Judge: Virginia Keeny, Case: 20STCV06098, Date: 2022-10-17 Tentative Ruling

Case Number: 20STCV06098    Hearing Date: October 17, 2022    Dept: W

Julia Rosner, et al., v. Mike Gerstein, et al.

Demurrer

Date of Hearing:          October 17, 2022                    Trial Date:       April 10, 2023

Department:               W                                             Case No.:         20STCV06098

Moving Party:             Defendants Shayke, Inc. and Mike Gerstein, Joinder filed by Intervenor Harleysville Insurance Company

Responding Party: Plaintiffs Brian Rosner and Barbara Rosner, individually and as successors in interest to Julia Rosner

BACKGROUND

On February 13, 2020, Plaintiff Julia Rosner (“Julia”), by and through her successors in interests, Brian Rosner & Barbara Rosner (“Plaintiffs”), filed a Complaint against Shayke, Inc. d/b/a Freedom Treatment Centers of California (“Shayke”); David Silberberg (“Silberberg”); Mike Gerstein (“Gerstein”); and DOES 1 –100, inclusive, alleging 5 causes of action arising from the death of Julia.  On July 8, 2020, Plaintiffs named Defendant Hatteras House Sober Living as Doe 1.

On July 21, 2022, the Court granted, with leave to amend, Defendants’ motion for judgment on the pleadings as to Plaintiffs’ third cause of action for dependent adult abuse/neglect.  The Court granted the motion with leave to amend based on Plaintiffs’ representation that they could allege facts that Julia was a California resident.

On August 11, 2022, Plaintiff filed the First Amended Compliant (“FAC”), asserting the same causes of action as the Complaint.

Shayke and Gerstein (hereinafter referred to collectively as “Defendants”) now demur to the third cause of action in the FAC.  Intervenor Harleysville Insurance Company joins Defendants’ Demurrer.

[Tentative] Ruling

Defendants’ Demurrer to Plaintiffs’ Third Cause of Action is OVERRULED.

REQUEST FOR JUDICIAL NOTICE

The Court grants Defendants request to take judicial notice of the Death Certificate of Julia Rosner (See Latham III Decl., Exh. 2 (incorrectly numbered exhibit 1 in the declaration of Robert A Latham III).)

LEGAL STANDARD

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.)  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.) 

ANALYSIS

Defendants argue Plaintiffs lack standing.  Defendant contends the decedent does not satisfy The Elder Abuse and Dependent Adult Civil Protection Act’s (“DACPA”) statutory residency requirement.

Defendants contend although the FAC alleges Julia is a California resident, the judicially noticed death certificate shows Plaintiff’s decedent’s residence as Westchester, New York.  (See Latham III Decl., Exh. 2.)  Defendants contend that the new allegations regarding Julia’s residency in California fall short of establishing residency, and is contradicted by Julia’s death certificate.  In addition, Defendant contends that Plaintiffs’ allegations that Julia’s treatment “would have” extended more than a year, and that she “would have” stayed near her support network in California are mere conclusions.  Furthermore, Defendants contend that while DACPA does not define residency, in the statutes for venue (CCP § 395) and marriage dissolution (CCP § 4530) residency has been established with voter registration, continuous residency, a driver’s license, registration of automobile, and receipt of mail, and Plaintiffs failed to include allegations of when Julia moved to California, her mail receipt address, whether she was a registered voter, had a registered vehicle, or had a California driver’s license/ID.  (Taff v. Goodman (1940) 41 Cal.App.2d 771, 775; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 157.)

In opposition, Plaintiffs argue Julia was a resident of California, as she resided at two treatment facilities in California, she planned on staying in California, her treatment would have lasted longer than a year, she would have stayed near her support network in California (and away from the place where her addiction began), and had expressed a desire to move to California.  (FAC ¶ 7.)  Plaintiffs contend that the allegations that Julia resided in California must be taken as true.  Plaintiff further contend that proof of her residency and intention to permanently remain in California were “killed by Defendants,” and that she can no longer testify for herself.  (See Opp. p. 5.)

While the Court must take the allegation in the FAC as true, “'[t]he rule is well settled that a complaint otherwise good on its face is nevertheless subject to demurrer when facts judicially noticed render it defective. ...:’ The theory is that the pleader should not be allowed to bypass a demurrer by suppressing facts which the court will judicially notice.’ [Citations.]”  (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 130.)

While DACPA does not define residency, other parts of the Welfare and Institutions Code defines ‘residence’ as “the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose.”  (Welf. & Inst. Code §17101.)  With the new allegations of the FAC, the Court finds Plaintiffs have adequately alleged Julia was a resident of California.  While evidence of voter registration, a driver’s license/ID, registration of automobile, and receipt of mail in California are some indicia of an intent to establish residency, the court does not find them necessary, especially when dealing with an individual whose disabilities might have prevented her from seeking any or all of these benefits of residency.  The allegation that Julia indicated that she intended to stay in California and did not have a residence elsewhere is sufficient at the pleading stage to adequately allege the basis for her residency.  The hearsay statements in the death certificate cannot be deemed conclusive on this factual issue, even if the court takes judicial notice of that document. 

CONCLUSION

Defendants’ Demurrer to Plaintiffs’ third cause of action is OVERRULED.