents in question occurred and whether they were the result of intentional, reckless, and/or egregious behavior. (Request for Judicial Notice, Ex. A.) 

The proper procedure for addressing improperly added causes of action following the sustaining of a demurrer is a motion to strike rather than a demurrer. (See Code Civ. Proc., § 436, subd. (b); A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A, italics in original [“Absent prior leave of court, an amended complaint raising totally new and different causes of action may be subject to a motion to strike under CCP § 436(b).”])  On its own motion the court strikes the Third and Fourth Causes of Action from the FAC without leave to amend. (Code Civ. Proc., § 436, subd. (b).) 

 DISCUSSION – Motion to Strike 

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.) 

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice.” (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) The Act permits recovery of attorney fees and punitive damages, but the standards set forth in subdivision (b) of section 3294 of the Civil Code must first be satisfied before they can be awarded. (Welf. & Inst. Code, § 15657, subds. (a), (c).) 

Defendant contends Plaintiffs’ requests for attorney fees and punitive damages must be stricken from the FAC because it fails to allege facts sufficient to support claims for punitive damages. Defendant contends Plaintiffs have not alleged sufficient facts demonstrating that Defendant acted with recklessness, oppression, fraud, or malice.  The Court disagrees. The FAC alleges clearly that Decedent’s hands were tied to his bed for approximately ten days, which led to Decedent developing pressure sores, bruising, and emotional suffering. (FAC, ¶¶ 22-25.) The FAC further alleges that Plaintiffs informed Defendant’s Director of Nursing about the results and that no action was taken. (FAC, ¶ 24.) The Court finds these allegations sufficient to demonstrate Defendant having acted with malice, recklessness, or oppression for purposes of a punitive damages claim and request for attorney fees. (See Welf. & Inst. Code, § 15657, subd. (c); Civ. Code, § 3294, subd. (b).)