Case Number: BC613352??? Hearing Date: September 02, 2016??? Dept: J
Re: Maria E. Polack, etc. v. Southern California Specialty Care, Inc., etc., et al. (BC613352)
DEMURRER TO COMPLAINT; MOTION TO STRIKE PORTIONS OF COMPLAINT
Moving Party: Defendant Beverly Community Hospital Association dba Beverly Hospital
Respondent: Plaintiff, Maria E. Polack, Individually and as Successor in Interest to Claudia Amanda Hinojosa Polack
POS: Moving OK; Opposing served by regular mail contrary to CCP ? 1005(c); Replies OK
This is a medical negligence/wrongful death and elder abuse case. Plaintiff is alleging that the defendants? care and treatment of her 94-year-old mother, Claudia Amanda Hinojosa Polack (?decedent?), was substandard. The Complaint, filed on 3/10/16, asserts causes of action for:
1. Medical Negligence/Wrongful Death
2. Elder Abuse?Neglect
On 7/11/16, this case was transferred to our department from Department 98 (personal injury hub).
The Final Status Conference is set for 5/15/17. A jury trial is set for 5/23/17.
DEMURRER TO COMPLAINT:
DEMURRER TO COMPLAINT:
Defendant Beverly Community Hospital Association dba Beverly Hospital (?defendant?) demurs, per CCP ? 430.10(e)&(f), to the second cause of action in Plaintiff, Maria E. Polack, Individually and as Successor in Interest to Claudia Amanda Hinojosa Polack (?Plaintiff?)?s Complaint, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.
MEET AND CONFER:
CCP ? 430.41(a) provides as follows:
(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.
(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.
(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.
(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:
(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.
(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.
Defendant?s counsel fails to demonstrate that he complied with CCP ? 430.41. Thus, the parties are ordered to meet and confer, in person, prior to the matter being called. If the parties are unable to resolve the issues on their own, the hearing will be taken off calendar.
MOTION TO STRIKE PORTIONS OF COMPLAINT:
Defendant seeks to strike out the following portions of Plaintiff?s Complaint: (1) Item No. 4 of the prayer, ? 28, l. 17: ??For Punitive Damages According to Proof;? and (2) Item No. 5 of the prayer, ? 28, l. 18: ??For Attorneys fees pursuant to Welfare & Institutions Code Section 15657.?
Defendant?s motion is granted. ?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. (Welf. & Inst. Code, ? 15657.2; Delaney [v. Baker (1999)] 20 Cal.4th [23,] at p. 32; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88). The plaintiff must prove ?by clear and convincing evidence? that ?the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of? the neglect. (Welf. & Inst. Code ? 15657). Oppression, fraud and malice ?involve ?intentional,? ?willful,? or ?conscious? wrongdoing of a ?despicable? or ?injurious? nature.? (Delaney, at p. 31). Recklessness involves ??deliberate disregard? of the ?high degree of probability? that an injury will occur? and ?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 pp. 31-32). Thus, the enhanced remedies are available only for ??acts of egregious abuse? against elder and dependent adults.? (Id. at p. 35? see also Covenant Care [, Inc. v. Superior Court (2004)] 32 Cal.4th [771,] at p. 786 [?statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs?].) In short, ?[i]n order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.? (Covenant Care, at p. 789).? Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.
?[S]everal factors?must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care (Welf. & Inst.Code, ?? 15610.07, subd. (b); 15610.57, subd. (b); Delaney, supra, 20 C.4th at p. 34); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin, supra, 144 C.A.4th at pp. 85, 90; Benun [v. Superior Court (2004)] 123 C.A.4th [113,] at p. 116; Mack [v. Soung (2000)] 80 C.A.4th [966,] at pp. 972-973); and (3) 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) (Welf. & Inst. Code, ?? 15610.07, subd. (b); 15610.57, subd. (b), 15657; Covenant Care, supra, 32 C.4th at pp. 783; Delaney, at pp. 31-32). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst. Code, ?? 15610.07, subds. (a), (b), 15657; Perlin [v. Fountain View Management, Inc. (2008)] 163 C.A.4th [657,] at p. 664; Berkley [v. Dowds (2007)] 152 C.A.4th [518,] at p. 529). 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. (Covenant Care, at p. 790).? Carter, supra, at pp. 406-407.
Plaintiff has not pled with the required particularity any facts as to how Defendant oppressively, fraudulently or maliciously caused harm to the decedent. Additionally, plaintiff has not included any facts pertaining to authorization or ratification on Defendant?s part. Section 15657 states, in pertinent part, that ?[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law?(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.?
CC ? 3294(b), moreover, states in part that: ?An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.?
Defendant?s motion to strike is granted. The court will hear from counsel for plaintiff as to whether leave to amend is requested.