2016-00202412-CU-PO

Annabelle Isherwood vs. Oakmont of Folsom, LLC

Nature of Proceeding: Hearing on Demurrer to Plaintiff’s First Amended Complaint

Filed By: Malone, Bryan L.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing party of the specific causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Defendants Oakmont of Folsom, LLC et al.’s demurrer to the First Amended Complaint (“1AC”) is SUSTAINED IN PART and OVERRULED IN PART, with leave to amend, as follows.

Factual Background

This action arises out of plaintiffs’ decedent’s 11-week stay at an assisted living facility from 10/3/2014 through 12/20/2014, ultimately passing away on 1/5/2015. The 1AC purports to assert just two causes of action for Elder Abuse and Wrongful Death.

Defendants now demur to the Elder Abuse claim on the ground that plaintiffs failed to plead facts sufficient to constitute a valid claim under the Elder Abuse Act but instead rely on impermissibly conclusory allegations against 5 separate defendants without distinguishing between them, without establishing each was a care custodian and without properly pleading alter ego liability. Defendants also contend both causes of action are fatally uncertain inasmuch as it remains unclear as to what each defendant allegedly did or did not do and unclear as to whether there are any other potential wrongful death claimants. Plaintiffs oppose.

Analysis

At the outset, the Court notes that both causes of action alleged in the 1AC are based on statutory provisions and California law mandates that such statutory claims be pleaded with particularity, showing every fact essential to the existence of liability under the relevant statutes. (See, Covenant Care, Inc. v. Superior Court (Inclan) (2004) 32 Cal.4th 771, 790 (citing Lopez v. Southern Cal. Rapid Trans. Dist. (1985) 40 Cal.3d 780, 795) (emphasis added).) The 1AC consists of largely conclusory

allegations against several separate defendant entities without distinguishing between them and therefore, the Court finds that the 1AC fails to plead facts sufficient to establish liability against each of the five named defendants under both the Elder Abuse and wrongful death statutes, rendering the pleading subject to both general and special demurrer.

Elder Abuse. Defendants insist this COA fails to state facts sufficient to constitute a valid claim under the Elder Abuse Act since plaintiffs did not plead facts establishing that (1) each defendant was a care custodian within the meaning of the Act; (2) any particular defendant committed physical abuse, neglect or fiduciary abuse; (3) any particular defendant engaged in such conduct with the recklessness, oppression, malice or fraud to constitute abuse and trigger enhanced remedies; and (4) any particular defendant’s officer, director or managing agent authorized or ratified such recklessness, oppression, malice or fraud but instead, plaintiffs merely repeat conclusory “buzz words” of reckless, oppressive, malicious and fraudulent without any factual support. As such, defendants maintain the allegations establish no more than possibly negligent care and nothing even approaching elder abuse under the Act but even if they did, the cause of action is devoid of facts demonstrating the requisite recklessness, oppression, malice or fraud.

The Court agrees and will sustain the demurrer on these grounds cited by defendants.

Wrongful Death. Defendants maintain the 1AC does not allege that there are no other potential wrongful death claimants despite the fact there can only be a single action for wrongful death. In particular, defendants point to Paragraph 3 of the 1AC which merely describes plaintiffs as the decedent’s children without clarifying whether there is anyone else given standing under the wrongful death statute.

Although the opposition insists the plaintiffs constitute the entirety of the potential wrongful death claimants, the Court agrees that the 1AC is not pled with the clarity which would put this issue to rest. Accordingly, the demurrer to the wrongful death cause of action is sustained as well.

Alter Ego. Defendants also contend that the 1AC fails to plead facts sufficient to establish alter ego liability against any defendant inasmuch as Paragraphs 14-15 do not include fact which show the required (1) “unity of interest” or (2) any “inequitable result” if corporate separateness is respected.

The Court overrules this demurrer because (1) it is not directed at a separate cause of action and would not even if sustained, dispose of an entire cause of action; (2) the alter ego allegations are not essential to the 1AC since plaintiffs’ have sued each of the alleged alter egos individually; and (3) the alter ego allegations appear sufficient to withstand challenge here. Defendants remain free to challenge these allegations if plaintiffs are unable to produce facts sufficient to establish alter ego liability against any particular defendant.

HCRI, Inc. Plaintiffs concede this entity does not exist and should not have been named as a defendant in this action. Accordingly, the demurrer based on plaintiffs’ failure to plead facts constituting a cause of action against HCRI, Inc. will be sustained.

Conclusion

Where defendants’ demurrer has been sustained, leave to amend is granted since this is the first challenge to the complaint on which the Court has had an opportunity to rule. Plaintiffs may file and serve a second amended complaint no later than 2/2/2018.

Although not required by court rule or statute, plaintiffs are directed to present a copy of this order when the amended complaint is presented for filing.

Defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail. If any defendant demurs to the amended complaint or moves to strike, a copy of the amended complaint shall be included with the moving papers.