Judge: Stephen I. Goorvitch, Case: 21STCV20043, Date: 2022-10-03 Tentative Ruling

Case Number: 21STCV20043    Hearing Date: October 3, 2022    Dept: 39

Lauree Floback v. 13333 Fenton Avenue, LLC, et al.

Case No. 21STCV20043

Demurrer and Motion to Strike

INTRODUCTION

            Plaintiff Lauree Floback, filed this action individually and as the successor in interest to the estate of Marilyn McCann on May 27, 2021.  Plaintiff filed a third amended complaint on July 8, 2022, against the following defendants, among others: (1) 13333 Fenton Avenue, LLC (“Fenton”), (2) Cambridge Healthcare Services, LLC (“Cambridge”), and (3) Sabita Malla, M.D. (“Malla”) (collectively, “Defendants”).  Plaintiff asserts three causes of action: (1) Elder Abuse and Neglect under Welfare and Institutions Code sections 15600, et seq., (2) Violation of Health and Safety Code section 1430(b), and (3) Wrongful Death.  Now, Malla demurs to the first cause of action.  Malla also moves to strike the prayer for attorney’s fees and punitive damages and related allegation.  Plaintiff opposes the demurrer and motion to strike.

PLAINTIFF’S ALLEGATIONS

            Marilyn McCann was eighty-seven (87) years old when she was admitted to the skilled nursing facility in or about February 13, 2018.  (Third Amended Complaint, ¶ 18.)  McCann passed away on or about May 31, 2020, allegedly as a result of Defendants’ neglect.  (Ibid.)  Malla was a physician “charged with overseeing the custodial care” of McCann while she resided at the facility.  (Id., ¶ 48.)  Malla allegedly “agreed to supervise the custodial care of Plaintiff and the MV Facility and evaluate Plaintiff as needed and at least every 30 days while she was in custodial care.”  (Id., ¶ 49.)  Malla allegedly knew that the other defendants did not consistently assist McCann with eating and drinking, maintain her hygiene, or monitor her fluid intake/output and weight.  (Ibid.)  Malla allegedly “disregarded the likelihood of serious harm to [McCann] and did not provide certain medical treatment” to her despite knowing of her poor condition.  (Id., ¶ 56.)  Malla allegedly received notice of “persisting deterioration and signs of infection and dehydration” and “did not provide care to meet Plaintiff’s basic needs . . . .”  (Id., ¶ 63.)  Malla allegedly “ignored or did not monitor Plaintiff’s significant weight loss; ignored or did not monitor Plaintiff’s fluid intake; ignored or did not monitor Plaintiff’s nutrition intake; ignored or did not monitor Plaintiff’s mental status; ignored or did not monitor Plaintiff’s declining physical abilities; and ignored or did not monitor Plaintiff’s signs and symptoms of infection.”   (Id., ¶ 64.)  As a result, McCann allegedly passed away from urosepsis, sepsis, and cardiopulmonary arrest.  (Id., ¶ 56.)    

LEGAL STANDARD

A.        Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)  However, courts do not accept as true deductions, contentions, or conclusions of law or fact.  (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)  The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  

            B.        Motion to Strike

Courts may, upon a motion, or at any time in their discretion, and upon terms they deem proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Courts may also strike 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, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., §¿437.)  

DISCUSSION

            To plead elder abuse, Plaintiff must allege “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 [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; 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) [citations].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Id. at 407.) “[T]he 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.” (Id. (quoting Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790).)  Plaintiff’s allegations against Malla are sufficient to state a cause of action for elder abuse, as well as to the seek punitive damages.  If Plaintiff’s prevail on their claim for elder abuse, she is entitled to attorney’s fees.

Defendant relies on Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, which is not on point.  In that case, the Court held that, to be liable for elder abuse, a medical professional must have a substantial caretaking or custodial relationship with the elder adult.  (See Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405-406.)  Here, Plaintiff alleges that Malla supervised Decedent’s medical care.  This issue is more appropriately raised on summary judgment. 

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         The demurrer is overruled and the motion to strike is denied.

            2.         Malla shall file an answer within thirty (30) days.

            3.         Defendant’s counsel shall provide notice and file proof of such with the Court.