Case Number: BC668462 Hearing Date: February 14, 2020 Dept: A

Cordova v Silver Lake Medical Center

Demurrer; Motion to Strike

Calendar:

06

Case No.:

BC668462

Hearing Date:

February 14, 2020

Action Filed:

July 13, 2017

Trial Date:

Not Set

MP:

Defendant Success Healthcare 1, LLC d/b/a Silver Lake Medical Center

RP:

Plaintiff Alexander Cordova

ALLEGATIONS:

Plaintiff Alexander Cordova (“Plaintiff”) alleges that on July 24, 2016, he was a patient of Defendants Success Healthcare 1, LLC d/b/a Silver Lake Medical Center (“Success”); Brent J. Dale, M.D. (“Dale”); Moiez Khankhanian, M.D. (“Khankhanian”); and Kingsley Ofoegbu, M.D. (“Ofoegbu” and collectively the “Defendants”) and hospitalized in their Ingleside psychiatric facility. He alleges that prior to this date, he had been diagnosed with signification psychiatric disorders, including bipolar disorder, depression, paranoia, schizophrenia, psychosis, violent behavior, aggression, and disorientation. He alleges Defendants placed a “hold” on Plaintiff under Welfare & Institutions Code, §5150. Plaintiff alleges that Defendants failed to provide him appropriate care because he was able to attempt suicide by fashioning a strangling device around his neck in an attempt to hang himself.

Plaintiff filed the initial Complaint on July 13, 2017, filed the First Amended Compliant (“FAC”) on May 13, 2019, and thereafter filed the operative Second Amended Complaint (“SAC”) on October 23, 2019, alleging two causes of action for (1) Medical Malpractice, and (2) Dependent Adult Abuse.

PRESENTATION:

Success filed the instant demurrer and motion to strike on January 06, 2020. Plaintiff opposed both on January 31, 2020, and reply briefs were filed on February 06, 2020.

RELIEF REQUESTED:

Success demurs to the Second Cause of Action for Dependent Adult Abuse.

Success moves to strike the punitive damages allegations in the SAC.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

On review of the Declaration of Renick, the Court concludes that Success has satisfied the minimum requirements under the code to satisfy the obligation to meet and confer.

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Second Cause of Action (Dependent Adult Abuse) – Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), Welf. & Inst. Code §15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age. Welf. & Inst. Code §15610.23,(a). The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious. See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666. For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789. “[W]hen the 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 v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–5, as modified (Aug. 24, 2011) (emphasis original) (internal citations omitted).

As to the first element of EADACPA, the Court notes that the assertion that Plaintiff was a dependent adult, as stated in SAC ¶26, is inadequate to establish the facts supporting an inference of Plaintiff’s status as a dependent adult under the code. Nevertheless, the factual allegations stated in Plaintiff’s first cause of action, in SAC ¶9, alleging Plaintiff’s various psychiatric disorders, and the placement of a “hold” on Plaintiff under Welf. & Inst. Code §5150 on the day of Plaintiff’s injury is sufficient to support an inference of Plaintiff’s status as a dependent adult.

The next necessary element for the cause of action is satisfaction of one of the three prongs of Welf. & Inst. Code §15610.07(a), which require allegations of either: “(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. [¶ or] (3) Financial abuse, as defined in Section 15610.30.” In the SAC, Plaintiff alleges that Defendants committed neglect by making “a conscious decision not to provide adequate supervision to its patients and to understaff its facility”. SAC ¶33. Further Plaintiff’s SAC alleges that during the relevant period of time Success monitored Plaintiff at 19:30, 19:40, and was discovered during his suicide attempt at 19:45. SAC ¶30.

These allegations do not rise to the level of neglect or deprivation of care necessary to support a claim under EADACPA. As the Court has previously noted in its prior tentative on October 04, 2019, “[t]he regulations applicable to acute psychiatric hospitals ‘define those facilities’ duties of care owed to their residents and therefore define duties of care applicable to elder abuse of those residents.’ [Citation].” Fenimore v. Regents of University of California (2016) 245 Cal. App. 4th 1339, 1348; see also 22 California Code of Regulations §77061. Here, Plaintiff has failed to allege any facts that would support an inference of understaffing under Success’ obligations under 22 California Code of Regulations §77061, nor does Success’ checking on Plaintiff every 5 to 10 minutes support an inference of neglect or deprivation of care. Delaney v. Baker (1999) 20 Cal.4th 23, 34. Whether Success’ actions in monitoring Plaintiff violated the requisite standard of care is a matter that can be litigated through the first cause of action sounding in negligence, but the factual allegations cannot support the enhanced remedies under EADACPA.

Accordingly, the Court will sustain the demurrer.

Leave to Amend – The Court notes that Plaintiff has requested leave to amend in the opposition papers. Plaintiff, however, does not offer the Court any information that would indicate that further amendment could cure the defect in the pleadings. Moreover, the factual allegations that presently exist in the SAC indicate to the Court that Plaintiff will not be capable of alleging facts necessary to support a claim under EADACPA as the fact alleged support the opposite inference that Success did not neglect or deprive Plaintiff of care. Accordingly, the Court will sustain the demurer without leave to amend.

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Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc. §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc. §431.10. The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code Civ. Proc. §436(b).

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229. “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).

The motion to strike is predicated on the Court sustaining the demurrer to the Second Cause of Action, and Plaintiff’s opposition is predicated on the Court overruling the demurrer to the Second Cause of Action. As the Court is inclined to sustain the demurrer to the Second Cause of Action without leave to amend, the Court is similarly inclined to grant the motion to strike. Specifically, the alleged facts that indicate Success’ actions in monitoring Plaintiff do not support an inference of conscious disregard necessary to support a claim for punitive damages. SAC ¶30.

Accordingly, the Court will grant the motion to strike.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Success Healthcare 1, LLC d/b/a Silver Lake Medical Center’s Demurrer and Motion to Strike came on regularly for hearing on February 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND; AND

THE MOTION TO STRIKE IS GRANTED.

DATE: _______________ _______________________________

JUDGE