Judge Walter P. Schwarm, Case 30-2022-01241274 2022-09-06 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2022-01241274, Date: 2022-09-06 Tentative Ruling

Defendants’ (Prime Healthcare Services Garden Grove, LLC dba Garden Grove Hospital and Medical Center and Prime Healthcare Services, Inc.) Motion to Strike Portions of Plaintiffs’ Complaint (Motion), filed on 4-14-22 under ROA No. 21, is GRANTED.

Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike 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 of Civil Procedure section 435, subdivision (b)(1), states, “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, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”

The Motion seeks to strike the following items of Plaintiff’s (Alvaro Hernandez) Complaint filed on 1-18-22 under ROA No. 2: “2. Characterization of ‘Willful Misconduct’ be stricken from Plaintiff’s caption and Second Cause of Action for Negligence; [¶] 3. That ‘willfully’ be stricken from Paragraph 78 p.22 line 3; [¶] 4. That ‘wrongful and’, ‘intentional and in reckless’ be stricken from Paragraph 79 p.22 lines 5-6; [¶] 5. That ‘intentionally evidenced by the conscious’ be stricken from Paragraph 80 p.22 line 14; [¶] [sic] 4. Plaintiff’s prayer for punitive damages be stricken as it relates to Plaintiff’s Second Cause of Action . . . .” (Motion; 3:1-19.) The allegations that the Motion seeks to strike are allegations related to the Complaint’s second cause of action for “Negligence/Willful Misconduct.” (The court notes that the item pertaining to the prayer for punitive damages appears to be misnumbered.)

Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140 (Doe), states, “Willful misconduct is not a separate tort from negligence, but rather ‘ “ ‘ “an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care” [citations].’ ” ’ [Citation.] In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also ‘ “ ‘(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]’ ” [Citation.]’ [Citation.] ‘ “[W]illful misconduct is not marked by a mere absence of care. Rather, it ‘ “ ‘involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.’ ” ’ ” [Citations.]’ [Citations.]”

The Complaint pleads, (1) “The PRIME DEFENDANTS were fully aware upon HERNANDEZ’s admission to GARDEN GROVE HOSPITAL, through assessment information, as well as physician notes and orders provided to GARDEN GROVE HOSPITAL that HERNANDEZ was at high risk for skin breakdown and pressure sores due to his infirm condition. The PRIME DEFENDANTS were thus also aware of his need for constant attention and care to his skin via basic interventions such as turning and repositioning of the body every two hours to relieve pressure from bony prominences, pressure-relieving beds/mattresses and other devices to prevent skin breakdown, making sure HERNANDEZ was clean, dry, and free from feces and urine at all times, and making sure HERNANDEZ was properly hydrated and received sufficient nutrition to fight off skin breakdown.” (Complaint, ¶ 19; Uppercase in Complaint.); and (2) “Despite this knowledge, the PRIME DEFENDANTS failed to effectively develop, implement, and modify care plans for HERNANDEZ’s individualized care needs, and these failures were the direct result of the insufficiency of GARDEN GROVE HOSPITAL staff in number, competence and training, thereby leading to the foreseeable emergence of avoidable and severe pressure ulcer on the body of HERNANDEZ as alleged herein.” (Complaint, ¶ 20; Uppercase in Complaint.)

The Complaint does not plead sufficient facts to alleges that Defendants had actual or constructive knowledge to be apprehended, or actual or constructive knowledge that injury was the probable result of the danger. Thus, the Complaint does not sufficiently plead a cause of action for willful misconduct.

Since the Complaint does not sufficiently plead a cause of action for willful misconduct, the court GRANTS the Motion as to Item Nos. 2, 3, 4, and 5.

As to the prayer for punitive damages as applied to the second cause of action, Plaintiff’s Opposition to Defendants Prime Healthcare Services—Garden Grove, LLC dba Garden Grove Hospital and Medical Center and Prime Healthcare Services, Inc.’s Motion to Strike Plaintiff’s Complaint (Opposition), filed on 8-23-22 under ROA No. 50, states, “However, the case law is clear that where the gravamen of the complaint is based on Elder Abuse and/or Neglect, section 425.13 is inapplicable to the cause of action for Willful Misconduct and the prayer for punitive damages is appropriate.” (Opposition; 4:19-21.)

Country Villa Claremont Healthcare Ctr., Inc. v. Superior Court (2004) 120 Cal. App. 4th 426, 435 (Country Villa), states, “Consistent with the holding in Covenant Care, because the gravamen of the instant action is violation of the Elder Abuse Act, section 425.13 is inapplicable to the common law intentional torts at issue. [Citation.] Accordingly, we hold that section 425.13(a) does not apply to punitive damage claims in real parties' elder abuse action against Country Villa.” The Complaint does not sufficiently plead a cause of action for willful misconduct. The Opposition appears to concede that the thrust of the Complaint pertains to the first cause of action for Dependent Adult Abuse/Neglect. Therefore, the court GRANTS the Motion as to the prayer for punitive damages only as applied to the prayer for punitive damages connected to the second cause of action.

Based on the above, the court GRANTS Defendants’ (Prime Healthcare Services Garden Grove, LLC dba Garden Grove Hospital and Medical Center and Prime Healthcare Services, Inc.) Motion to Strike Portions of Plaintiffs’ Complaint, filed on 4-14-22 under ROA No. 21, with 15-days leave to amend from the date of service of the notice of the court’s order. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.)

Defendants are to give notice.