Judge: William A. Crowfoot, Case: 20STCV37353, Date: 2022-10-18 Tentative Ruling

Case Number: 20STCV37353    Hearing Date: October 18, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On September 30, 2020, plaintiff Robert Perez (“Plaintiff”) filed this action against defendants Cedars-Sinai Medical Center and Cedars-Sinai Health System (collectively, “Defendants”).  On July 27, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) asserting causes of action for: (1) elder abuse – custodial neglect, (2) reckless willful misconduct, (3) professional negligence, (4) negligent hiring, supervision, and retention, and (5) intentional infliction of emotional distress.

          On September 6, 2022, Defendants filed this demurrer and motion to strike.  Defendants demur to Plaintiff’s causes of action for elder abuse and reckless willful misconduct.  Defendants also move to strike Plaintiff’s requests for punitive damages and allegations related to punitive damages, as well as Plaintiff’s request for trebled damages. 

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

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, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

Defense counsel Natasha Covarrubias declares that on September 1, 2022, she spoke with Plaintiff’s counsel regarding Plaintiff’s amendments to the SAC and presented Defendants’ position regarding its deficiencies.  (Covarrubias Decl., ¶ 2.)  The meet and confer requirement is satisfied.

          Demurrer

A.   First Cause of Action for Elder Abuse

To plead elder abuse, the plaintiff must allege “facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations].”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.)  “The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.”  (Id. at p. 407.)  Additionally, to recover against a corporate defendant for elder abuse, a plaintiff must allege that an officer, director, or managing agent of the corporation personally engaged in wrongful conduct, or else had advance knowledge of the conduct, authorized it, or ratified it. (Civ. Code, § 3294, subd. Welf. & Inst. Code, § 15657, subd. (c).)   “[T]he facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.”  (Carter, supra, 198 Cal.App.4th at pp. 406-407 [quoting Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790].)

Plaintiff alleges he underwent a thoracoscopic surgery on or about June 12, 2019, and was thereafter transferred to the intensive care unit with complaints of sharp post-operative pain.  (SAC, ¶ 11.)  He acquired Serratia Maracescens and methicillin-sensitive Staphylococcus Aureus (“MSSA”) and his discharge was delayed.  (Ibid.)  Plaintiff alleges that due to an outburst at the beginning of his stay, he was thereafter “recognized by hospital staff, including but not limited to the corporate officers, directors, managing agents of Defendants, and each of them,” as a “problem patient.”  (Compl., ¶ 12.)  Plaintiff alleges that he was physically restrained and consistently and frequently denied treatment and attention by employees, who left him to lay in his own feces and urine for prolonged periods of time and allowed the development of pressure ulcers.  (Ibid.)  Plaintiff further alleges that Defendants’ motive was to reduce the cost of providing care to him, especially after being branded by Defendants as a “problem patient.”  (Ibid.)  Plaintiff alleges on information and belief that he lost approximately 30 pounds as a result of the neglect he allegedly experienced.  (SAC, ¶ 14.) 

The Court found that Plaintiff’s allegations in previous iterations of the Complaint presented a case involving a negligent undertaking of medical services, rather than abuse or neglect.  Here, Plaintiff adds that Defendants labeled him as a “problem patient”, physically restrained him, and failed to prevent Plaintiff from laying in his own feces and urine for prolonged periods of time.  (SAC, ¶ 21.)  However, as noted by the Court in connection with Plaintiff’s previous First Amended Complaint, Plaintiff still fails to allege corporate ratification of any alleged abuse with the required specificity.  No officer, director, agent, or management personnel is identified.  Instead, the SAC only includes generalized allegations of agency and ratification, not of the conduct, but of the harms posed to residents by understaffing and the “insufficiency of financial budgets to lawfully operate said facilities.”  (SAC, ¶ 27.) 

The demurrer to Plaintiff’s First Cause of Action for Elder Abuse is SUSTAINED.

B.   Second Cause of Action for Reckless Willful Misconduct

Willful misconduct involves an unreasonable act in disregard of a risk that is so great that it is highly probable that harm will follow, and that is either known to the actor or so obvious that the actor objectively must have been aware of it.  (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689.)  Willful misconduct is different from and more than negligence, more even than gross negligence.  (Weber v. Pinyan (1937) 9 Cal.2d 226, 231.)  It is a positive intent actually to harm another or to do an act with a positive, active, and absolute disregard of its consequences.  (Id. at p. 233.)  In contrast, gross negligence involves a failure to act under circumstances that indicate a passive and indifferent attitude toward the welfare of others.  (Id. at pp. 232-233; Traxler v. Thompson (1970) 4 Cal.App.3d 278, 287.)

Plaintiff alleges Defendants “recklessly neglected” him by failing to prevent the contraction of infections.  (SAC, ¶ 34.)  Plaintiff specifically allege that Defendants failed to provide adequate care, resulting in a pressure ulcer and severe emotional distress.  (SAC, ¶¶ 35-36.)  These allegations are insufficient to allege a positive intent to harm or act with absolute disregard for consequences as required for a claim of willful misconduct. 

Defendants’ demurrer to the Second cause of action is SUSTAINED.

Motion to Strike

As the Court sustains Defendants’ demurrer to the first and second causes of action, the only issues that remain in Defendant’s motion to strike is an allegation for punitive damages in connection with Plaintiff’s Fifth Cause of Action for Intentional Infliction of Emotional Distress and a request for trebled damages. 

First, with respect to punitive damages, an employer shall not be liable for punitive damages based upon acts or 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 for which the damages are awarded or was personally guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (b).)  With respect to a corporate employer, the advance knowledge and conscious disregard, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.  (Ibid.) 

Plaintiff does not allege that an officer, director, or managing agent was involved with the alleged misconduct or engaged in, authorized, or ratified the misconduct, or otherwise had advance knowledge of an employee’s unfitness and employed him with a conscious disregard of the rights or safety of others. 

Second, Plaintiff’s prayer for treble damages under Civil Code section 3345 is also inappropriate.  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).) “[T]rebled recovery may be awarded under Civil Code section 3345, subdivision (b) only if the statute under which recovery is sought permits a remedy that is in the nature of a penalty.”  (Clark v. Superior Court (2010) 50 Cal.4th 605, 614.)   

Contrary to Plaintiff’s assertion, Civil Code section 3345 does not apply to this action.  (Opp., 9:24-27.)  The statutory remedies under the Elder Abuse Act are intended to incentivize attorneys to take on cases of elder abuse and neglect and not to punish or deter those who have engaged in elder abuse or neglect.  (Covenant Care, supra, 32 Cal.4th at p. 787 [quoting Welf. & Inst. Code, § 15600(j)].)

IV.     CONCLUSION

As this is Plaintiff’s third unsuccessful attempt to plead an elder abuse and willful misconduct claim, Defendants’ demurrer is SUSTAINED without leave to amend. 

Defendants’ motion to strike is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.