Case Number: BC655051    Hearing Date: July 26, 2019    Dept: A

Tuparan v Golden Cross Health Care

Demurrer & Motion to Strike SAC

Calendar: 10    
Case No.: BC655051    
Hearing Date: July 26, 2019    
Action Filed: March 23, 2017    
Trial Date: Not Set    

MP: Defendants Vitas Hospice Services, LLC; Vitas Healthcare Corporation of California
RP: Plaintiff Lori S. Tuparan




The instant action arises out of the alleged wrongful death of Nicolas Tuparan (“Decedent”) from the alleged improper acts of Defendants Golden Cross Healthcare a d/b/a of 1450 North Fair Oaks, LLC, and Golden Cross Care, Inc. (“Golden Cross”); Vida Arevalo (“Arevalo”); Vitas Hospice Services, LLC, and Vitas Healthcare Corp. of California (“Vitas”); Kindred Healthcare Operating, Inc., and KND Development 54, LLC d/b/a Kindred Hospital Riverside (“Kindred”); and Dr. Neil D. Katchmen (“Katchmen” and collectively the “Defendants”).  Plaintiff Loreta Tuparan, brings the action individually, as successor in interest to Nicolas Tuparan, and as attorney-in-fact for Aurora Tuparan, Apolonia De Vera, Ellen Leonardo, Eva Rana, Esther Villanueva, Abimael Tuparan, Enrique Tuparan, Jemima De Leon, and Nicomedes Tuparan (collectively the “Plaintiffs”).  Plaintiffs claim that the Defendants provided medication to the Decedent against his stated will, would not assist him with hygiene, did not feed him properly, did not provide sufficient medical care, failed to perform CPR when Decedent was choking, and as a result the decedent ultimately died.

The operative Second Amended Complaint (“SAC”) was filed on January 16, 2018, and alleges six causes of action for: (1) Willful Misconduct; (2) Negligence; (3) Elder Abuse; (4) Breach of Fiduciary Duty; (5) Wrongful Death; and (6) Malpractice.


The time to answer the SAC was stayed pursuant to arbitration proceedings that were conducted by and between Plaintiffs and Kindred.  The arbitration resulted in a settlement that was adjudicated a good faith settlement on March 29, 2019.

The Vitas Defendants filed the instant demurrer and motion to strike on June 11, 2019, demurring to the First, Second, Third, and Fourth Causes of Action, and moving to strike attorneys fees and punitive damages.  Plaintiffs opposed both motions on July 11, 2019.


Vitas demurs to the First, Second, Third, and Fourth Causes of Action.

Vitas moves to strike Plaintiffs’ request for attorney’s fees and punitive damages.


Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.  Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief.  LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.  Blank,supra, 39 Cal. 3d at p. 318.  Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.  Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709.  A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  Blanksupra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible.  It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.  Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

The Court has reviewed the Declaration of Jason J. Petersen, and finds that Vitas has satisfied its meet and confer obligations.

First Cause of Action (Willful Misconduct) – California recognizes three different legal standards that apply regarding actions that sound in reckless or negligent conduct.  First, ordinary negligence, which is “an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm.”  Donnelly v. Southern Pacific Co. (1941) 18 Cal. 2d 863, 869.  Second is gross negligence, which “has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct,’” and which is generally a question of fact for the jury.  Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal. App. 4th 546, 555.  Finally, there is the standard of willful misconduct, which is distinguished even from the standard of gross negligence by “the further intent that the performance be harmful or that it be done with a positive, active and absolute disregard of the consequences.”  Hawaiian Pineapple Co. v. Industrial Acci. Com. (1953) 40 Cal. 2d 656, 662.

In order to successfully plead a cause of action sounding in willful misconduct, the facts alleged need to create the inference that the conduct is willful, and not merely negligent.  “[W]illfulness generally is marked by three characteristics: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril.”  Calvillo-Silva v. Home Grocery (1998) 19 Cal. 4th 714, 730; see also Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal. App. 5th 1118, 1140 (“In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. Willful misconduct is not marked by a mere absence of care. Rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.”).

Vitas’ first argument on demur is that the instant cause of action has no basis in California law.  Demurrer, 7:20-27.  The Court concludes pursuant the discussionsupra that there is sufficient basis in California jurisprudence to permit causes of action sounding in ‘willful misconduct,’ and therefore rejects Vitas’ argument.

Vitas next argues that Plaintiffs have failed to allege anything more than negligence in the SAC, and that the facts purportedly responsive to the First Cause of Action are nothing more than legal conclusions without any facts alleged.  Demurrer, 8:1-9:12.  The Court has reviewed the SAC, and concurs with Plaintiffs’ analysis, in that the SAC adequately states facts sufficient to support the First Cause of Action for Willful Misconduct.  Specifically, the Court notes that Plaintiffs have alleged that a Vitas employees was present when Decedent was choking, failed to perform Cardio Pulmonary Resuscitation on the Decedent, knowing that the result of such failure may be Decedent’s death.  SAC ¶67-68, 70-75, 103(n)-(z).  This is sufficient to satisfy the elements of a willful misconduct cause of action, as the facts suffice to establish that Vitas’ employee (3) consciously failed to perform CPR (1) with actual knowledge of Decedent choking, and (2) knowing that severe injury was probable.

As Plaintiffs have alleged facts sufficient to support an inference the First Cause of Action, the demurrer on that basis will be overruled.

Second Cause of Action (Negligence) – A complaint for damages for negligent injury to person or property must allege: (1) defendant’s legal duty of care toward plaintiff; (2) defendant’s breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff.  Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.  No strict requirements exist for the form of such allegations.  Id.

Vitas contends that the Second Cause of Action for Negligence should be completely subsumed by the Fifth Cause of Action for Wrongful Death pursuant to the California Supreme Court’s holding in Flowers c. Torrance Mem. Hosp. Med. Center (1994) 8 Cal. 4th 992.  Demur, 14:3-15.  Plaintiffs do not contest that the theories of Wrongful Death and Negligence are related, but argue that they should be able to proceed on either theory at this stage pursuant to Rader Co. v. Stone(1986) 178 Cal. App. 3d 10.  Opposition, 14:1-15:2.

Both parties miss the (often obscure) difference between a Wrongful Death Cause of Action and a cause of action sounding in Survival.  These causes of action are not, in fact, the same cause of action even if based on identical facts.  Wrongful Death is a statutory remedy pursued by the legal heirs of a decedent under Code Civ. Proc. §§377.60–377.62.  Negligence or some other wrongful act constitutes an element of a wrongful death cause of action, with the injury constituting pecuniary loss suffered by the heirs.  See Lattimore v. Dickey (2015) 239 Cal. App. 4th 959, 968.  The instant cause of action presents as a survival cause of action, as it seeks recovery for injuries suffered by Decedent rather than any injury suffered by the heirs.  SAC ¶109 (“As a result of that breach, DECEDENT, was damaged…”).

However, as the issue of distinguishing the sufficiency of wrongful death and survival actions is not properly before the Court on this demurrer, and the sole issue presented is whether the Fifth Cause of Action subsumes the Second Cause of Action.  The Court concludes that it does not.

Accordingly, the demurrer is overruled as to the Second Cause of Action.

Third Cause of Action (Elder Abuse) – Under the Elder and Dependent Adult Civil Protection Act (EADACPA), Welf. & Inst. Code §15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age.  Welf. & Inst. Code §15610.23,(a).  The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious.  SeePerlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666.  For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.”  Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789.  “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.”  Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–5, as modified (Aug. 24, 2011) (emphasis original)(internal citations omitted).

“To obtain the remedies provided by the Act pursuant to section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ [citation]  Recklessness refers ‘to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur.’ Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.”  Sababin v. Superior Court (2006) 144 Cal. App. 4th 81, 88–89 (quoting from Delaney v. Baker (1999) 20 Cal. 4th 23).

Vitas argues that the SAC fails to allege a custodial relationship between Vitas and the Decedent, and that, even if such a relationship were alleged, the allegations are insufficient to maintain the action against Vitas as a corporate defendant when such allegations must be made regarding he participation or ratification of wrongful acts by a managing agent of Vitas.  Demur, 9:13-11:25.

Plaintiffs contend that they have sufficiently established the custodial or caretaking relationship by alleging Vitas’ responsibility for providing for Decedent’s basic needs, such as food, clothing, shelter, physical care, mental care, and protection from health and safety hazards.  Opposition, 11:1-22.  The Court concurs with Plaintiffs assessment of the allegations in the SAC, and notes that, at a minimum, Plaintiffs have pled sufficient facts to allege a caretaking relationship by alleging that it was a Vitas employee, Nurse Bernadita Simon, who was feeding Decedent on the day of the incident.  SAC ¶67.

As to the issue of whether Plaintiffs have sufficiently alleged actions by a managing agent that permit the Elder Abuse action to be maintained against the corporate entity, the Court considers that the allegations that denial of CPR was a policy promulgated by Vitas is sufficient to permit the cause of action to proceed to discovery.  SAC ¶70.

Accordingly, the Court will overrule the demurrer to the Third Cause of Action.

Fourth Cause of Action (Breach of Fiduciary Duty) – The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach.  Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.

In demurring to the Fourth Cause of Action, Vitas relies on Moore v. Regents of University of California (1990) 51 Cal. 3d 120 for the proposition that breach of fiduciary duty applies to physicians in factually distinct circumstances from those alleged here, sounding in regular negligence or elder abuse.  The Court has reviewed Moore, and the case is factually distinguishable from the circumstances presented in the instant action, as Moore was an action based on the breach of a physician’s fiduciary duty vis-à-vis informed consent.  Here, by contrast, the breach is alleged to be related to the adequacy and provision of services, resulting ultimately in Decedent’s death.  While the Court generally concurs with Vitas’ argument that the breach alleged in the Fourth Cause of Action is identical to the breach alleged in the Second Cause of Action – namely, a failure to provide adequate medical services to Decedent, and the failure to provide certain medical services at all – the Court need not reach a determination as to the exact nature of any duty or relationship alleged in the SAC, because no fiduciary relationship exists between a healthcare corporation and a patient as a matter of law.

In the moving papers and in the Court’s own investigation into the matter, the Court cannot find any statute or case that stands for the proposition that a corporate healthcare provider and a patient are in a fiduciary relationship.  While it is well-founded in law that a doctor and patient are in a fiduciary relationship, it would appear that the Legislature of California vitiated any possibility for the same type of duty attaching by and between a corporate healthcare provider and a patient in the prohibition on the corporate practice of medicine pursuant to Bus. & Prof. Code §2052, 2264, & 2400.

Absent any legal basis for the Court to conclude a fiduciary relationship exists in the first instance, the Court will sustain this ground of demurrer.

Additionally, as there appears to be no legal basis for maintaining a cause of action for breach of fiduciary duty against Vitas, the Court should sustain the demurrer to this cause of action without leave to amend.

Standard of Review – Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike.  Code Civ. Proc. §436,(a).  In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc., §436,(a).  Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim.  Code Civ. Proc., §431.10.  The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  Code Civ. Proc. §436(b).

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people.  Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.  “Under the statute, malice does not require actual intent to harm.  Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences.  Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.”  Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).

The motion to strike is predicated on the Court accepting Vitas’ arguments on demur and sustaining the demurrer on the Elder Abuse and Willful Misconduct Causes of Action without leave to amend, which the Court has not done.  Without such outcome on demurrer, the instant motion lacks a substantial basis for obtaining relief, and should be denied, as attorneys fees and punitive may be recoverable pursuant to Welf. & Inst. Code §15657, and punitive may also be through Civ. Code §3294.

Accordingly, the motion will be denied.


Overrule the demurrer on the First, Second, and Third Causes of Action, Sustain the demurrer on the Fourth Cause of Action, and deny the motion to strike.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.


Defendants Vitas Hospice Services, LLC; and Vitas Healthcare Corporation of California’s Demurrer to the Second Amended Complaint and Motion to Strike came on regularly for hearing on July 26, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:


                                                OVERRULED AS TO THE REMAINDER.

 The motion to strike is:          DENIED IN ITS ENTIRETY.