Judge: Virginia Keeny, Case: 24STCV27355, Date: 2025-03-25 Tentative Ruling
Case Number: 24STCV27355 Hearing Date: March 25, 2025 Dept: 45
JAMAY WELLINGTON-STROMAN, ET AL. V.
55 SILVER LLC, ET AL.
DEMURRER TO COMPLAINT; MOTION TO STRIKE
Date of Hearing: March 25, 2025 Trial
Date: N/A
Department: 45 Case No.: 24STCV27355
Moving
Party: Defendants 55 Silver,
LLC; Sacramento Rehab LLC; and Beach Street Rehab LLC
Responding
Party: Plaintiffs Jamay
Wellington-Stroman, by and through his successor-in-interest Jennifer Rullo;
and Jennifer Rullo, individually
BACKGROUND
On October 18, 2024, Plaintiffs Jamay Wellington-Stroman, by
and through his successor-in-interest, Jennifer Rullo and Jennifer Rullo,
individually (collectively, “Plaintiffs”) filed a complaint against Defendants
55 Silver LLC (“Silver”), Sacramento Rehab LLC (“Sacramento Rehab”), Beach
Street Rehab (“Beach Street”) (collectively, “Defendants”), and DOES 1 through
100, inclusive, alleging causes of action for: (1) Wrongful Death; (2)
Negligence—Survival Action; (3) Dependent Adult Abuse/Neglect—Survival; (4) Negligent
Misrepresentation—Survival Action; and (5) Fraud—Survival Action.
On January 15, 2025, Defendants filed a demurrer to the
third and fifth causes of action in the complaint, which is made on the grounds
that such causes of action fail to state facts sufficient to constitute a cause
of action against Defendants.
Also, on such date, Defendants filed a motion to strike
punitive damages allegations from the complaint.
On March 13, 2025, Plaintiffs filed oppositions to the
demurrer and motion to strike.
On March 18, 2025, Defendants filed reply briefs as to the
demurrer and motion to strike.
[Tentative] Ruling
The Court OVERRULES the demurrer of Defendants to the third
cause of action.
The demurrer to the fifth cause of action is SUSTAINED with
20 days leave to amend.
The motion to strike is GRANTED with 20 days leave to amend.
LEGAL
STANDARD
A party
may demur to a complaint on the grounds that it “does not state facts
sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd.
(e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.) A party may also demur to a complaint on the grounds that the complaint
is uncertain. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599,
605.) “[A] demurrer for uncertainty is not intended to reach the failure to
incorporate sufficient facts in the pleading, but is directed at the
uncertainty existing in the allegations actually made.” (Ibid.) “A demurrer for
uncertainty will not lie where the ambiguous facts are presumptively within the
knowledge of the demurring party.” (Ibid.)
When
considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT
Mobile, Inc.
(2010) 185 Cal.App.4th 1068, 1078.) “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.)¿On demurrer, a court does “not accept contentions, deductions or
conclusions of fact or law.” (Simonyan v. Nationwide Insurance Company of America (2022) 78 Cal.App.5th
889, 895.)
Although
courts construe pleadings liberally, sufficient facts must be alleged to
support the allegations pled to survive a demurrer. (Rakestraw v. California
Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) Where a demurrer is
sustained, leave to amend must be allowed where there is a reasonable
possibility of successful amendment. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to
demurrer to show the court that a pleading can be amended successfully. (Ibid.)
“Any
party, within the time allowed to respond to a pleading may serve and file a
notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. §
435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter
inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike
out 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.” (Code Civ. Proc. §
436(b).)
DEMURRER
Meet
and Confer Requirement
Before filing a demurrer or motion to strike, the moving
party must meet and confer in person, by video conference, or by telephone with
the party who filed the pleading to attempt to reach an agreement that would
resolve the objections to the pleading. (Code Civ. Proc. §§ 430.41(a), 435.5.)
“Any determination by the court that the meet and confer process was
insufficient shall not be grounds to overrule or sustain a demurrer” or to
grant or deny a motion to strike. (Code Civ. Proc. §§ 430.41(a)(4), 435.5.)
The meet and confer requirement has not been
satisfied, but the fault lies with plaintiffs’ counsel. Defendants’ counsel
attempted to telephonically meet and confer with Plaintiffs’ counsel.
(Torres-Brito Decls., ¶ 3.) Counsel also transmitted a meet and confer letter
to Plaintiffs’ counsel. (Torres-Brito Decls., ¶ 2; Exh. A.) None of Plaintiffs’
counsel responded to the meet and confer letter or returned counsel’s telephone
call. (Torres-Brito Decls., ¶ 4.) The
purpose of the meet and confer process is to resolve disputes regarding the
pleadings without the burden and expense of bringing a motion. The parties are reminded to comply with the
requirements of the Code of Civil Procedure.
Pertinent
Allegations of the Complaint
The complaint alleges the following: Plaintiff
Jamay Wellington-Stroman (“Wellington-Stroman”) is the decedent and, at all
relevant times, resided at Defendant Silver’s sober living home while receiving
intensive outpatient treatment at Defendants Sacramento Rehab and Beach Street.
(Compl., ¶ 6.) Defendants were purportedly licensed and required to provide
reasonable substance use disorder treatment to its clientele including
Wellington-Stroman. (Compl., ¶ 6.) Plaintiff Jennifer Rullo (“Rullo”) is the
mother of Wellington-Stroman and successor-in-interest. (Compl., ¶ 7.)
Wellington-Stroman
died while under the custodial care and security of Defendants who allegedly
were not qualified to provide Wellington-Stroman with the custodial care and
substance use disorder treatment he required. (Compl., ¶ 12.) Plaintiffs allege
that Wellington-Stroman was a dependent adult and was the victim of unqualified
custodial care and supervision in addition to the negligent acts and/or
omissions that caused his untimely death. (Compl., ¶ 12.)
On
or around November 17, 2023, Wellington-Stroman entered the care of defendants
in their sober living home. (Compl., ¶ 13.) Defendants conducted an intake
assessment which gave Defendants actual notice of Wellington-Stroman’s history
with substance use disorder as well as the vulnerabilities and risks he faced
as an addict in recovery, providing Defendants with notice of the dangers
Wellington-Stroman faced during this critical early period in his sobriety.
(Compl., ¶ 13.) Wellington-Stroman was given a packet of written
representations from Defendants, which reflected the promises and expectations
of the program. (Compl., ¶ 14.) Defendants represented that the facility and
sober living home was a drug-free environment with a zero-tolerance policy.
(Compl., ¶ 14.) Defendants represented that these rules were given to guarantee
safety and security for all residents and staff. (Compl., ¶ 14.) In fact, the
complaint alleges Defendants did not have a zero-tolerance policy and either
negligently, recklessly, and/or intentionally allowed drugs to be brought on to
the premises and used on premises and also allowed residents who had used to
continue residing at the premises. (Compl., ¶ 14.)
Defendants
gave Wellington-Stroman a client agreement reflecting further representations
made by Defendants, reflecting the promises and expectations of the program and
sober living environment. (Compl., ¶ 15.) Defendants guaranteed
Wellington-Stroman the right to be accorded safe, healthful, and comfortable
accommodations to meet his needs. (Compl., ¶ 15.) Defendants promised
Wellington-Stroman that if he used drugs or alcohol, he would be discharged
from the program and referred to an appropriate program for detox. (Compl., ¶
15.) By requiring Wellington-Stroman to surrender to these rules, Defendants
took on a substantial custodial caretaking role over Wellington-Stroman and his
living environment. (Compl., ¶ 15.) Defendants, however, did not have an exit
and referral program, and allowed drugs to be brought on the premises and used
on the premises. (Compl., ¶ 15.) Moreover, residents who had used were allowed
to continue residing at the premises. (Compl., ¶ 15.)
On
or around January 20, 2024, Wellington-Stroman died from a drug overdose on
Defendants’ premises. (Compl., ¶ 17.) Due to Defendants’ negligent policies,
practices, and procedures, Defendants failed to discover Wellington-Stroman for
many hours, at which point resuscitative measures were impossible. (Compl., ¶
17.)
Plaintiffs
allege that Defendants made misrepresentations on matters including, but not
limited to, their qualifications, services, and Wellington-Stroman’s safety.
(Compl., ¶ 18.) Defendants are alleged to have been unqualified and incompetent
to provide the services they sold to clients like Wellington-Stroman. (Compl.,
¶ 19.) Defendants are alleged to have neglected to follow their internal rules
to prevent the death of Wellington-Stroman. (Compl., ¶ 20.) Defendants failed
to accomplish their duty to keep their facilities drug fee and to prevent
clients like Wellington-Stroman from overdosing and dying inside their
facilities. (Compl., ¶ 21.)
Third Cause of Action—Dependent Adult Abuse/Neglect
Defendants
contend that the third cause of action fails because Plaintiffs do not allege a
caretaking or custodial relationship with any of the Defendants and there are
no allegations of abuse or neglect. Plaintiffs contend that the third cause of
action is sufficiently alleged.
“The
Elder Abuse and Dependent Adult Civil Protection Act affords certain
protections to elders and dependent adults.” (Winn v. Pioneer Medical Group,
Inc. (2016) 63 Cal.4th 148, 152 (Winn).) “Section 15657 of the
Welfare and Institutions Code provides heightened remedies to a plaintiff who
can prove by clear and convincing evidence that a defendant is liable for
physical abuse as defined in Section 15610.63, or neglect as defined in Section
15610.57 . . . .” (Ibid.) Neglect is defined as “[t]he negligent failure
of any person having the care or custody of an elder or a dependent adult to
exercise that degree of care that a reasonable person in a like position would
exercise.” (Ibid.)
Neglect
includes a failure “to assist in personal hygiene or to provide food, clothing,
or shelter . . . to provide medical care
for physical and mental health needs . . . to protect from health and safety
hazards . . . and to prevent malnutrition or dehydration.” (Winn, supra,
63 Cal.4th 148, 156.) Neglect also includes the “[f]ailure of an elder or
dependent adult to satisfy needs . . . for themselves as a result of poor
cognitive functioning, mental limitation, substance abuse, or chronic poor
health.” (WIC § 15610.57(b)(6).)
A
caretaking or custodial relationship is “more than casual or limited
interactions.” (Winn, supra, 63 Cal.4th 148, 158.) Thus, “it is
the defendant’s relationship with an elder or a dependent adult—not the
defendant’s professional standing or expertise—that makes the defendant
potentially liable for neglect.” (Ibid.) “[N]eglect requires a
caretaking or custodial relationship that arises where an elder or dependent
adult depends on another for the provision of some or all of his or her
fundamental needs.” (Id. at p. 160.)
Thus, to be liable under the Elder Abuse and Dependent Adult Civil
Protection Act requires “one where a party has accepted responsibility for
attending to the basic needs of an elder or dependent adult.” (Ibid.) A
care custodian can include a “protective, public, sectarian, mental health, or
private assistance or advocacy agency or person providing health services or
social services to elders or dependent adults.” (WIC § 15610.17(y).)
The
Court references its recitation of the allegations of the complaint from above
and incorporates them herein. On
demurrer, the court may make inferences in favor of Plaintiffs based on the
allegations of the complaint. (Miyahara v. Wells Fargo Bank, N.A. (2024)
99 Cal.App.5th 687, 702-03.) Here, Plaintiffs have alleged that
Wellington-Stroman suffered from alcoholism and drug addiction and that
Defendants had a caretaking and custodial relationship with Wellington-Stroman
involving ongoing responsibility for his basic needs. (Compl., ¶ 84.)
Defendants are alleged to have provided services to Wellington-Stroman in
exchange for compensation. (Compl., ¶ 84.) Wellington-Stroman is alleged to
have had mental and physical limitations, which restricted his ability to carry
out normal activities. (Compl., ¶ 85.) Such activities included eating,
sleeping, working, interacting with others, and exercising. (Compl., ¶ 85.)
Wellington-Stroman’s condition of substance dependency caused him to suffer
severe physical and psychological symptoms from withdrawals. (Compl., ¶ 85.)
Wellington-Stroman lived with Defendants because he was a dependent adult.
(Compl., ¶ 85.)
Given
the allegations of the complaint, the Court can infer that Defendants accepted
responsibility for some or all of Wellington-Stroman’s needs given the alleged
mental and physical limitations he experienced. Thus, the Court finds that the
facts alleged are sufficient to show a custodial or caretaking relationship. Plaintiffs
have alleged facts showing that Defendants “assumed significant responsibility
for attending to one or more of those basic needs of the elder or dependent
adult that an able-bodied and fully competent adult would ordinarily be capable
of managing without assistance.” (Winn, supra, 63 Cal.4th 148,
155.)
The
Court also rejects Defendants’ argument that the complaint does not allege
abuse or neglect. Here, the Court finds that Plaintiffs have alleged that
Defendants, among other acts, failed to protect Wellington-Stroman from health
and safety hazards by: failing to adequately control, maintain, and operate the
outpatient treatment center and sober living home; failing to transfer
Wellington-Stroman to an appropriate, licensed, and qualified facility; failing
to follow policies and procedures; failing to timely administer and distribute
medications; and failing to have the appropriate licensing to take on
Wellington-Stroman as a client. (Compl., ¶ 86.) Defendants are alleged to have
allowed drugs into the premises and Defendants also failed to discover
Wellington-Stroman for many hours. (Compl., ¶¶ 15, 17.) Thus, based on the
allegations of the complaint, Plaintiffs have alleged sufficient facts showing
neglect pursuant to WIC § 15610.57. Plaintiffs have alleged that Defendants
“failed to use the degree of care that a reasonable person in the same
situation would have used . . . .” (Compl., ¶ 86.)
The
Court rejects Defendants’ argument on reply that the allegations are
conclusory. Plaintiffs have alleged “how or in what manner the [Defendants
have] transgressed.” (Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396, 410.)
The
demurrer to the third cause of action for dependent adult abuse/neglect is
OVERRULED.
Fifth
Cause of Action—Fraud
“The elements
of fraud are (a) a misrepresentation (false representation, concealment, or
nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce
reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005)
135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be
alleged factually and specifically as to every element of fraud, as the policy
of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs
must plead the names of the persons allegedly making the false representations,
their authority to speak, to whom they spoke, what they said or wrote, and when
it was said or written. (Tarmann v. State
Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
The
Court has reviewed the challenged fifth cause of action and finds that it is
insufficiently alleged. (Compl., ¶¶ 105-117.) Here, Defendants are corporate
entities and there are no allegations as to the names of the persons who made
the purported misrepresentations or their authority to speak on behalf of the
corporation. (Id.) Moreover, there are no facts pleaded as to when the
purported misrepresentations were made or how such misrepresentations were
tendered. (Id.) The fifth cause of action is much too conclusory.
The
Court therefore SUSTAINS the demurrer of Defendants to the fifth cause of
action with 20 days leave to amend.
MOTION TO STRIKE
Defendants
move to strike punitive damages allegations from the complaint.
Plaintiff’s
Punitive Damages Allegations are Insufficient
In
order to state a prima facie claim for punitive damages, a complaint must set
forth the elements as stated in the general punitive damage statute, Civil Code
section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th
704, 721.) These statutory elements include allegations that the defendant has
been guilty of oppression, fraud or malice.¿(Civ. Code, § 3294, subd. (a).)¿¿¿
“In
order to survive a motion to strike an allegation of punitive damages, the
ultimate facts showing an entitlement to such relief must be pled by a
plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253,
1255.) California Civil Code, Section 3294 authorizes punitive damages
upon a showing of malice, fraud, or oppression. Malice is defined as either
“conduct which is intended by the defendant to cause injury to the plaintiff,”
or “despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” (Civ. Code, § 3294,
subd. (c)(1).) “Despicable conduct is conduct which is so vile, base,
contemptible, miserable, wretched or loathsome that it would be looked down
upon and despised by ordinary decent people.” (Mock v. Michigan Millers
Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) California Civil Code,
Section 3294(c)(2) defines oppression as “despicable conduct that subjects a
person to cruel and unjust hardship in conscious disregard of that person’s
rights.” Fraud under California Civil Code, Section 3294(c)(3) “means an
intentional misrepresentation, deceit, or concealment of a material fact known
to the defendant with the intention on the part of the defendant of thereby
depriving a person of property or legal rights or otherwise causing injury.”
Specific facts must be pled in support of punitive damages. (Hillard v. A.H.
Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)
“An
employer shall not be liable for [punitive] damages ..., based upon acts of an
employee of the employer, unless the employer had advance knowledge of the
unfitness of the employee and employed him or her with a conscious disregard of
the rights or safety of others or authorized or ratified the wrongful
conduct.... With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, [or] ratification ... must be on the part
of an officer, director, or managing agent of the corporation.” (Civ. Code, §
3294, subd. (b).) The California Supreme Court interpreted the “latter
statement as requiring the officer, director, or managing agent to be someone
who ‘exercise[s] substantial discretionary authority over decisions that
ultimately determine corporate policy.’” (White v. Ultramar, Inc. (1999)
21 Cal.4th 563, 577.)¿¿
Plaintiffs
have failed to allege sufficient facts of showing malice, fraud, or oppression
by Defendants as to the corporate defendants. The allegations in support of
punitive damages are insufficient and too conclusory. While the allegations
that the defendants willfully allowed drugs to be used on the premises would
support punitive damages, if proven, because defendants are corporate entities,
plaintiffs must allege specific facts that an officer, managing agent, or
director of Defendants authorized or ratified the acts complained of in the
complaint.
The
motion to strike is therefore GRANTED with 20 days leave to amend.
CONCLUSION
Based on the foregoing, the Court OVERRULES the demurrer of
Defendants to the third cause of action.
The demurrer to the fifth cause of action is SUSTAINED with
20 days leave to amend.
The motion to strike is GRANTED with 20 days leave to amend.