Filed 3/2/20 Sites v. Kaiser Foundation Health Plan, Inc. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

INSOO SITES,

Plaintiff and Appellant,

v.

KAISER FOUNDATION HEALTH PLAN, INC., et al.,

Defendants and Respondents.

B294941

(Los Angeles County

Super. Ct. No. BC645953)

APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Lori Ann Fournier, Judge. Affirmed.

Insoo Sites, in pro. per., for Plaintiff and Appellant.

Yang Professional Law Corporation and Rey S. Yang for Defendant and Respondent.

____________________

On February 23, 2016, plaintiff Insoo Sites visited the emergency room at a Kaiser Permanente facility in Downey. Displeased with the conduct of Kaiser employees towards her, which led to her removal from the emergency room for allegedly disruptive behavior, she sued defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Southern California Permanente Medical Group (collectively Kaiser). The trial court sustained successive demurrers to the complaint with leave to amend, and ultimately entered a judgment of dismissal after it sustained Kaiser’s demurrer to Sites’s second amended complaint without leave to amend.

Sites now appeals from the judgment of dismissal, as well as from an order denying her motion to set aside/vacate the judgment. Finding no error, we affirm.

FACTUAL BACKGROUND

On February 22, 2016, Sites had been sick for more than a week with cold symptoms, vomiting, and pain. Her family took her to an urgent care facility, where she was diagnosed with dehydration and a kidney infection, treated, and discharged. She received a prescription for medication, including antibiotics.

The following morning, Sites awoke with uncontrollable shaking, cold sweat, and a searing headache. She called 911, and paramedics took her to the Kaiser emergency room in Downey. Sites provided the paramedics with her contact information and insurance card. Sites was seated in a wheelchair while waiting to be seen. She “told the staff several times that she was thirsty,” that she had not taken her prescribed antibiotic since the previous day, and “that she was experiencing vision loss, dizziness and a searing headache.” Sites asked for water. A security guard pointed to a sink on the far side of the room. Sites attempted to get out of the wheelchair and go to the sink to get water, but she fell. No one helped her up or helped her to get water.

After two hours, Sites was taken to another room. A woman in a lab coat asked her whether she felt anxiety. Sites responded that she needed immediate medical attention; she was experiencing numbness in her arms and legs, vision loss, and a searing headache. No one took her vital signs or said anything to her.

A security guard entered the room, stood in front of Sites, and told her to get out of the wheelchair. The guard removed her from the building. Once outside, Sites felt dizzy and sat down. The woman in the lab coat came over and attempted to forcibly remove Sites’s wristband. Sites yelled in pain as the woman continued trying to remove the wristband. The next thing Sites remembered was lying on the cement in the parking lot. The security guard ordered her to get up and leave Kaiser’s property. She attempted to do so but fell down.

Sites called 911. Two police officers arrived and told her that Kaiser had called them to report that Sites was causing a disturbance. Sites requested that her shoes be returned to her. Eventually, someone brought her one of her shoes but said her other shoe could not be found. Sites felt humiliated and distressed. The police officers called a taxi, which took her home.

Because she was still experiencing the same symptoms, Sites called 911 again. This time, the paramedics took her to Long Beach Memorial Hospital. When she arrived, she was in serious condition, with abnormal test results. Sites was given pain medication. After being stabilized, Sites was transported to St. Vincent Medical Center in downtown Los Angeles. She was treated for syncope, early sepsis, dehydration, and anemia, among other things. She was given an antibiotic and other medication. She was discharged on February 27, 2016.

Several days later, Sites telephoned Kaiser in Downey to see if her other shoe had been found; it had not. On March 9, 2016, Sites obtained paperwork from Kaiser regarding the February 23 incident. It stated: “ ‘Received call from [Downey] Fire stating that this patient was at home and wanted to be taken to [Long Beach Memorial Hospital].’ ” Sites also obtained paperwork from Kaiser indicating that she did not have insurance. Sites called the grievance department and explained the incident.

The following day, Sydney Harris, a representative from the grievance department, called Sites. Sites again explained the February 23 incident. She requested the name of the woman in a lab coat that had spoken to her. Sites said that if she did not get the name, she would sue Kaiser. Harris took Sites’s contact information but did not contact her again.

Sites sent a demand letter to Kaiser on October 12, 2016. She received a call from an individual named April Richard on October 21, stating that the incident was being investigated. On November 7, Sites received a letter from Kaiser’s legal counsel, again stating that the matter was being investigated. On November 12, Sites received a letter from Richard; enclosed was a letter dated “March 31, 2015” stating that Sites “had ‘refused to see a doctor.’ ”

Sites returned to Kaiser on January 4, 2017 to get any additional medical records concerning the February 23 incident. Eventually, Sites obtained a document from Kaiser that was different from the medical records she had obtained in March 2016. Sites’s complaint alleges this Kaiser document says Sites “was ‘intentionally sliding off wheelchair,’ ” she “ ‘refused to see a doctor,’ ” and she “was ‘screaming.’ ”

The document, which Sites attached to her opposition to Kaiser’s demurrer, does in fact contain those statements. It further states Sites was “screaming ‘Medicare is a scam’ ” and “ ‘[t]he paramedics are ignorant idiots’ ” in the emergency room waiting area, and that she was asked to stop shouting. Sites instead continued to be disruptive, and caused a scene. She intentionally slid out of her wheelchair while talking nonsense, and had to be helped back into the wheelchair. After approximately 25 minutes, it was decided that if Sites was still being disruptive, she could be escorted outside by security.

PROCEDURAL BACKGROUND

A. The Complaints and Demurrers

Sites filed her original complaint against Kaiser on January 5, 2017. She alleged causes of action for negligence, fraud, “abuse & abandonment,” discrimination, and intentional infliction of emotional distress. Kaiser filed a demurrer on February 6, 2017, asserting the complaint failed to state facts sufficient to constitute a cause of action and was uncertain. Kaiser also filed a motion to strike Sites’s request for punitive damages. On June 1, 2017, the trial court sustained Kaiser’s demurrer with leave to amend and granted the motion to strike.

Sites then filed a first amended complaint, containing the same causes of action as in her original complaint. Kaiser demurred on the same grounds as before and filed a motion to strike the request for punitive damages. The trial court sustained the demurrer, and granted the motion to strike, with leave to amend.

Sites filed her second amended complaint on September 28, 2017, asserting the same five causes of action set forth in her prior complaints. Kaiser again demurred on the grounds of failure to state a cause of action and uncertainty. Kaiser also filed a motion to strike Sites’s request for punitive damages.

Sites opposed the demurrer. She attached a declaration and exhibits to her opposition. She also filed a “trial brief” in support of her opposition to the demurrer and motion to strike.

On December 26, 2017, the trial court sustained Kaiser’s demurrer and granted its motion to strike, both without leave to amend. In its written ruling, the trial court explained the reasons why the second amended complaint failed to state a cause of action. The court found Sites failed to plead sufficient facts to satisfy the elements of her negligence and fraud causes of action. The court construed the “abuse and abandonment” cause of action as alleging elder abuse, and found Sites did not allege sufficient facts to maintain such a claim. With regard to the discrimination cause of action, the court found Sites’s allegations confusing and unclear, and that she did not allege she was a member of a protected class or that Kaiser engaged in actionable discrimination. Finally, the court found the allegations of intentional infliction of emotional distress did not rise to the required level of extreme or outrageous conduct, or demonstrate that Kaiser acted with the intent (or with recklessness) to cause the purported emotional distress.

B. The Motion for Reconsideration and Related Pleadings

On January 5, 2018, Sites filed a motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a). She based her motion, in part, on “new evidence” which, at the time she filed her opposition to the demurrer, she believed “was irrelevant, because a demurrer must be decided on the basis of the face of the pleadings.” She also argued that she should be allowed to amend her complaint to state a cause of action under the Emergency Medical Treatment and Active Labor Act (EMTALA; 42 U.S.C. § 1395dd). Sites supported her motion with a declaration stating she did not anticipate that the court might deny leave to amend, so she did not bring her new evidence with her to the hearing on the demurrer. She asserted she now realized the evidence supported her causes of action, and claimed that that evidence constituted new facts supporting her request for reconsideration.

Kaiser filed objections to Sites’s declaration, primarily based on lack of foundation (Evid. Code, § 1400), irrelevancy (id., § 350), and improper legal conclusions (citing id., § 1200 [hearsay]). In response, Sites filed a second declaration and exhibits. She also filed an objection to Kaiser’s objection to her first declaration, claiming that there were “hundreds of material facts [that] are supposed to be analyzed by either further discovery or summary judgment.” Kaiser further opposed Sites’s motion for reconsideration. It noted that the motion was not based on new law or evidence. It argued that Sites’s “mistake based on ignorance of the law is not a proper basis for reconsideration.”

While the motion for reconsideration was pending, Kaiser filed a memorandum of costs, which Sites opposed on the ground a judgment had not been entered. Kaiser also filed a proposed judgment of dismissal, to which Sites objected.

While the motion for reconsideration remained pending, Sites additionally filed documents regarding a case before another department, case no. BC693928. The trial court found these documents “appear to address relating the two cases.” The court denied the request to relate the cases without prejudice, finding Sites failed to satisfy rule 3.300(c) of the California Rules of Court.

On June 8, 2018, the court denied Sites’s motion for reconsideration. While it overruled Kaiser’s objections to Sites’s declaration, the court nonetheless found the declaration failed to address why Sites could not have presented her arguments at the hearing on the demurrer, and that she failed to identify any new facts or law justifying reconsideration. The court observed that “[i]gnorance of the law does not amount to the presentation of new facts or law so as to warrant the granting of a motion for reconsideration.”

C. The Motion to Set Aside/Vacate the Judgment and Related Pleadings

Kaiser then filed a notice of related case. It stated that Sites v. Kaiser Foundation Health Plan, Inc. et al., Los Angeles Superior Court case No. BC693928, filed on February 13, 2018, involved the same parties, was based on the same claims, and arose from the same incident. On June 28, 2018, the court ordered the two cases related and transferred case no. BC693928 to the trial court in this case.

Kaiser filed a proposed judgment of dismissal; Sites filed an opposition and a motion to tax costs. She also filed a motion to consolidate the two related cases.

On August 8, 2018, the trial court entered a judgment of dismissal in the instant case (the judgment did not address case No. BC693928). On August 28, Sites filed a notice of intention to move to set aside/vacate the judgment and enter a different judgment. The proposed grounds for the motion were that the judgment was erroneous and the court had not yet ruled on her motion to consolidate. Sites then filed her motion to set aside/vacate under both Code of Civil Procedure section 657, which applies to new trial motions, and section 663, which applies to a motion to vacate. She supported the motion with a declaration and numerous exhibits. Kaiser filed objections to her declaration.

Meanwhile, on November 15, 2018, the trial court denied Sites’s motion to consolidate the two related cases. It noted that Sites “delayed filing her second action for more than one year after she filed the first action.” The court had already sustained Kaiser’s demurrer without leave to amend and entered a judgment of dismissal in the first action. Although there was a pending motion to set aside/vacate the judgment, “there is currently no operative pleading on file in the [first] action.” The court found that “[a]s a consequence of the delay, consolidation of the two cases would unduly prejudice [Kaiser].”

On December 28, 2018, the trial court denied Sites’s motion to set aside/vacate the judgment. The court found it “unclear what procedural vehicle [Sites sought] to set aside/vacate the judgment.” The court “construe[d] this motion, in keeping with its caption, as one to set aside the judgment under [Code of Civil Procedure section] 663,” which “allows a judgment ‘based upon a decision by the court’ to be set aside if an aggrieved party shows that there was an ‘[i]ncorrect or erroneous legal basis for the decision’ or that the decision was ‘not consistent with or supported by the facts.’ ”

The court found that Sites failed to establish a basis for setting aside the judgment. Moreover, Code of Civil Procedure section 663 only empowers the court to enter a different judgment, and Sites actually sought to reinstate the action and amend her complaint. In addition, while a motion for new trial may be used to challenge the sustaining of a demurrer without leave to amend, Sites failed to timely serve a notice of intention to move for new trial. Thus, Sites’s request for a new trial was “procedurally improper and denied.”

Sites filed her notice of appeal on January 4, 2019.

DISCUSSION

A. Standard of Review

“A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the superior court’s ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citations.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. [Citations.] We liberally construe the pleading with a view to substantial justice between the parties. [Citations.]” (Sarun v. Dignity Health (2014) 232 Cal.App.4th 1159, 1165.) We will find a demurrer “properly sustained when ‘[t]he pleading does not state facts sufficient to constitute a cause of action.’ (Code Civ. Proc., § 430.10, subd. (e).)” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) The plaintiff bears the burden of demonstrating that the trial court erred in sustaining the demurrer by showing that she “pleaded facts sufficient to establish every element of [each] cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.)

“We review the trial court’s denial of leave to amend for an abuse of discretion.” (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1223; accord, Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317, 323.) We must determine “ ‘whether there is a reasonable probability that the defect can be cured by amendment. [Citation.]’ [Citation.]” (Rea, supra, at p. 1223; accord, Westside Estate Agency, Inc., supra, at p. 323.) The “trial court does not abuse its discretion when it sustains a demurrer without leave to amend if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim. [Citation.]” (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 890; accord, Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1143.) The plaintiff bears the burden of demonstrating how she can amend her complaint and how that amendment will change the legal effect of the complaint. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 632.)

A motion to vacate a judgment under Code of Civil Procedure section 663 “ ‘empowers a trial court, on motion of “[a] party . . . entitl[ed] . . . to a different judgment” from that which has been entered, to vacate its judgment and enter “another and different judgment.” ’ ” (Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 476; see also Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 202-203.) The motion “ ‘lies only where a “different judgment” is compelled by the facts found. [Citation.] A motion to vacate under [Code of Civil Procedure] section 663 may only be brought when “the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist.” ’ [Citation.]” (Garibotti, supra, at p. 477.) It follows that our review of an order denying the motion to vacate is de novo. (Cf. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912 [“the application of law to undisputed facts ordinarily presents a legal question that is reviewed de novo”].)

B. The Court Did Not Err in Sustaining the Demurrer Without Leave To Amend

Sites first challenges the sustaining of Kaiser’s demurrer to her second amended complaint. We address in turn each of the causes of action alleged in that complaint.

1. Negligence Cause of Action

The trial court correctly noted that “[a]ll theories of negligence . . . arising out of the provision of medical services sound in professional negligence, regardless of the title” of the cause of action, citing Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) The court found that Sites failed to plead a cause of action for professional negligence because her “claims do not recite that her injuries were the result of a failure on the part[ ] of the Kaiser [d]efendants to render immediate and competent medical care.”

On appeal, Sites does not argue she did or could state a claim for medical malpractice. She instead argues various other bases on which she believes she could state a negligence cause of action. The first of these is the EMTALA, which provides: “In the case of a hospital that has a hospital emergency department, if any individual . . . comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.” (42 U.S.C. § 1395dd, subd. (a).) Further, if the individual “comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either” a medical examination and any treatment required to stabilize the medical condition or a transfer to another facility. (Id., § 1395dd, subd. (b)(1).) Under the EMTALA, “[a]ny individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.” (42 U.S.C. § 1395dd, subd. (d)(2)(A).)

Sites asserts she sufficiently alleged Kaiser’s failure to provide her with an appropriate medical screening and treatment to stabilize her medical condition for purposes of the EMTALA. For reasons not entirely clear, Sites also points to Civil Code section 3333.2, which limits the liability of health care providers for certain noneconomic losses, as supporting her negligence claim. What Sites fails to explain, however, is how she alleged or could allege that she received “injuries [that] were the result of a failure on the part[ ] of the Kaiser [d]efendants to render immediate and competent medical care,” i.e., “a proximate causal connection between the negligent conduct and the injury,” “resulting [in] loss or damage.” (Johnson v. Superior Court, supra, 143 Cal.App.4th at p. 305.) This deficiency is particularly apparent given Sites’s allegation that after Kaiser allegedly refused to treat her, she was treated later the same day at Long Beach Memorial Hospital with pain and blood clotting medication, a broad-spectrum antibiotic, and hydration, and discharged soon thereafter. Absent allegations of injuries caused by Kaiser’s alleged failure to treat her, as opposed to her pre-existing conditions at the time she presented at Kaiser, Sites cannot state a cause of action for professional negligence, whether or not based on a violation of the EMTALA.

Sites also quotes provisions of the Health and Safety Code governing the provision of emergency services (Health & Saf. Code, § 1317 et seq.). She does not explain how she has stated or can state a cause of action under these provisions. The plaintiff bears the burden on appeal of demonstrating how she can amend her complaint and how that amendment will change the legal effect of the complaint, i.e., state a cause of action. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) Sites has failed to carry that burden.

Sites cites Health and Safety Code section 123111, which gives a patient “the right to provide to the health care provider a written addendum with respect to any item or statement in his or her records that the patient believes to be incomplete or incorrect.” (Id., subd. (a).) It further provides that “[t]he receipt of information in a patient’s addendum which contains defamatory or otherwise unlawful language, and the inclusion of this information in the patient’s records . . . shall not, in and of itself, subject the health care provider to liability in any civil, criminal, administrative, or other proceeding.” (Id., subd. (c).) Sites fails to explain how this statute provides her with a cause of action for negligence based on Kaiser’s comments about her behavior at the emergency room.

Sites additionally complains that the trial court failed to address the evidence she provided, which was appended to her declaration in support of her motion for reconsideration. A motion for reconsideration must be “based upon new or different facts, circumstances, or law.” (Code Civ. Proc., § 1008, subd. (a).) However, “facts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’ [Citation.] In addition, a party must provide a satisfactory explanation for failing to offer the evidence in the first instance. [Citation.]” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.) To meet this burden, the party must show that she “could not, with reasonable diligence, have discovered or produced it at the” prior hearing. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213; accord, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833.) Sites failed to make this showing, and the trial court was not required to consider the evidence in making a determination as to whether she could state a cause of action for professional negligence.

In sum, Sites has not met her burden of showing that the trial court erred in sustaining the demurrer, or abused its discretion in denying her leave to amend, as to her negligence cause of action. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081; Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at pp. 879-880.)

2. Fraud

As the trial court observed, the elements of a fraud cause of action are a false statement, made without reasonable grounds for believing it to be true, with the intent to induce reliance, “accompanied by justifiable reliance and resulting damages.” (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 604; accord, Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “ ‘Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged.’ ” (Area 51 Productions, Inc., supra, at p. 604.) The court found Sites failed to allege fraud “with the requisite amount of specificity necessary against a corporate defendant. Moreover, [Sites] has failed [to] allege facts to support the contention that [Kaiser] acted with the intent to defraud [Sites] at the time the purported misrepresentation(s) was made, and facts to show [Sites’s] justifiable reliance.”

On appeal, Sites identifies a number of false statements allegedly made by Kaiser: a call to police stating that she was causing a disturbance; that “Kaiser had no record or basic patient information” concerning her emergency room visit; defamatory statements in the patient record she obtained from Kaiser that she intentionally slid off a wheelchair, refused to see a doctor, and was screaming; and a false statement that a nurse left a message on her home phone. False statements are not enough to state a cause of action for fraud. Sites does not explain how she could allege justifiable reliance on these false statements, or any resulting damages. She has not met her burden of showing that the trial court erred in sustaining the demurrer, or abused its discretion in denying her leave to amend, as to her fraud cause of action.

3. Abuse and Abandonment

The trial court was unclear what claim Sites was asserting through her “abuse and abandonment” cause of action. As it appeared Sites was attempting to allege a cause of action for elder abuse, the court analyzed the complaint’s allegations using that rubric and found they failed to state a claim for elder abuse. On appeal, Sites agrees she was seeking to assert an elder abuse claim, but disagrees that she did not sufficiently allege that claim.

The Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act; Welf. & Inst. Code, § 15600 et seq.) “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.’ ([Id.], § 15610.27.)” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.) The Elder Abuse Act encompasses “ ‘[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.’ ” (Ibid., quoting Welf. & Inst. Code, § 15610.07, subd. (a)(2).) The Elder Abuse Act was intended “to sanction only egregious acts of misconduct distinct from professional negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784.)

“To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder. (Welf. & Inst. Code, § 15657.2 . . . .) The plaintiff must prove ‘by clear and convincing evidence’ that ‘the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of’ the neglect. (Welf. & Inst. Code, § 15657.) . . . Thus, the enhanced remedies are available only for ‘ “acts of egregious abuse” against elder and dependent adults.’ [Citations.] In short, ‘[i]n order to obtain the [Elder Abuse] Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.’ [Citation.]” (Carter v. Prime Healthcare Paradise Valley LLC, supra, 198 Cal.App.4th at p. 405.)

Thus, to plead a cause of action under the Elder Abuse Act, the plaintiff must allege 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 [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; 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[’s basic needs] . . . or with conscious disregard of the high probability of such injury . . . [citations]. The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. [Citations.] 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.]” (Carter v. Prime Healthcare Paradise Valley LLC, supra, 198 Cal.App.4th at pp. 406-407.)

Sites argues that she was disabled (citing evidence attached to her motion for reconsideration, which the trial court refused to consider) and seriously ill when she arrived at Kaiser; Kaiser refused to treat her and had her taken to the parking lot and left there. Sites claims this “sufficiently alleged Kaiser’s abuse and cruel conduct.”

These allegations, however, lack the required particularity. Sites fails to explain what her disability is, and how that qualifies her for protection under the Elder Abuse Act. She fails to set forth a causal link between Kaiser’s conduct and any injury she sustained. She fails to cite any authority supporting her claim that Kaiser’s conduct in prioritizing other patients needing treatment in the emergency room over her was sufficiently egregious to constitute elder abuse under the Elder Abuse Act. She accordingly fails to meet her burden of showing that the trial court erred in sustaining the demurrer or abused its discretion in denying her leave to amend.

4. Discrimination

With regard to her discrimination claim, Sites argues she stated a cause of action for violation of the Unruh Civil Rights Act (Unruh Act; Civ. Code, § 51). The Unruh Act provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Id., subd. (b).)

The trial court found Sites did not allege she was part of any protected class. Sites suggests Kaiser’s mistaken belief that she was uninsured qualifies. She cites no authority, however, indicating that persons mistakenly believed to be uninsured are a protected class under the Unruh Act, and such an argument does not appear supported by the statutory language of the Act.

Sites also suggests that Kaiser discriminated against her based on disability. Sites fails to explain in what way she was disabled, how Kaiser discriminated against her on the basis of that disability, or how that alleged discrimination violated applicable law. She therefore fails to meet her burden of demonstrating error. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081; Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at pp. 879-880.)

5. Intentional Infliction of Emotional Distress

“ ‘The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by the plaintiff; and (3) the plaintiff’s emotional distress is actually and proximately the result of the defendant’s outrageous conduct.’ [Citations.] Extreme and outrageous conduct is conduct that is ‘ “ ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community’ ” ’ [citation] and must be ‘ “of a nature which is especially calculated to cause, and does cause, mental distress.” ’ [Citation.]” (Chang v. Lederman (2009) 172 Cal.App.4th 67, 86-87.) “ ‘In order to avoid a demurrer, the plaintiff must allege with “great[ ] specificity” the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]’ [Citation.]” (Yau v. Allen (2014) 229 Cal.App.4th 144, 160-161.) In addition, “[t]he complaint must plead specific facts that establish severe emotional distress resulting from defendant’s conduct.” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114.)

The trial court found Sites’s “allegations do not rise to the level of extreme or outrageous conduct. Moreover, [Sites] fails to allege facts to support a finding that the Kaiser [d]efendants acted with intent or reckless disregard of the probability of causing [Sites’s] purported emotional distress.” We agree. Sites lists several instances in which courts allowed plaintiffs to sue for negligent infliction of emotional distress as a direct victim based on the violation of a duty owed to another. (Burgess v. Superior Court (1992) 2 Cal.4th 1064; Christensen v. Superior Court (1991) 54 Cal.3d 868; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916.) None of these cases is relevant here, as Sites did not allege that she was the victim of Kaiser’s breach of duty owed to another.

Sites also cites Wong v. Jing (2010) 189 Cal.App.4th 1354, which discusses the severe emotional distress necessary to state a cause of action for intentional infliction of emotional distress. Sites alleged that she felt humiliated and distressed from the incident. However, as noted in Wong, “[t]he California Supreme Court has set a ‘high bar’ for what can constitute severe distress. [Citation.] ‘Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” [Citations.]’ [Citations.]” (Id. at p. 1376.) While “ ‘emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry’ [citation],” the emotional distress must be “severe and not trivial or transient.” (Ibid.)

While Sites states that she “continues to experience that humiliation, shame, and anxiety whenever she recalls that horrible incident,” this generalized distress does not constitute the severe emotional distress required to state a claim for intentional infliction of emotional distress. Severe emotional distress is that which disrupts a person’s life, causes physical symptoms such as heart palpitations or panic attacks, or a mental health diagnosis such as depression or post-traumatic stress disorder. (Wong v. Jing, supra, 189 Cal.App.4th at pp. 1376-1377.) Sites thus fails to show that the trial court erred in sustaining Kaiser’s demurrer or denying leave to amend as to her cause of action for intentional infliction of emotional distress.

6. Punitive Damages

Civil Code section 3294, subdivision (a), provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” An award of punitive damages must be predicated on actual injury or damages. (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147; Fullington v. Equilon Enterprises, LLC (2012) 210 Cal.App.4th 667, 685.) The trial court granted Kaiser’s motion to strike the allegations as to punitive damages based on its findings on demurrer.

Sites argues that Kaiser “fraudulently changed [her] medical record in order to conceal their wanton, despicable, and inhumane conduct.” (See Baker v. Sadick (1984) 162 Cal.App.3d 618, 625.) She claims her “request for punitive damages is supported by the second cause of action for fraud and deceit by concealment.” Inasmuch as Sites failed to state a cause of action for fraud, she has failed to demonstrate error in striking her punitive damages allegations without leave to amend. (Cf. Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)

C. The Trial Court Did Not Err in Denying the Motion To Set Aside/Vacate the Judgment

Sites additionally claims the trial court erred in denying her motion to set aside/vacate the judgment. As the trial court held, however, Code of Civil Procedure section 663 “empowers a trial court to vacate its judgment and to ‘ “enter ‘another and different judgment.’ ” ’ [Citation.] Because the relief [Sites] sought would not involve the entry of a different judgment but instead would allow her to file further pleadings, [Sites] stated no valid grounds for relief under section 663. [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207, fn. 5.) This ruling was correct as a matter of law.

D. Remaining Claims of Error

We briefly address the remaining claims of error. Sites contends she was prejudiced by the transfer of her case from one department of the superior court to another, which delayed the hearing on Kaiser’s demurrer to her original complaint for nearly six months. She does not demonstrate any prejudice resulting from this delay, and we perceive none, given the procedural background of this case. We cannot infer prejudice from the delay alone. (See Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 399.)

Sites also claims Kaiser’s demurrer for uncertainty was invalid for various reasons. As the trial court properly sustained the demurrer based on the failure to state a cause of action, we need not address the issue of uncertainty. (See Market Lofts Community Assn. v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 930 [“judgment of dismissal will be affirmed if it is proper on any of the grounds raised in the demurrer”].)

Sites asserts that she was deprived of discovery. Inasmuch as “ ‘[a] demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations’ ” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 310), we need not address any issues with respect to discovery.

Sites challenges the trial court’s failure to rule on Kaiser’s objections to her declarations and suggests that this failure entitled her to a new trial. She cites her December 13, 2018 “request for ruling on defendants’ [proposed] order for plaintiff’s declaration of motion to vacate, exhibits 1-22, in support of plaintiff’s motion to vacate.” That request is difficult to decipher, so we understand any confusion the trial court experienced in trying to understand what was being requested. In any event, Sites identifies no prejudice resulting from the purported failure to rule on this request, and no possible prejudice resulted. As a matter of law, the court properly denied her motion to set aside/vacate the judgment under Code of Civil Procedure section 663. (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1207, fn. 5.) She did not make a proper new trial motion and thus could not have been entitled to a new trial.

Sites claims she was prejudiced by the trial court’s denial of her motion to consolidate her two cases. She does not explain how she was prejudiced in the instant case, in which the trial court had already sustained Kaiser’s demurrer without leave to amend and entered a judgment of dismissal at the time she made her motion. Prejudice occurs only where it is probable “ ‘that such results could or would have been avoided absent the claimed . . . error.’ ” (Belz v. Clarendon America Ins. Co. (2007) 158 Cal.App.4th 615, 632.)

Sites contends the trial court improperly awarded attorney’s fees to the three separate defendant entities, referring to the award of costs in the amount of $435 to Kaiser Foundation Hospitals, $1,540.25 to Kaiser Foundation Health Plan, Inc., and $435 to Southern California Permanente Medical Group. She asserts this was error, in that “Kaiser paid only for one entity on February 1, 2017 (CRS receipt for the demurrer with strike, a total of $495[)].”

The judgment recites that these three amounts were awarded pursuant to memoranda of costs filed by the three entities “on January 17, 2018 and for which no Motion to Tax or Strike Costs was filed in opposition.” Only one of these memoranda was included in the record on appeal.

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) Sites has failed to meet her burden of demonstrating error in the cost awards to the three Kaiser entities. That one document cost $495 to file does not establish that that amount was the sole cost to the three Kaiser defendants in this action. Accordingly, Sites has failed to demonstrate the claimed error.

DISPOSITION

The judgment is affirmed. Kaiser is awarded its costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

CHANEY, Acting P. J.

BENDIX, J.