Schwalley v Front Porch Lutheran Homes

DEMURRERS (2) & MOTIONS TO STRIKE (2)

Calendar: 14
Case No: GC049024
Date: 2/21/14

MP: Defendant, Front Porch California Lutheran Homes, Inc.
Defendant, Paul Liu
RP: Plaintiff, Fraser Schwalley, individually and as successor in interest to Lawrence Schwalley

ALLEGATIONS IN SECOND AMENDED COMPLAINT:
The Plaintiff claims that the Defendants engaged in elder abuse and provided negligent care when Lawrence Schwalley was under the care and custody of the Defendants. The Plaintiff is the son and heir of Lawrence Schwalley. Lawrence Schwalley suffered injuries when he fell and as a result died three weeks after the fall.

CAUSES OF ACTION IN SECOND AMENDED COMPLAINT
1) Elder Abuse
2) Negligence
3) Wrongful Death

RELIEF REQUESTED:
1. Defendant, Front Porch California Lutheran Homes, Inc.
a) Demurrer to first cause of action.
b) Strike requests for punitive damages and for attorney’s fees.

2. Defendant, Paul Liu
a) Demurrer to first, second, and third causes of action.
b) Strike request for punitive damages

DISCUSSION:
This hearing concerns the Defendants’ motions directed at the Second Amended Complaint.

1. Attacks on the pleadings by Defendant, Front Porch California Lutheran Homes, Inc.
a) Demurrer to First Cause of Action for Elder Abuse
A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare and Institutions Code sections 15600 to 15675 (references to code sections refer to the Elder Abuse Act).
The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died.
In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for the following:

1) physical abuse as defined in section 15610.63; or
2) neglect as defined in Section 15610.57.

In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Therefore, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice.
Finally, since this is a statutory cause of action, it must be pleaded with particularity. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790.

The Plaintiff alleges in paragraph 15 that the Defendants neglected Lawrence Schwalley. To plead neglect within the meaning of the Elder Abuse Act a 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;
2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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.
Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406-407.

In addition, the plaintiff must allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Id. The 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.
A review of the first cause of action reveals that it fails to plead facts with particularity regarding the Defendants. The Plaintiff has directed the first cause of action against two Defendants:

1) Front Porch California Lutheran Homes; and
2) Paul Liu.

There are no allegations particular to each Defendant to demonstrate the manner in which each neglected Lawrence Schwalley. For example, there are no allegations that identify the conduct of Front Porch California Lutheran Homes that meets the statutory definition of neglect under the Elder Abuse Act. There are no allegations that an officer, director, or managing agent of Front Porch California Lutheran Homes knew of conditions that made Lawrence Schwalley unable to provide for his own basic needs and that this officer, director, or managing agent denied or withheld the goods or services.
This lack of particularity is grounds for a demurrer because the cause of action does not plead particular facts that demonstrate that each separate Defendant is liable for elder abuse, e.g., the particular facts establishing the causal link between each, separate Defendant’s neglect and the injury.

Instead, the Plaintiff alleges in paragraphs 20 and 21 that Lawrence Schwalley suffered injuries when he fell and that the Defendants’ staff failed to notify any responsible party of physician and failed to provide medical treatment for the injuries. There are no particular facts supporting these conclusions, e.g., the identity of injury for which the Defendant’s staff failed to summon medical care, that the Defendant’s staff knew that the injury was such that they were required to notify a physician, and that they denied assistance with knowledge or conscious disregard that injury was substantially certain to befall Lawrence Schwalley.

Particularity is necessary because, as noted above, the Plaintiff must plead facts establishing the causal link between the neglect and the injury with particularity. Carter, 198 Cal. App. 4th at 406-407. The Plaintiff’s allegations in paragraphs 20 to 21 that Lawrence Schwalley suffered injuries when he fell on the property and the Defendant’s staff did not notify any responsible party or physician are insufficient.

Finally, the Defendant is a corporation and there must be allegations that demonstrate involvement by an officer, director, or managing agent of the Defendant in the elder abuse. The Plaintiff does not plead any facts identifying an officer, director, or managing agent of the Defendant who was involved in the neglect of the Plaintiff. Instead, as noted above, the Plaintiff pleads conclusions in paragraph 7 that the conduct unknown officers and directors of the Defendant ratified the conduct of each co-Defendant. These vague conclusions lack the particularity needed to plead elder abuse against the Defendant.

Therefore, the Court will sustain the demurrer to the first cause of action.

The Plaintiff has the burden of identifying the manner in which he can amend his complaint and how that amendment will change the legal effect of his pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Although the Plaintiff makes a formulaic request for leave to amend, he offers no explanation of the manner by which he can correct the defects in his first cause of action. Further, as noted above, the Plaintiff admits that the officers and directors that allegedly ratified the conduct are unknown to him. Accordingly, the Court will not grant leave to amend.

b) Motion to Strike
The Defendant requests that the Court strike the punitive damages and for attorney’s fees sought in the first cause of action for elder abuse. In light of the sustaining the demurrer to the first cause of action, the motion to strike is moot because these remedies will be removed by the demurrer.
Accordingly, the Court will take the motion to strike off calendar.

2. Attacks on the pleadings by Defendant, Paul Liu
a) Demurrer to First Cause of Action for Elder Abuse
A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare and Institutions Code sections 15600 to 15675 (references to code sections refer to the Elder Abuse Act).
The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died.
In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for the following:

1) physical abuse as defined in section 15610.63; or
2) neglect as defined in Section 15610.57.

As discussed above, a review of the first cause of action reveals that it fails to plead facts with particularity regarding the Defendants. The Plaintiff has directed the first cause of action against two Defendants:

1) Front Porch California Lutheran Homes; and
2) Paul Liu.

There are no allegations particular to each Defendant to demonstrate the manner in which each neglected Lawrence Schwalley. For example, there are no allegations that identify the conduct of Paul Liu that meets the statutory definition of neglect under the Elder Abuse Act. There are no allegations that Paul Liu knew of conditions that made Lawrence Schwalley unable to provide for his own basic needs and that Paul Liu denied or withheld the goods or services.
This lack of particularity is grounds for a demurrer because the cause of action does not plead particular facts that demonstrate that each separate Defendant is liable for elder abuse, e.g., the particular facts establishing the causal link between each, separate Defendant’s neglect and the injury.

The Plaintiff argues that Paul Liu is liable because he is a managing agent of the other Defendant, Front Porch. However, as noted above, the Plaintiff did not plead sufficient, particular facts to state a claim against Front Porch.
The Plaintiff also argues that his claim is not solely that Paul Liu was negligent, but that Paul Liu failed to provide medical care. However, unless there are particular allegations that Paul Liu knew of a specific medical condition for which Lawrence Schwalley needed medical care, that Paul Liu knew that there was a substantial risk of injury if he withheld the medical care, and that Paul Liu withheld medical care from Lawrence Schwalley, the Plaintiff’s claim is merely the negligent failure to provide medical care, e.g., the failure to make a correct diagnosis of an injury.
Accordingly, the pleadings are insufficient to plead that Paul Liu is liable for elder abuse.

Therefore, the Court will sustain the demurrer to the first cause of action.

The Plaintiff has the burden of identifying the manner in which he can amend his complaint and how that amendment will change the legal effect of his pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Although the Plaintiff makes a formulaic request for leave to amend, he offers no explanation of the manner by which he can correct the defects in his first cause of action. Accordingly, the Court will not grant leave to amend.

b) Demurrer to Second Cause of Action for Negligence and to Third Cause of Action for Wrongful Death
The Defendant argues that these causes of action are uncertain. 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. A demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id.
A review of the second and third causes of action reveals that they are not so bad that the Defendant cannot reasonably respond. The Defendant can determine the nature of the claims directed at him, i.e., a cause of action for negligence and a cause of action for wrongful death.
The Defendant argues that he cannot determine whether the second cause of action is for professional negligence. This is not a persuasive argument because the Defendant can readily determine that the pleadings do not claim that the Defendant had the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise and that the Defendant breached this duty by failing to provide medical treatment within the standard of care. See Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077 (identifying the elements for a professional negligence claim). Since the Plaintiff did not plead any facts regarding a professional duty or the failure to provide medical treatment within the standard of care, the Plaintiff is directing a cause of action for general negligence against the Defendant.
Further, the Defendant can determine whether to admit or deny the issues raised in these causes of action, e.g., whether the Defendant breached his “statutory, regulatory, and common law duties of care”, as alleged in paragraph 70 of the second cause of action, or whether the Defendant ailed to meet his “statutory and common law duties” in paragraph 75 of the third cause of action for wrongful death. There are no grounds to find that the Complaint is uncertain.
Accordingly, the Court will overrule the demurrers to the second and third causes of action based on uncertainty.

c) Strike request for punitive damages
The request for punitive damages is sought as to the first cause of action only. In light of the sustaining of the demurrer to the first cause of action, the motion to strike is moot because these remedies will be removed by the demurrer.
Accordingly, the Court will take the motion to strike off calendar.

RULING:
1. Defendant, Front Porch California Lutheran Homes, Inc.
SUSTAIN demurrer to first cause of action without leave to amend.
TAKE OFF CALENDAR motion to strike

2. Defendant, Paul Liu
SUSTAIN demurrer to first cause of action without leave to amend.
OVERRULE demurrer to second and third causes of action.
TAKE OFF CALENDAR motion to strike

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Schwalley v Front Porch Lutheran Homes

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