Case Name: Smith v. Defendant Sub Acute and Skilled Care, et al.
Case No.: 16CV304346

I. Background

This action arises from alleged elder abuse that occurred while Michael Smith (“Smith”), the now deceased husband of plaintiff Elisa Smith (“Plaintiff”), was a patient at a skilled nursing facility. The pleading at issue is the First Amended Complaint (“FAC”) filed by Plaintiff against the nursing facility, defendant A Grace Sub Acute and Skilled Care (“Defendant”).

According to the allegations in the FAC, Smith was a patient at the nursing facility from around January 3, 2007 to January 10, 2017. (FAC, ¶ 6.) He suffered from dementia and was mentally incapacitated throughout his stay there. (Ibid.) Defendant was aware of Smith’s need for substantial assistance in the areas of food and fluid consumption, toileting and hygiene, bed mobility, repositioning and pressure relief. (Id. at ¶ 11.) It was also aware Smith was at risk of skin breakdown and was taking medications that induced sedation, lethargy and immobility, thereby heightening his risk of increased skin pressure. (Ibid.)

Despite its knowledge of these facts, Defendant repeatedly failed to provide Smith with oxygen, nutrition, hydration, physical and occupational therapy; assist him with consumption of food and fluids; assist him with toileting and hygiene; monitor the effects his medication was having on his skin pressure; supervise the state of his skin; assist him with ambulation, bed mobility, repositioning and pressure relief; address the declines in his skin condition, food and fluid intake, and weight; and create or follow a care plan for him. (Id. at ¶ 13.) It also did not engage help from other care providers or transfer him to a higher level of care when it could no longer properly care for him; notify a qualified physician of critical changes in his medical condition; and protect him from health and safety hazards of which it was aware. (Ibid.)

These failures were the result of Defendant’s conscious decision not to properly staff its facility or train and monitor its care staff as necessary, which stemmed from its effort to minimize costs and maximize compensation for its management and shareholders. (Id. at ¶ 12.) Such decisions rendered its care staff chronically unable to respond to the residents’ care needs. (Id. at ¶ 13.) As a result of Defendant’s actions, Smith suffered injuries including dehydration, malnutrition, weight loss, severe bedsores, pain, irritation, severe emotional distress and, ultimately, death. (Id. at ¶¶ 15, 20, 24.)

Plaintiff’s FAC asserts five causes of action for: (1) elder abuse; (2) professional negligence; (3) wrongful death; (4) negligent infliction of emotional distress; and (5) violation of patients’ rights.

Defendant demurs to the first, fourth and fifth causes of action. It also moves to strike various portions of the FAC. Plaintiff opposes both matters.

II. Demurrer

Defendant’s demurrer is brought on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

In support, it advances arguments specific to the first, fourth and fifth causes of action. In addition, it also preliminarily asserts these claims are barred by the statute of limitations as the violations are purported to have occurred over the ten years Smith was a resident of the facility. It does not further elaborate on this contention or even discuss the applicable limitations period for each of these causes of action. As such, its assertion is unsubstantiated. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 (“Dougherty”) [a point asserted without argument or citation to authority requires no response from the court].)

As for Defendant’s remaining contentions, the Court will address them below.

A. First Cause of Action

Plaintiff’s first cause of action is for violation of the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”), codified in Welfare and Institutions Code section 15600 et seq.

“The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) As such, under Welfare and Institutions Code section 15657, if a plaintiff proves by clear and convincing evidence that a defendant is liable for physical abuse or neglect as defined in the Elder Abuse Act, and has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, he or she can recover enhanced remedies consisting of attorney’s fees and costs. (Welf. & Inst. Code, § 15657, subd. (a).) If a plaintiff seeks to recover these remedies from a corporation, he or she must prove an officer, director or managing agent of the corporation authorized, ratified or engaged in the conduct complained of, or had advance knowledge of the unfitness of an employee and employed him or her in conscious disregard for the health and safety of others. (Welf. & Inst. Code, § 15657, subd. (c).) This statutory requirement borrows from Civil Code section 3294 (“Section 3294”), subdivision (b), which sets forth the standard used in determining if punitive damages should be imposed on an employer based on the acts of an employee. (See Ibid.)

Defendant argues no elder abuse claim has been pled because Plaintiff does not allege with sufficient specificity that an officer, director or managing agent was involved in, authorized or ratified the alleged abuse. Specifically, it points to an allegation in the FAC in which Plaintiff avers the “[failures to provide Smith with appropriate care] constituted reckless and willful misconduct by [its] managing agents, officers, directors and other that direct corporate affairs,” but claims this allegation is conclusory. (See Dem. at p. 5:24-27, citing FAC, ¶ 13i.) This argument is not well-taken.

Defendant cites Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 for the general rule that statutory causes of action must be pled with particularity but does not explain how Plaintiff’s allegation in paragraph 13i is deficient or cite any authority specifying what facts must be pled to sufficiently aver an officer, director or managing agent was involved in the elder abuse. As such, its position is unsupported.

Thus, the demurrer to the first cause of action on the ground of failure to state sufficient facts is OVERRULED.

B. Fourth Cause of Action

The fourth cause of action is for negligent infliction of emotional distress (“NIED”). Plaintiff alleges Defendant caused her emotional distress by engaging in conduct that led to the noticeable physical deterioration of Smith, which she observed during her regular visits to Smith.

Defendant argues no claim has been stated because NIED is not an independent cause of action; this claim is duplicative of Plaintiff’s second cause of action for professional negligence; Plaintiff fails to allege a duty under either the direct victim or bystander theories of recovery; and Plaintiff fails to allege outrageous conduct by Defendant.

The Court will address each of these contentions in turn.

First, though Defendant is correct in its observation there is no standalone cause of action for NIED, the cases it cites do not stand for the proposition a demurrer to an NIED claim may be sustained on this basis. Rather, these cases merely stated that NIED is a species of negligence; thus, in analyzing the viability of a claim for NIED, the traditional elements of duty, breach of duty, causation and damages apply. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 (“Burgess”); Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal.App. th 598, 617; Bidna v. Rosen (1993) 19 Cal.App.4th 27, 39; Lawson v. Mgmt. Activities, Inc. (1999) 69 Cal.App.4th 652, 656.) Even if Plaintiff identifies this claim as one for negligent infliction of emotional distress, the label of a cause of action is not controlling. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) As such, the demurrer cannot be sustained on the basis NIED is not an independent cause of action.

Second, duplicativeness is not a ground upon which a demurrer can be sustained. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-90, citing Code Civ. Proc., § 430.10.) Moreover, as Plaintiff points out in her opposition, it does not appear the NIED claim is duplicative of the professional negligence cause of action. This cause of action is predicated on the emotional distress suffered by Plaintiff while the second cause of action for professional negligence is based on damages suffered by Smith. Thus, the argument a demurrer to this claim should be sustained because it is duplicative is misplaced.

Defendant’s third contention regarding Plaintiff’s failure to allege a duty has merit.

“The law of negligent infliction of emotional distress in California is typically analyzed by reference to two ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Burgess, supra, 2 Cal.4th at 1071.) The distinction between the two is rooted in the source of the duty owed to the plaintiff. (Id. at 1072.) Under the bystander theory, the source of the defendant’s duty arises from the fact he or she was a percipient witness to the injury of another. (Ibid.) In those cases, the plaintiff has no preexisting relationship with the defendant and is not owed a duty of care other than one owed to the general public. (Ibid.) “In other words, bystander liability is premised upon a defendant’s violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another.” (Id. at 1073.) In contrast, under the direct victim theory, the defendant’s duty arises out of a special relationship between the defendant and plaintiff, his or her assumption of a duty to the plaintiff, or the imposition of a duty upon him or her as a matter of law. (Id. at 1073.)

There appears to be no dispute the NIED claim is not predicated on the direct victim theory of recovery. Thus, the question that remains is whether Plaintiff sufficiently pleads an NIED claim as a bystander.

One of the essential elements of the bystander theory of recovery is that the plaintiff “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647 (“Thing”).) Specifically, there must be some type of “contemporaneous sensory awareness of the causal connection between the defendant’s infliction of harm and the injuries suffered by the close relative.” (Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 836.)

Defendant takes issue with the sufficiency of this element as pled by Plaintiff because she does not allege facts indicating she witnessed harm done to Smith with an understanding its conduct was causing injury. It argues that, unlike cases such as Keys v. Alta Bates Summit Med. Ctr. (2015) 235 Cal.App.4th 484 (“Keys”) where caregivers fail to respond to symptoms obviously requiring immediate medical attention, here, Plaintiff does not allege these types of facts. This argument is generally well-taken.

Though the court in Keys did not state a plaintiff must plead he or she witnessed a situation requiring immediate medical attention but only that an NIED claim may arise in such situations (see Keys, supra, 235 Cal.App.4th at 489), Defendant is correct that this element as pled is insufficient. Specifically, the Court observes Plaintiff conclusorily alleges she was “present during the injury-producing events at or near the time they occurred and was then aware…that these events and their effects were causing injury to [Smith]” (see FAC, ¶ 30), but provides no specific facts in support. While Plaintiff is not required to plead this claim with any heightened level of particularity, she also cannot rely on bare legal conclusions to support her cause of action. (See Maystruck v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881, 888, 889 [alleging conclusions without factual support is “fatal to the complaint”]; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [on demurrer we do not assume the truth of contentions, deductions or conclusions of law].) As such, the demurrer is sustainable on the basis Plaintiff does not adequately allege she is a bystander entitled to recovery of NIED damages.

In opposition, Plaintiff takes issue with Defendant’s contention she lacked understanding of the harm Smith was suffering, asserting that even laypersons can perceive some forms of medical negligence and can recover under the bystander theory if it is apparent such negligence is causing injury to a close relative. In support, she cites Keys, supra, and the discussion of Ochoa v. Superior Court (1985) 39 Cal. 3d 159 (“Ochoa”) by the court in Bird v. Saenz (2002) 28 Cal.4th 910 (“Bird”). Her reliance on these cases is misplaced because, in each of these cases, the courts had before them facts that could be evaluated to determine if the plaintiffs could have perceived the negligence that was harming their relatives. For example, in Ochoa, an NIED claim was upheld where a mother observed a juvenile detention facility’s failure to provide medical assistance to her son who was vomiting, coughing up blood and in excruciating pain. (39 Cal.3d at 172.) Here, in contrast, the Court cannot even evaluate whether Plaintiff was contemporaneously aware of apparent negligence that was harming Smith because she does not allege any facts supporting her general allegation. Plaintiff asserts she need not prove her NIED claim at this point, which is correct, but does not otherwise cite any authority supporting the proposition she is permitted to predicate her cause of action on legal conclusions without reference to specific facts. As such, her argument is not well-taken.

Defendant’s final argument in support of its demurrer to this claim is that no cause of action exists because Plaintiff does not plead it engaged in outrageous conduct. This argument lacks merit because, as at least one court has observed, none of the controlling California Supreme Court precedents suggest outrageous conduct is a required component for an NIED claim. (Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1042.) Moreover, even if it was an element that had to be pled, it is generally an issue that is discussed relative the direct victim theory of recovery, which has no application here. (See, e.g., Bro v. Glaser (1994) 22 Cal.App.4th 1398, 1438.)

Accordingly, the demurrer to the fourth cause of action on the ground of failure to state sufficient facts is SUSTAINED with 10 days’ leave to amend because Plaintiff fails to adequately plead facts supporting the conclusion she was contemporaneously aware Defendant’s conduct was harming Smith.

C. Fifth Cause of Action

The fifth cause of action is for violation of patient’s rights. Plaintiff alleges Defendant’s conduct constituted a violation of a patient’s rights as codified in Section 72527 of Title 22 of the California Code of Regulations (“Patient Bill of Rights”). She seeks remedies pursuant to Health and Safety Code section 1430, subdivision (b), which authorizes a current or former resident of a skilled nursing facility to bring a civil action for a violation of the Patient Bill of Rights.

Defendant argues this claim is moot because Section 1430 authorizes the imposition of a statutory penalty of up to $500 in a civil action based on a violation of a patient’s rights and it tendered a $500 check to Plaintiff on March 1, 2018. This argument is not well-taken.

It is well-established that, on demurrer, a court considers only the allegations on the face of the complaint and any matters that may be judicially noticeable. (Groves v. Peterson (2002) 100 Cal.App.4th 659, 667; Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120; Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.) No extrinsic matters may be considered. (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359; Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 239, fn. 9.) Defendant’s reference to its tendering of the $500 payment, which does not appear on the face of the complaint, is improper and cannot be considered for purposes of ruling on the sufficiency of this cause of action.

Accordingly, its demurrer to the fifth cause of action on the ground of failure to state sufficient facts is OVERRULED.

III. Motion to Strike

A court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.)

Defendant moves to strike the “entirety of the FAC” as it relates to the negligence and elder abuse causes of action and claims of conduct occurring outside certain time periods as well as the following portions of the pleading: (1) the prayer for punitive damages; (2) the request for and allegations of entitlement to enhanced remedies under the Elder Abuse Act; (3) the request for and allegations of entitlement to treble damages; (4) the request for remedies under Health and Safety Code section 1430, subdivision (b) (“Section 1430”); and (5) the allegation Plaintiff is entitled to damages according to proof.

As a preliminary matter, Defendant does not discriminate with respect to the grounds on which it brings its motion to strike each of the above categories of material. It generally cites all the bases for bringing a motion to strike under Code of Civil Procedure section 436 – namely that the material is irrelevant, false, or improper, or not drawn or filed in conformity with the laws of this state – even though some of these grounds clearly do not apply. For example, Defendant does not suggest at any point that any of the above allegations or prayers for relief are false. Furthermore, with respect to the ground of failure to draw or file a pleading in conformity with the law, this only relates to striking a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) Here, Defendant advances no arguments that correspond with this ground. Thus, the only appropriate bases for its motion to strike in light of the contentions presented is that the material is irrelevant or improper.

A. The “Entirety of the FAC” Relative to the Negligence and Elder Abuse Claims

Defendant moves to strike the “entirety of the FAC” as it relates to the professional negligence and elder abuse claims and any claims of wrongful conduct occurring outside the applicable statute of limitations. Specifically, it asserts a one-year limitations period applies to the professional negligence cause of action under Code of Civil Procedure section 340.5, and a two-year limitations period applies to the elder abuse claim under Code of Civil Procedure section 335.1. Because the complaint in this matter was filed on December 22, 2016, Defendant contends Plaintiff’s “negligence claims regarding the care provided by Defendant to decedent prior to December 22, 2015,” and her “claims of neglect [i.e. elder abuse] prior to December 22, 2014” should be stricken. (Mtn. at p. 17:9-10; 18:3-5.)

At the outset, Defendant cites no legal authority supporting its request to strike the entire FAC. Code of Civil Procedure section 436, subdivision (a) provides that a court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading,” not that it may strike an entire pleading containing such matter. Further, because the arguments advanced are limited to portions of the pleading, Defendant’s request to strike the entire FAC is not warranted.

Defendant’s request to strike is otherwise deficient because it does not identify any specific paragraphs to be stricken or quote in full the portions of the pleading sought to be stricken. (See Cal. Rules of Court, rule 3.1322(a).) Even assuming Defendant intended that the professional negligence and elder abuse causes of action themselves be stricken, there are no allegations therein indicating the wrongful conduct occurred on any specified date, much less at a time that fell outside any relevant limitations period.

As such, the motion to strike the “entirety of the FAC” relative to Plaintiff’s professional negligence and elder abuse claims and any claims of conduct occurring outside the specified time periods is DENIED.

B. Punitive Damages

Defendant moves to strike the prayer for punitive damages relative to the first cause of action for elder abuse.

Under Civil Code section 3294 (“Section 3294”), punitive damages are recoverable where there is clear and convincing evidence the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) If the defendant is a corporate employer, liability for punitive damages exists only if an officer, director or managing agent of the corporation authorized, ratified or engaged in the conduct complained of, or had advance knowledge of the unfitness of the employee who acted with oppression, fraud or malice and employed him or her in conscious disregard for the health and safety of others. (Civ. Code, § 3294, subd. (b).)

Defendant does not specifically discuss the adequacy of the allegations relative to this statute but, instead, reiterates the argument it made on demurrer regarding Plaintiff’s failure to state an elder abuse claim because she did not aver an officer, director or managing agent was involved in the elder abuse. Though not clearly articulated, it appears that because Section 15657 incorporates Section 3294’s standard for imposing punitive damages against a corporate employer and it is a corporate employer, Defendant is contending the failure to allege facts constituting an elder abuse claim amounts to a failure to allege facts justifying a punitive damages request against it. In support, Defendant repeats the assertions made in its demurrer while citing two additional cases, Cruz v. HomeBase (2000) 83 Cal.App.4th 160 (“Cruz”) and White v. Ultramar, Inc. (1999) 21 Cal.4th 563 (“White”), which generally stand for the proposition a showing of involvement by a corporate leader must be made to hold a corporation liable under Section 3294.

For the reasons already stated in the Court’s ruling on the demurrer, Plaintiff’s allegation of involvement by the officers, directors and managing agents has not been shown to be deficient. Accordingly, the motion to strike the prayer for punitive damages is DENIED.

C. Enhanced Remedies under the Elder Abuse Act

Defendant moves to strike the allegations in paragraphs 1 and 16 alleging entitlement to the remedies under the Elder Abuse Act, and the prayer for attorney’s fees and costs pursuant to this statutory scheme.

As previously stated, Section 15657 of the Elder Abuse Act permits the recovery of reasonable attorney’s fees and costs where it is proven by clear and convincing evidence that a defendant is liable for abuse or neglect of an elder that was committed with recklessness, oppression, fraud or malice. (Welf. & Inst. Code, § 15657, subd. (a).) If a plaintiff seeks these remedies from a corporate employer, he or she must satisfy Section 3294’s standards for imposing punitive damages on a corporate employer.

First, Defendant argues Plaintiff fails to allege facts demonstrating it acted with recklessness, malice, oppression or fraud. It does not elaborate further or discuss any authority regarding what conduct can be deemed reckless, malicious, oppressive or fraudulent. As such, its position is unsubstantiated. (See Dougherty, supra, 138 Cal.App.3d at 282 (“Dougherty”) [a point asserted without argument or citation to authority requires no response from the court].)

Next, Defendant asserts Plaintiff fails to allege its officers, directors or managing agents were involved in the abuse with sufficient particularity. For the reasons previously discussed, this contention lacks merits.

Therefore, the motion to strike the request for enhanced remedies under Section 15657 and the allegations of entitlement to such remedies is DENIED.

D. Treble Damages

Defendant moves to strike allegations in paragraphs 1 and 16 alleging entitlement to treble damages under Civil Code section 3345 (“Section 3345”), and the prayer for treble damages relative to the first cause of action for elder abuse.

Section 3345 provides for the recovery of 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. (Civ. Code, § 3345, subd. (a).) Such damages are permitted whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors: (1) the defendant knew or should have known his or her conduct was directed to one or more senior citizens or disabled persons; (2) his or her conduct caused a senior citizen or disabled person to suffer, among other things, loss of a primary residence, employment or source of income; or (3) his or her conduct resulted in substantial physical, emotional or economic damage to a senior citizen or disabled person that was substantially more vulnerable than other members of the public because of factors including age, poor health or infirmity. (Civ. Code, § 3345, subd. (b).)

Defendant asserts the FAC’s allegations do not support an award of treble damages because Plaintiff does aver specific facts demonstrating its conduct caused Smith to lose his primary residence, employment or source of income, or that it caused him substantial injuries. This argument is not well-taken.

First, Defendant only discusses two of the three factors that could support an award of treble damages when the statute explicitly states an affirmative finding as to any of the three factors can support such an award. (See Civ. Code., § 3345, subd. (b)(1).) Specifically, Defendant does not discuss the first factor regarding whether it knew or should have known its conduct was directed to one or more senior citizens or disabled persons. With respect to this factor, the allegations in the FAC clearly indicate this factor is met. In particular, Plaintiff alleges Defendant is a skilled nursing facility that undertakes the provision of care to, among others, senior citizens like Smith. (See FAC, ¶¶ 2, 4, 6.) She also avers Defendant knew “serious injuries to [facility] residents would be a probable…result of conscious decisions on their part not to ensure that their respective facilities were staffed with a necessary number of qualified caregivers.” (Id. at ¶ 10.) Such allegations are sufficient to establish Defendant knew or should have known its conduct was directed to one or more senior citizens. Moreover, with respect to the purported lack of factual specificity in these allegations, Defendant cites no authority discussing what level of detail is required to support a treble damages request. As such, its positon is unsubstantiated and its argument as a whole lacks merit.

Next, Defendant asserts Section 3345 only relates to actions that redress unfair or deceptive practices against senior citizens or disabled persons and no unfair or deceptive practice is alleged. Defendant cites no authority discussing what constitutes an unfair or deceptive practice for purposes of this statute and does not explain why the conduct alleged in the FAC is not an unfair or deceptive practice. As such, its contention is unsubstantiated.

Finally, Defendant contends Plaintiff is required to identify the statute whose fine or penalty she is seeking to treble. This argument apparently draws from language in subdivision (b) of the statute, which states that a trier of fact may treble “a fine, or a civil penalty or other penalty” authorized by statute when it makes an affirmative finding as to any of the above-discussed factors. (Civ. Code, § 3345, subd. (b).) Notably, the statute also indicates that a request for treble damages need not be tethered to any statutory fine or penalty. Rather, it also authorizes the trebling of any amount the trier of fact would impose where a statute does not authorize a specific amount. As such, Defendant’s assertion Plaintiff is required to identify an authorizing statute lacks merit.

For the reasons stated, the motion to strike the request for treble damages and the allegation of entitlement to such damages is DENIED.

E. Remedies under Section 1430

Defendant moves to strike paragraph 34, which alleges Plaintiff is entitled to an injunction and attorney’s fees and costs under Section 1430, subdivision (b), and the prayer for such remedies.

Section 1430 provides, among other things, that “[a] current or former resident or patient of a skilled nursing facility…may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights.” (Health & Saf. Code, § 1430, subd. (b).) It further states “[t]he licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue.” (Ibid.)

1. Injunctive Relief

Defendant asserts no facts have been alleged demonstrating an entitlement to injunctive relief because there are no ongoing violations of Smith’s rights given he is no longer a resident of the facility. Defendant further contends Section 1430 does not permit Plaintiff to seek an injunction based on the violation of other patients’ rights. In opposition, Plaintiff contends the fact the statute permits an action by even a former resident “suggests that the harms alleged and the right to enjoin them are ongoing and larger than the individual victim.” (Opp. at p. 10:22-24.) In support of this interpretation, she points to subdivision (a) of Section 1430, which provides that the Attorney General may prosecute various violations upon the complaint of “a person acting for the interests of itself, its members, or the general public.” (Opp. at p. 10:24-27, citing Health & Saf. Code, § 1430, subd. (a).) These arguments are not well-taken.

At the outset, there appears to be no dispute that Plaintiff does not seek injunctive relief to redress a violation of Smith’s rights under the Patient Bill of Rights. As such, the question necessarily presented is whether Section 1430, subdivision (b) authorizes her to more generally seek injunctive relief based on violations that are “ongoing and larger than the individual victim.” (Opp. at p. 10:24.) This is an issue of statutory interpretation.

“The touchstone of statutory interpretation is the probable intent of the Legislature.” (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) The first step in determining intent is to look to the actual words of the statute, giving them a plain and commonsense meaning. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632-633.) When ascertaining legislative intent, a statute must be examined as a whole. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645.) If the words are clear and unambiguous, there is no need for resort to other indicia of legislative intent. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)

Here, the clear language of the statute states a “current or former resident or patient” of a skilled nursing facility may bring a civil action for the violation of “any rights of the resident or patient.” (Health & Saf. Code, § 1430, subd. (b), emphasis added.) It does not state an action may be brought for the violation of the rights of any resident or patient. As such, the interpretation advanced by Plaintiff is not supported by the statutory language.

Moreover, the fact subdivision (a) of the statute permits the Attorney General to prosecute actions for an injunction or civil damages on behalf of the general public does not yield the conclusion subdivision (b) permits private individuals to do the same. As observed by at least one court analyzing a similar issue of statutory construction relative to Section 1430, the scope of subdivision (a) does not control the scope of subdivision (b). (See Nevarrez v. San Marino Skilled Nursing & Wellness Ctr. (2013) 221 Cal.App.4th 102, 132 [the fact greater penalties or damages are available in a public enforcement proceeding is not a reason read a broader penalty into subdivision (b) when such an interpretation is not supported by the statutory language].) Likewise, relative to the argument advanced by Plaintiff, the fact the Legislature permitted the Attorney General to prosecute actions more broadly has no bearing on whether a private party may do so, especially when the otherwise clear statutory language provides that a current or former resident or patient may only bring an action regarding the violation of the rights of that particular resident or patient. (See Health & Saf. Code, § 1430, subd. (b).)

Accordingly, the motion to strike the request for injunctive relief and the allegation of entitlement to such relief is warranted.

2. Attorney’s Fees and Costs

Defendant contends the FAC’s allegations do not support an award of attorney’s fees and costs under Section 1430 because a claim for violation of the Patient Bill of Rights “may lie only where the state department has taken action and the action has not been corrected to the complaining person’s satisfaction.” (Mtn. at p. 15:15-17.) Defendant asserts a whole progression of procedural prerequisites must be complied with before such an action may be brought. (See Mtn. at p. 15:17-25, citing Health & Saf. Code, §§ 1419, 1420, 1424.)

This argument lacks merit because there is nothing in the plain language of Section 1430 stating any procedures must be complied with before a patient’s rights claim can be brought. The statute simply says, without condition, that a current or former resident or patient of a skilled nursing facility is permitted to bring such an action. Moreover, none of the other statutes cited by Defendant set up any such requirement. For example, Health and Safety Code section 1419 merely states that any person may request the inspection of a long-term health care facility, not that he or she must do so before filing an action for violations of the Patient Bill of Rights.

As such, Defendant’s position is unsupported and the request to strike the prayer for attorney’s fees and costs under Section 1430 and the allegation of entitlement to such relief lacks merit.

3. Conclusion

For the reasons stated, the request to strike the prayer for injunctive relief is GRANTED while the request to strike the prayer for attorney’s fees and costs is DENIED. With respect to paragraph 34, the motion to strike is GRANTED IN PART and DENIED IN PART. It is granted as to the following language: “an injunction against permitting these violations to continue and to.” It is denied as to the balance of the paragraph.

F. Damages According to Proof

Defendant moves to strike paragraph 26 in which Plaintiff states she has been “damaged in a sum to be established according to proof, as provided by Code of Civil Procedure § 425.10 and § 425.11.” (Mtn. at p. 5:26-28.) It does not, however, further explain the basis of its request or advance any argument relative to this allegation. As such, the Court will not further address it. (See Dougherty, supra, 138 Cal.App.3d at 282 [a point asserted without argument or citation to authority requires no response from the court].)

Accordingly, the motion to strike paragraph 26 is DENIED.