Judge: Virginia Keeny, Case: 21STCV31594, Date: 2022-08-18 Tentative Ruling
Case Number: 21STCV31594 Hearing Date: August 18, 2022 Dept: W
AIDA VARTANYAN
v. CALIFORNIA HEALTHCARE AND REHABILITATION CENTER, et al.
DEFENDANT Normandie/Wilshire
Retirement Hotel, Inc. dba California Healthcare and Rehabilitation Center’s demurrer
to the second amended complaint with motion to strike
Date of Hearing: August
18, 2022 Trial
Date: None
set.
Department: W Case
No.: 21STCV31594
Moving Party: Defendant
Normandie/Wilshire Retirement Hotel, Inc. dba California Healthcare and
Rehabilitation Center (erroneously sued as “California Healthcare and
Rehabilitation Center”)
Responding Party: Plaintiff
Aida Vartanyan, individually and as a successor-in-interest of Manouk Vartanyan
Meet and Confer: Yes.
(Junn Decl. ¶¶ 11-12; Exhs. E-F.)
BACKGROUND
On August 26, 2021, plaintiff Aida
Vartanyan (“Plaintiff”), individually and as a successor-in-interest of Manouk
Vartanyan (“Decedent”) filed this action against defendants Normandie/Wilshire
Retirement Hotel, Inc. dba California Healthcare Rehabilitation Center (“California
Healthcare”) (erroneously sued as “California Healthcare and Rehabilitation
Center”) and Barlow Respiratory Hospital at VPH (“Valley Presbyterian”)
(erroneously sued as “Valley Presbyterian Hospital”). Plaintiff is Decedent’s
surviving wife and beneficiary who alleges that she was forced by Valley Presbyterian
to admit Decedent to Defendant’s skilled nursing and rehabilitation facility on
February 26, 2021. (Compl., ¶ 20.) Plaintiff states that she and her daughter were
not allowed to visit Decedent at Defendant’s facility and was only able to see him
on March 2, 2021 when Decedent was taken to a dialysis center. (Compl., ¶¶ 21 22.)
At this visit, Plaintiff observed that he was neglected. (Compl., ¶¶ 23-24.)
When she raised her concerns with Defendant’s staff, they stated that they
would “talk to the nurses” and take care of it. (Compl., ¶ 25.) Defendant’s
employee allegedly admitted they were not turning Decedent every few hours to
prevent bed sores. (Compl., ¶ 26.) The neglect and mistreatment continued and Decedent
told Plaintiff and their daughter, “They do not take care of me and they are
very mean. They hit me.” (Compl., ¶ 28.) He also asked them to “please take
[him] out of here” and informed them that Doe 1 (Defendant’s employee) would
batter him and physically abuse him. (Compl., ¶¶ 28-29.) Plaintiff managed to
have Decedent transferred to another facility around March 12, 2021, but
Decedent died on April 12, 2021 due to the alleged neglect and abuse he experienced
at Defendant’s facility. (Compl., ¶¶ 32-33.)
In the operative Second Amended
Complaint (“SAC”), Plaintiff asserts the following causes of action against
Defendants for: (1) battery, (2) negligence, (3) negligent hiring, retention,
and supervision, (4) intentional infliction of emotional distress (“IIED”), (5)
negligent infliction of emotional distress; (6) wrongful death against ; (7)
negligence against Valley Presbyterian; and (8) wrongful death against Valley Presbyterian.
[Tentative] Ruling
Defendant California Healthcare’s Demurrer is OVERRULED as to the first, third, and fourth causes of action. The
Demurrer is sustained without leave to amend as to the fifth cause of
action.
Defendant California Healthcare’s Motion to Strike is GRANTED IN
PART WITHOUT LEAVE TO AMEND.
DISCUSSION
Request for Judicial Notice
Defendant California Healthcare
requests the court to take judicial notice of the complaint filed in this
action as well as the skilled nursing facility license issued to Defendant
California Healthcare by the State of California Department of Public Health.
Defendant California Healthcare’s Request for
Judicial Notice is GRANTED pursuant to Evid. Code §452(c), (d), and (h).
Demurrer
Defendant California Healthcare demurs
to the first, third, fourth, and fifth causes of actions raised in the SAC on
the grounds that they are uncertain and fail to allege sufficient facts to
constitute a cause of action against it. The court shall address each in turn.
i.
Uncertainty
Defendant California Healthcare demurs
to the first, third, fourth, and fifth causes of action on the ground that they
are uncertain.
A special demurrer for uncertainty,
Code of Civil Procedure § 430.10(f), is disfavored and will only be sustained
where the pleading is so bad that one cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)
A review of the pleadings reveals that they are not so bad that Defendant California
Healthcare cannot reasonably respond. Further, Defendant California Healthcare identifies
the causes of action in its demurrer and argues that they lack sufficient
facts, both of which show Defendant California Healthcare could reasonably
respond to the claims directed at it in the First Amended Complaint.
Accordingly, the court overrules the
demurrer based on uncertainty.
ii.
First and Fourth Cause of Action –
Battery and IIED, Respectively
Defendant California Healthcare demurs
to the first and fourth causes of action for battery and IIED on the ground the
SAC fails to allege sufficient facts to plead a theory of vicarious liability. (Demurrer
at pp. 7, 11.) It reasons that there are no facts establishing the requisite
“causal nexus” between the alleged torts committed by Doe 1 and their work for
Defendant California Healthcare, or that the conduct was reasonably foreseeable
as a consequence of the nature of the work. (Demurrer at pp. 7-8.)
“The essential elements of a cause of
action for battery are: (1) defendant touched plaintiff, or caused plaintiff to
be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a¿reasonable person in plaintiff’s position would have been
offended by the touching.”¿(Yun¿Hee¿So v.¿Sook¿Ja Shin¿(2013) 212
Cal.App.4th 652, 669.)
“[A]n employer is vicariously liable
for the torts of its employees committed within the scope of the employment.” (Lisa
M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291,
296.) The nexus required for respondeat
superior liability – that the tort be engendered by or arise from the work – is
to be distinguished from “but for” causation. The fact that the employment
brought the tortfeasor and victim together in time and place is not enough. The
incident leading to injury must be an outgrowth of the employment.” (Lisa M.,
supra, 12 Cal.4th at 293-294.) “The conduct of an employee falls within the
scope of his or her employment if the conduct either: (1) is required by or
incidental to the employee's duties, or (2) it is reasonably foreseeable in
light of the employer's business.” (Montague v. AMN Healthcare, Inc.
(2014) 223 Cal.App.4th 1515, 1521.)
“The employer is liable not because the
employer has control over the employee or is in some way at fault, but because
the employer's enterprise creates inevitable risks as a part of doing business.
Under this theory, an employer is liable for ‘the risks inherent in or created
by the enterprise.’” (Bailey v. Filco, Inc. (1996) 48 Cal. App. 4th
1552, 1559.)
Plaintiff contends that this cause of
action has been sufficiently alleged because the Decedent complained of being
physically abused and neglected and Defendant California Healthcare was
informed of the conduct. (SAC ¶¶ 28-31.) Plaintiff further asserts that battery
is an inherent risk involved in rehabilitation centers like the one that
Defendant California Healthcare operates, and as a result, the alleged harm was
reasonably foreseeable. (Opposition at pg. 5; SAC 50.) The court agrees that plaintiff has adequately
alleged claims for battery and IIED: plaintiff alleges that the decedent was
entirely dependent on care by defendants’ employees; that he had to be touched
regularly to avoid bedsores and as part of his regular care; and that it was
reasonably foreseeable that this touching could be done in such a manner as to
constitute a battery (contact intended to harm or offend to which the defendant
did not consent). The plaintiff does not
need to allege anything further at this juncture.
Accordingly, the court overrules the
demurrer to the first and fourth causes of action. The court notes, however, that the damages
available are limited by C.C.P. Section 377.34(a), as discussed further
below.
iii.
Third Cause of Action – Negligent
Hiring, Training, Retention, and Supervision
Defendant California Healthcare demurs
to the third cause of action on the ground that it is duplicative of Plaintiff’s
negligence cause of action. (Demurrer at pp. 9-10.)
Some cases
have sustained a demurrer on the ground that a cause of action which merely
duplicates another cause of action and adds nothing to the complaint by way of
fact or theory (e.g., Award Metals v. Superior Court (1991) 228
Cal.App.3d 1128, 1135). However, the better view is that the objection that a
cause of action is duplicative of another in the complaint “is not a ground on
which a demurrer may be sustained.” (Blickman Turkus, LP v. MF Downtown
Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.) “[I]t is a waste of time
and judicial resources to entertain a motion challenging part of a pleading on
the sole ground of repetitiveness. (See Code Civ. Proc. § 3537 [“Superfluity
does not vitiate”].) This is the sort of defect that, if it justifies any
judicial intervention at all, is ordinarily dealt with most economically at
trial, or on a dispositive motion such as summary judgment.” (Id.) Thus,
the Court rejects Defendant California Healthcare’s argument that this cause of
action is duplicative.
Accordingly, the court overrules
Defendant California Healthcare’s demurrer to the third cause of action.
iv.
Fifth Cause of Action – Negligent
Infliction of Emotional Distress (“NIED”)
Defendant California Healthcare demurs
to the fifth cause of action for NIED on the grounds the claim for negligence
improperly seeks damages for the decedent’s pain and suffering. Specifically,
Defendant California Healthcare argues that because the complaint was filed on
August 26, 2021, before the amendment to Code of Civil Procedure section
377.34, these damages are not recoverable. (Demurrer at pg. 12.) Also, it
points out that the court previously sustained the demurrer to this claim as a
survival action without leave to amend. (See January 31, 2022 Minute Order at
pg. 5.)
Here, Defendant California Healthcare
notes the California legislature recently amended Section 377.34 to allow recovery
for damages for pain, suffering, or disfigurement for actions filed on or after
January 1, 2022. (Code Civ. Proc. §377.34(b).) However, because this action was
filed August 26, 2021, Defendant California Healthcare argues the recently
enacted exception would not apply and the damages recoverable are limited to
the loss or damage that the decedent sustained or incurred before death,
including any penalties or punitive or exemplary damages that the decedent
would have been entitled to recover had the decedent lived, and do not include
damages for pain, suffering, or disfigurement. (Code Civ. Proc. §377.34.)
Plaintiff’s SAC alleges damages
suffered by the decedent, included pain, shock, severe emotional distress,
physical manifestation of emotional distress, damage to his dignity and
self-esteem, stress, frustration, inconvenience, embarrassment, mental anguish,
grief, and anxiety. Plaintiff asserts that it should be able to benefit from
the revised Code of Civil Procedure § 377 that allows for recovery for pain and
suffering and disfigurement by decedent’s personal representative or successor
in interest because a new defendant was named. (Opposition re: Demurrer at pg.
8.) However, the court disagrees because the newly enacted law by Governor
Newsom states “the damages recoverable may include damages for pain, suffering,
or disfigurement if the action or proceeding was granted a preference pursuant
to Section 36 before January 1, 2022, or was filed on or after January 1, 2022,
and before January 1, 2026.” (Code Civ. Proc. §377.34(b).) In this matter,
there has been no preference granted pursuant to Section 36 and the complaint
was not filed after January 1, 2022, as the original complaint against Defendant
California Healthcare was filed prior to that date.
Therefore, the court finds Plaintiff’s
SAC improperly alleges damages suffered by the decedent, including pain, shock,
severe emotional distress, physical manifestation of emotional distress, damage
to his dignity and self-esteem, stress, frustration, inconvenience,
embarrassment, mental anguish, grief, and anxiety. Thus, the court is not
required to revisit its prior decision that found that Plaintiff could not
recover damages for Decedent’s emotional distress. (See January 31, 2022 Minute
Order at pg. 5.) Thus, this survival action for NIED was improperly added
because the court sustained this demurrer without leave to amend.
Accordingly, Defendant California
Healthcare’s demurrer to the fifth cause of action is SUSTAINED without leave
to amend.
Motion to Strike
Defendant California Healthcare moves
to strike the following portions of the SAC: (1) p.11, lines 8-13; (2) p.11,
lines 14-19; (3)p. 12, lines 17-22; (4) p.14, lines 14-18; (5) p. 15, lines
22-25; (6) p.15, lines 26-28 and p. 16, lines 1-3; (7) p. 17, lines 9-12; (8)
p.23, lines 2-3, 7-8, 18-19; (9) p. 24, lines 6-7, 20-21, 25-26; and (10) p.
25, lines 8-9. p.20, lines 23-26; p.20, line 27 – p.21, line 1; and p.26, lines
9-10. (Notice of Motion at pp. 2-3.) Defendant California Healthcare argues
that Plaintiff improperly seeks punitive and emotional distress damages that
are not recoverable. Here, Plaintiff’s claims for punitive damages arises from
the intentional torts asserted in the SAC. As discussed above, Plaintiff’s
battery and IIED may proceed against Defendant California Healthcare. Thus,
Plaintiff may also maintain a claim for punitive damages.
As for the pain, suffering, or
disfigurement damages under Code of Civil Procedure § 377.34, these damages are
improperly included because Plaintiff reliance on the amended version of the
statute is misplaced. As discussed above, the complaint was initially filed on
August 26, 2021, and none of the statutory exceptions recently enacted by the
legislature apply in Plaintiff’s situation.
Accordingly, Defendant’s motion to
strike is GRANTED IN PART WITHOUT LEAVE TO AMEND.