Case Number: BC543729    Hearing Date: August 22, 2014    Dept: 56

Case Name: Hamilton v. Del Rio Gardens, et al.
Case No.: BC543729
Matter: Demurrer and Motion to Strike

Tentative Ruling: Demurrer sustained in part; Motion to strike granted in part.

Plaintiff Carol Hamilton (through her conservator) filed this action against Defendants Del Rio Gardens Care Center and Del Rio Sanitarium Inc., asserting causes of action for (1) elder abuse, (2) negligence, and (3) violation of Patients Bill of Rights. Defendants demur and move to strike the complaint.

Uncertainty (1st COA) –
Defendants demur to the 1st COA for elder abuse on the ground that Plaintiff fails to allege facts with particularity, citing Covenant Care v. Superior Court (2004) 32 Cal.4th 771, 790 (an elder abuse claim requires recklessness, oppression, fraud, or malice).

Plaintiff alleges that Defendants provide skilled nursing and long term care; Plaintiff was an elder and dependent adult; on 5/17/13 Plaintiff was sexually assaulted by an agent, servant or employee of Defendants; Plaintiff suffered from pressure ulcers that went untreated; Defendants ratified these actions; Defendants knew that these actions violated applicable laws and Defendants acted in conscious disregard of applicable laws. At the pleading stage, this is sufficient to support Plaintiff’s claims. See Carter v. Prime Healthcare (2011) 198 Cal.App.4th 396, 406-7. This ground is overruled.

Employer Liability (All COAs) –
Defendants demur to all COAs on the ground that they are not liable for a sexual assault that occurred outside of the scope of employment, citing Lisa M. v. Henry Mayo (1995) 12 Cal.4th 291. This argument is directed to only Plaintiff’s sexual assault claim and does not address the failure to treat Plaintiff’s pressure ulcers. A demurrer cannot be sustained on grounds which pertain to only part of a cause of action. See Kong v. City of Hawaiian Gardens (2002) 108 Cal.App.4th 1028, 1047.

Additionally, Defendants are improperly attempting to dispute the allegations of the complaint at the pleading stage. The nature of respondeat superior liability is whether the incident was generally foreseeable from the employee’s duties and working conditions. Lisa M, supra 12 Cal.4th at 298-99. This is a question of fact. See Mary M. v. City of LA (1991) 54 Cal.3d 202, 213. Plaintiff’s complaint is sufficient, and this ground is overruled.

License Allegations (3rd COA) –
Defendants demur to the 3rd COA on the ground that Plaintiff has failed to specify whether Del Rio Gardens Health Care Center or Del Rio Sanitarium Inc. is the licensee of the facility in question. Plaintiff concedes this point. The demurrer is sustained on this ground, with leave to amend.

Punitive Damages and Attorney Fees –
Defendants move to strike the claims for punitive damages and attorney fees in the 1st COA for elder abuse on the ground that Plaintiff has failed to allege sufficient facts to support an award of punitive damages. As discussed above, the complaint alleges that Plaintiff’s rights were seriously violated and that Defendants ratified the conduct, knew that the conduct violated applicable laws, and acted in conscious disregard of the applicable laws. These are sufficient to support punitive damages and attorney fees under WIC §15657.

Defendants also move to strike the claim for punitive damages in the 1st and 3rd COAs for failure to comply CCP §425.13. This provision does not apply to an elder abuse claim such as the 1st COA; see Covenant Care, supra 32 Cal.4th at 783. It does apply to the 3rd COA for violation of H&S §1430, which relates to the manner in which Defendants provided professional services; see Central Pathology Service v. Superior Court (1992) 3 Cal.4th 181, 192. Moreover, it does not appear that punitive damages are available under §1430, because subsection (b) specifies that the remedies in a private action are an injunction, a penalty up to $500, and costs and attorney fees.

Ruling –
The motion to strike is granted for the claim of punitive damages in the 3rd COA, without leave to amend. It is otherwise denied.

The demurrer is sustained for the 3rd COA concerning the identity of the licensee. It is otherwise overruled. Because this allegation is narrow and straightforward, the court will permit the amendment by interlineation, with Defendants to answer within 10 days.