Judge: William A. Crowfoot, Case: 22STCV13532, Date: 2022-10-27 Tentative Ruling

Case Number: 22STCV13532    Hearing Date: October 27, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On April 25, 2022, plaintiff Candice McIntosh (“Plaintiff”) filed this action against defendant Clara Baldwin Stocker Home (“Defendant”) for willful misconduct, negligence, elder abuse, fraudulent concealment, constructive fraud, breach of fiduciary duty, fraud, medical battery, lack of informed consent, and wrongful death.  Plaintiff states that she brings this action on behalf of her deceased mother, Mattye Fegan-Perry (“Decedent”).

          On June 1, 2022, Defendant filed a demurrer arguing that Plaintiff lacks standing to bring nine of the causes of action asserted within the complaint and the cause of action for wrongful death is barred by the statute of limitations. 

          The demurrer and motion to strike were originally scheduled to be heard on July 6, 2022.  However, it was continued to September 12, 2022, in order to allow Plaintiff an opportunity to retain an attorney and to submit an opposition brief.  Defendant was also allowed to file a reply brief.   

          On September 12, 2022, the Court continued the hearing once more to allow one more round of supplemental briefing.  Both Plaintiff and Defendant filed a supplemental brief on October 3, 2022.

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).) 

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

A.           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, Erol D. Ari, declares that he has tried multiple times to speak with Plaintiff to meet and confer about the demurrer over the telephone, but Plaintiff has not responded to his emails or voicemails.

B.           Procedural Issues

Plaintiff asserts causes of action for willful misconduct, negligence, elder abuse, breach of fiduciary duty, medical battery, and lack of informed consent as Decedent’s successor-in-interest.  The Court addresses the issue of standing as Decedent’s successor-in-interest and whether she may represent herself.

Defendant originally argued that Plaintiff cannot bring causes of action on behalf of Decedent because she is a self-represented litigant and would be engaging in the unauthorized practice of law.  Defendant cited to Hansen v. Hansen (2003) 114 Cal.App.4th 618, 622 and other cases, but all of them are distinguishable because they held that persons acting with a particular title or role, such as a trustee, executor, administrator, guardian, or personal representative, cannot appear in pro per.  However, a personal representative is distinct from a successor-in-interest, which is specifically defined as “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.”  (See, e.g., Code Civ. Proc., §§ 377.30, 377.31.)  Therefore, Defendant’s cited cases do not control. 

In Defendant’s supplental brief, Defendant contends, without any analysis, that res judicata bars Plaintiff from arguing that she has a right to self-representation.  Defendant claims that on October 31, 2018, in Giese, et al. v. Fegan-Perry, et al. (LASC Case No. KC070396) (“Giese”), the trial court already held that Plaintiff, an individual unauthorized to practice law, could not prosecute any causes of action belonging to Decedent.  The trial court struck Decedent’s claims from a cross-complaint filed by Plaintiff on her and Decedent’s behalf.  (Supp. Brief, Ex. A.)  Notably, however, at the time the cross-complaint was struck, Plaintiff’s mother was still alive, so the trial court correctly held that Plaintiff would be engaging in the unauthorized practice of law if she were to prosecute any causes of action belonging to her then-living mother.  Here, the issue before this Court is different, as Decedent is no longer living, and Plaintiff has succeeded to Decedent’s claim.   

However, as discussed further below, Defendant’s demurrer is sustained.   

C.           Defendant’s Demurrer

i.             First Cause of Action

Plaintiff’s first cause of action is for willful misconduct.  However, willful conduct is not a separate tort, but “an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.)  Accordingly, Defendant’s demurrer to the “first cause of action” is SUSTAINED without leave to amend. 

ii.            Second Cause of Action

Plaintiff’s second cause of action for negligence incorporates paragraphs 1 through 8 and adds that Decedent was Defendant’s patient until her death on January 17, 2021, and “[Decedent] was under the care of DEFENDANTS who acted as her ‘primary care physicians.’”  (Compl., ¶¶ 9-10.)  Code of Civil Procedure section 340.5 provides that for “[a]n action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” 

Plaintiff argues in her opposition that the statute of limitations was extended 90 days because an attorney she retained earlier had served a Notice of Intent to Sue on her behalf on January 14, 2022.  However, even a 90-day extension would not render this Complaint timely, because the Complaint would have needed to be filed by April 18, 2022.  Here, the complaint was filed on April 25, 2022. 

Plaintiff also argues that she did not discover the cause of Decedent’s death until February 4, 2021, when she called to inquire about the results of an autopsy and was informed that Decedent died of “Severe Bacterial bronchopneumonia in both lungs possibly due to decubitus ulcer on her back.”

In its reply brief, Defendant argues that any claim of delayed discovery is implausible as Plaintiff has vigorously prosecuted claims against Defendant and that the present lawsuit is “based on facts and incidents related to an action that has already been running since August 2018.”  (See Reply, 3:14-19.)  Defendant again refers the Court to the tentative ruling from Giese, which references multiple cross-complaints that Plaintiff filed asserting claims of neglect and elder abuse.  (Demurrer, Ex. A.)  Indeed, the Court notes that Plaintiff even attached to her opposition brief numerous pages of various documents from 2019 relating to a petition to appoint a conservator for Decedent, showing that Plaintiff has suspected a pattern of neglect and malpractice as early as 2017, and went so far as to file a cross-complaint for claims related to elder abuse and neglect.  (Opp., Report of Court Appointed Counsel, p. 3, ln. 12-18, Objection to Petition, p. 4, ln. 7-8.)  Plaintiff also alleges in her Complaint that she was aware that Decedent had suffered from bedsores, open wounds and blood blisters from November 2020 to January 2021.  (Compl., ¶ 3.)  “A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.”  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.)  “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.”  (Ibid.)   

Here, Plaintiff harbored suspicions of wrongdoing long before her mother died.  Accordingly, Defendant’s demurrer to the second cause of action for negligence is SUSTAINED.  As Plaintiff has not shown how amendment is possible, the demurrer is SUSTAINED without leave to amend.  

iii.          Elder Abuse

Defendant argues Plaintiff fails to state sufficient facts to state a 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 407.)  “[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.”  (Ibid.)  There must also be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants.  (Civ. Code, § 3294; Welf. & Inst. Code, § 15657(c).)

Plaintiff’s complaint is devoid of allegations detailing any alleged abuse or any causal link between Defendant’s conduct and Decedent’s death.  Broad claims that Decedent “was deprived of proper care”, without any description of the neglect, is insufficient to state a claim for elder abuse.  (Compl., ¶ 15; see also ¶¶ 5, 7-9.)  Additionally, Plaintiff does not allege that there was any authorization or ratification by a managing agent. 

Defendant’s demurrer to the third cause of action is SUSTAINED with 20 days’ leave to amend. 

iv.          Fourth, Fifth, Seventh, Eighth, and Ninth Causes of Action

There are blank spaces under the fourth cause of action for fraudulent concealment, fifth cause of action for constructive fraud, seventh cause of action for false promise, eighth cause of action for medical battery, and ninth cause of action for lack of informed consent.  It is indisputable that they are not supported by any allegations, let alone factual ones.  Furthermore, fraud based claims must be pled with specificity, which means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Here, none of the causes of action include or incorporate any allegations, and the allegations within the complaint are not pled with sufficient specificity because it is unclear what the alleged misrepresentations were.  

Accordingly, Defendant’s demurrer to the fourth, fifth, seventh, eighth, and ninth causes of action is SUSTAINED without leave to amend. 

v.            Sixth Cause of Action

Plaintiff’s sixth cause of action is for breach of fiduciary duty.  However, the Complaint fails to allege how Defendant breached its fiduciary duty to Decedent and does not allege any facts establishing a causal link between the breach and Decedent’s death.  Accordingly, the demurrer is SUSTAINED with 20 days’ leave to amend. 

vi.          Tenth Cause of Action

For the same reasons articulated above in connection with Plaintiff’s second cause of action, Defendant’s demurrer to the Tenth Cause of Action is SUSTAINED without leave to amend. 

IV.     CONCLUSION

In light of the foregoing, Defendant’s demurrer to the Complaint is SUSTAINED with 20 days’ leave to amend ONLY the Third and Sixth Causes of Action for elder abuse and breach of fiduciary duty.  As the demurrer is sustained, the motion to strike is MOOT.    

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.