Judge: Virginia Keeny, Case: 22STCV01740, Date: 2023-02-27 Tentative Ruling


Case Number: 22STCV01740    Hearing Date: February 27, 2023    Dept: W

JOSEPH SHRAUGER, et al. v. CEP AMERICA, et al.

 

DEFENDANT CAMARILLO COMMUNITY CARE, INC. dba CAMARILLO HEALTHCARE CENTER’s demurrer with motion to strike

 

Date of Hearing:        February 27, 2023                             Trial Date:       None set.  

Department:              W                                                        Case No.:        22STCV01740

 

Moving Party:            Defendants Camarillo Community Care, Inc. dba Camarillo Healthcare Center

Responding Party:     Plaintiffs Joseph Shrauger, Priscilla Shrauger, and Limbonia Arredondo

 

BACKGROUND

 

On January 14, 2022, Plaintiffs Joseph Shrauger, individually, and as successor in interest and heir to decedent Joseph Shrauger, Priscilla Shrauger, individually, and as successor in interest and heir to decedent Joseph Shrauger, and Limbonia Arredondo, individually, and as successor in interest and heir to decedent Joseph Shraugher filed a complaint for elder and dependent abuse/neglect, willful misconduct, general negligence, professional negligence, unfair business practices, and violation of Patients’ Bill of Rights.

 

Plaintiffs allege decedent Joseph Shrauger (“Mr. Shrauger”) was admitted to Camarillo Healthcare Center on September 12, 2020 and remained there until October 19, 2020. Plaintiffs allege during Mr. Shrauger’s stay there, Camarillo and its employees wantonly, and recklessly ignored Mr. Shrauger’s custodial, medical, emotional, and human needs. Plaintiffs further allege Camarillo and its employees fraudulently misrepresented that they would provide necessary staff, medical care and services to their patients. As a result, Plaintiffs allege Mr. Shrauger died on October 25, 2020.

 

Plaintiffs dismissed several defendants on February 14, 2023. The complaint remains against CEP America, Inc., Dignity Health dba St. John’s Pleasant Valley Hospital, Ali Atabaki, MD, Scott Zager, MD, Esam Obed MD, Ali Sovari, MD, Bennyson So, MD, Michael Ngumi, MD, Calbert Wong, MD, Dean Black, MD, Jubran Dawkar, MD, Matthew Larrew, DO, Maria Kokkinides, MD, Robert T. Nguyen, MD, Vinod Valiveti, MD, Ivan Kirk T. Acayan, and Anthony Shrauger.

 

[Tentative] Ruling

 

Defendants Camarillo Community Care, Inc. dba Camarillo Healthcare Center’s Demurrer to the Fifth Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

 

Defendants Camarillo Community Care, Inc. dba Camarillo Healthcare Center’s Motion to Strike is GRANTED, in part and DENIED, in part.

 

ANALYSIS

 

Defendants Camarillo Community Care, Inc. dba Camarillo Healthcare Center demur to the fifth cause of action on the grounds the claim fails to set forth a cognizable claim under Business & Professions Code §17200. Defendants also move to strike Plaintiffs’ allegations regarding punitive damages.

 

Fifth Cause of Action

 

To successfully plead a UCL claim for unfair business practices, a plaintiff must allege facts justifying relief in the form of protecting the public from unfair business practices or deceptive advertising. (Day v. AT&T Corp. (1998) 63 Cal.App.4th 325, 331-332.) A plaintiff must plead and prove that the defendant engaged in a business practice that was either unlawful (i.e., is forbidden by law) or unfair (i.e., harm to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the public).  (Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal.App.4th 190, 206.) The plaintiff must also show “injury in fact,” that is, a loss of money or property as a result of the alleged conduct. (Bus. & Prof. Code § 17204.)¿      

 

Defendants argue the complaint fails to plead facts to establish an injury in fact. Specifically, paragraph 42 states defendant received “monetary compensation” for providing care to Plaintiff but does not allege that the money came from Plaintiff (as opposed to from an insurance company or Medicare) or that Plaintiffs have an injury in fact.[1] Defendants also argue allegations of inadequate medical services “simply do not fall with the rubric of” or constitute a cognizable UCL claim”. (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 411.) Lastly, Defendants contend the demurrer should be sustained because the claim is not alleged with particularity. (See, e.g., Richardson-Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1061.)

 

First, the court notes that allegations of inadequate medical services are not absolutely barred from allegations of violation of Business & Professions Code section 17200. (See People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, holding continuing violations of nursing home regulations constituted a pattern of unlawful business practices pursuant to Business & Professions Code section 17200.) In Brownfield, the case Defendants cite to support their position, the court stated “the allegations of the first amended complaint simply do not fall within the rubric of any of the acts specified by the Legislature to be offenses against the chapter.” (Brownfield, supra, 208 Cal.App.3d at p. 411.) That was because the court found the doctor’s “failure to voluntarily offer information concerning possible pregnancy prevention, and its failure to advise appellant that the time limit for effective use of the treatment is 72 hours after intercourse, does not amount to an unfair, dishonest, deceptive, destructive, fraudulent or discriminatory practice which destroys or prevents fair and honest competition.” (Ibid.)

 

However, the court agrees Plaintiffs’ allegations are not pled with the requisite particularity. Plaintiffs allege unlawful violations by Defendant but do not allege what statutory or otherwise law Defendant violate. The court notes Plaintiffs have sufficiently alleged an injury in fact.

 

Accordingly, Defendants’ demurrer to the fifth cause of action is SUSATINED WITH LEAVE TO AMEND.

 

Motion to Strike

 

Defendants move to strike Plaintiffs’ prayer for treble and punitive damages on the grounds Plaintiffs have failed to allege loss of money or property required by treble damages and the prayer improperly seeks punitive damages for general negligence.

 

As to Plaintiffs’ prayer for treble damages, Civil Code section 3345 applies to actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons to redress unfair or deceptive acts or practices or unfair methods of competition.  (Civ. Code, § 3345(a).) Subdivision (b) provides three factors upon which the trier of fact must consider in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. As these are factors and not elements, Plaintiffs do not necessarily need to allege both defendant knew or should have known that their conduct was directed to one or more senior citizens and that the conduct caused the plaintiff to suffer a loss of money or a source of income, employment or property.

 

Accordingly, the court denies Plaintiffs’ motion to strike on this basis.

 

As to Plaintiffs’ prayer for punitive damages, “[m]ere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Plaintiffs’ allegations do not go beyond negligence.

 

Accordingly, the court grants Plaintiffs’ motion to strike with leave to amend. (See Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-86 holding “a nonintentional tort can have the characteristics of an intentional tort to the extent of embracing the concept of malice as used in Civil Code section 3294.”)


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