1.DEMURRER TO COMPLAINT
2.MOTION TO STRIKE COMPLAINT

Demurrer

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 506.

In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a Defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the Defendant in fairness needs such detail which can be conveniently provided by the Plaintiff. Less particularity is required when the Defendant ought to have co-extensive or superior knowledge of the facts. Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.

1st COA: Elder Abuse

To state a claim for statutory Elder Abuse, the Plaintiff must plead with particularity the following essential elements:

(1) Plaintiff/Decedent was at least 65 years of age;

(2) Plaintiff/Decedent was

a. physically abused OR

b. neglected by an individual who had care or custody of the plaintiff/decedent;

(3) Defendant acted with recklessness, oppression, fraud or malice in the commission of such abuse/neglect.

Welfare & Institutions Code §§ 15610.07, 15610.27, 15610.57, 15657; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790. As recently summarized by the Court of Appeal in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407:

“The Plaintiff must allege (and ultimately prove by clear and convincing evidence) 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. The Plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, 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.”

Neglect means the failure to assist in personal hygiene; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration. Health & Safety Code §15610.57. Neglect as a form of abuse under the Elder Abuse Act refers 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. Thus, when care of an elder is at issue, the statutory definition of neglect speaks not of the undertaking of services, but of the failure to provide care. Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.

Recklessness “refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’” Delaney v. Baker (1999) 20 Cal.4th 23, 32. For example, in Sababin v. Superior Court (2006) 144 Cal.App.4th 81, the Court of Appeal found that the failure to properly manage pressure sores after the problem was first reported could support the recklessness element for elder abuse. The Court explained the matter this way (at 90):

“if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. 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.”

However, in the recent case of Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, the Court of Appeal found that in “neglect” cases plaintiff must have facts showing that the staff (1) knew the elder was unable to provide for his or her own basic needs and (2) withheld services knowing injury would occur or with a conscious disregard of a high probability of injury. Id. at 407.

On balance, the allegations contained in the complaint are sufficient. Plaintiff is required to plead the elements with particularity, but just as in any case of heightened pleading requirements, facts unknown to the Plaintiff but presumably known to the defense need not be included. Plaintiff cannot know with precision what transpired at the facility, and can only look to medical records (or the absence thereof) to fit together the pieces of the puzzle. Defendant is clearly on notice regarding the theories of wrongdoing and where the issues will lie.

Demurrer OVERRULED.

3rd COA: Patient’s Bill of Rights

H&S Code §1430 provides in pertinent part:

“A current or former resident or patient of a skilled nursing facility … may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patient’s Bill of Rights … The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees.”

Plaintiffs concede that this cause of action is not properly asserted against the Ensign parties since they are not licensees. Demurrer sustained as to the Ensign parties without leave to amend.

As for the related motion to strike allegedly “duplicate” damages, that is an issue to take up at the time of trial. Plaintiffs’ prayer does not, on its face, seek something which the law prohibits.

4th COA: Willful Misconduct

There is presently a dispute amongst courts and scholars as to whether “willful misconduct” is actually a cause of action (as opposed to a descriptor of conduct lying somewhere between negligence and intentional wrongdoing). This dispute, which was recently recognized in Nalwa v. Cedar Fair, LP (2012) 55 Cal.4th 1148 (at 1163 n.8), has its roots in pre-comparative fault jurisprudence. The Court in Berkley v. Dowds (2007) 152 Cal.App.4th 518, concluded with apparent ease (at 526) that no such cause of action exists, yet still went on to discuss the essential elements of the claim. The Court in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, presumed that a cause exists and set out to define its parameters (at 412). The Court in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, provided this apt discussion (at 689-690, in pertinent part):

“The concept of willful misconduct has a well-established, well-defined meaning in California law. Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results … Three essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” Quoting from Morgan v. Southern Pacific Trans. Co. (1974) 37 Cal.App.3d 1006, 1011.

Willful misconduct is a close cousin to gross negligence: the former focusing on knowledge, and the latter focusing on the conduct. Gross Negligence is generally considered to be a separate cause of action (see Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082), and this Court sees no reason to find otherwise for willful misconduct: “California case law clearly distinguishes between the concepts of ordinary negligence and other, aggravated forms of misconduct.” City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 779; in accord, Ileto v. Glock, Inc., 565 F.3d 1126, 1158 n. 14 (9th Cir. 2009). Willful misconduct is expressly recognized in cases involving workers compensation (see Bigge Crane & Rigging Co. v. Workers’ Comp. Appeals Bd. (2010) 188 Cal.App.4th 1330, 1349), and recreational use immunity per Civil Code §846 (see Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 939-941), so why not in an elder abuse case?

The ‘existence” of the cause of action is in truth irrelevant: willful misconduct is still a species of negligence and carries with it no new, different or heightened damages. The availability of punitive damages does not turn on the title of the claim, but rather the conduct at issue. See Food Pro International, Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 994; Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.

For the same reasons set forth regarding the elder abuse cause of action, the facts here are adequate as well. Demurrer OVERRULED.

Punitive Damages

Motion to strike punitive damages is GRANTED without prejudice for Plaintiff to seek amendment.

Attorney Fees

As a general rule, each party to litigation must bear its own attorney fees. Hyduke’s Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 434. However, a prevailing party may be entitled to recover attorney fees is authorized by contract, statute or law. CCP §1033.5(a)(10). When authorized, attorneys fees are “costs” (Martinez v. LA County Metro Trans Authority (2011) 195 Cal.App.4th 1038, 1041) and do not need to be pled AT ALL to be recoverable at day’s end. Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497; Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1797-1798. In fact, an prayer for attorneys fees – without an actual basis for recovery of fees – is a nullity. See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 897; M. Perez Co. v. Base Camp Condominiums Ass’n No. One (2003) 111 Cal.App.4th 456, 467. As such, striking them, or leaving them behind, is of no import.

Here, Plaintiff has identified an actual statutory vehicle for fees, and is entitled to recover them if the claims are proven up. There is no basis at all to strike at this time.

Conclusion

Demurrer is overruled in all respects save for Plaintiffs’ concession regarding the 3rd cause of action and the Ensign parties. Motion to strike DENIED in all respects.