Demurrer & Motion to Strike (Judge Martha K. Gooding)


1) Demurrer to Amended Complaint

2) Motion to Strike Portions of Complaint

3) Case Management Conference

The Demurrer by Defendant Caremore Health Plan (CHP?) ?is sustained without leave to amend. The Motion to Strike is taken off calendar as moot.

The Court notes that Defendant?s Demurrer states that it is addressed to the ?Third Cause of Action for Elder Abuse? of Plaintiff?s Second Amended Complaint (?SAC?).? This is plainly an error.? It is the Second Cause of Action that alleges Elder Abuse, and both sides have briefed the demurrer on the Elder Abuse issues.? Accordingly, the Court deems the Demurrer to have been made to the Second Cause of Action for Elder Abuse, and it rules on it as such.

As an initial matter, Plaintiffs argue in their Opposition that Defendant is precluded, under CCP Section 430.41(b), from again demurring here on the ground that the allegations do not rise to a level above negligence, and that Defendants have waived these arguments as they could have been raised in the previous Demurrer to the First Amended Complaint. Plaintiffs are correct that such a ground for demurrer could have been raised previously, but fail to note that the issue was raised in the previous Demurrer, at page 11, in which Defendants cite the Delaney v. Baker case , which is again raised here.? And, as the Court did not specifically rule on that issue when it ruled on the previous Demurrer, Defendant is not precluded from raising it here again.

 

Turning to the substance of the demurrer, the Court finds that Plaintiffs have failed to allege facts sufficient to show a relationship between the decedent, Garnett Elmer Peck (?Peck?) and CHP that amounted to a caretaking or custodial relationship, as required by Winn v. Pioneer Medical Group(2016) 63 Cal. 4th 148. ?In Winn, the Supreme Court made clear that ?the distinctive relationship contemplated by the [Elder Abuse] Act entails more than casual or limited interactions.? ?Id. at 158.??? The phrase ?care or custody? as used in the Act ?evokes a bond that contrasts with a casual or temporally limited affiliation.?? Id.at 161.??? Thus, ?a party with only circumscribed, intermittent, or episodic engagement? will not be among those who ??have . . . care or custody? of someone who may be particularly vulnerable.?? Id. at 158 (citing Section 15610.57(b)(1), (3)).

 

 

Plaintiff alleges, in wholly conclusory terms, that CHP ?had the care and/or custody of Mr. Peck ? for the 11 months between ?approximately September 14, 2014 through July 19, 2015, while Mr. Peck resided at [Defendant] Ishash Golden Homes? and that CHP ?assumed a substantial caretaking role by taking responsibility for attending to mr. Peck?s care needs.?? SAC ?? 95, 99.

 

But the factual allegations of the SAC are at odds with these conclusory assertions.

 

The SAC alleges that Peck lived at Ishash Golden Homes, a residential care facility for the elderly that was owned and operated by Defendant Noebel Enterprise, LLC.? See SAC ?? 4, 6.? There is no allegation that Peck lived at CHP or in a facility owned, operated or managed by CHP; nor is there any other factual allegation that CHP otherwise had physical custody of Peck.

 

The SAC also alleges that Ishash ?had care and custody of Mr. Peck and was responsible for Mr. Peck?s custodial needs, as well as his health, safety, and well-being.?? Id. ? 16.? Further, ?Due to his advanced age, Alzeimer?s dementia, and limited mobility Mr. Peck required assistance with all of his basic needs and activities of daily living, including mobility, hygiene, personal care, hydration, and nutrition.? In particular, Mr. Peck was noted by Ishash to require extensive help with ambulation and transferring and had general muscle weakness.?? Id. ? 23. ?Further, Mr. Peck ?depended upon [Ishash and Defendant Mosqueda] for his most basic needs and that without their assistance, he would be susceptible to malnutrition, dehydration, infections, and pressure ulcers.?? Id. ? 24.

 

But there is no factual allegation that CHP was responsible for Peck?s daily custody and daily care, such as mobility, hygiene, personal care, hydration, and nutrition ? as is alleged against Ishash.? To the contrary, Plaintiff alleges that CHP only interacted with Peck, through nurse practitioners, on a periodic basis.? For example, Paragraph 27 alleges that ?Starting on around September 2014, [CHP] would send nurse practitioners to periodicallyprovide assessments and care to Mr. Peck.?? SAC ? 27 (emphasis added). ?See also id. ? 99 (?Starting on around September 2014, [CHP] would send nurse practitioners to periodically provide assessments and care to Mr. Peck?)(emphasis added).? In fact, Plaintiffs allege that CHP?s nurse practitioners ?visited with Mr. Peck or checked on him at least 22 times? ? and list 22 specific dates, over a period of 11 months, on which CHP?s personnel ?visited? or ?checked on? Peck.? Id. ? 101.

 

Plainly, the role CHP played vis a vis Peck was not custodial.? Nor was it that of someone who was responsible for meeting the basic, daily needs of this elder or dependent adult, such as nutrition, hydration, hygiene or medical care.? Indeed, CHP could not possibly have had daily caretaking responsibility for Peck, given that ? based on Plaintiff?s own allegations? it only met with Peck, on average, twice a month.? Visiting with Peck on such a periodic or episodic basis is a far cry from the ?robust caretaking or custodial relationship? that a claim under the Elder Abuse Act requires.? See Winn, 63 Cal.4th at 159-60.

 

As to the actual instances of alleged neglect, if any wrongdoing occurred, it was negligence and not elder abuse. See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 408).

 

Demurrer to the Second Cause of Action, for Elder Abuse, against CHP is sustained without further leave to amend.

 

Defendant CHP to give notice.

?