Judge: William A. Crowfoot, Case: 22STCV14356, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV14356    Hearing Date: December 7, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On April 29, 2022, Gary Sanchez and Nancy Rae Lozano (collectively, “Plaintiffs”), individually and as successors in interest to Elizabeth Cano Sanchez (“Sanchez”), filed this action against defendant Life Care Centers of America, Inc. dba Mirada Hills Rehabilitation and Convalescent Hospital (“Defendant”) (erroneously sued as “Life Care Centers of America, Inc. dba as Mirada Hills Convalescent and Rehabilitation Hospital”). 

On July 21, 2022, Plaintiffs filed the operative First Amended Complaint (“FAC”).  Plaintiffs assert causes of action for negligence/willful misconduct, elder abuse and neglect, violation of patient’s bill of rights, wrongful death, and survival.  7

On September 19, 2022, Defendant filed this demurrer and motion to strike.  Defendant demurs to Plaintiffs’ causes of action for negligence/willful misconduct and wrongful death on the grounds that they are barred by the statute of limitations.  Defendant moves to strike Plaintiffs’ prayer for punitive damages and attorneys’ fees. 

On November 2, 2022, the Court continued the hearing so that both parties could submit a supplemental 5-page brief summarizing the arguments made during oral argument. 

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.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)  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

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).)  The party filing the demurrer must include a supporting memorandum of points and authorities.  (Cal. Rules of Court, rule 3.1113(a).)

Kristina M. Edrington, counsel for Defendant, declares that she attempted to meet and confer with Plaintiff’s counsel on August 23, 2022, but Plaintiff’s counsel was unavailable to speak on the telephone.  Counsel for both parties eventually discussed the merits of the demurrer and motion to strike through email correspondence, which is not sufficient to satisfy sections 430.41 and 435.5.  Regardless, the Court proceeds to analyze the demurrer and motion on their merits. 

Negligence/Willful Misconduct and Wrongful Death

Defendant argues that Plaintiffs’ claims for negligence and wrongful death are barred by the statute of limitations, which is governed by Code of Civil Procedure section 340.5.)  Section 340.5 provides that, “In an 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.  In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.  (Code Civ. Proc., § 340.5.)

Plaintiffs allege that on November 9, 2020, Sanchez was allowed to fall from her bed and violently struck her head on the hard tile floor.  (FAC, ¶ 25.)  Defendant’s staff allegedly failed to ensure Sanchez was properly monitored, supervised, and cared for to ensure the safety she required and was promised.  (Ibid.)  On November 15, 2020, Sanchez passed away.  Defendant argues that the date of Sanchez’s alleged injury was November 15, 2020, and Plaintiffs’ action, filed on April 29, 2022, was filed too late to assert a claim for professional negligence because the statute of limitations is one year pursuant to Code of Civil Procedure section 340.5.    

Plaintiffs argue that the two-year statute of limitations set forth in Code of Civil Procedure section 335.1, which provides a plaintiff with two years to file “[a]n action for assault, battery or injury to, or for death of, an individual caused by the wrongful act or neglect of another.”  Plaintiffs argue that the claims are not based on Defendant’s professional negligence because Defendant is not a hospital or other medical facility, and Plaintiffs allege that Defendant failed to send Sanchez to receive medical care.  This is unpersuasive.  A "health care provider" is any person licensed to provide health care services including a health facility.  (Code Civ. Proc., § 340.5, subd. (1).) "Professional negligence" means "a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (Id., subd. (2).)  Here, Defendant meets the definition of a healthcare provider as a skilled nursing facility.  (FAC, ¶¶ 9, 12.) 

In Plaintiffs’ supplemental brief, Plaintiffs borrow language from elder abuse cases to describe Defendant’s duty as one providing “custodial care” instead of “professional medical care.”  (Suppl. Brief, 1-4.)  However, Plaintiffs implicitly recognize that an elder abuse claim is distinct from a professional negligence claim because they assert a separate cause of action for elder abuse.  In Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 81–82, the Supreme Court analyzed the dividing line between ordinary negligence and professional negligence to determine which acts fall within “rendering of professional services.”  (Flores, supra, 63 Cal.4th at p. 84.)  The definition of professional services includes tasks that do not require advanced medical skills and training.  (Id. at p. 85 [“A medical professional or other hospital staff member may commit a negligent act in rendering medical care . . . even where no particular medical skills were required to complete the task at hand”].)  “[T]he test is not whether the situation calls for a high or low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed.”  (Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 803.)  

In Flores, which concerned medical equipment, the Supreme Court explained, “A hospital’s negligent failure to maintain equipment that is necessary or otherwise integrally related to the medical treatment and diagnosis of the patient implicates a duty that the hospital owes to a patient by virtue of being a health care provider.”  (Flores, supra, 63 Cal.4th at p. 88.)  On the other hand, professional negligence does not include “negligence in the maintenance of equipment and premises that are merely convenient for, or incidental to, the provision of medical care to a patient.”  (Ibid.)  So, for example, a defect in a table, toilet or television may injure a patient, a visitor, or a staff member, but those items are generally not part of the patients’ medical diagnosis or treatment, and therefore, such a defect causing injury would not give rise to a claim for professional negligence.  (Id. at p. 89.) 

Here, Defendant’s role in supervising and monitoring Sanchez is undertaken as part of the professional services it provided to Sanchez. Therefore, the statute of limitations for a professional negligence claim had expired at the time this action was filed.  Further, Defendant points out that willful misconduct “is not a separate tort, but simply ‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care’ [citations].”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, quoting Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal. App. 3d 341, 360.)  Accordingly, Defendant’s demurrer to the First Cause of Action for negligence/willful misconduct is SUSTAINED without leave to amend. 

However, Plaintiffs’ Fourth Cause of Action for Wrongful Death incorporates allegations of professional negligence, elder abuse, and violation of patient’s bill of rights.  Since an elder abuse cause of action is subject to a two-year statute of limitations, Plaintiffs’ April 29, 2022, filing was timely and Defendant’s demurrer to the Fourth Cause of Action for Wrongful Death is OVERRULED.

Motion to Strike

Defendant also filed a motion to Plaintiffs’ claims for attorneys’ fees and punitive damages.  On October 26, 2022, Defendant filed a reply brief withdrawing its motion.  Accordingly, the Court takes the hearing on the motion to strike off calendar. 

IV.     CONCLUSION

Defendant’s demurrer to the First Cause of Action is SUSTAINED without leave to amend.

Defendant’s demurrer to the Fourth Cause of Action for Wrongful Death is OVERRULED.

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.  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.