Judge Upinder S. Kalra, Case Number: 22STCV37943, Date: 2024-02-21 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.

RESPONDING PARTY(S): Plaintiffs Nick J. Berardino, Michael Di Berardino, and The Priscilla Di Berardino Trust

1. Demurrer to the First Cause of Action as barred by the statute of limitations, for lacking standing, and for failure to state sufficient facts to constitute a cause of action;

2. Demurrer to the Second, Third, Fourth, and Fifth Causes of Action for lacking standing and for failure to state facts sufficient to constitute a cause of action.[1]

1. Demurrer is SUSTAINED in its entirety as to Plaintiffs Nicholas J. Di Berardino and Michael Di Berardino individually with leave to amend;

4. Demurrer is SUSTAINED as to the Second, Third, and Fourth Causes of Action with leave to amend;

5. Demurrer is OVERRULED as moot as to the Fifth Cause of Action due to Plaintiffs’ withdrawal of that cause of action.

On December 5, 2022, Plaintiffs Nick J. Di Berardino, Michael Di Berardino, and The Priscilla Di Berardino Trust (Plaintiffs) filed a Complaint against Defendant 13400 Sherman Way, LLC dba Valley Palms Care Center (Defendant) for (1) Negligence, (2) Breach of Bailment, (3) Conversion, (4) Unfair Business Practices, and (5) Infliction of Emotional Distress.

On November 16, 2023, Plaintiffs filed a First Amended Complaint (FAC) with the same causes of action. According to the FAC, decedent Priscilla Di Berardino (Priscilla) received care at Defendant’s rehabilitative treatment center after a hospital stay from November 20, 2020, to December 7, 2020. Plaintiffs allege that Defendant lost Priscilla’s set of replacement teeth and failed to provide the minimum level of care necessary for Priscilla.

On December 15, 2023, Defendant filed a demurrer. On February 7, 2024, Plaintiffs filed an opposition. On February 13, 2024, Defendant filed a reply.

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.¿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. …. 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, at p. 747.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3). Defendant sent one letter to Plaintiffs’ counsel to initial meet and confer but did not receive a response. (Le Melle Decl. ¶ 3.) One letter is hardly sufficient meet and confer efforts. Still, failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5 subd. (a)(4).)

Defendant contends that Plaintiffs failed to allege an ownership interest in Priscilla’s replacement teeth or that they bring this lawsuit on Priscilla’s behalf. Plaintiffs argue that Nick J. Di Berardino has standing as Priscilla’s successor in interest and has so alleged.[2] Defendant replies that Plaintiffs fail to identify which Plaintiff asserts each claim pursuant to Cal. Rules of Court, Rule 2.112.[3]

Upon reviewing the FAC, the court agrees with Defendant, in part, that Plaintiffs failed to sufficiently plead standing. The court disagrees with Defendant that Plaintiffs failed to plead standing at all. Indeed, Plaintiff Nicholas J. Di Berardino (Nicholas) is the successor in interest to the rights of Priscilla Di Berardino. (FAC ¶ 17.) As such, Nicholas has standing because Priscilla would have had standing.[4] The court agrees that the FAC does not sufficiently allege how Nicholas and Michael have standing.

Accordingly, the court SUSTAINS the demurrer to the FAC in its entirety as to Plaintiffs Nicholas J. Di Berardino and Michael Di Berardino, individually, with leave to amend.

Defendant contends that the applicable statute of limitations was one year for professional negligence rather than two years for general negligence because the alleged negligent care of Priscilla and the alleged negligent loss of Pricsilla’s personal property occurred within Defendant’s rendering of professional services. Plaintiffs argue that providing for the care and custody of a person’s personal property is not “professional negligence” so the one-year statute of limitations does not apply.[5] Defendant replies that the negligent loss of Priscilla’s personal property occurred within Defendant’s rendering of professional services to her.

A claim for negligence must typically be filed within two years. (CCP § 335.1.) However, a claim for injury to personal property must be filed within three years. (CCP § 338.) A claim for injury against a health care provider based upon such person’s alleged professional negligence must be filed within three years after the date or injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (CCP § 340.5.) “Professional negligence” requires that the “act or omission is the proximate cause of a personal injury or wrongful death . . . .” (Id. at subd. (2).)

Here, Plaintiffs allege two negligent acts by Defendant: (1) failure to provide the minimum level of care necessary to prevent Priscilla from developing significant bed sores, and (2) losing Priscilla’s replacement teeth. (FAC ¶¶ 21, 22, 1.2, 1.3.)

The court agrees with Defendant that the claim for negligence resulting in significant bed sores is time-barred. First, the FAC alleges that Priscilla stayed at Valley Palms until December 7, 2020. (FAC ¶ 19.) The court is hard-pressed to infer that Priscilla (or Nicholas or Michael) would not have noticed “significant bedsores” at the time of discharge. The FAC does not otherwise allege facts supporting delayed discovery and Plaintiffs did not so argue in their opposition. Second, the FAC directly alleges that the significant bedsores were a result of failure to provide minimum level of care at a health care treatment facility by health care treatment professionals. (FAC ¶ 21.) As such, those claims would be time-barred by the one-year statute of limitations.

However, the court is not persuaded by Defendant’s claim that safekeeping Priscilla’s teeth related to her care. Additionally, the FAC does not allege Priscilla suffered a physical injury “proximately caused” by Defendant’s safekeeping (and then losing) her teeth. Since the court may not split a cause of action, Plaintiffs have sufficiently pleaded facts supporting a negligence cause of action. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)

Accordingly, Plaintiffs’ the Court OVERRULES Defendant’s demurrer to the First Cause of Action for being time-barred.

Defendant contends that Plaintiffs failed to plead a duty owed to each of the Plaintiffs and failed to plead proximate cause of the alleged wrongs and resultant harm to Plaintiffs. Plaintiff does not directly oppose this, but states they can easily cure any alleged defect by further amendment.

A claim for negligence requires: (1) a legal duty owed to plaintiffs to use due care; (2) breach of that duty; (3) causation; and (4) damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Upon reviewing the FAC, Plaintiffs sufficiently alleged a cause of action for negligence.[6] First, Plaintiffs allege that Defendant “knowingly took possession of Priscilla Di Berardino’s personal belongings, including without limitation, her set of replacement teeth for safekeeping, and agreed to take possession of such personal property for safekeeping pending the release of Priscilla Di Berardino.” (FAC ¶ 20.) Second, Defendant breached that duty by losing Priscilla’s replacement teeth. (FAC ¶ 21.) Third, Priscilla was actually and proximately harmed because Defendant lost her replacement teeth. (FAC ¶¶ 21, 1.3.) Fourth, Plaintiffs incurred at least $30,000.00 in damages as a result. (FAC ¶1.3.)

Accordingly, the court OVERRULES Defendant’s demurrer to the First Cause of Action.

Defendant contends that this claim fails because Plaintiffs improperly rename a professional negligence claim to a breach of bailment claim. Plaintiffs refer to their argument in the first cause of action.

The statute of limitations period for breach of bailment is three years. (CCP § 338; see H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 725.)

The court incorporates the same analysis and conclusion as the first cause of action.

Accordingly, the court OVERRULES Defendant’s demurrer to the Second Cause of Action for being time-barred.

Defendant contends that Plaintiffs failed to allege an interest in Priscilla’s property, does not allege a bailment contract entered with Plaintiffs, and does not sufficiently allege how they were harmed by the loss or damage of Priscilla’s personal property. Plaintiffs argue, conclusorily, that they sufficiently plead this cause of action and could easily correct any perceived defect via amendment.

In an action for breach of bailment contract, the bailor must prove that the agreement is a bailment contract, the property was deposited with the bailee, a demand was made for the property, and the bailee failed to return the property. (Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 763 n. 6 [citing Gebert v. Yank (1985) 172 Cal.App.3d 544, 551-552.]) A bailment may be an express or implied contract. (H.S. Crocker Co. v. McFaddin (1957) 148 Cal.App.2d 639, 643.) A bailee’s duties must be voluntary assumed. (Id. at p. 644.)

Upon reviewing the FAC, Plaintiffs did not sufficiently allege a cause of action for breach of bailment. First, Plaintiffs failed to allege that they demanded return of Priscilla’s property. Second, Plaintiffs hint to an agreement but do not sufficiently state the parties created a bailment contract. (See FAC ¶ 20.)

Accordingly, the court SUSTAINS Defendant’s demurrer to the Second Cause of Action with leave to amend.

Defendant incorporates the same arguments for the first cause of action. Plaintiffs refer to their argument in the first cause of action.

The statute of limitations period for breach of bailment is three years. (CCP § 338.)

The court incorporates the same analysis and conclusion as the first cause of action.

Accordingly, the court OVERRULES Defendant’s demurrer to the Third Cause of Action for being time-barred.

Defendant contends that Plaintiffs failed to plead Defendant intended to convert the goods ad to exercise wrongful ownership over them or to prevent the owner from taking possession of their property because they allege that Defendant lost the replacement teeth. Additionally, Defendant contends that Plaintiffs did not sufficiently allege how an entity had the requisite intent to commit an intentional tort. Plaintiffs argue that wrongful intent is not necessary and that they alleged Defendant knowingly and intentionally converted some or all of Priscilla’s property and failed and refused to return said property.

The elements for a claim of conversion are: “(1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property right; and (3) damages.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 650; Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271.) The defendant must assert dominion or control over the property, interfering in a way inconsistent with the plaintiff’s rights. (Simonian v. Patterson (1994) 27 Cal.App.4th 773, 781-782.) The only intent required is the intent to do the act constituting the conversion. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1405.)

Here, Plaintiff failed to sufficiently allege a cause of action for conversion. Specifically, the FAC has no facts that Defendant asserted dominion or control over the property, interfering in a way inconsistent with the plaintiff’s rights. The FAC also does not allege that Defendant intended to do the act constituting conversion. (FAC ¶ 20 [alleging Defendant took possession for safekeeping.]) Indeed, the FAC alleges that Defendant lost the replacement teeth. (FAC ¶ 21.)

Accordingly, the court SUSTAINS Defendant’s demurrer to the Third Cause of Action with leave to amend.

Defendant provides the same argument as the first cause of action. Plaintiffs refer to their argument in the first cause of action.

The statute of limitations for a UCL claim by a private plaintiff is four years. (Bus. & Prof. Code § 17208; People v. Overstock.Com, Inc. (2017) 12 Cal.App.5th 1064, 1078.)

The court incorporates the same analysis and conclusion as the first cause of action.

Accordingly, the court OVERRULES Defendant’s demurrer to the Fourth Cause of Action for being time-barred.

Defendant contends that Plaintiffs failed to allege the specific unfair business practice at issue and that Plaintiffs vaguely refer to loans that appear unrelated to Defendant. Plaintiffs seek leave to amend.

California Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) A business practice is unfair when it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." (Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal.App.4th 886, 894.) A business practice is unlawful if it violates another law. (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) A business practice is fraudulent if “members of the public are likely to be deceived." (See Wang v. Massey Chevrolet (2002) 97 Cal. App. 4th 856, 871.) “A plaintiff alleging unfair business practices . . . must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

Here, a review of the Complaint indicates that Plaintiff did not sufficiently plead facts that Moving Defendants violated Business & Professions Code section 17200. Notably, Plaintiff does not identify what the unlawful practices were. (FAC ¶¶ 4.4.)

Accordingly, the court SUSTAINS Defendant’s demurrer to the Fourth Cause of Action with leave to amend.

Defendant contends that Plaintiffs failed to identify whether they are pursuing a claim for Intentional Infliction of Emotional Distress (IIED) or Negligent Infliction of Emotional Distress (NIED). Plaintiffs withdraw this cause of action.

Accordingly, the court accepts Plaintiffs’ representation that they withdraw this cause of action and OVERRULES the demurrer to the fifth cause of action as moot.

1.Demurrer is SUSTAINED in its entirety as to Plaintiffs Nicholas J. Di Berardino and Michael Di Berardino individually with 20 days leave to amend;

4.Demurrer is SUSTAINED as to the Second, Third, and Fourth Causes of Action with 20 days leave to amend;

5.Demurrer is OVERRULED as moot as to the Fifth Cause of Action due to Plaintiffs’ withdrawal of that cause of action.

[1] The court notes that Defendant also argues statute of limitations for these causes of action in their memorandum of points and authorities.

[2] Plaintiffs otherwise include “argument” that does not pertain to the instant matter, but to a will dispute concerning a Mr. Harold Budd. (Opp. 3:9-4:14.)

[3] This argument was not raised in the moving papers and it is not made in response to arguments raised by Plaintiffs’ opposition. As such, the court disregards this argument in its analysis.

[4] Defendant does not dispute that Priscilla has standing. (Reply, 2:18-19.) Instead, Defendant contends that Nicholas and Michael do not individually have standing.

[5] At least as to the personal property claim. Plaintiffs did not address the claim for personal injuries, i.e., Priscilla’s bedsores.

[6] This pertains to the negligent loss of Priscilla’s replacement teeth only.