Judge: William A. Crowfoot, Case: 22STCV27757, Date: 2022-12-19 Tentative Ruling

Case Number: 22STCV27757    Hearing Date: December 19, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On August 25, 2022, plaintiff Gloria Sandoval, appearing in pro per, filed this action against defendants Ali Nayyer (“Defendant”), Jay Patel, Ahmad D. Dudar, Elizabeth Pham, and Long Beach Memorial Hospital.  Plaintiff asserts the following causes of action: (1) intentional infliction of emotional distress (“IIED”), (2) constructive fraud, (3) fraud (misrepresentation), (4) fraud (concealment), (5) violation of statute, (6) unfair business practice, (7) negligence, (8) negligent hiring, training & supervision, and (9) wrongful death. 

          On November 14, 2022, Defendant filed this demurrer to Plaintiff’s Complaint.  Defendant also filed a motion to strike.  Defendant demurs to each cause of action in the Complaint on the grounds that it is uncertain and fails to state sufficient facts.  Defendant further moves to strike Plaintiff’s allegations relating to an elder abuse claim. 

          As an initial matter, the Court notes that the Eighth Cause of Action for negligent hiring is only asserted against Long Beach Memorial Hospital.  Accordingly, Defendant’s demurrer to that cause of action is overruled as moot.  

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).) 

Code of Civil Procedure section 430.10, subdivision (f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (See Code Civ. Proc. § 430.10(f).)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  “The objection of uncertainty does not go to the failure to allege sufficient facts.”  (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.)  “It goes to the doubt as to what the pleader means by the facts alleged.”  (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, 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

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).)  

          On October 13, 2022, defense counsel, Lawrence D. Wong, filed a declaration stating that he has been unable to meet and confer with Plaintiff despite sending Plaintiff a letter requesting to discuss the merits of the demurrer and motion to strike on the telephone.  Plaintiff did not respond.  The Court finds that Defendant has satisfied the meet and confer requirement. 

B.   Demurrer for Uncertainty

Defendant argues that the Complaint is uncertain because Plaintiff fails to allege any specific acts of wrongdoing by Defendant.  This is unpersuasive. Plaintiff identifies Defendant in Paragraph 4 of the Complaint as an agent, servant, and employee of Long Beach Memorial Hospital.  (Compl., ¶ 4.)  Plaintiff also alleges that Defendant, along with the co-Defendants, committed certain acts in all the causes of action except for the Ninth Cause of Action, which appears to be asserted only against Long Beach Memorial Hospital.  (See e.g., Compl., ¶¶ 10-13; 18-20; 22-30; 38-40; 45-47; 51-52; 59-60.) 

Next, Defendant contends that Plaintiff fails to allege sufficient facts stating that she is Decedent’s personal representative or successor-in-interest.  Defendant also points out that Plaintiff has failed to submit an affidavit in compliance with CCP 377.32.   However, CCP 377.32 does not require that an affidavit be filed as a condition precedent to commencing an action.  (Parsons v. Tickner (1995) 31 Cal.App. 1513, 1523-1524.)  It may subject an action to a plea in abatement, but that is not the relief that Defendant requests.  

Additionally, Defendant argues that Plaintiff cannot maintain a survival action in pro per because a non-lawyer cannot appear in propria persona in a representative capacity on behalf of an estate and engage in the unauthorized practice of law.  Defendant cites to Hansen v. Hansen (2003) 114 Cal.App.4th 618, 622, which is distinguishable because it held that a person 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.)  

Lastly, Defendant argues that the Complaint is ambiguous and unintelligible because it is unclear whether Plaintiff intends to assert each cause of action as the successor-in-interest or personal representative of decedent Gilberto Sandoval (“Decedent”), who was admitted to Long Beach Memorial Hospital in or around August 2021 for COVID-19 and died on September 7, 2021.  Plaintiff alleges that she brings the action individually, but the causes of action indicate that she is seeking redress for injuries to Decedent on behalf of Decedent.  A review of the Complaint shows that it is unclear whether Plaintiff is asserting the claims for IIED, fraud or “unfair business practice” on behalf of herself, on behalf of Decedent, or both.  This uncertainty is compounded by the inconsistent usage of “his” and “her” pronouns throughout the causes of action. 

In light of the foregoing, Defendant’s demurrer on grounds of uncertainty is SUSTAINED as to the First, Second, Third, Fourth, and Sixth Causes of Action. 

C.   Demurrer for Failure to State Sufficient Facts

Defendant also demurs to each cause of action on the grounds that they fail to state sufficient facts.  Because the Court already sustains the demurrer to the First, Second, Third, Fourth, and Sixth Causes of Action, this only leaves Plaintiff’s Fifth, Seventh, and Ninth Causes of Action.

1.    Fifth Cause of Action: Violation of Statute

The statutes that form the basis for this cause of action are Welfare Institutions Code sections 15610.57 and 15610.63, which define “neglect” and “physical abuse” as part of the Elder Abuse and Dependent Adult Civil Protection Act.  Defendant argues that Plaintiff fails to define Decedent as a dependent adult or that Defendant specifically committed any act that constitutes neglect or physical abuse. 

Case law is clear that, “‘neglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’”  (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)  “As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’”  (Id.) 

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.) “[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.” (Id. [quoting Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790].) 

As currently stated, Plaintiff fails to allege a claim for elder abuse but instead states a cause of action for medical negligence.  The allegations of neglect and any causal link between neglect and Decedent’s injuries are not described with sufficient specificity.  Accordingly, the demurrer to the Fifth Cause of Action is SUSTAINED.

2.   Seventh Cause of Action: Negligence

Even though Plaintiff’s seventh cause of action is entitled “negligence”, the allegations stated within make it apparent that it is predicated on elder abuse because she cites to Welfare and Institutions Code sections 15610.63(d) and (f), and section 15610.57.  (Compl., ¶ 51.)  “It is an elementary principle of modern pleading that the nature and character of a pleading is to be determined from its allegations, regardless of what it may be called, and that the subject matter of an action and issues involved are determined from the facts alleged rather than from the title of the pleadings or the character of the damage recovery suggested in connection with the prayer for relief.”  (McDonald v. Filice (1967) 252 Cal.App.2d 613, 622.) 

As stated above, Plaintiff fails to state a claim for elder abuse.  Therefore, Defendant’s demurrer to this cause of action is SUSTAINED. 

3.   Nine Cause of Action for Wrongful Death

A cause of action for wrongful death requires “(1) a ‘wrongful act or neglect’ on the part of one or more persons that (2) 'cause[s]' (3) the 'death of [another] person'....” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 390 [citing Code Civ. Proc., § 377.60].) 

Plaintiff alleges that beginning in August 2021 until September 2021, Decedent, her husband, was a patient of Long Beach Memorial Hospital and Defendant was entrusted with his care.  (Compl., ¶¶ 59, 61.)  Plaintiff further alleges that Defendant “negligently, carelessly, recklessly, and unlawfully supervised, treated, handled, and cared for [Decedent]” caused his death.  (Compl., ¶ 60.)  This is sufficient to plead a cause of action for wrongful death. 

Accordingly, the demurrer to this cause of action is overruled. 

D.  Motion to Strike

Defendant’s motion to strike is directed towards allegations that are largely encompassed within the causes of action as to which the Court has sustained Defendant’s demurrer.  Therefore, the Court only addresses the motion to strike those allegations which remain at issue, which include the terms “recklessly, and unlawfully” of Paragraph 60 and line 8 of page 15 for “punitive damages.”  

Plaintiff’s claim for punitive damages against Defendant is premature because he is a medical provider.  Pursuant to Code of Civil Procedure section 425.13, “no claim for punitive damages [arising out of the professional negligence of a health care provider] shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.”  (Code. Civ. Proc., § 425.13, subd. (a).)  “The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.  The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”  (Ibid.) 

No motion seeking leave to assert punitive damages against Defendant has been filed and no order has been issued which permits Plaintiff to make a claim for punitive damages.  Accordingly, Defendant’s motion to strike the terms “recklessly, and unlawfully” at paragraph 60 and Plaintiff’s punitive damages claim at page 15, line 8, is GRANTED.

IV.    CONCLUSION

Defendant’s demurrer is OVERRULED as to the Ninth Cause of Action for Wrongful Death and SUSTAINED as to the remainder of Plaintiff’s Complaint with 20 days’ leave to amend. 

Defendant’s motion to strike is GRANTED only as to the terms “recklessly, and unlawfully” at paragraph 60 and Plaintiff’s punitive damages claim at page 15, line 8, and overruled as moot as to the remainder. 

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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.