The Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike.

The Demurrer by Defendant Alice Chi M.D. (“Defendant”) to the Second Cause of Action for Elder/Dependent Adult Abuse in the First Amended Complaint (“FAC”) on the ground that it fails to state sufficient facts against her is SUSTAINED.

The Elder Abuse and Dependent Adult Civil Protection Act is codified in W&I Code §15600 et seq. The purpose of the Act is “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. To encourage private enforcement of the law, the Act affords heightened remedies, including damages for a decedent’s pain and suffering, attorneys’ fees and costs, and punitive damages. W&I Code §15657; Covenant Care, Inc. v Superior Court (2004) 32 Cal. 4th 771, 779-780. To state a claim for elder or dependent adult abuse, a plaintiff must plead facts showing: l) the defendant has subjected an elder or dependent adult to statutorily-defined physical abuse, neglect, or financial abuse; and 2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. W&I Code §15657.

The Elder/Dependent Adult Abuse claim here is clearly based on a theory of neglect. “Neglect” is specifically defined in W&I Code §15610.57(a) as either 1) the negligent failure of a person having the care of an elder or dependent adult to exercise that degree of care that a reasonable person in that position would exercise or 2) the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in that position would exercise. Section 15610.57(b) states that neglect under the statute includes “but is not limited to,” 1) failure to assist in personal hygiene or the provision of food, clothing or shelter; 2) failure to provide medical care for physical and mental health needs; 3) Failure to protect from health and safety hazards; 4) failure to prevent malnutrition or dehydration, and; 5) Failure of an elder or dependent adult to satisfy the needs specified in 1-4 for himself/herself because of poor cognitive functioning, etc.

The acts proscribed by the statute do not include acts of simple professional negligence, but rather refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Delaney, supra, 20 Cal. 4th at 32. As explained in Delaney, “neglect…appears to cover an area of misconduct distinct from `professional negligence’…’Neglect’…does not refer to the performance of medical services in a manner inferior to `“the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing”’, but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Id. at 34, internal citations omitted.

The Delaney decision further explained that: “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence: he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve `intentional,’ `willful,’ or `conscious’ wrongdoing of a `despicable’ or ‘injurious’ nature. “Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than `inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a `conscious choice of a course of action…with knowledge of the serious danger to others involved in it.’” Id. at 31-32.

Reckless neglect for purposes of the Elder Abuse Act is therefore not mere negligence in the undertaking of medical services, but rather, consists of the more fundamental failure to provide medical care. Delaney, supra, 20 Cal. 4th at 34. Reckless neglect includes only “`acts of egregious abuse’”, not the merely substandard performance of medical services. Id. at 35. See also Covenant Care, Inc., supra, at 785 (confirming that the high standard under the Act protects health care providers from liability under the statute “for acts of simple or even gross negligence.”); Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal App 4th 396, 405 (“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.”)

The allegations against Defendant in the FAC at 10, 11, 18, 23, 46 and 47 do not, as a matter of law, state a claim for abuse of a dependent adult through neglect. They describe negligence; the performance of medical services in a manner inferior to “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing,” for which Plaintiff may recover under the FAC’s 1st cause of action for Professional Negligence. Plaintiff’s proposed additional allegations listed in the Opposition at 11:8-21 also do not support a claim under the Act against this demurring defendant. Accordingly, leave to amend is DENIED.

Defendant’s Motion to Strike certain allegations in paragraphs 48, 49, 51, 52, 53 and 54 of the FAC is DENIED as MOOT in light of the ruling on demurrer eliminating the 2nd cause of action as alleged against this defendant. Defendant’s Motion to Strike paragraph 3 of the FAC’s Prayer “[f]or punitive damages” is DENIED. That portion of the Prayer makes no reference to this moving defendant and the Elder/Dependent Adult Abuse claim remains alleged against other defendants and could be the basis of an award of punitive damages.