Defendant demurs here to Plaintiff’s second cause of action in the FAC on the grounds that the second cause of action for Elder Abuse fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10(e) and because Plaintiff does not have legal capacity to sue pursuant to Code of Civil Procedure section 430.10(b).1 Defendant also moves to strike Plaintiff’s request for punitive damages, and the statutory enhancement. Plaintiff opposes both motions. 2

Demurrer

Defendant first demurs to the second cause of action on the ground that the Elder Abuse and Dependent Adult Civil Protection Act (“Act”) does not create a cause of action, but is simply a remedy that provides for attorney fees, costs and punitive damages under certain conditions. Defendant cites Berkly v. Dowds (2007) 152 Cal.App.4th 518, 529, which held the Act did not create a separate cause of action. Defendant notes that there is a split of authority on this issue and that other courts have found that the Act is the basis for a separate cause of action, but argues that finding is incorrect because it is based on dicta rather than on legislative intent, and legislative intent indicates the legislature merely
1 Defendant’s notice of demurrer states that Defendant is also demurring because the pleading is uncertain pursuant to Code of Civil Procedure section 430.10(f), however that argument is not addressed in the points and authorities. Moreover, a demurrer for uncertainty is disfavored and only appropriate where the complaint is so bad that the defendant cannot reasonably respond. (Khoury v. Maly’s of Calif. Ins. (1993) 14 Cal.App.4th 612, 616) 2 In its reply, Defendant urges the court to decline to consider the opposition as it was filed and served late and Defendant was left with only one day to prepare its reply. The Court notes the late filing and service of the opposition, however while Defendant noted it had only a day to prepare the reply, it has not set forth that it was unable to reply sufficiently, and the Court will therefore consider both the opposition and the reply.

intended to create a new remedy. (see Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657.) Defendant argues that Plaintiff’s factual allegations in his second cause of action are no different than those presented in his cause of action for breach of implied warranty albeit pleading enhanced damages under the act, and that Plaintiff cannot maintain a separate cause of action under the Act.3

In opposition, Plaintiff cites Perlin, supra, which criticized the Berkly decision and found that there is a separate cause of action for elder abuse under the Act. Plaintiff argues that Defendant cites no cases that have followed Berkly, and cites a number of federal court decisions that have followed Perlin.

In reply, Defendant argues that “where there is more than one appellate court decision, and such appellate decisions are in conflict… the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.) Defendant argues that statutory language and legislative intent clearly intended the Act to only provide remedies, not a new cause of action. (See also, Estate Planning: Cal. Trust and Probate Litigation (Cont.Ed.Bar.) §§ 8.1-8.2 [“[Act] provides enhanced remedies for existing causes of action involving the abuse of elders”].)

It is clear that “the courts are divided whether this section and related provisions create independent causes of action or merely enhance the remedies available under pre-existing causes of action.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal. App. 5th 841, 858, fn 11, citing Perlin v. Fountain View Management, Inc., supra, 163 Cal.App.4th 657.) In Mahan, the Court of Appeal reversed a trial court’s sustaining of a demurrer on the grounds that a cause of action for elder abuse was insufficiently pleaded, stating in a footnote that it did not need to address the question of the split of authority since in that case, the parties had not raised the issue. (Mahan v. Charles W. Chan Ins. Agency, Inc., supra, 14 Cal. App. 5th at p. 858, fn 11.) The Mahan court continued stating that “in any event we conclude the Mahans have adequately alleged various causes of action which, if proved, would constitute predicate torts.”

The Court declines to decide at this time whether the Act creates a separate cause of action or simply grounds for enhanced remedies for other causes of action. If Plaintiff has adequately alleged the grounds for liability for financial abuse under Welfare and Institutions Code sections 15610.30 and 15657.5 (which the Court will discuss below), at this stage it does not matter whether the allegations are titled a cause of action, or are considered to allege a claim for an enhanced remedy under his first cause of action. Either way, Plaintiff needs to allege the elements of financial elder abuse to obtain the enhanced remedy. 3 The Court takes judicial notice of Plaintiffs Motion to Amend the original Complaint, Defendant’s opposition, and the Court’s ruling. (Evid. Code, § 452.) Defendant argued in opposition to the Motion to Amend that the First Amended Complaint did not sufficiently plead a cause of action for elder abuse. In granting the motion, the Court declined to consider the sufficiency of the pleading at that time, saying that was properly the subject of a later demurrer or other motion. However, at that time Defendant did not argue that Elder Abuse is not a separate cause of action; it simply took issue with how it was pleaded. This argument is raised for the first time here.

Defendant next demurs on the ground that Plaintiff does not qualify for protection under the act or sufficiently plead facts to state a claim under the Act. Defendant argues that the Act is not applicable in the instant matter because the gravamen of Plaintiff’s claim is that he was not satisfied with the condition of a used vehicle he purchased and the effects of subsequent malfunctions. He argues this does not state a claim for financial elder abuse, proof of which requires that a person or entity takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult (or assists in those acts) for a wrongful use or with intent to defraud, or both. (Welf. & Ins. Code, § 15610.30(a).) Defendant cites no authority beyond the statute itself.

Defendant then argues that even if Plaintiff is qualified for relief under the Act, his pleading is insufficient. “Facts, not conclusions, must be pleaded. Further, where, as here, statutory remedies are invoked, the facts must be pleaded with particularity.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 410 (internal citations omitted); Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790.) Defendant argues that Plaintiff’s second cause of action contains only excerpts from the Act and conclusory statements. Plaintiff claims that Defendant’s conduct constitutes fraud, oppression and malice, but does not specific what or how that conduct rises to such a level. Plaintiff claims that he was manipulated into entering the purchase agreement, but provides no details on how such was perpetrated.

In opposition, Plaintiff argues that the elder abuse cause of action should be read in context with all the allegations in the FAC, which allege that Defendant refused to return Plaintiff’s money after selling him the motorhome that was uninhabitable due to severe levels of mold, mildew and fungus, and that Defendant’s conduct was committed knowingly in taking advantage of Plaintiff’s age, manipulating him into purchasing the defective vehicle, and exposing him to health dangers, and that if the allegations in the FAC are proven, Plaintiff would prevail.

In reply, Defendant argues that the second cause of action contradicts Plaintiff’s verified discovery responses, which asked whether any statutes were claimed violated and only identified the Song-Beverly Act, the basis for the first cause of action. He further asserted that he was not suffering from any physical, emotional or mental disability or condition at the time of the incident and did not suffer from any physical, mental or emotional injuries at the time of the incident. This argument was not raised in the moving papers, however. Moreover, Plaintiff may not have realized at the time of his discovery responses that he might have another statutory claim. That answer could be easily amended. As to the other allegations, if Plaintiff’s claims are based on his age and economic damages, his discovery responses are not necessarily inconsistent.

Nonetheless, the Court agrees with Defendant that the FAC is insufficiently pleaded to support a cause of action for financial elder abuse. While Defendant has not provided authority that such a claim could never be proven in connection with the sale of a used vehicle under any circumstances, here the FAC does not adequately plead particular facts to support such a claim. Proving financial elder abuse requires pleading and proving

wrongful use or intent to defraud. Statutory remedies and fraud must be pleaded with particularity. Plaintiff has only pleaded conclusory facts, at most generally alleging Defendant “took advantage of Plaintiff’s age and disposition to manipulate him into entering a contract” for a vehicle with defects either “known, or should have been known” that pose dangers to Plaintiff’s health. (FAC, 7:4-7.) Reading all allegations of the FAC as a whole and taking them as true, Plaintiff has not alleged specific facts showing wrongful use or intent to defraud. Plaintiff’s allegations as pleaded do not state a claim for financial elder abuse under Welfare and Institutions Code sections 15610.30 and 15657.5

Defendant’s demurrer to Plaintiff’s second cause of action for elder abuse is sustained with leave to amend. Plaintiff has thirty (30) days from service of notice of ruling to file his amended complaint unless notice is waived at the hearing.

Motion to Strike

Defendant moves pursuant to Code of Civil Procedure section 436 to strike Plaintiff’s claim for punitive damages (FAC, 8:8-10, 9:9) and Plaintiff’s pleaded claim for a statutory enhancement under Civil Code section 3345 (FAC, 8:11-9:2, 9:10.). Defendant alleges that Plaintiff has not set forth facts sufficient to state a claim for punitive damages under Code of Civil Procedure section 3294, as Plaintiff pleads only conclusory statements to demonstrate he is entitled to punitive damages. Defendant argues that this was simply a run-of-the-mill sale, and that Plaintiff does not even plead that Defendant knew of the alleged defects, just that they knew or should have known. Plaintiff opposes, arguing that ultimate facts are sufficient to meet California pleading standards. The cases Plaintiff cites, however, are not in the context of punitive damages.

Plaintiff’s claim for punitive damages is based upon his second cause of action. Because the demurrer to that cause of action has been sustained, Defendant’s motion to strike Plaintiff’s claim for punitive damages is moot as to the request in the second cause of action, and granted as to the request in the prayer. Moreover, the Court finds that regardless, Plaintiff’s pleading of punitive damages is insufficient. Plaintiff sets forth no facts sufficient to show oppression, fraud or malice by Defendant, or facts to impose employer liability for punitive damages. (Welf. & Ins. Code, § 15657.5 (b)-(d); Civ. Code, § 3294 (b), (c).) Plaintiff’s claims are conclusory. Again, Plaintiff’s main claim is that Defendant “took advantage of Plaintiff’s age and disposition to manipulate him into entering a contract” for a vehicle with defects either “known, or should have been known” that pose dangers to Plaintiff’s health. (FAC, 7:4-7.) No facts are pleaded that show how Defendant is alleged to have manipulated Plaintiff, or what Plaintiff’s “disposition” was that cause him to be taken advantage of. Plaintiff’s only allegations with respect to entering the contract itself are that before the purchase, he noticed stains on the carpet which the salesman said he would have removed. (FAC, 5:6-8.) Similarly, there are no facts alleged supporting a basis for employer liability for punitive damages.

Defendant further moves to strike Plaintiff’s claim for a statutory enhancement under Civil Code section 3345. Section 3345 applies in actions brought by senior citizens,

defined as someone 65 years of age or older, to redress unfair or deceptive acts or practices or unfair methods of competition. (Civ. Code., § 3345(a).) Defendant argues again that statutory remedies must be pleaded with particularity, cites cases decided under the elder abuse Act, and argues that Plaintiff pleads no specific conduct that triggers the protections of the Act let alone enhanced damages. Defendant argues that Plaintiff fails to plead facts that would permit the recovery of enhanced damages under section 3345 and that the pleadings fail to give Defendant notice of the basis of Plaintiff’s claim.

Plaintiff in response argues that Defendant conflates the law applicable to section 3345 with the law applicable to the Act. Plaintiff correctly notes that Defendant cites four cases all discussing the Act, not section 3345, and that Defendant cites no authority finding that the statutory enhancement must be pleaded with particularity. Plaintiff alleges that the Complaint property pleads that Plaintiff is a senior citizen, which is sufficient. Defendant also cites no authority under section 3345.

The Court finds that regardless of the pleading standard, Plaintiff’s factual allegations are insufficient to give Defendant notice of the factual basis for its claim for a statutory enhancement. (Civ. Code, § 3345 (b)(1)-(3).)4 Plaintiff has not alleged the elements necessary under that section to support such a claim under the facts and circumstances of this case.

Defendant’s motion to strike is granted with leave to amend. Plaintiff has thirty (30) days from service of notice of ruling to file his amended complaint unless notice is waived at the hearing.

4 The Court notes that while the allegations for enhancement under 3345 are factually insufficient, that claim could potentially have a legal basis in Plaintiff’s first cause of action, apart from his statutory elder abuse claim. The statutory enhancement under section 3345 arises whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, and the trier of fact makes certain factual findings. Plaintiff pleads that his cause of action arises under Civil Code section 1791.1 for breach of implied warranty, and therefore discretionary penalties under section 1794 could apply, serving as a potential basis for a section 3345 enhancement. (See Clark v. Superior Court (2010) 50 Cal.4th 605, 611-612.)