Judge Theresa M. Traber, Case Number: 21STCV35768, Date: 2023-10-23 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV35768, Date: 2023-10-23 Tentative Ruling

Case Number: 21STCV35768 Hearing Date: October 23, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: October 23, 2023 TRIAL DATE: NOT SET

CASE: Monique Sands, individually and as successor in interest to Marilyn Sands v. La Brea Rehabilitation Center, et al.

CASE NO.: 21STCV35768

DEMURRER TO COMPLAINT AND MOTION TO STRIKE

MOVING PARTY: Defendants La Brea Rehabilitation Center; The Rehabilitation Center on La Brea; La Brea Rehabilitation Center, LLC; Hugo Pena, and Karen Crucena

RESPONDING PARTY(S): Plaintiff Monique Sands, individually and as successor-in-interest to Marilyn Sands.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a wrongful death and elder abuse action that was filed on September 28, 2021. Plaintiff alleges that Defendants failed to provide adequate care for her elderly mother, causing the decedent’s death.

Defendants La Brea Rehabilitation Center, The Rehabilitation Center on La Brea, La Brea Rehabilitation Center, LLC, Hugo Pena, and Karen Crucena demur to the Complaint in its entirety and move to strike portions of the Complaint pertaining to statutory and punitive damages.

TENTATIVE RULING:

Defendants’ Demurrer to the Complaint is SUSTAINED in its entirety with leave to amend.

Plaintiff shall have 30 days leave to amend the Complaint.

Defendants’ alternative Motion to Strike is MOOT.

DISCUSSION:

Demurrer to Complaint

Defendants La Brea Rehabilitation Center, The Rehabilitation Center on La Brea, La Brea Rehabilitation Center, LLC, Hugo Pena, and Karen Crucena demur to the Complaint in its entirety.

Legal Standard

A demurrer 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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Rita Kanno states that she sent Plaintiffs’ counsel an email on March 24, 2023 to attempt to meet and confer regarding this issue, before engaging in subsequent nonspecific conversations with Plaintiff’s counsel through May 10, 2023, without successfully resolving this dispute. (Declaration of Rita R. Kanno ISO Mot. ¶¶ 2-3.) The Court therefore finds that Defendants satisfied their statutory meet and confer obligations.

Failure to Demonstrate Service of the Complaint

Defendants first contend that Plaintiff failed to serve the Complaint in this action within the time required by California Rule of Court 3.110(b). Defendants cite no authority standing for the proposition that a failure to comply with the Rules of Court warrants dismissal of the Complaint, and the Rules of Court do not themselves contemplate such a remedy. (See Cal. Rules of Court rule 3.110(f) [Court may issue order to show cause why sanctions should not be imposed for failure to timely serve pursuant to rule].) Defendants have not demonstrated that the Complaint is defective on this basis.

First Cause of Action: Wrongful Death

Defendants demur to the first cause of action for wrongful death in violation of the Elder Abuse Act under Welfare and Institutions Code section 15600 et seq for failure to state facts sufficient to constitute a cause of action.

To state a claim under the Elder Abuse Act, the plaintiff must allege that the defendant is liable for physical abuse, neglect, or abandonment and guilty of recklessness, oppression, fraud, or malice while doing so. (Welf & Inst. Code § 15657(a).) “Abuse” includes “[p] hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst Code § 15610.57(a)(1).) “Neglect” includes but is not limited to “(1) [f]ailure to assist in personal hygiene, or in the provision of food, clothing, or shelter,” “(2) [f]ailure to provide medical care for physical and mental health needs,” “(3) [f]ailure to protect from health and safety hazards,” and “(4) [f]ailure to prevent malnutrition or dehydration.” (Welf. & Inst. Code § 15610(b).) Neglect, as a form of abuse, is “the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of the professional standing, to carry out their custodial obligations.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.) This definition “speaks not of the undertaking of medical services, but the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) As a statutory cause of action, a claim under the Elder Abuse Act must be pleaded with particularity. (Id. at 790; see also Lopez v. Southern Cal. Rapid Trans. Dist. (1985) 40 Cal.3d 780, 795.)

Defendants argue that Plaintiff fails to state facts sufficient to constitute a cause of action because Plaintiff provided little to no specific factual allegations of any conduct by Defendants evidencing a failure to provide for the basic needs, comforts, and medical care of the decedent. The allegations in the Complaint state generally that Defendants withheld treatment, protection from health and safety hazards and infections, failed to report changes of conditions, understaffed the facility, and did not adequately hire, retain, train and supervise staff to meet the decedent’s care needs. (Complaint ¶ 50.) The Complaint also alleges that Defendants disregarded the high probability of injury or death of the decedent, and therefore acted with recklessness, oppression, fraud, or malice. (Complaint ¶ 53.) Defendants argue that these allegations are bare conclusions devoid of specific facts, offering comparisons to other cases involving elder abuse claims against hospitals, rather than skilled nursing facilities as alleged here. (See, e.g., Carter, supra, 19 Cal.App.4th at 407-410.)

Although Plaintiff endeavors to distinguish the cases cited in support of Defendants’ position as factually inapposite, Plaintiff’s opposition neglects to substantively address the thrust of their objection to the Complaint: that Plaintiff does not allege any specific facts to establish the elements of an elder abuse claim. Plaintiff offers a rote recitation of the allegations in the Complaint, but her reliance on those allegations is flawed in that the allegations, as Defendants argue, consist largely of bare legal conclusions that Defendants did not provide for the basic needs and comfort of decedent. (See, e.g., Complaint ¶ 50(a)-(h).) Plaintiff alleged no facts that provide any insight into the decedent’s specific needs, the measures that were not provided, the conditions at the subject facility, or even the immediate cause of the decedent’s death. The only facts that are alleged are the decedent’s age (Complaint ¶ 32), that she was admitted to the facility for wound care, could not care for herself, and required dialysis (¶¶ 33-35), and that she died on April 10, 2020. (¶ 37.) In sum, it is not apparent from the Complaint what conduct from Defendants or events at the facility expose these Defendants to liability for the decedent’s death. The Court therefore finds that Plaintiff has not satisfied the heightened pleading requirements for a statutory cause of action.

Accordingly, Defendants’ demurrer to the first cause of action is SUSTAINED.

Second Cause of Action: Violation of Elder Abuse Act (Survivor Action)

Defendants demur to the second cause of action for violation of the Elder Abuse Act for failure to state facts sufficient to constitute a cause of action. The parties agree that this cause of action survives or fails with the first cause of action.

Accordingly, for the foregoing reasons, Defendants’ demurrer to the second cause of action is SUSTAINED.

Third Cause of Action: Health & Safety Code Section 1430(b)

Defendants demur to the third cause of action for violation of Health and Safety Code section 1430(b) for failure to state facts sufficient to constitute a cause of action. The parties agree that this cause of action survives or fails with the first cause of action.

Accordingly, for the foregoing reasons, Defendants’ demurrer to the third cause of action is SUSTAINED.

Fourth Cause of Action: Negligence

Defendants demur to the fourth cause of action for negligence for failure to state facts sufficient to constitute a cause of action. The parties agree that this cause of action survives or fails with the first cause of action.

Accordingly, for the foregoing reasons, Defendants’ demurrer to the fourth cause of action is SUSTAINED.

Statutory Attorney’s Fees and Punitive Damages

Defendants demur to Plaintiff’s request for punitive damages and attorney’s fees and costs pursuant to Civil Code section 3294 and Welfare and Institutions Code section 15657, respectively. As each of Plaintiff’s causes of action have failed, Defendants’ demurrer to the prayer for attorney’s fees and punitive damages is SUSTAINED.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, Plaintiff has not shown how the Complaint might be amended to cure the defects raised in this demurrer. However, as the defects arise from a lack of sufficient detail in the Complaint, the method by which Plaintiff might correct this failure is apparent. The Court will therefore exercise its discretion to permit leave to amend.

Motion to Strike Portions of Complaint

Defendants move in the alternative to strike the allegations pertaining to Plaintiff’s request for punitive damages and statutory attorney’s fees. As the Court has sustained the demurrer to the Complaint in its entirety, Defendants’ motion to strike is MOOT.

CONCLUSION:

Accordingly, Defendants’ Demurrer to the Complaint is SUSTAINED in its entirety with leave to amend.

Plaintiff shall have 30 days leave to amend the Complaint.

Defendants’ alternative Motion to Strike is MOOT.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: October 23, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.