Judge William A. Crowfoot, Case Number: 24NNCV02107, Date: 2025-03-11 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV02107, Date: 2025-03-11 Tentative Ruling

On June 7, 2024, Armando Herrera Martinez (“Plaintiff”) filed this action individually and on behalf of decedent Hortencia Herrera Martinez (“Decedent”). The Complaint includes four causes of action for: (1) negligence/professional medical negligence, (2) elder abuse, (3) willful misconduct, and (4) wrongful death.

On October 9, 2024, defendant Alhambra Hospital Medical Center, LP (“Defendant”) (erroneously sued as “Alhambra Hospital Medical Center” and “AHMC Inc.”) filed a demurrer and motion to strike. Defendant demurs to Plaintiff’s Second Cause of Action for Elder Abuse and Third Cause of Action for Willful Misconduct. Defendant also moves to strike Plaintiff’s claims for punitive damages and attorneys’ fees.

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.)

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”].) 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.)

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

“When medical care of an elder is at issue, the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Carter, supra, 198 Cal.App.4th at pp. 404-405.) Furthermore, in order to distinguish elder abuse from professional Negligence, there must be a showing of recklessness, fraud, malice, or oppression. (Covenant Care, supra, 32 Cal.4th at p. 783.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature” whereas recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Carter, supra, 198 Cal.App.4th at p. 405 [internal quotation marks omitted].) In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89, the court held that a health care facility’s significant pattern of withholding portions of care may support an award of heightened remedies where the care facility knows it must provide a certain type of care on a daily basis but provides it sporadically, or is supposed to provide multiple types of care, but only provides some of those types of care. (Sababin, supra, 144 Cal.App.4th at p. 90.) A “significant pattern” is one that involves “repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” (Id.)

Here, Defendant argues that Plaintiff cannot establish a cause of action for elder abuse premised on “neglect” because the Complaint’s allegations purportedly confirm that Decedent was assessed, evaluated, and provided necessary testing and treatment every day of her admission to Alhambra Hospital between March 24, 2023, to April 15, 2023. (Compl., ¶¶ 59-76.) Defendant contends that the crux of Plaintiff’s action is based on the belief that the medical care rendered to Decedent could have performed better, not that no medical care was provided at all. (See Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 223-224; Carter, supra, 198 Cal.App.4th at pp. 404-405.)

The Court agrees. The allegations of the Complaint admit that Decedent was given daily assessments for pressure ulcers and that a Stage 2 pressure injury at the sacral region was noted on March 31, 2023. A large pressure ulcer was identified on April 5, 2023, and on the next day, April 6, 2023, a debridement was planned and performed; home health for wound care was also arranged. (Compl., ¶¶ 71-72, 76.) Taken together, these allegations do not demonstrate a “significant pattern of withholding care” and undercut Plaintiff’s conclusory allegation that “nursing staff failed to note, document and/or render wound care.” (Compl., ¶ 81; Sababin, supra, 144 Cal.App.4th at p. 90.) Also, Plaintiff’s allegations that Defendant was understaffed and engaged in “recklessly egregious conduct” are legal conclusions and unsupported by factual allegations. (Compl., ¶¶ 80-82.)

Similarly, Plaintiff’s cause of action for willful misconduct is insufficiently stated. A claim for 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 or even 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 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.) The allegations that Decedent was assessed daily and given treatment, without more specific allegations of reckless or egregious conduct, undercut Plaintiff’s claims that Defendant acted with an absolute disregard of consequences.

Therefore, the demurrer to Plaintiff’s Second and Third Causes of Action are SUSTAINED. The motion to strike Plaintiff’s prayer for punitive damages and attorneys’ fees associated with those causes of action is consequently MOOT.

Defendant’s demurrer is SUSTAINED with 20 days’ leave to amend. The motion to strike is MOOT.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.