Judge Theresa M. Traber, Case Number: 24STCV02751, Date: 2024-09-11 Tentative Ruling

Judge: Theresa M. Traber, Case: 24STCV02751, Date: 2024-09-11 Tentative Ruling

Case Number: 24STCV02751 Hearing Date: September 11, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 11, 2024 TRIAL DATE: NOT SET

CASE: Soon Ja Hong v. Cedars-Sinai Medical Center

CASE NO.: 24STCV02751

DEMURRER TO COMPLAINT AND MOTION TO STRIKE PORTIONS OF COMPLAINT

MOVING PARTY: Defendant Cedars-Sinai Medical Center

RESPONDING PARTY(S): Plaintiff Soon Ja Hong

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for professional negligence and elder abuse that was filed on February 1, 2024. Plaintiff alleges that Defendant failed to secure an intravenous line for iron infusion, causing disfiguring injuries to Plaintiff.

Defendant demurs to the second cause of action for elder abuse and moves to strike Plaintiff’s claims for punitive damages and attorney’s fees.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is OVERRULED.

Defendant’s Motion to Strike is GRANTED IN PART as to the prayer for punitive damages only and otherwise DENIED. This ruling is without prejudice to a properly noticed motion for leave to amend to include punitive damages pursuant to Code of Civil Procedure section 425.13.

DISCUSSION:

Demurrer to Complaint

Defendant demurs to the second cause of action for elder abuse.

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 Attorney Lee M. Moulin in support of the demurrer states that Defendant’s counsel sent correspondence to Plaintiff’s counsel on February 7 seeking to meet and confer regarding the issues raised in this demurrer. (Declaration of Lee M. Moulin ISO Demurrer ¶ 4.) As of the date this demurrer was filed, Plaintiff’s counsel had not responded. (Id. ¶ 5.) Defendant has therefore satisfied its statutory meet-and-confer obligations.

Second Cause of Action: Elder Abuse/Neglect

Defendant demurs to the second cause of action for elder abuse and neglect 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.)

Defendant argues that the second cause of action is inadequately pled because the facts alleged, according to Defendant, only disclose a negligent undertaking of medical services, rather than an outright withholding of medical care. The pertinent factual allegations are contained in paragraphs 5 through 7 of the Complaint, which allege:

5. On or about March 12, 2023, the FACILITY admitted Ms. Hong. During the course of Ms. Hong’s hospitalization, the FACILITY inserted an intravenous line for iron infusion. However, the FACILITY failed to secure the intravenous line. Consequently, an alarming amount of blood drenched Ms. Hong as well as her sheets. Despite Ms. Hong and her family raising their concerns, the FACILITY disregarded the importance of securing the intravenous line. Instead, the nurse laughed and stated that such an occurrence was very common at the facility.

6. Ms. Hong’s upper extremity began to swell. Despite Ms. Hong and her family raising their concerns about the swelling, the FACILITY failed to address the issue and informed Ms. Hong and her family that the swelling would subside.

7. However, the swelling did not subside. Moreover, Ms. Hong’s left hand began to turn black. As such, Ms. Hong and her family again addressed their concern to the FACILITY who continued to ignore the seriousness of said injury. Instead, the FACILITY discharged Ms. Hong and merely recommended cold compressions for symptomatic relief.

(Complaint ¶¶ 5-7.) Defendant contends that these allegations merely support a claim for professional negligence, and do not constitute specific facts tending to establish a withholding of medical care or recklessness as to the Plaintiff’s well-being. The Court does not share Defendant’s view. It is true that the failure to provide medical care or to treat certain injuries only constitutes professional negligence unless there is some further showing of intentional misconduct or recklessness. (Carter, supra, 198 Cal.App.4th at 410-11.) Here, however, Plaintiff has offered allegations tending to establish, at minimum, recklessness. Plaintiff has alleged not only that Defendant improperly placed an intravenous line, failed to secure the line, and failed to treat the resultant swelling, but that, when Plaintiff started bleeding, the attending nurse merely laughed and stated that such events are a common occurrence. (Complaint ¶ 5.) This allegation, which must be taken as true on demurrer, does not demonstrate a mere failure to act with due care, but rather shows a conscious disregard of the danger to Plaintiff—or, in a word, recklessness. (See Delaney v. Baker (1999) 20 Cal.4th 23, 31.) The Court is therefore not persuaded that the second cause of action fails to state facts sufficient to constitute a claim for elder abuse and neglect.

Uncertainty

Defendant also demurs to the second cause of action as uncertain.

Demurrers¿for uncertainty are disfavored, because discovery can be used for clarification, and they apply only where defendants cannot reasonably determine what issues or claims are stated.¿(Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc.¿(1993) 14 Cal.App.4th 612, 616.) If the complaint is sufficiently comprehensible that Defendant can reasonably respond, the complaint is not uncertain. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848 n.3.)

As the Court has found that the second cause of action states facts sufficient to constitute a claim for elder abuse and neglect, it should be readily apparent that the second cause of action is not uncertain.

Conclusion

Accordingly, Defendant’s Demurrer to the Complaint is OVERRULED.

Motion to Strike Portions of Complaint

Defendant moves to strike portions of the Complaint pertaining to a request for punitive damages and a request for attorney’s fees.

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court 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(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.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders. (Code Civ. Proc., § 436(b).) This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed." (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 [emphasis in original].)

Meet and Confer

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5(a).) However, an insufficient meet-and-confer process is not grounds to grant or deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4).)

The Declaration of Attorney Lee M. Moulin in support of the motion states that Defendant’s counsel sent correspondence to Plaintiff’s counsel on February 7 seeking to meet and confer regarding the issues raised in this demurrer. (Declaration of Lee M. Moulin ISO Mot. ¶ 4.) As of the date this motion was filed, Plaintiff’s counsel had not responded. (Id. ¶ 5.) Defendant has therefore satisfied its statutory meet-and-confer obligations.

Punitive Damages

Defendant moves to strike Plaintiff’s prayer for punitive damages on the basis that Plaintiff has not sought nor obtained an order from the Court authorizing an amended pleading to assert punitive damages in this case pursuant to Code of Civil Procedure section 425.13.

Code of Civil Procedure section 425.13(a) states, in relevant part:

In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.

(Code Civ. Proc. § 425.13(a).) An action for damages “arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the healthcare provider.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191.) The Complaint expressly admits that Defendant is a general acute care hospital. (Complaint ¶2.) Moreover, the Complaint, on its face, relates to the medical care which Plaintiff received or failed to receive while in that hospital. The Court therefore concurs with Defendant that section 425.13 of the Code of Civil Procedure governs this action. As no order has been entered permitting punitive damages, the Court finds that Plaintiff’s prayer for punitive damages must be stricken.

Attorney’s Fees

Defendant purports to move to strike Plaintiff’s prayer for attorney’s fees, but offers no explanation for why this prayer for relief is invalid, especially as the Complaint only claims “attorney’s fees and costs as allowed by law” (Complaint p.6, Prayer 4 [emphasis added].) Defendant has therefore failed to carry its burden on this motion with respect to this prayer for relief.

Conclusion

Accordingly, Defendant’s Motion to Strike is GRANTED IN PART as to the prayer for punitive damages only and otherwise DENIED. This ruling is without prejudice to a properly noticed motion for leave to amend to include punitive damages pursuant to Code of Civil Procedure section 425.13.

CONCLUSION:

Accordingly, Defendant’s Demurrer to the Complaint is OVERRULED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 11, 2024 ___________________________________

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.