Case Number: BC535393 Hearing Date: June 12, 2014 Dept: J

Re: Patricia Gann, etc., et al. v. THC-Orange County, Inc., etc., et al. (BC535393)

(1) DEMURRER TO COMPLAINT; (2) MOTION TO STRIKE PORTIONS OF COMPLAINT

Moving Parties: (1) Defendant The Chase Group, LLC; (2) Defendants Inland Valley Care & Rehabilitation Center and The Chase Group

Respondents: (1) and (2) Plaintiffs Patricia Gann, by and through her successor-in-interest Terry Boker; Terry Boker, individually; Wayne Gann; Robert Gann

POS: Moving OK; Opposing OK; Replies OK

. The Complaint herein, filed 2/05/14, asserts causes of action for:

1. Elder abuse and neglect
2. Elder abuse and neglect
3. Violation of Resident’s Bill of Rights
4. Wrongful Death

The case is set for Case Management Conference on 6/12/14.

(1) DEMURRER:

Defendant The Chase Group, LLC (“Chase”) demurs to the Second and Fourth Causes of Action in Plaintiffs’ Complaint on grounds that they fail to allege a duty owed by Chase, and thus fail to state a cause of action pursuant to CCP §430.10(e).

The SECOND CAUSE OF ACTION FOR ELDER ABUSE BY NURSING HOME DEFENDANTS and the FOURTH CAUSE OF ACTION FOR WRONGFUL DEATH:

To state a claim for Elder Abuse, Plaintiffs must allege facts showing: (1) Defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) Defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (3) Defendant 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 (if the plaintiff alleges oppression, fraud or malice); or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness); and (4) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407 (“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.”).

In this case, the only express mention of Chase states it was “at all times the parent and management compan[y] of INLAND VALLEY REHAB and actively participated in the business of providing long-term care to residents…” (Complaint, ¶ 9). Throughout the Complaint, Chase and Inland Valley Rehab are referred to collectively as “Nursing Home Defendants.” Thus, the allegations lack particularity as to Chase, and there are insufficient facts to support the elements of this claim. Further, a parent company is entitled to be involved in the business of its subsidiary without incurring vicarious liability. Hill v. State Farm Mut. Auto. Ins. Co. (2008) 166 Cal.App.4th 1438, 1494.

Plaintiffs argue that alter ego and joint venture have been alleged (¶¶ 75, 84), However, even where these theories are alleged, “[a] complaint must set forth the facts with sufficient precision to put the defendant on notice about what the plaintiff is complaining and what remedies are being sought.” Leek v. Cooper (2011) 194 Cal.App.4th 399. Paragraphs 75 and 84 contain conclusions rather than facts. Moreover, Plaintiffs’ Opposition cites to case law which is distinguishable, and does not deal with the parent-subsidiary or principal-agent relationship alleged in this action.

New Arguments Raised in Reply:

“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Insurance Company v. Aguirre (1983) 149 Cal.App.3d 1002, 1010. Here, Chase’s arguments regarding ratification and the equal dignities rule are new matter raised in the Reply that was not asserted in the Demurrer. As a result, these arguments were not considered by the court.

The demurrers to the Second and Fourth Cause of Action are sustained with leave to amend.

(2) MOTION TO STRIKE:

Defendants Inland Valley Care & Rehabilitation Center, and The Chase Group, LLC, move to strike portions of the Complaint pursuant to CCP §§ 435 and 436. Defendants claim that numerous portions of the second cause of action consist of (1) recitations of law and conclusions which are improper, and (2) references to other residents for whom Plaintiffs lack standing to complain. In addition, Defendants argue that portions of ¶ 6 of the Prayer should be stricken because injunctive relief to prevent future harm to Mrs. Gann is not available after her death.

Recitations of Law and Conclusions:

CCP § 425.10 states in relevant part, “(a) [a] complaint…shall contain both of the following: (1) a statement of facts constituting the cause of action, in ordinary and concise language, (2) a demand for judgment for the relief to which the pleader claims to be entitled.” In addition, “[i]t is settled law that the pleading must allege facts and not conclusions, and that material facts must be alleged directly and not by way of recital.” Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537. In this case, Defendants argue that Plaintiffs use portions of the Second Cause of Action to argue case law, and violations of statutes and regulations. Plaintiffs contend that these allegations put Defendants on notice. Although these allegations may not be a model of pleading, they are sufficient to apprise Defendants of the claims against them. The motion is denied as to those allegations.

References to Other Residents:

CCP § 367 states, “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” Here, Defendants contend that Plaintiffs have standing only to assert claims for damages regarding their own rights, not the rights of others. Plaintiffs respond that the pleading does not advocate for the rights of others, but only mentions others to purportedly show a pattern of neglect through understaffing. However, alleged understaffing does not equate to elder abuse, but at most, negligence. Worsham v. O’Connor Hospital (2014) 2014 WL 2085555. The motion is granted as to those allegations.

Injunctive Relief:

Health and Safety Code § 1430(b) allows for injunctive relief as a remedy for violations of applicable state or federal regulations. Here, Defendants argue that Mrs. Gann, having died, is no longer a resident in Defendants’ facility, so Plaintiffs are barred from obtaining the injunction requested in ¶ 6 of their Prayer. Plaintiffs claim that § 1430(b) allows former residents to bring an action against a licensee, and that the licensee “may be enjoined from permitting the violations to continue.” However, the violations will not continue as to Mrs. Gann. Further, Plaintiffs have standing only to assert claims for damages regarding their own rights, not the rights of others. The motion is granted as to that portion of the Prayer.

Plaintiffs have 10 days leave to amend in accordance with these rulings.