Judge: Shirley K. Watkins, Case: 21STCV26166, Date: 2022-09-19 Tentative Ruling

Case Number: 21STCV26166    Hearing Date: September 19, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendant Normandie/Wilshire Retirement Hotel Inc.’s Demurrer to the First Amended Complaint is SUSTAINED WITH 20 DAY LEAVE TO AMEND as to the first, fourth and fifth causes of action; SUSTAINED WITHOUT LEAVE TO AMEND as to the third cause of action; and OVERRULED as to the sixth and seventh causes of action.

Defendant Normandie/Wilshire Retirement Hotel Inc.’s Motion to Strike is GRANTED WITH 20 DAYS LEAVE TO AMEND.

            Defendant Normandie/Wilshire Retirement Hotel Inc.’s Request for Judicial Notice is GRANTED as to the existence of the license but not as to any hearsay or disputed facts within the license.

Introduction

Defendant Normandie/Wilshire Retirement Hotel Inc. (Defendant) demurs to Plaintiff Marilyn Tarroza (Tarroza) and Plaintiff Estela Echerarria (Echerarria) (collectively Plaintiffs) First Amended Complaint (FAC.)  Defendant demurs to Echerarria’s first and third through sixth causes of action (COA) and also demurs to Tarroza’s seventh COA.  Defendant also moves to strike Plaintiffs’ request for punitive damages.

            Discussion 

            Defendant asserts that Echerarria’s first COA for elder abuse fails to allege specific facts to allege recklessness, oppression, fraud or malice.  Plaintiff’s allegation that Defendant “allowed” Echerarria:  to suffer an untreated black eye; to suffer an assault resulting in bruises, to lay on a urine-soaked mattress, half clothed in men’s clothing; to develop bed sores; and to be taken off a prescribed course of physical therapy.  (FAC pars. 13, 25.)  With the use of “allowed,” the inference is that Defendant had knowledge of the alleged misconduct and permitted it to happen.  However, an inference is not sufficient to allege specific facts.  Echerarria argues that the specific facts are within the knowledge of Defendant and the specific fact pleading requirement is relaxed.  However, there is no legal authority provided to support Echerarria’s contention.  Echerarria’s citation to Delaney v. Baker (1999) 20 Cal.4th 23 (Delaney) is unavailing because Delaney does not make any reference to a relaxing of the specific fact pleading requirement for elder abuse.  Without legal authority, there is insufficient showing that the specific fact pleading can be eased when the knowledge of the misconduct is within Defendant’s possession.  Without specific facts, the allegations supporting elder abuse is conclusory and insufficient.

            Defendant also argues insufficient facts to allege elder abuse against a corporate employer because there are no facts to show that an officer, director, or managing agent engaged in the egregious abuse, or authorized or ratified the egregious abuse.  (Welf. & Inst. Code sec.15657(c); Civ. Code sec. 3294.)  As stated above, with the allegation of “allowed,” there is an inference that Defendant permitted (i.e., authorized or ratified) the misconduct.  However, there are no specific facts to support the contention and no specific facts to show that the authorization/ratification was on the part of an officer, director, or managing agent.  The COA is defectively pled as to a corporate employer.

            The demurrer to the first COA is SUSTAINED WITH LEAVE TO AMEND. 

The third COA for negligent infliction of emotional distress (NIED) is duplicative of the second COA for negligence because NIED is not a separate legal theory when based upon the same facts or theory as a negligence COA. 

The demurrer to the third COA is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant argues that Echerarria’s fourth COA for negligent misrepresentation and fifth COA for intentional misrepresentation lack specific and particular facts.  Echerarria alleges several different representations regarding Echerarria’s care and safety and Defendant’s staffing levels.  (FAC pars. 54 and 61.)  However, Echerarria’s allegations fail to allege facts showing how, when, where, to whom and by what means the representations were tendered.  Further, the alleged representations do not sufficiently allege past or then-existing facts.  Without more facts, the alleged representations could be seen as statements related to future events and/or opinion (i.e., care to be given.)  The allegations of knowledge of the falsity lack specific fact pleading because there are no facts to show how Defendant knew of the falsity (FAC pars. 62 and 69.)  Specifically as to intentional misrepresentation and the element of intent to deceive, the allegation that Defendant placed profit over the care and safety of Echerarria is sufficient fact pleading to show intent.  (FAC par. 71.) 

Echerarria’s opposition does not present argument against the demurrer arguments but merely cites to the FAC’s relevant paragraphs to argue the COAs are sufficiently pled.  Echerarria’s purported argument is insufficient to persuade the Court that the two COAs are sufficiently pled.

Because Defendant is a corporate entity, to plead fraud against a corporation requires specific facts to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they speak, what they said or wrote, and when it was said or written.  None of these pleading requirements are met in the FAC.

The demurrer to the fourth and fifth COAs is SUSTAINED WITH LEAVE TO AMEND.

Defendant argues that Echerarria’s sixth COA for willful misconduct is not a recognized COA.  However, the United States District Court case cited by Defendant is not binding authority upon this Court.  Further, the District Court’s Order expressly found that the California Supreme Court declined to resolve the question of whether willful misconduct is or is not a recognized COA.  The District Court cited to Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1164.  Without binding authority to support Defendant’s contention that the claim is not a recognized COA, the Court finds that Defendant has not met their initial burden on the demurrer.

The demurrer to the sixth COA is OVERRULED.  

Defendant argues that Tarroza’s seventh COA for NIED fails to allege sufficient facts as to direct victim or bystander theories.  At issue under bystander theory is whether Tarroza can plead facts to show presence at the injury-producing event and awareness that the event caused injury to her mother.  The preliminary issue as to this pleading element is to determine the actual “injury-producing event.”  In general terms, Tarroza’s claims are grounded in failures to act rather than affirmative acts of misconduct.  However, Tarroza expressly alleges that she witnessed Defendant leave her mother lying in urine for hours; witnessed Defendant fail to administer medication timely; witnessed Defendant leave her mother in a wheelchair for hours; and witnessed Defendant fail to treat her mother’s black eye. (FAC par. 88.)  At the pleading stage, these allegations are deemed true and Tarroza sufficiently alleges being present at Defendant’s failure to provide care or treatment.  The next issue is whether Tarroza was aware that the failure of care caused injuries to her mother.  Plaintiff does not allege her then-awareness that the misconduct caused her mother’s injuries.  Even a conclusory allegation is missing.  The NIED claim based upon bystander theory is insufficiently pled. 

Defendant argues that the above allegations of Tarroza witnessing the misconduct conflicts with allegations that Defendant denied Tarroza admittance into the facility.  (FAC pars 15 and 20.)  However, this argument presumes facts not found in the pleading.  The argument presumes that the denial of access coincided with the above alleged mal-treatment of her mother.  No such fact pleading is made in the FAC.  Because the argument is based upon facts outside the pleading, the argument is not persuasive and improper for a demurrer. 

As to direct victim theory, Tarroza expressly alleges that she was physically assaulted and verbally abused when she complained about the lack of care for her mother.  (FAC par. 88.)  Because Tarroza alleges a physical assault, there are sufficient facts to plead a duty of care owed by Defendant to Tarroza separate from Tarroza’s claims made in conjunction with her mother’s injuries.  Defendant’s argument linking Tarroza’s emotional distress claim to her mother’s claims is unfounded because Tarroza has alleged her own injuries perpetrated by Defendant due to one or more alleged physical assaults.  At minimum, Tarroza has alleged a direct victim theory for NIED.  On this basis, the demurrer fails to dispose of the entire COA and the demurrer cannot be sustained.

The demurrer to the seventh COA is OVERRULED. 

Defendant moves to strike the request for punitive damages made in the first COA for elder abuse, the fifth COA for intentional misrepresentation and the sixth COA for willful misconduct.  Specifically as to the elder abuse and fraud claims, the Court’s sustaining of the demurrer as to these two COAs makes the instant motion to strike MOOT.  Even if the Court were to consider the allegations related to punitive damages under the elder abuse and fraud claims, the allegations are found to be insufficient to plead malice, oppression, fraud or recklessness, as analyzed under the elder abuse and fraud demurrers.  The claims are also insufficient to plead specific facts to support punitive damages against a corporation, again, as analyzed under the elder abuse and fraud demurrers.  The same pleading defects seen in the punitive damage requests under elder abuse and fraud are also seen in the willful misconduct COA’s request for punitive damages.

The motion to strike punitive damages is GRANTED WITH LEAVE TO AMEND. 

            IT IS SO ORDERED, ____________________ TO GIVE NOTICE.