Case Name: Evelyn Riffel, et al. v. Humangood, et al.
Case No.: 18CV322534

I. Background

This is an elder abuse action brought by plaintiffs David Carey and Nancy Bever (collectively, “Plaintiffs”) individually and on behalf of their mother, decedent Evelyn Riffel, against defendants Humangood and American Baptist Homes of the West (collectively, “Defendants”) who operate a nursing home known as the Terraces of Los Gatos.

According to the allegations in the first amended complaint (“FAC”), Plaintiffs’ mother resided at the Terraces of Los Gatos from 2013 until her death in April 2017. During this time, Defendants’ employees repeatedly failed to provide Plaintiffs’ mother with medical care and consistently failed to refill her medicine and account for her medical supplies and other personal items.

For example, in April 2015, Plaintiffs’ mother had a stroke and lost her sight during breakfast, but Defendants’ employees failed to call for emergency medical care and simply helped her eat. In April 2016, Defendants’ employees failed to refer Plaintiffs’ mother for medical evaluation and treatment when she had difficulty breathing; instead, Plaintiffs had to take their mother to the emergency room where she was diagnosed with congestive heart failure. In September 2016, when Plaintiffs’ mother fell and fractured her hip while being moved by Defendants’ staff, the staff did nothing despite her complaints of severe pain. Plaintiffs allege their mother passed away in April 2017 as a result of the delay in diagnosing and treating her injuries.

Plaintiffs assert causes of action against Defendants for: (1) elder abuse; (2) violation of the Patients’ Bill of Rights; (3) wrongful death; and (4) failure to allow inspection and copying of medical records. Plaintiffs seek injunctive relief, compensatory and punitive damages, and attorney’s fees in connection with their claims.

Currently before the Court is Defendants’ demurrer to the FAC and motion to strike allegations therein related to the remedies Plaintiffs seek.

II. Demurrer

Defendants demur to each cause of action on the ground of failure to state facts sufficient to constitute a cause of action. A demurrer on this ground tests whether the plaintiff alleges each ultimate fact essential to his or her causes of action. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, citing Code Civ. Proc., § 430.10, subd. (e).)

A. First Cause of Action

The first cause of action is for elder abuse in violation of the Elder Abuse and Dependent Adult Protection Act (the “Act”). (See Welf. & Inst. Code, § 15657.) The “Act 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.’” (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 404, quoting Welf. & Inst. Code, § 15610.27.) “In particular, a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorney[’s] fees and costs.” (Carter, supra, 198 Cal.App.4th at p. 404, quoting Welf. & Inst. Code, § 15657.)

Plaintiffs’ claim is predicated solely on neglect, which may include “the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration.” (Sababin v. Super. Ct. (2006) 144 Cal.App.4th 81, 88, citing Welf. & Inst. Code, § 15610.57.) Neglect “covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 783.) “As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly [ ] adults, regardless of their professional standing, to carry out their custodial obligations.’” (Ibid., quoting Delaney v. Baker (1999) 20 Cal.4th 23, 34.)

To state a cause of action based on neglect, a plaintiff must allege “the defendant: (1) had responsibility for meeting the basic needs of the elder [ ], such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder [ ] unable to provide for his or her own basic needs [citations]; and (3) denied or withheld goods or services necessary to meet the [elder’s] basic needs, either with knowledge that injury was substantially certain to befall the elder [ ] (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations].” (Carter, supra, 198 Cal.App.4th at pp. 406-07; see also Delaney, supra, 20 Cal.4th at pp. 31-32.) “The plaintiff must also allege [ ] that the neglect caused the elder [ ] to suffer physical harm, pain or mental suffering.” (Carter, supra, 198 Cal.App.4th at p. 407.) “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.” (Ibid., quoting Covenant Care, supra, 32 Cal.4th at p. 790.) Defendants argue Plaintiffs do not plead all of these essential elements of their claim.

Defendants first argue Plaintiffs do not adequately allege neglect occurred. Their argument is flawed because it is based on an inaccurate characterization of the pleading. Defendants first assert Plaintiffs’ allegations are conclusory and suggest there are no factual allegations in the pleading. But Plaintiffs do allege facts about their mother’s care and the lack thereof and do not simply conclude neglect occurred. (FAC, ¶¶ 15-33.) Defendants also state, without more, that Plaintiffs merely allege professional negligence and not neglect. In making this statement, Defendants do not appear to account for the allegations that their employees refused to call for emergency assistance when Plaintiffs’ mother suffered a stroke and failed to transport her to the hospital when she broke her hip. (FAC, ¶¶ 26, 31.) To the extent Defendants’ position is that the allegations in the FAC, including these two particular allegations, constitute allegations of medical negligence and not neglect, they do not provide legal analysis to support their position. In fact, Plaintiffs allege Defendants withheld medical treatment; Plaintiffs do not allege, for example, the nursing staff treated their mother but gave her the wrong treatment. (See, e.g., Carter, supra, 198 Cal.App.4th at pp. 405-08 [compiling cases; distinguishing neglect from negligence].) Consequently, Plaintiffs adequately plead the element of neglect.

Defendants next argue Plaintiffs do not adequately allege they acted with the requisite level of culpability to support an elder abuse claim. In support, they state, without more, that Plaintiffs conclude they acted maliciously, oppressively, recklessly, and fraudulently without pleading facts to support their conclusions. This statement is inaccurate because Plaintiffs do not merely plead conclusions. For example, Plaintiffs describe their interactions and their mother’s interactions with Defendants’ staff and allege the staff knew their mother needed immediate medical attention on several occasions, such as when she had a stroke and when she broke her hip. (FAC, ¶¶ 13, 22, 29-31.) Defendants do not address these or other allegations and explain how their staff’s conduct, in light of the knowledge and other circumstances alleged, does not satisfy the definition of malice, oppression, recklessness, or fraud.

Defendants also argue Plaintiffs do not allege a managing agent committed or ratified the conduct constituting malice, oppression, recklessness, or fraud.

To assert an elder abuse claim against an entity, a plaintiff must satisfy “[t]he standards set forth in subdivision (b) of Section 3294 of the Civil Code” by alleging malice, oppression, fraud, or recklessness committed or ratified by an officer, director, or managing agent of the entity. (Welf. & Inst. Code, § 15657, subd. (c); Carter, supra, 198 Cal.App.4th at p. 405.) A managing agent is someone who, like a corporate officer or director, exercises “substantial discretionary authority over significant aspects of a corporation’s business” and policies. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577-78.) An employee is not a managing agent simply based on his or her title or responsibility for managing employees. (Ibid.; accord CRST, Inc. v. Super. Ct. (2017) 11 Cal.App.5th 1255, 1273-75.)

Here, Plaintiffs claim Defendants’ Administrator and Director of Nursing qualify as managing agents. Plaintiffs allege the Administrator and Director of Nursing exercise “substantial authority to make decisions, including life [or] death decisions, that ultimately determine corporate policy on [their] own, without getting approval for those decisions from anyone else.” (FAC, ¶¶ 30-31.) Plaintiffs also allege the Administrator and Director of Nursing must have such authority to fulfill their responsibilities under California law. (FAC, ¶¶ 30-31, citing Cal. Code Regs., tit. 22, § 72327, subd. (c), Health & Saf. Code, § 1416.68, subds. (a)-(b).)

Defendants argue these allegations are insufficient because Plaintiffs do not explain how authority to make “life or death decisions” is equivalent to “authority to conduct corporate business or policy [ ].” (Mem. of Pts. & Auth. at p. 13:24-28.) As a preliminary matter, the Court observes Plaintiffs’ allegations could be clarified through the use of a different sentence structure. With that said, Defendants’ reading of the allegations is strained. Defendants ignore the fundamental substance of Plaintiffs’ allegations, which is that the Administrator and Director of Nursing had “substantial authority to make decisions. . . that ultimately determine corporate policy on [their] own, without getting approval for those decisions from anyone else.” (FAC, ¶¶ 30-31.) Defendants instead focus exclusively on the additional detail that these decisions about corporate policy impact the health and survival of residents. Consequently, Defendants’ argument does not fairly and completely address the substance of Plaintiffs’ allegations and does not justify sustaining the demurrer.

Turning to a related argument, Defendants state Plaintiffs do not allege the Administrator and Director of Nursing “perpetrated or ratified the alleged neglectful conduct.” (Mem. of Pts. & Auth. at p. 14:25-26.) Defendants’ supporting characterizations of the allegations in the pleading are incomplete and inaccurate. For example, Defendants state Plaintiffs do not allege the Administrator and Director of Nursing were aware of the neglectful conduct. But Plaintiffs do allege the Administrator and Director of Nursing knew about the problems with their mother’s care, not just because they made rounds, visited with residents, and attended meetings about the medical status of residents, but also because Plaintiffs explicitly told them about these problems. (FAC, ¶¶ 29-33.) Additionally, Defendants do not provide supporting legal analysis. Accordingly, Defendants do not substantiate their argument.

For the reasons set forth above, Defendants do not demonstrate the allegations in the pleading are insufficient to state a claim for elder abuse. The demurrer to the first cause of action is therefore OVERRULED.

B. Second Cause of Action

The second cause of action is for violation of the Patients’ Bill of Rights. Plaintiffs allege the “acts and omissions” constituting elder abuse also violate “rights within the meaning of 22 C.C.R. § 72527(a) and other rights provided by federal and state law [ ].” (FAC, ¶ 45.) Plaintiffs allege Health and Safety Code section 1430 authorizes an action based on these violations. (FAC, ¶ 46.)

Health and Safety Code section 1430, subdivision (b) authorizes “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 in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” The Patients’ Bill of Rights establishes rights to, among other things, informed participation in healthcare decisions and maintenance of complete and accurate healthcare records (Lemaire v. Covenant Care California, LLC (2015) 234 Cal.App.4th 860, 864-65) as well as freedom from mental and physical abuse (Cal. Code Regs., tit. 22, § 72527, subd. (a)(10)).

Defendants argue Plaintiffs fail to state a claim because their allegations are too conclusory. Defendants assert Plaintiffs cannot generically allege a violation of statutory rights without identifying what rights were purportedly violated. In other words, Defendants argue Plaintiffs must specifically identify the statutory rights, whether enumerated in the Patients’ Bill of Rights or some other statute, upon which their claim is based. In opposition, Plaintiffs do not explicitly dispute this argument; instead, they assert they adequately identify the rights upon which their claim is predicated.

Defendants do not cite any authority to support their argument. Because Plaintiffs’ second cause of action is a statutory claim and is based, in part, on the first cause of action for elder abuse, perhaps they intended to base their argument on the rule that statutory claims, including claims for elder abuse, must be pleaded with particularity (Carter, supra, 198 Cal.App.4th at pp. 406-07). Even so, it is not obvious that Plaintiffs’ allegations fall short of this particularity requirement.

It is true that Plaintiffs’ second cause of action merely incorporates the preceding factual allegations, including the allegations of elder abuse in the first cause of action. Unlike in Plaintiffs’ opposition, and contrary to what they appear to suggest, they do not specifically allege in the second cause of action that Defendants violated rights conferred by Welfare and Institutions Code section 15657, Health and Safety Code section 123110, and four particular subdivisions in the Patients’ Bill of Rights (Cal. Code Regs., tit. 22, § 72527, subd. (a)). The Court acknowledges the specific identification of predicate statutory rights, like in Plaintiffs’ opposition, might make the second cause of action clearer. Even so, the Court is not persuaded that this is required to state a viable claim here since the facts incorporated by reference in the second cause of action are sufficient to put Defendants on notice of the factual basis of the claim. To be sure, Defendants do not address those allegations or argue they cannot discern, when reading the pleading as a whole and its parts in context, which rights are at issue.

Based on the foregoing, Defendants do not substantiate their demurrer to the second cause of action. The demurrer is therefore OVERRULED.

C. Third Cause of Action

In the third cause of action for wrongful death, Plaintiffs allege their mother died on April 22, 2017, as a result of Defendants’ ten-day delay in providing her with medical care after she fell and fractured her hip in 2016. (FAC, ¶ 49.)

Defendants’ argument relative to the third cause of action is not a model of clarity. It appears their argument is that Plaintiffs cannot prove the causation element of their claim because nearly eight months elapsed between the alleged negligence and their mother’s death. Causation is an element of a wrongful death claim. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263-64.) Plaintiffs’ allegation that their mother died as a result of a delay in treating her hip fracture many months prior to her death, particularly when she had a stroke and congestive heart failure, may be implausible. But a demurrer tests the legal sufficiency of the pleading, not the plaintiff’s ability to prove his or her claim. (Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1536-37.) Accordingly, the demurrer is not sustainable on the basis the allegation is implausible or cannot be proven.

Defendants also state Plaintiffs do not plead a “medical cause of death.” (Mem. of Pts. & Auth. at p. 17:18-20.) Although not especially clear, to the extent Defendants’ position is that Plaintiffs must plead the cause of death listed, for example, on their mother’s death certificate, they do not cite any authority to support their position. Otherwise, to the extent Defendants are simply arguing Plaintiffs do not allege their conduct was the cause of the mother’s death, their argument lacks merit because Plaintiffs do allege as much. (FAC, ¶¶ 28, 49-51.)

For these reasons, Defendants do not substantiate their demurrer to the third cause of action, which is therefore OVERRULED.

D. Fourth Cause of Action

According to the allegations in the fourth cause of action, plaintiff David Carey (“Carey”) is an heir to his mother’s estate and, thus, was authorized to access her medical records by Health and Safety Code section 123110 as well as Probate Code sections 24 and 58. Although he made several requests for a full and complete copy of her records, Defendants provided only a partial and incomplete copy of the records in violation of that statute.

Health and Safety Code section 123110, subdivision (a) states “any adult patient of a health care provider, any minor patient authorized by law to consent to medical treatment, and any patient representative shall be entitled to inspect patient records upon presenting to the health care provider a written request for those records and upon payment of reasonable clerical costs incurred in locating and making the records available.” Additionally, any person entitled to inspect the records may also obtain copies of those records upon making a written request and paying for the cost of copying the records. (Health & Saf. Code, § 123110, subd. (b).) “Any patient or representative aggrieved by a violation of Section 123110 may, in addition to any other remedy provided by law, bring an action against the health care provider to enforce the obligations prescribed by Section 123110.” (Health & Saf. Code, § 123120.)

Defendants first argue the allegation that Carey is an heir is insufficient to show he was entitled to request the records.

Health and Safety Code section 123105 specifically defines a patient representative as, among other things, “[t]he beneficiary as defined in Section 24 of the Probate Code or personal representative as defined in Section 58 of the Probate Code, of a deceased patient.”

A beneficiary within the meaning of Probate Code section 24 “means a person to whom a donative transfer of property is made or that person’s successor in interest, and: [¶] (a) As it relates to the intestate estate of a decedent, means an heir. [¶] (b) As it relates to the testate estate of a decedent, means a devisee. [¶] (c) As it relates to a trust, means a person who has any present or future interest, vested or contingent. [¶] (d) As it relates to a charitable trust, includes any person entitled to enforce the trust.” A personal representative within the meaning of Probate Code section 58 means an “executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.”

As reflected above, the definition of a patient representative incorporates the definition of a beneficiary in Probate Code section 24. (Health & Saf. Code, § 123105, subd. (e)(4).) An heir is simply a specific type of beneficiary that inherits some portion of the decedent’s estate through intestate succession. (Prob. Code, § 24; Wells Fargo Bank v. Title Insurance & Trust Co. (1971) 22 Cal.App.3d 295, 299.) Thus, an heir qualifies as a patient representative entitled to access medical records pursuant to Health and Safety Code section 123110. Defendants provide no explanation or authority to support a contrary conclusion. Consequently, Defendants’ argument that the allegations are insufficient to show Carey qualifies as a patient representative is not persuasive.

Defendants also assert the claim is defective because there is no allegation that Carey tendered payment of reasonable expenses for inspection or copying of the records. It is true that Health and Safety Code section 123110 requires an individual requesting inspection or copying of medical records to defray the cost, if any. But it is not apparent from the statute that a health care provider necessarily must charge for inspection or copying of medical records. Additionally, although Defendants appear to assume that payment must be tendered at the time the records are requested, the statute does not reflect payment must be tendered at that time as compared to the time the records are inspected or retrieved. Additionally, Health and Safety Code section 123120, which authorizes a civil action for violation of section 123110, does not explicitly state tender is a prerequisite for a civil action. Otherwise, Defendants do not cite and the Court is not aware of any authority requiring such an allegation. Given Defendants do not cite any authority establishing this pleading requirement or provide a clear explanation as to why such a pleading requirement should be adopted, the Court does not conclude a plaintiff must allege he or she tendered payment to state a viable claim. The demurrer, thus, is not sustainable on this basis.

Based on the foregoing, the demurrer to the fourth cause of action is OVERRULED.

III. Motion to Strike

Defendants move to strike Plaintiffs’ prayers for punitive damages, attorney’s fees, and injunctive relief as well as related allegations. Defendants argue these allegations should be stricken as improper pursuant to Code of Civil Procedure section 436, subdivision (a) because Plaintiffs are not entitled to these remedies. The Court addresses each remedy in turn.

A. Punitive Damages and Attorney’s Fees

In connection with the first cause of action for elder abuse, Plaintiffs seek punitive damages under Civil Code section 3294, treble punitive damages under Civil Code section 3345, and attorney’s fees under Welfare and Institutions Code section 15657. To recover attorney’s fees in connection with an elder abuse claim “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages [under Civil Code section 3294].” (Covenant Care, supra, 32 Cal.4th at p. 789.) Consequently, the Court first addresses those two remedies before considering whether Plaintiffs may rely on Civil Code section 3345 for a treble award.

1. Ordinary Punitive Damages and Attorney’s Fees

To properly plead a claim for punitive damages, a plaintiff must allege the defendant was guilty of malice, oppression, or fraud and the ultimate facts underlying such allegations. (Civ. Code, § 3294, subd. (a); Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) To recover punitive damages from an entity, a plaintiff must allege either a malicious, oppressive, or fraudulent act by an officer, director, or managing agent or that such individuals with control over the business’s policies authorized or ratified the malicious, oppressive, or fraudulent act of an employee. (White, supra, 21 Cal.4th at pp. 571-74, citing Civ. Code, § 3294, subd. (b).)

Similarly, when a “defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of [elder] abuse,” a plaintiff may recover attorney’s fees and costs incurred in litigating the elder abuse claim. (Welf. & Inst. Code, § 15657; Covenant Care, supra, 32 Cal.4th at p. 789.) To plead entitlement to attorney’s fees in connection with an elder abuse claim, a plaintiff must also satisfy “[t]he standards set forth in subdivision (b) of Section 3294 of the Civil Code” by alleging malice, oppression, fraud, or recklessness committed or ratified by an officer, director, or managing agent. (Welf & Inst. Code, § 15657, subd. (c); Carter, supra, 198 Cal.App.4th at p. 405.)

Defendants rely on the same arguments addressed above in connection with the demurrer to the first cause of action for the purpose of establishing Plaintiffs do not plead facts sufficient to support their claims for punitive damages and attorney’s fees. These arguments are unsubstantiated and/or unpersuasive for the same reasons articulated above. Although Defendants also include large block quotations from Welfare and Institutions Code section 15657 and Civil Code section 3294, they do not provide additional analysis of these statutes or present new arguments to support the conclusion that Plaintiffs fail to plead malice, oppression, fraud, and recklessness sufficient to support a claim for punitive damages and attorney’s fees. Accordingly, Plaintiffs’ prayers for these particular remedies and related allegations will not be stricken.

2. Treble Punitive Damages

Plaintiffs also seek treble punitive damages under Civil Code section 3345 in connection with their elder abuse claim.

“Civil Code section 3345 applies ‘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.’” (Clark v. Super. Ct. (2010) 50 Cal.4th 605, 610, quoting Civ. Code, § 3345, subd. (a).) It “allows for a recovery of up to three times the amount of a monetary award whenever ‘a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter,’ if the trier of fact finds any of the factors identified in the statute to exist.” (Clark, supra, 50 Cal.4th at p. 610, quoting Civ. Code, § 3345, subd. (b).)

Defendants argue Plaintiffs do not plead facts showing entitlement to treble punitive damages under Civil Code section 3345 because they do not seek redress for unfair or deceptive acts or practices or unfair methods of competition. The Court agrees. To illustrate, Plaintiffs do not assert a claim for violation of the Consumer Legal Remedies Act, which claim might support recovery of treble damages under Civil Code section 3345. (See Clark, supra, 50 Cal.4th at pp. 610-12.) Additionally, although it is conceivable that a claim for financial elder abuse might also qualify as a claim for redress of unfair or deceptive conduct, Plaintiffs do not assert such a claim here. (See Johnston v. Allstate Insurance Co. (S.D.Cal. May 23, 2013, No. 13-CV-574-MMA) 2013 WL 2285361, *4.) Indeed, Plaintiffs affirmatively concede they are not alleging a claim for redress of unfair, deceptive, or anticompetitive conduct. And so Plaintiffs’ underlying claim does not support recovery of treble punitive damages under Civil Code section 3345.

Plaintiffs do not present any persuasive argument to support a contrary conclusion. Instead, Plaintiffs assert that “trebling applies to punitive damages under [Civil Code § 3294]” irrespective of the nature of the underlying claim. (Opp. at p. 7:10.) Plaintiffs’ argument is based on a significant misreading and/or misinterpretation of the law. In fact, a federal court has already rejected this argument and reading of the statute. (Hood v. Hart Life & Accident Insurance Co. (E.D.Cal. 2008) 567 F.Supp.2d 1221, 1228-29.)

In actuality, there are two fundamental prerequisites for recovery under Civil Code section 3345. (See Clark, supra, 50 Cal.4th at p. 609.) Recovery is only authorized if (1) the action is “brought by senior citizens to redress unfair competition” and (2) a penalty or punitive remedy may be awarded. (Ibid.) To illustrate, the California Supreme Court has held that a plaintiff cannot rely on that statute for treble recovery in connection with a claim for violation of California’s Unfair Competition Law because, although such a claim is for redress of unfair competition, the only available remedies are injunctive relief and restitution, which are not punitive. (Id. at pp. 613-15.) Put differently, although the nature of the remedy is material to whether recovery under Civil Code section 3345 is permissible, it is not the only criteria. The very first paragraph of the statute explicitly limits its application to actions “to redress unfair or deceptive acts or practices or unfair methods of competition.” (Civ. Code, § 3345, subd. (a).) This action does not satisfy both criteria. Thus, Plaintiffs cannot seek to recover treble punitive damages under Civil Code section 3345. Their prayer for treble punitive damages will therefore be stricken.

B. Injunctive Relief

Defendants move to strike Plaintiffs’ prayer for injunctive relief and related allegations on the basis they are not entitled to such relief.

In support, Defendants first advance the same argument previously rejected by the Court in connection with their motion to strike allegations in the original complaint. Defendants assert that because Plaintiffs’ mother died, there is no potential for future harm to her and, thus, no need for an injunction. Defendants again appear to be mistakenly assuming Plaintiffs seek injunctive relief in connection with the first cause of action for elder abuse and the third cause of action for wrongful death. This assumption is incorrect. Plaintiffs seek damages in connection with those two claims and seek injunctive relief in connection with their claim that Defendants continue to wrongfully withhold their mother’s medical records. (See FAC at p. 11.) Given Plaintiffs allege Defendants continue to withhold these records, their suggestion that there is no ongoing or future harm sufficient to warrant injunctive relief is not supported by the allegations in the pleading.

Defendants also argue Plaintiffs cannot seek injunctive relief because the statutes governing access to medical records, namely Health and Safety Code sections 123110 and 123120, do not authorize injunctive relief. Although it is true that neither of these statutes explicitly authorizes injunctive relief, it does not logically follow that Plaintiffs have no basis for seeking such relief. Although not especially clear, it appears Defendants’ argument is perhaps based on the assumption that Plaintiffs are only entitled to injunctive relief if the statute upon which the substance of their claim is based explicitly authorizes injunctive relief. But Defendants do not cite and the Court is otherwise unaware of any authority for such a rule. It is true that injunctive relief is explicitly authorized as a remedy for certain statutory claims. (See, e.g., Civ. Code, § 2924.12 [authorizing injunction for material violation of Homeowners’ Bill of Rights].) But a court may also grant an injunction based upon any of the grounds in Code of Civil Procedure section 526. Accordingly, Defendants do not substantiate their argument that Plaintiffs cannot seek injunctive relief because there is no authorizing language in Health and Safety Code sections 123110 and 123120.

Based on the foregoing, Defendants do not demonstrate Plaintiffs’ prayer for injunctive relief and related allegations may be stricken.

C. Conclusion

For the reasons set forth above, Defendants’ motion to strike is GRANTED in part and DENIED in part.

The motion to strike is DENIED as to the prayer for punitive damages under Civil Code section 3294, prayer for attorney’s fees, prayer for injunctive relief, and related allegations.

The motion to strike is GRANTED WITHOUT LEAVE TO AMEND as to the prayer for “treble punitive damages pursuant to C.C. §3345 [sic]” (FAC at p. 11:3-4). A court may deny leave to amend if the plaintiff cannot demonstrate any reasonable possibility of curing the defect in the pleading through amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs cannot recover treble damages under Civil Code section 3345 based on the claims asserted and do not argue they can or intend to amend the pleading to assert a new claim that would support recovery under that particular statute. Accordingly, leave to amend the prayer for treble punitive damages is denied. The Court does not reach any conclusion as to whether Plaintiffs could seek a treble award in the event they independently obtained leave to file an amended complaint containing some new cause of action.