Case Name: Diane Carlson and Marilyn Bolante, individually and as successors in interest to Linda Balangue, deceased v. Regional Medical Center of San Jose, et al.

Case No.: 2017-CV-307880

Demurrer to the First Amended Complaint by Defendants Daniel Tse, M.D. and Philip Tse, M.D.

Factual and Procedural Background

This is an elder abuse case brought by plaintiffs Diane Carlson and Marilyn Bolante (collectively, “Plaintiffs”) in their own capacity and on behalf of their mother, Linda Balangue (“Balangue”). (First Amended Complaint [“FAC”] at ¶ 1.) Balangue, now deceased, was an elder and resident under the care and custody of defendants at Regional Medical Center of San Jose (“Regional Medical Center”) from March 2016 to August 2016. (Id. at ¶ 2.) Balangue was also under the care and custody of defendants at Milpitas Care Center from April 2016 through July 2016. (Id. at ¶ 5.) Defendants Daniel Tse, M.D. and Philip Tse, M.D. (collectively, “Defendants”) were responsible for Balangue’s care at the Regional Medical Center and the Milpitas Care Center. (Id. at ¶ 7.) Plaintiffs allege that Balangue’s condition deteriorated while under the care and custody of Defendants as a result of neglect which included: (1) failing to provide adequate personal hygiene in areas of infection control, incontinence care and body cleanliness; and (2) failing to adequately assess, monitor/provide for nutrition and hydration. (Id. at ¶¶ 13-14.) As a result of Defendants’ neglect, Balangue suffered serious debilitating personal injuries and emotional distress. (Id. at ¶ 18.) Balangue passed away on October 26, 2016. (Id. at ¶¶ 1, 9.)

On July 24, 2017, Plaintiffs filed the operative FAC setting forth the following causes of action: (1) statutory elder abuse; (2) negligence/wrongful death; (3) negligence/survival; (4) financial elder abuse; and (5) unfair business practices.

Demurrer to the FAC

Currently before the Court is Defendants’ demurrer to the first, fourth, and fifth causes of action in the FAC on the ground that they fail to state a claim. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiffs filed written opposition. Defendants filed reply papers.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

First Cause of Action: Statutory Elder Abuse

“The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a person residing in this state, 65 years of age or older.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404 (Carter); Welf. & Inst. Code, § 15610.27.) “The Elder Abuse Act defines abuse as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Ibid.; Welf. & Inst. Code, § 15610.07, subd. (a).)

The primary basis for Plaintiffs’ elder abuse claim appears to be neglect. The Elder Abuse Act defines neglect as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1).) Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. [¶] (2) Failure to provide medical care for physical and mental health needs…[¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration.” (Welf. & Inst. Code, § 15610.07, subd. (b).) In short, neglect refers “to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1990) 20 Cal.4th 23, 34.) Thus, when 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.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)
To state a claim for neglect under the Act, the plaintiff must allege facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) 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 or with conscious disregard of the high probability of such injury. (Carter, supra, 198 Cal.App.4th at pp.406-407.) The plaintiff must also allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Id. at p. 407.) “Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims. [Citation.]” (Ibid.)

Defendants argue that the claim for statutory elder abuse has not been pled with the required specificity to state a cause of action. (See Carter, supra, 198 Cal.App.4th at p. 407; see also Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5—“[Where] recovery is based on a statutory cause of action, the plaintiff must set forth facts in his [or her] complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate. [Citations.]”) In addition, Defendants contend that Plaintiffs’ elder abuse claim is inadequate as it is merely a disguised cause of action for professional negligence.

Despite these contentions, the Court finds that Plaintiffs have alleged sufficient facts in their pleading to state a claim for statutory elder abuse. (See FAC at ¶¶ 7, 8, 9, 10, 11, 12, 13, 14, 18.) In particular, paragraphs 13 and 14 of the FAC allege specific examples of neglect by Defendants while Balangue was under their care and custody. Plaintiffs also allege that Defendants were aware of Balangue’s need for care and that withholding treatment constitutes a high degree of probability that significant injury will occur. (Id. at ¶ 11.) Finally, Plaintiffs allege that Defendants’ neglect ultimately caused Balangue to suffer personal injuries and emotional distress. (Id. at ¶ 18.) Based on the allegations of the FAC, which must be accepted as true on demurrer, the Court is satisfied that Plaintiffs have alleged a cause of action for statutory elder abuse.

Consequently, the demurrer to the first cause of action on the ground that it fails to state a claim is OVERRULED.

Fourth Cause of Action: Financial Elder Abuse

“The substantive law of elder abuse provides that financial abuse of an elder occurs when any person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both. A wrongful use is defined as taking, secreting, appropriating, or retaining property in bad faith. Bad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174; Welf & Inst. Code, § 15610.30.)

Defendants argue that the financial elder abuse cause of action fails as it has not been pled with the necessary factual support to state a valid claim. Here, Plaintiffs allege that Defendants took money from Balangue in exchange for the promise to provide for her basic health needs. (FAC at ¶ 34.) Defendants allegedly took money from Balangue for care even though they knew they would not provide care and services to her. (Id. at ¶ 36.) Defendants’ conscious failure to provide care and services to Balangue is also set forth in prior allegations of the FAC which are incorporated into the fourth cause of action. (Id. at ¶¶ 11, 32.) Finally, Plaintiffs allege that Defendants took, appropriated, and obtained Balangue’s money for a wrongful use and with intent to defraud her. (Id. at ¶ 36.) Based on the allegations of the FAC, which must be accepted as true on demurrer, the Court is satisfied that Plaintiffs have alleged a cause of action for financial elder abuse.

Therefore, the demurrer to the fourth cause of action on the ground that it fails to state a claim is OVERRULED.

Fifth Cause of Action: Unfair Business Practices

“The UCL prohibits, and provides civil remedies for, unfair competition, which it defines as ‘any unlawful, unfair or fraudulent business act or practice.’ [Citation.] Its purpose ‘is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.’ [Citations.]” (Kwikset Corp. v. Super. Court (2011) 51 Cal.4th 310, 320.)

Defendants contend that the fifth cause of action, which appears to be based in part on the fraudulent prong of the UCL, fails to identify any representations made specifically by Defendants. The fifth cause of action however alleges that defendants represented to Balangue and her family that they were competent and experienced physicians capable of attending to Balangue’s special needs. (See FAC at ¶ 46.) At a minimum, the Court may reasonably infer that this representation was intended to relate to the defendant physicians as opposed to other defendants. (See Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 789, fn. 3 [on demurrer, the court must assume the truth of facts alleged in the complaint and reasonable inferences that may be drawn therefrom].) Defendants also argue that the UCL claim fails as it is not premised on a “pattern of conduct” or “pattern of behavior.” (See Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 108; see also People v. McKale (1979) 25 Cal.3d 626, 632 [the UCL statute is directed at “on-going” wrongful business conduct].) This argument is not persuasive as the fifth cause of action also incorporates prior allegations of the FAC. (See FAC at ¶ 44.) This includes Plaintiffs’ elder abuse claims which survived demurrer and establish a pattern of withholding care and treatment for Balangue. (See FAC at ¶¶ 7, 8, 9, 10, 11, 12, 13, 14, 18, 32-43.) Thus, the Court finds that Plaintiffs have stated a cause of action under the UCL.

Consequently, the demurrer to the fifth cause of action on the ground that it fails to state a claim is OVERRULED.