Case Name:   Pacheco v. Home Instead, Inc., et al.

Case No.:       1-14-CV-261696

 

In this action for elder abuse, plaintiff Beatrice K. Pacheco, by and through her conservator Stephen Pacheco, (“Plaintiff”) alleges that she was physically abused and financially manipulated by defendant Marreon Starks (“Starks”).  Starks was a caregiver employed by defendant All 4 Wine, LLC d.b.a. Home Instead Senior Care 168 (“the Franchise”), a franchise of defendant Home Instead, Inc., also known as Home Instead Senior Care (“Home Instead”).  (First Amended Complaint (“FAC”), ¶¶ 3-4, 8, and 11.)  Defendants Michelle Rogers and Philip Marechal (collectively, “the Owners”) own the Franchise.  (FAC, ¶¶ 5-6.)

 

On June 11, 2014, the Court sustained in part and overruled in part the Franchise and Owners’ (collectively, the “Franchise Defendants”) collective demurrer to the original complaint and granted in part and denied in part their motion to strike portions of the same.  Plaintiff filed the FAC on June 20, 2014, asserting claims for: (1) negligence (against all defendants); (2) breach of fiduciary duty (against all defendants); (3) breach of written contract (against Home Instead and the Franchise Defendants); (4) conversion (against all defendants); (5) elder abuse – financial (against all defendants); (6) elder abuse – neglect (against all defendants); (7) elder abuse – abduction (against Starks); (8) sexual battery (against all defendants); (9) elder abuse – physical (against all defendants); (10) intentional infliction of emotional distress (against all defendants); (11) negligence per se (against Home Instead and the Franchise Defendants); and (12) unfair business practices (against all defendants).

 

Currently before the Court are the demurrer and motion to strike of the Franchise Defendants and the demurrer and motion to strike of Home Instead.

 

The Franchise Defendants’ Demurrer

 

The Franchise Defendants demur to the fourth, fifth, sixth, eighth, ninth, and tenth causes of action on the grounds that each fails to state a claim.  (Code Civ. Proc., § 430.10, subd. (e).)  They contend that each of these claims is based on a theory of respondeat superior liability that is unsupported by the allegations of the FAC.

 

Direct Liability for the Fifth and Sixth Causes of Action

 

Plaintiff contends that the Franchise Defendants are directly liable for the fifth and sixth causes of action for elder financial abuse and neglect.

 

With respect to the fifth cause of action, Plaintiff argues that by hiring Starks when he was unfit to care for her, failing to provide him with appropriate training, and sending him into the home of a vulnerable elder, the Franchise Defendants “assist[ed] in taking … property of an elder or dependent adult for a wrongful use or with intent to defraud.”  (Welf. & Inst. Code, § 15610.30, subd. (a); see FAC, ¶ 82.)  However, the FAC stops short of alleging that the Franchise Defendants actually knew of Starks’ misdeeds or substantially assisted them as required to state a claim for assisting elder financial abuse.  (See Das v. Bank of America, N.A., 186 Cal.App.4th 727, 744-745 [section 15610.30, subdivision (a) “cannot be understood to impose strict liability for assistance in an act of financial abuse,” but must be construed in light of the common law standard for aiding and abetting liability]; Welf. & Inst. Code, § 15657, subd. (c) [“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.”]; FAC, ¶ 23 [the Franchise Defendants “knew or should have known of Starks’ history”].)

 

With respect to the sixth cause of action, Plaintiff contends that the Franchise Defendants failed to protect her from health and safety hazards by allowing her home to become unsanitary when she had a history of kidney infections.  (See Welf. & Inst. Code, § 15610.57, subd. (b) [defining neglect to include failure to protect an elder from health and safety hazards]; FAC, ¶ 93.)  However, to allege neglect within the meaning of the Elder Abuse Act, a plaintiff must plead that a defendant “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 (if the plaintiff alleges recklessness).”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)  Again, the FAC fails to allege that the Franchise Defendants acted more than merely negligently, while the Elder Act requires allegations that they acted with knowledge or recklessness.[1]  (See Welf. & Inst. Code, § 15657, subd. (c); FAC, ¶ 23.)

 

Consequently, the fifth and sixth causes of action do not state direct claims against the Franchise Defendants for elder abuse.

 

Vicarious Liability for the Fourth, Fifth, Sixth, Eighth, and Ninth Causes of Action

 

Plaintiff also contends that the fifth and sixth causes of action, as well as the fourth cause of action for conversion, the eighth cause of action for sexual battery, and the ninth cause of action for physical elder abuse, state a claim against the Franchise Defendants on a vicarious liability theory.  However, as discussed in the Court’s prior order, under the circumstances alleged by Plaintiff, Starks’s conduct is not fairly attributable to his employer.  (See Maria D. v. Westec Residential Sec. (2000) 85 Cal.App.4th 125, 137-138 [determination of whether an employee has acted within the scope of employment becomes a question of law where “the relationship between an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment”; holding that employer could not be held vicariously liable for security guard’s sexual assault and discussing a number of cases finding no liability for sexual assaults upon students and parishioners on the part of the abusers’ employers]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004-1005 [“an employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes”]; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 306 [hospital not vicariously liable for sexual assault committed by ultrasound technician].)

 

Consequently, the Franchise Defendants’ demurrer to the fourth, fifth, sixth, eighth, and ninth causes of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

The Tenth Cause of Action

 

The Franchise Defendants contend that the tenth cause of action for intentional infliction of emotional distress fails because their conduct as alleged by Plaintiff was not extreme and outrageous as required to plead such a claim.  Plaintiff argues that the Franchise Defendants’ actions in hiring an unfit caregiver and installing him in a vulnerable elder’s home constitute extreme and outrageous conduct.  However, as urged by the Franchise Defendants, the conduct alleged does not rise to this level.  (See Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 130 [extreme and outrageous conduct must “exceed all bounds of that usually tolerated in a civilized community” and “be of a nature that is especially calculated to cause mental distress of a very serious kind”; nursing home’s failure to prevent the rape of a resident did not constitute extreme and outrageous conduct].)

 

The Franchise Defendants’ demurrer to the tenth cause of action is accordingly SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

The Franchise Defendants’ Motion to Strike

 

The Franchise Defendants ask the Court to strike the fourth, fifth, sixth, eighth, ninth, and tenth causes of action for the same reasons stated in support of their demurrer.  Given that the demurrer was sustained as to each of these claims, the motion to strike is MOOT as to these requests.

 

The Franchise Defendants also move to strike Plaintiff’s prayer for punitive damages as to the same claims, her prayer for treble damages as to the elder abuse causes of action, and her prayer for attorney’s fees and costs of suit.  The motion is MOOT as to the first two items given the Court’s ruling on the Franchise Defendants’ demurrer.  The motion is DENIED as to the third item because the Franchise Defendants do not address Plaintiff’s request for attorneys’ fees in their memorandum of points and authorities.  (See Cal. Rules of Court, rule 3.1113 [moving party must file a memorandum of points and authorities supported by arguments and evidence along with a discussion of statutes and cases in support of the position advanced].)

 

Home Instead’s Demurrer

 

Home Instead demurs to the first, second, fourth, fifth, sixth, eighth, ninth, and tenth causes of action on the grounds that each is uncertain and fails to state a claim.  (Code Civ. Proc., § 430.10, subds. (e) and (f).)  The FAC’s allegations concerning Home Instead are virtually identical to those pertaining to the Franchise Defendants, given that the FAC refers to these defendants collectively as the “Agency Defendants” and alleges that they acted collectively during the events at issue.

 

As an initial matter, the demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (f) is OVERRULED.  Uncertainty is a disfavored ground for demurrer and a demurrer on this ground is typically sustained only where the pleading is so unintelligible that the defendant cannot reasonably respond.  (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].)  Here, Plaintiff’s claims are alleged clearly enough to enable a response, regardless of her use of the term “Agency Defendants” to describe Home Instead and the Franchise Defendants collectively.

 

With respect to the demurrer for failure to state a claim, Home Instead contends that it is not vicariously liable for Starks’s or the Franchise Defendants’ actions given that it is a franchisor.  However, Plaintiff alleges that the Franchise Defendants acted as Home Instead’s agents during the events giving rise to the FAC, and consequently, that Home Instead was a party to the Service Agreement with Plaintiff and an employer of Starks.  (FAC, ¶¶ 7-8 and 18.)  While Home Instead appears to dispute these facts, they must be accepted as true on demurrer. (See City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212-213 [on demurrer, “[a]n allegation of agency is an allegation of ultimate fact that must be accepted as true”]; Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376 [“Generally, an allegation of agency is an allegation of ultimate fact and is, of itself, sufficient to avoid a demurrer.”].)

 

Consequently, Home Instead’s demurrer to the first cause of action for negligence and the second cause of action for breach of fiduciary duty, which are stated directly against Home Instead on an agency theory, is OVERRULED.[2]

 

Nevertheless, for the reasons discussed with respect to the Franchise Defendants’ demurrer, Home Instead’s contention that the FAC fails to allege facts adequate to support claims for conversion, elder abuse, sexual battery, and intentional infliction of emotional distress against it on either a direct or vicarious liability theory is correct.  Accordingly, Home Instead’s demurrer to the fourth, fifth, sixth, eighth, ninth, and tenth causes of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

 

Home Instead’s Motion to Strike

 

Home Instead moves to strike the first, second, fourth, fifth, sixth, eighth, ninth, and tenth causes of action for the same reasons offered in support of its demurrer.  In light of the Court’s ruling on the demurrer, Home Instead’s motion to strike is MOOT as to the fourth, fifth, sixth, eighth, ninth, and tenth causes of action.  The motion is DENIED as to the first and second causes of action given that Home Instead’s arguments that these causes of action are uncertain and fail to state claims are not proper grounds for a motion to strike.  (See Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342 [“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.”].)

 

Additionally, Home Instead moves to strike Plaintiff’s prayers for compensatory damages, restitution, punitive damages, treble damages, interest, attorneys’ fees, and costs of suit.  Home Instead contends that Plaintiff cannot recover punitive damages from it because it did not employ Starks, but this argument lacks merit as discussed above.  Home Instead also argues that Plaintiff has not stated facts sufficient to state a claim entitling her to treble damages under Civil Code section 3345, which authorizes treble damages in “actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons … to redress unfair or deceptive acts or practices or unfair methods of competition.”  However, as urged by Plaintiff, the request for treble damages is appropriately tied to her twelfth cause of action for unfair business practices, which Home Instead did not challenge on demurrer and also does not address in its motion to strike.  Consequently, there is no basis for the Court to strike the request for treble damages.  Home Instead does not address the other items it seeks to strike in its memorandum of points and authorities, and its requests must consequently be denied as to these items as well.  (See Cal. Rules of Court, rule 3.1113.)

 

Home Instead’s motion to strike is thus DENIED as to the items in Plaintiff’s prayer for relief.

 

[1] While Plaintiff does allege in general terms that all of the defendants acted in a “reckless, malicious, willful and oppressive” fashion (FAC, ¶ 98), this is a legal conclusion unsupported by any specific factual allegations.  (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn.5 [“a pleading that did no more than assert boilerplate allegations that defendants knew or were on notice of the perpetrator’s past unlawful sexual conduct would not be sufficient”].)

[2] The Court found that the breach of fiduciary duty claim was adequately pleaded when it overruled the Franchise Defendants’ previous demurrer to this claim.  While the Court has not previously ruled on the adequacy of the negligence cause of action, Home Instead does not argue that it fails to state a claim if the franchise issue is disregarded.