Case Number: BC542094    Hearing Date: July 16, 2014    Dept: 34

Moving Party: Defendants Rafael Deutsch; Rosie Milan; Morris Steicher; and Palmcrest House LLC dba Palmcrest Grand Residence (“defendants”)

Resp. Party: Plaintiffs Lorri Rea, individually and as successor-in-interest to Carolyn McClellan (“plaintiffs”)

Defendants’ demurrer to plaintiffs’ complaint is OVERRULED. Defendants’ motion to strike is DENIED.

Defendants’ Request for Judicial Notice is GRANTED. (See Evid. Code, § 452(d), (h).)

PRELIMINARY COMMENTS:

Plaintiff has filed a 24-page memorandum of points and authorities with their opposition, apparently disregarding the 15-page limit for such documents. (See Cal. Rules of Court, rule 3.1113(d).) The Court notes that several of these pages include extensive quoting of the allegations in the complaint. (See Opp., pp. 6-14, 16-17, 22-24.) Such quoting was utterly unnecessary – it is the complaint that is at issue in this demurrer, not plaintiffs’ recitation of such. Plaintiffs could have simply cited to the relevant language in the complaint. It is axiomatic that the Court will read the operative complaint when addressing a demurrer.

The Court also notes that Plaintiff’s lack of adequate proof-reading is distracting. For instance, the first line of the first page of plaintiff’s MPA states, “Defendant Demurrers [sic] to all causes of action . . .” (Opp., p. 2:3.) In the second paragraph, Plaintiff states, “While Palmcrest has both a has both a skilled nursing facility [sic] . . .” (Opp., p. 2:8.)

Plaintiff also complains loudly that Defendant has cited to a non-published opinion, Worsham v. O’Connor Hospital. (See Opp., p. 2:26-28, fn. 1; p. 6:26-28, fn. 3.) On May 20, 2014 (i.e., five weeks before plaintiff filed her Opposition), the Sixth District Court of Appeal changed the status of this case from unpublished to published. (The Court notes that there is currently a request before the Supreme Court to depublish this opinion, but as of the writing of this tentative, the Supreme Court has not acted on that request.)

The Court also notes that Defendant describes Lorrie Rea as the “deceased plaintiff.” (Demurrer, p. 1:24.) It is the Court’s understanding that Lorri Rea, the successor-in-interest to Carolyn McClellan, is not dead.

Lastly, the Court notes that defendant repeatedly refers, in quotation marks, to the “facts” alleged in the complaint. (See, e.g., Reply, p. 2:6; p. 2:8.) “‘Because the function of a demurrer is not to test the truth or accuracy of the facts alleged in the complaint, we assume the truth of all properly pleaded factual allegations.’” (Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 243-44. Accord Dryden v. Tri-Valley Growers (1977) 65 Cal. App. 3d 990, 998.) Thus, it doesn’t help defendants’ demurrer to continually point out that these “facts” are mere allegations and will, no doubt, be contested.

BACKGROUND:

Plaintiffs commenced this action on 4/9/14 against defendants for: (1) elder abuse; (2) violation of Patient’s Bill of Rights; (3) wrongful death; (4) intentional misrepresentation; (5) negligent misrepresentation; (6) negligence; and (7) unfair business practices.

Plaintiffs allege that defendants have owned, licensed, and operated a controlled skilled nursing facility. (Compl., ¶ 29.) Plaintiffs allege that the staffing levels at Palmcrest were below what was required for direct resident care. (Id., ¶¶ 32-34.) Plaintiffs allege that defendants falsely represented their services. (Id., ¶¶ 46-47.) Plaintiffs allege that defendants had a pattern and practice of failing to ensure that their staff were properly trained or qualified. (Id., ¶¶ 48-52.)

Decedent McClellan was admitted to Palmcrest when she was suffering from dementia. (Compl., ¶¶ 61-63.) McClellan’s family notified Palmcrest that McClellan was a fall risk and that certain precautions need to be taken. (Id., ¶ 68.) Plaintiffs allege there were problems because the facility was understaffed. (Id., ¶¶ 68-70.) Plaintiffs allege that defendants failed to properly tend to McClellan’s hygiene. (Id., ¶¶ 71-74.) McClellan had a fall in her room on 4/20/13, but her family was not contacted. (Id., ¶ 78.) The next day, McClellan’s daughter went to her room and found her on the floor bruised and bloody. (Id., ¶¶ 79-81.) Defendants had not investigated after the fall, did not appear concerned, and refused to all 911. (Id., ¶¶ 81-84.) The night nurse admitted that, after McClellan kept coming out of her room on the night of the fall, she took her back to the room and locked it. (Id., ¶ 85.) McClellan was not able to walk after the fall. (Id., ¶ 88.)

McClellan was then admitted to the Palmcrest special memory care unit based on representations that she would have 24-hour care and would receive proper meals and liquids. (Compl., ¶¶ 92-93.) Plaintiffs allege that McClellan was not properly taken care of at this facility. (See id., ¶¶ 101-104.) Plaintiffs allege that defendants failed to provide adequate nutrition and hydration for McClellan, did not attend to her hygiene, and did not allow proper medical evaluations of her condition. (Id., ¶¶ 104-141.) Eventually McClellan was taken to an emergency room, where she was found to be of an altered mental status, severely dehydrated, suffering from hypernatrremia, malnourished, and suffering from a urinary tract infection. (Id., ¶ 143.) McClellan died on 12/19/13. (Id., ¶ 144.)

ANALYSIS:

Demurrer

Defendant demurs to the first, second, third, fourth, fifth, and seventh causes of action on the ground that plaintiffs fail to allege sufficient facts.

Uncertainty

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 7:85.) “Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, ¶ 7:85 [citing Khoury, 14 Cal.App.4th at p. 616].)

The allegations in the complaint are not so unclear that defendants cannot reasonably respond. To the extent that defendants wish to obtain more information as to the fifth, sixth, and seventh causes of action, such information may be sought during the discovery process.

First Cause of Action for Elder Abuse

The elements of elder abuse include: (1) physical abuse by the defendant; (2) plaintiff was 65 years old or older at the time of the conduct; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing the harm. (CACI 3106.) Because causes of action for elder abuse are governed by a statute, the elements must be alleged with particularity. (See Welf & Inst. Code, §§ 15600, et seq.; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82 [elder abuse elements are statutory]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [in general statutory claims must be alleged with particularity].)

Mere negligence is not sufficient to support a claim for elder abuse.

In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. [Citations.]

Section 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Thus, amici curiae argue, causes of actions within the scope of section 15657 are not “cause[s] of action … based on … professional negligence” within the meaning of section 15657.2. Defendants claim that such an interpretation would render section 15657.2 surplusage because section 15657 already on its face excludes actions based on professional negligence strictly construed. We disagree. The Legislature could have reasonably decided that an express statement excluding professional negligence from section 15657 was needed because the language of section 15657, and in particular the terms “neglect” and “recklessness,” may have been too indefinite to make sufficiently clear that “professional negligence” was to be beyond the scope of section 15657.

(Delaney v. Baker (1999) 20 Cal.4th 23, 31-32. See also Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)

Defendants argue that plaintiffs have not alleged that defendant engaged in conduct to support an elder abuse claim. Plaintiffs allege that they notified Palmcrest’s staff that McClellan was a fall risk. (Compl., ¶ 68.) Despite this, on the night of 4/20/13, the night nurse locked McClellan in her room and the staff failed to check on her until her daughter found her the next day. (See id., ¶¶ 78-85.) Plaintiffs allege that they made complaints to the staff about McClellan’s hygiene, but Palmcrest failed to remedy this problem. (See id., ¶¶ 71-74, 114, 117, 124, 132.) Plaintiffs allege that defendants failed to adequately feed McClellan despite her family’s expressed concerns about her nourishment. (See id., ¶¶ 104-110, 125, 129, 131, 135.) Plaintiffs allege that this lead to McClellan’s injuries and ultimately to her death. (See id., ¶¶ 86-88, 143-144.) These facts are sufficient to allege that defendants acted in a reckless manner because they establish that defendant acted with “deliberate disregard” to a “high degree of probability” that McClellan would fall or would become malnourished, and that defendants made a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” (See Delaney, 20 Cal.4th at p. 31.)

Defendants next argue that plaintiffs fail to allege facts of authorization or ratification. “The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.” (Welf. & Ins. Code, § 15657(c).) “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294(b).)

Plaintiffs allege that the individual defendants were managing agents because Milan was the administrator of the facility, and Steicher and Deutsch were the owners/directors and had certain authority. (See Compl., ¶¶ 18, 20, 22.) Plaintiffs allege that the administrator and other managing agents were aware of an understood the understaffed nature of the facility and failed to adequately train their staff. (Id., ¶ 154.) Plaintiffs allege that the managing agents failed to take steps to adequately staff the facilities, failed to oversee McClellan’s care, and failed to conduct an investigation concerning McClellan’s care. (Id., ¶ 156.) Plaintiffs also allege that Milan was directly aware of problems with McClellan but failed to remedy them. (See id., ¶¶ 120-123, 127, 131-132.)

Accordingly, defendants’ demurrer to the first cause of action is OVERRULED.

Second Cause of Action for Violation of Patient’s Bill of Rights

Plaintiffs dismissed this cause of action on 6/11/14. Therefore, defendants’ demurrer to the second cause of action is MOOT.

Third Cause of Action for Wrongful Death

“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) Wrongful death is not a common law action and is instead based in statute. (See Mayerhoff v. Kaiser Foundation Health Plan Inc. (1977) 71 Cal.App.3d. 803, 806.) As such, it must be pleaded with particularity. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

Defendants argue that this cause of action fails because plaintiffs do not allege that McClellan’s death was caused by their conduct. This argument is not well taken. Plaintiffs allege sufficient facts which establish that defendants provided grossly inadequate care for McClellan. Plaintiffs allege that McClellan never fully recovered from this treatment and died as a result of defendants’ conduct. (See Compl., ¶¶ 144, 186-187, 189.)

Accordingly, defendants’ demurrer to the third cause of action is OVERRULED.

Fourth and Fifth Causes of Action for Misrepresentations

The elements of a fraud claim are: (1) misrepresentation of a fact (or intent to conceal in a fraudulent concealment case); (2) knowledge of falsity; (3) intent to defraud (to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Buckland v. Threshold Enters., Ltd. (2007) 155 Cal.App.4th 798, 806-807.) “The elements of negligent misrepresentation are (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 196.)

Fraud and misrepresentation must be specifically pleaded. (Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 553.) Since allegations of fraud involve a serious attack on character, fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Accordingly, fraud must be specifically pleaded, such that: “(a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904.)

“Consistent with the rule requiring specificity in pleading fraud [citation], a complaint must state ultimate facts showing that the defendant intended or had reason to expect reliance by the plaintiff or the class of persons of which he is a member.” (Geernaert v. Mitchell (1995) 31 Cal.App.4th 601, 608.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Plaintiffs allege that Linda Buckles, then administrator for Palmcrest, made misrepresentations about the quality of care at the facility in December 2012. (See Compl., ¶¶ 65-66.) Plaintiffs also allege that the staff at the special memory care unit made misrepresentations prior to McClellan’s admission there. (See id., ¶¶ 92-93.) Plaintiffs allege that they relied on these representations. (See id., ¶¶ 199, 212.) This is sufficient to support the fourth and fifth causes of action. To the extent that defendants wish to learn more information about these claims, they may do so during the discovery process.

Accordingly, defendants’ demurrer to the fourth and fifth causes of action is OVERRULED.

Seventh Cause of Action for Unfair Business Practices

California Business and Professions Code section 17200 permits recovery for “any unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code § 17200.) To state a cause of action under Business and Professions Code section 17200, et seq., plaintiff must show: (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) authorized remedy. (Bus. & Prof. Code § 17200; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676.) “[O]nly plaintiffs who have suffered actual damage may pursue a private UCL action. A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1590.)

“A plaintiff alleging unfair business practice under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) To support this cause of action, plaintiffs must allege a statutory section that has been violated and describe with particularity any supporting violation. (See 5 Witkin, Cal. Procedure (5th ed. 2008), § 779, p. 196 [citing Khoury, 14 Cal.App.4th at p. 619].) As discussed above, plaintiffs have sufficiently alleged causes of action under the elder abuse statute. (See, e.g., Compl., ¶ 227.) Plaintiffs seek restitution for services paid for that were substandard or not actually rendered. (See id., ¶ 229.)

Accordingly, defendants’ demurrer to the seventh cause of action is OVERRULED.

Motion to Strike

Defendant moves to strike the second cause of action, claims for punitive and exemplary damages, and the claims for attorney’s fees.

Second Cause of Action

The request to strike the second cause of action is MOOT because this cause of action was dismissed on 6/11/14.

Punitive Damages

The standard of proof for recovery of punitive damages is “clear and convincing” evidence of malice, fraud, or oppression. (Civil Code § 3294(a).) Under Civil Code 3294(c),

[¶] (1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) The inquiry is generally fact specific to the nature of the claim raised and the context in which the damages are sought, but “the critical element is an ‘evil motive’ of the defendant.” (Ibid.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.'” (American Airlines v. Sheppard (2002) 96 Cal.App.4th 1017, 1051.)

As discussed above, plaintiffs have sufficiently alleged that defendants engaged in conduct constituting elder abuse, and that such conduct was authorized or ratified by the managing agents. Plaintiffs also sufficiently allege fraud. This is sufficient to support plaintiffs’ requests for punitive damages.

The request for treble damages is sufficient because plaintiffs sufficiently allege that defendants engaged in unlawful business practices. Civil Code section 3345, which applies to actions brought by or on behalf of senior citizens or disabled persons, to redress unfair or deceptive acts or practices or unfair competition, allows the recovery of treble damages. (See Civ. Code, § 3345(a), (b).)

Accordingly, defendants’ request to strike plaintiffs’ claims for punitive and exemplary damages is DENIED.

Attorney’s Fees

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) Courts may strike prayers for attorney fees where a party demonstrated no potential basis for their recovery. (Agricultural Ins. Co. v. Sup. Ct. (1999) 70 Cal.App.4th 385, 404.) However, unsupported attorneys fees allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery. (Camenisch v. Sup. Ct. (1996) 44 Cal.App.4th 1689, 1699.)

Attorney’s fees may be recovered in an elder abuse claim. (See Welf. & Inst. Code, § 15657(a).) As discussed above, plaintiffs have sufficiently alleged their first cause of action. Even if the claims were not sufficient, the request for attorney’s fees would not be stricken because discovery could reveal a basis for the request.

Accordingly, defendants’ request to strike plaintiffs’ claim for attorney’s fees is DENIED.

Defendant to answer within 10 days.