Case Number: 19STCV13593 Hearing Date: December 10, 2019 Dept: 47

Esteban Mendez v. 13333 Fenton Avenue, LLC dba Mountain View Convalescent Hospital, et al.

(1) DEMURRER TO FIRST AMENDED COMPLAINT;

(2) MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

MOVING PARTY: (1)-(2) Defendants 13333 Fenton Avenue, LLC dba Mountain View Convalescent Hospital and Win Win Enterprises, LLC

RESPONDING PARTY(S): (1)-(2) Plaintiff Esteban Mendez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges elder abuse, negligence and violation of residents’ rights arising out of his stay at Defendants’ 24-hour health facility.

Defendants 13333 Fenton Avenue, LLC dba Mountain View Convalescent Hospital and Win Win Enterprises, LLC demur to the first amended complaint and move to strike portions of it.

TENTATIVE RULING:

Defendants 13333 Fenton Avenue, LLC dba Mountain View Convalescent Hospital and Win Win Enterprises, LLC’s demurrer to the complaint is SUSTAINED as to the first, second, and third causes of action. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

Defendants’ motion to strike is DENIED AS MOOT.

If leave to amend is granted, Plaintiff will be given 30 days leave to amend from the date of this Order.

DISCUSSION:

Defendants’ Demurrer

Meet and Confer

The Declaration of Attorney Ian M. Mackins reflects that the statutory meet-and-confer requirement was satisfied. (CCP § 430.41(a).)

Analysis

This ruling could perhaps be boiled down to seven words: “The Court really meant it last time.” Nevertheless, although the 1AC complaint is nearly unchanged from the original complaint and the deficiencies in the parties’ arguments are nearly unchanged from their original demurrer and opposition, the Court will address each cause of action below.

First Cause of Action (Elder Abuse)

Defendants demur to the first cause of action for elder abuse on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

“[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

In the original complaint, Plaintiff had not specified any dates during which he stayed at Defendants’ 24-hour health facility. In the 1AC, Plaintiff now alleges the dates on which he was admitted and readmitted to Defendants’ facility and the dates of the relevant events. (1AC ¶¶ 18-35.)

Plaintiff’s other allegations of the first cause of action, however, continue to fall short of the heightened pleading requirement for pleading an elder abuse cause of action against an entity defendant.

In order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf. & Inst. Code, § 15657 [requiring “clear and convincing evidence that a defendant is liable for” elder abuse and “has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse”] with Civ. Code, § 3294, subd. (a) [requiring “clear and convincing evidence” that the defendant has been guilty of oppression, fraud, or malice].) Accordingly, that plaintiffs in an Elder Abuse Act action may, on appropriate proof (Civ. Code, § 3294, subd. (a)), recover punitive damages entails no danger directly analogous to the danger that exists when “ ‘punitive damages may be awarded on what is traditionally considered a negligence cause of action’ ” (Central Pathology, supra, 3 Cal.4th at p. 190).

(Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789.)

Welfare and Institutions Code § 15657 provides:

(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.

(Welfare & Institutions Code § 15657(c) (bold emphasis added).)

To recover punitive damages against a corporate employer under Civil Code § 3294(b),[1] Plaintiff must allege an officer, director or managing agent’s advanced knowledge of the unfitness of an employee and employment of that person with conscious disregard of the rights or safety of others or authorization or ratification of the wrongful conduct, or personal guilt in terms of oppression, fraud or malice. Here, the Complaint fails to meet this standard of pleading for the heightened remedies under the Act as against the entity Defendants. Plaintiff’s allegations in ¶¶ 15-48 (previously ¶¶ 15 to 27) may rise to the level of “neglect” as defined in Welfare and Institutions Code § 15610.57(b), but Plaintiff has not alleged facts as to an officer, director of managing agent’s culpability for purposes of imposing the heightened remedies under the Act.

In fact, nowhere in Plaintiff’s opposition does he explicitly address the deficiencies the Court had previously identified in the complaint and point out where those deficiencies were remedied in the 1AC. It is as though this was the first demurrer in this case. Aside from adding the dates noted above (¶¶ 18-33), it appears that Plaintiff has added only the following allegations as to managing agents’ knowledge and actions:

35. Furthermore, as a result of deliberate understaffing at MOUNTAIN VIEW by its managing agents Janette Tuazon Boaquina and Jessica Navarro, MOUNTAIN VIEW nursing staff failed to properly monitor MENDEZ. As a result, MENDEZ fell which caused him a seizure, a stroke with hemorrhagic conversion, and extreme pain and suffering.

(1AC ¶ 35.) The Court is not convinced that this allegation rises to the level of culpability required by § 3294.

In addition, Paragraphs 17, 62 to 65, and 73 (formerly ¶¶ 17, 43 to 46, and 54) contain general allegations regarding ratification, but there are no allegations concerning ratification by an officer, director or managing agent specifically as to Defendants’ conduct directed toward Plaintiff and carried on with recklessness, oppression, fraud, or malice as to the risk of injury to Plaintiff. For example, Paragraphs 17, 63, 64, and 73 (formerly 17, 44, 45, and 54) relate to hiring of unfit employees, understaffing, and inadequate training, presumably before Plaintiff was admitted to Defendant’s facility. Paragraphs 62 and 65 (formerly 43 and 46) contain only conclusory allegations.

Plaintiff has added a new allegation concerning ratification:

In addition to their direct liability for the abuse and neglect of MENDEZ, MOUNTAIN VIEW ratified the mistreatment of MENDEZ. Knowing of MENDEZ’s injuries, and knowing of his neglect, MOUNTAIN VIEW, through its managing agents, Janette Tuazon Boaquina and Jessica Navarro, failed to terminate, discipline, reprimand, or otherwise repudiate the acts and omissions of any employee due to or based upon the care, treatment, monitoring or supervision, or lack thereof, rendered to MENDEZ at MOUNTAIN VIEW.

(1AC ¶ 40.) However, as discussed above, the allegations continue to be insufficient to meet the heightened bar of § 3294.

Accordingly, the demurrer to the first cause of action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

2. Second Cause of Action (Negligence).

Defendants demur to this cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain (CCP § 430.10(e), (f)), although Defendants only present argument that the cause of action is uncertain despite the heading to the contrary, as they did in their previous demurrer. Like Plaintiff, Defendants would do well to address the deficiencies in their submissions that the Court expressly points out. Demurrers for uncertainty are disfavored and rarely granted, but luckily for Defendants, they once again gave notice that they were also demurring on the basis of CCP § 430.10(e).

Plaintiff’s allegations in the second cause of action are unchanged from the complaint. Plaintiff only pleads that Defendants owed statutory, regulatory and common law duties of care to Plaintiff and breached those duties, causing him injuries. (1AC ¶¶ 76-78.) However, Plaintiff must at least identify what acts or omissions occurred with respect to each Defendant.

Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are “limits to the generality with which a plaintiff is permitted to state his cause of action, and … the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.”

(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Plaintiff incorporates by reference all of the previous 75 paragraphs of allegations, but this does not provide any notice as to which acts or omissions Plaintiff contends were negligent. (See Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal. App. 4th 598, 605 [referring to the practice of “incorporating all or most prior paragraphs within each purported cause of action” as “disfavored,” and noting that “[t]his type of pleading should be avoided as it tends to cause ambiguity and creates redundancy”].)

The demurrer to the second cause of action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given. If leave is granted, Plaintiff will be given one more opportunity to amend this cause of action.

3. Third Cause of Action (Violation of Residents Rights).

“[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, supra, 32 Cal.4th at 790.) Here, Plaintiff merely lists provision of the Patient’s Bill of Rights, but he does not factually specify how Defendant Mountain View engaged in acts that violate a particular section of the Bill of Rights. Plaintiff has divided former ¶ 64 of the complaint into three paragraphs (¶¶ 83-85), but this largely cosmetic change has not increased the particularity of the allegations.

The demurrer to the third cause of action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given. If leave is granted, Plaintiff will be given one more opportunity to amend this cause of action.

Motion To Strike

Given the ruling on the demurrer, none of the causes of action are viable. As such, the motion to strike is DENIED AS MOOT.

If leave to amend is granted, Plaintiff will be given 30 days leave to amend from the date of this Order.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 10, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1]

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civil Code § 3294(b).)