Case Name: Beatrice K. Pacheco v. Home Instead Senior Care, et al.
Case No.: 1-14-CV-261696

Defendants Michelle Rogers, Philip Marechal, and All 4 Wine, LLC d.b.a. Home Instead Senior Care 168 (collectively, “Franchise-Defendants”) demur to the second through seventh causes of action in the complaint of plaintiff Beatrice K. Pacheco (“Plaintiff”) on the ground of failure to allege sufficient facts and move to strike portions of the complaint. (See Code Civ. Proc. [“CCP”], §§ 430.10, subd. (e) & 435-436.) Defendant Marreon Starks (“Starks”) demurs to each cause of action in the complaint on the ground of failure to allege sufficient facts. (See CCP, § 430.10, subd. (e).)

Starks’s demurrer is OVERRULED, without prejudice. Plaintiff’s counsel declares to have never received the demurrer and supporting papers, and Starks only proffers a proof of service to demonstrate that the papers were served on and received by Plaintiff. (See Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4th 1426, 1441-1442, citing Evid. Code, § 641 [valid proof of service creates a rebuttable presumption that papers were served]; Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 421; [presumption dispelled by contradicting evidence]; Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479 [after contradictory evidence is proffered, the presumption disappears].) Moreover, Starks claims to have served the papers by mail, and therefore, he filed the demurrer late. (See CCP, § 1005, subd. (c) [“[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing,” but “if served by mail [from California], the required 16-[court] day period shall be increased by five calendar days”].)

Franchise-Defendants contend that their demurrer should be sustained because the complaint does not allege sufficient facts to support a respondeat superior theory of liability. Franchise-Defendants allegedly assigned Starks—an individual with a criminal record and known financial problems—to care for and dress Plaintiff—a woman with bipolar disorder who lacked capacity to care for herself—during unsupervised overnight stays in her home. (Compl., ¶¶ 5-7 & 14-17.) Under these alleged circumstances, Starks’s conduct is unusual or startling such that it would be unfair to attribute liability to his employer. (See Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992, 1004.) Thus, Plaintiff has not sufficiently pleaded respondeat superior liability. Since the second through fourth and sixth causes of action are based on respondeat superior liability, Franchise-Defendants’ demurrer to those claims for failure to allege sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

Franchise-Defendants’ demurrer to the fifth cause of action (
breach of fiduciary duty) is OVERRULED. (See Brown v. California Pension Administrators & Consultants, Inc. (1996) 45 Cal.App.4th 333, 347-348 [“to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach”]; see also Persson v. Smart Inventions, Inc. (2005) 125 Cal. App. 4th 1141, 1160-1161 [the essential elements of a fiduciary relationship have been summarized as: (1) vulnerability of one party to the other which (2) results in the empowerment of the stronger party which (3) empowerment has been solicited or accepted by the stronger party and (4) prevents the weaker party from effectively protecting itself].) Plaintiff alleges that her son entered into a Service Agreement whereby the Franchise-Defendants agreed to care to Plaintiff and secure her valuables, including her cash, checks, jewelry, and financial and personal information. (Compl., ¶ 14.) Also, Plaintiff alleges that she was vulnerable and lacked capacity such that Franchise-Defendants were empowered over her and she could not protect herself. (Id., ¶ 12 & 14.) These allegations are sufficient to establish a fiduciary relationship.

Franchise-Defendants’ demurrer to the seventh cause of action (negligence per se) is OVERRULED. (See Wallman v. Suddock (2011) 200 Cal.App.4th 1288, 1308 [elements of negligence are (1) duty; (2) breach; (3) injury to the plaintiff as a proximate result; and (4) damage]; see also Evid. Code, § 669 [the doctrine of negligence per se provides that “[t]he failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted”].) Contrary to Franchise-Defendants’ argument, the mandatory reporting requirements applicable to caretakers do not distinguish between financial and physical abuse or neglect. (See Welf. & Inst. Code, § 15630, subd. (a)-(b) & (h).) It appears that Franchise-Defendants conflate the reporting requirements of Welfare & Institutions Code section 15630 (applicable to caretakers) with the reporting requirements of Welfare & Institutions Code section 15630.1 (applicable to banks and financial institutions). Welfare & Institutions Code section 15630.1 does not affect the mandatory reporting requirements imposed on caretakers—such as Franchise-Defendants—by Welfare & Institutions Code section 15630. Plaintiff alleges that she was physically and financially abused by Starks and by Franchise-Defendants’ failure to adequately train and supervise him, and that Franchise-Defendants failed to report the abuse. (Compl., ¶¶ 17-18, 68-72, & 78-79.) These allegations are adequate to support a negligence claim based on an alleged violation of Welfare and Institutions Code section 15630.

Franchise-Defendants’ motion to strike portions of the complaint is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to paragraphs 65 and 76 because the parties agree that the treble damages claim was improperly asserted in connection with the elder abuse cause of action. The motion is DENIED as to the portions of the complaint pertaining to the punitive damages claim. (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151 [punitive damages are recoverable against an employer “when an employee was guilty of oppression, fraud or malice, and the employer with advance knowledge of the unfitness of the employee employed him or her with a conscious disregard of the rights or safety of others”].)