Lizardo v. Barstow Post Acute, LLC., et al

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making such proof does not concern the reviewing court.” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Agricultural Assn. (1986) 42 Cal.3d 929, 936 (citations omitted).) The complaint is also to be liberally construed. (Code of Civ. Proc. §452.) Meet and Confer In the case at hand, the demurrer is supported by the declaration from attorney Baylock, who indicates a meet and confer letter was sent and the attorneys thereafter engaged in a telephonic meet and confer, but no resolution was reached.

The court will find that Defendant has met their meet and confer requirement and will thus rule on the merits of the demurrer General Demurrer A general demurrer challenges a complaint for failure to state a cause of action under Code of Civil Procedure section 430.10, subdivision (e). It is granted only where the facts alleged on the fact of the complaint fail to state a valid claim under any possible legal theory entitling the plaintiff to relief against the demurring defendant. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

The plaintiff may be mistaken as to the nature of the case or the legal theory on which he or she can prevail, but if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial § 7:41 (hereafter Weil & Brown), citing Quelimane Co. v. Stewart Tile Guaranty Co. (1989) 19 Cal.4th 26, 38-39.) All that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief.

In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955; Michaelian v. State Compensation Insurance Fund (1996) 50 Cal.App.4th 1093, 1104-1105.) The complaint includes matters shown in attached exhibits and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) No other extrinsic evidence can be considered. (Ion Equipment Corp. v.

Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer predicated on a complaint’s failure to state facts sufficient to constitute a cause of action (Code of Civ. Proc. §430.10, subd. (e)) should be granted only when the facts alleged on the face of the complaint fail to state any valid claim entitled to the plaintiff or disclose a complete defense to relief. Even if a plaintiff is mistaken as to the nature of the case or the legal theory on which he/she

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could prevail, the complaint is good against a general demurrer if the essential facts allege some valid cause of action. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) Second Cause of Action The abuse of an elder or dependent adult under Dependent Adult/Elder Abuse Act (ACT) is defined as either “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or the “deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst.

Code, § 15610.07.) “Neglect” is the “negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).) Neglect can include, but is not limited to, the failure to assist in personal hygiene or provision of food, clothing, or shelter; failure to provide medical care for physical and mental health needs; failure to protect from health and safety hazards; and failure to prevent malnutrition or dehydration. (Welf. & Inst.

Code, § 15610.57, subd.’s (b)(1)-(4).) To state a claim for neglect, the plaintiff must alleged (a) the defendant(s) had care or custody of the plaintiff/decedent, (b) the plaintiff/decedent was an elder or dependent adult while in the defendant’s(s’) care or custody, (c) the defendant(s) failed to use the degree of care that a reasonable person in the same situation would have used, (d) the plaintiff/decedent was harmed, and (e) the defendant’s(s’) conduct was a substantial factor in causing decedent’s harm. (CACI 3103.)

To obtain the enhanced statutory remedies for neglect the plaintiff must establish by clear and convincing evidence that the neglect and that defendants acted with recklessness, oppression, fraud or malice in the neglect. (CACI 3104; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 [discussing an elder abuse claim].) Essentially, the plaintiff must allege conduct that would afford recovery for punitive damages. Recklessness is a deliberate disregard of the high degree of probability that an injury will occur and involves more than inadvertence, incompetence, unskillfulness, or failure to take precautions, but rather rises to the level of a conscious choice of a course of conduct with knowledge of the serious danger to others involved in it. (Delaney, supra, 20 Cal.4th at pp. 31–32.)

Additionally, if the plaintiff seeks the enhanced remedies against an employer, then the plaintiff must plead (a) the employer had advanced knowledge of the unfitness of the employee

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and the employer employed him/her with a conscious disregard for the rights or safety or others, (b) the employer authorized or ratified the wrongful conduct, or (c) the employer is personally guilty of oppression, fraud, or malice. The foregoing must have been by an officer, director, or managing agent of the corporate employer. (Welf. & Inst. Code, § 15657, subd. (c); Code Civ. Proc., § 3294, subd. (b).) 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. (Carter v.

Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 406-407.) In the case at hand, the Complaint clearly includes allegations of “neglect” for purposes of the Elder and Dependent Adult Abuse Statute because the term is defined merely as the “negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).) However, in the demurrer Mt.

View argues that the Complaint does not support the heightened remedies, which, as indicated above, requires allegations indicating the defendant acted with recklessness, oppression, fraud or malice in the neglect. (CACI 3104; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789.) The Complaint indicates Gonzalez was both elderly and dependent in the sense that she needed assistance with repositioning, eating, mobility, dressing, toilet use, and hygiene based on her history of a prior stroke, blood clots, arrythmia, and dementia. (Compl. at ¶¶ 11 and 22.)

Gonzalez’s condition is therefore analogous to the patients’ conditions in the cases summarized above by Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396. The Complaint further indicates Mt. View knew of the need for close supervision and assistance, but failed respond to “call buttons,” left Gonzalez alone and unattended for extended periods, failed to reposition her at least every two hours, failed to prevent and treat the resulting pressure ulcers, failed to implement a reasonable care plan, failed to provide Gonzalez with “swallowing therapy,” failed to ensure that she received “proper” hydration and nutrition; did not provide her with requested psychiatric consultations; failed to provide “adequate” stroke rehabilitation; and the lack of therapy caused Gonzalez’s condition to deteriorate. (Compl. at ¶¶ 25-26.)

However, the Complaint overall lacks particularity sufficient to show that the neglect rises to a level demonstrating that Mt. View knew the injury was substantially certain or acted with

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conscious disregard of the high probability of such injury. For instance, the significance of the failure to respond to the call buttons is not alleged. Even the causal link between the neglect and the injury “must be pleaded with particularity.” (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 406-407.) The failures are also not sufficiently quantified in that the Complaint merely indicates they were “numerous,” but over what period of time and how many failures occurred is unclear. (Compl. at ¶¶ 25-26.)

The same reasoning applies as to the allegation indicating Gonzalez was left alone and unattended for “extended periods,” the failure to implement a “reasonable” care plan, the failure to provide the requested psychiatric consultation and the failure to provide “adequate” stroke rehabilitation. (Compl. at ¶ 26.) No specific details are provided as to how bad or significant the neglect was and the potential or expected consequences. Nor does the complaint tie the neglect, with particularity, to a specific injury.

The Complaint also suggests that Mt. View failed to ensure “proper” hydration and nutrition (Compl. at ¶ 26), but again that allegation is qualified by the “proper” language and no further details are provided. While the Complaint also suggests meals were “frequently” missed, again how many, over what period, and the significance is not really particularized. The same applies to the rehabilitative and swallowing therapy. (Compl. at ¶ 26.) The Complaint additionally suggests that Gonzalez was in fact repositioned, but just not “at least every two hours” per “standard nursing protocol” i.e., the duration between the repositioning is unclear.

Moreover, the mere failure to meet “standard nursing protocol,” while showing neglect, also does not by itself support the enhanced remedies. (Compl. at ¶ 27.) There are also no details about the severity of the pressure ulcers. The same is true as to the UTI. The Complaint broadly suggest the UTI developed sometime between August and November 2024, but Gonzalez died in November 2024 meaning it is unclear how long the UTI actually went untreated, how long Defendants were aware of the UTI, etc. It is additionally not clear how the UTI developed, beyond conclusory allegations indicating it resulted from “continued neglect.” (Compl. at ¶¶ 6 and 28.)

Fifth Cause of Action According to Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 907, the UCL is:

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[B]road in scope, prohibiting any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising,” as well as any act specifically prohibited under Business and Professions Code section 17500 et seq. The statute is meant to forbid not only anti-competitive practices but also ‘the right of the public to protections from fraud and deceit.’ An “unlawful” activity is any business activity that is forbidden by law. A “fraudulent” activity includes any act or practice likely to deceive the public, even if no one is actually deceived. [Internal cites omitted.]

Under the “unlawful” prong, the unfair competition laws incorporate other laws and treats violations of those laws as unlawful business practices independently actionable under the UCL. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1554.) “Unfair” conduct under the UCL has been commonly defined as conduct that “offends an established public policy or ... is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Scripps Clinic v. Sup. Ct. (2003) 108 Cal.App.4th 917, 939.)

Under the “unfair” prong, a defendant’s conduct must violate a public policy “tethered to specific constitutional, statutory, or regulatory provisions.” (Id. at 940.) Under the “fraudulent” prong, a plaintiff must show that “members of the public are likely to be ‘deceived’” by the defendant’s practices. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951.) Furthermore, California Proposition 64 imposed limitations on a private individual’s standing to sue under the unfair competition law. (Jenkins v.

JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 521-522, overruled on other grounds in Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.) Specifically, to have standing, the individual plaintiff must show both (1) economic injury and (2) that the economic injury was caused by the defendant’s wrongful conduct. (Id.; Bus. & Prof. Code, § 17204; Cal-Tech Communications v. Losa Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179 [prevailing parties are limited to injunctive relief and restitution under the UCL].)

No authority is provided supporting the proposition that elder or dependent adult abuse or neglect, as defined by statute, or that generalized negligence, can serve as the predicate for a UCL claim. Moreover, from a standing perspective the alleged damages arise from Defendants’ purported misrepresentation that they could care for Gonzalez, when they could not, and that Defendants therefore “reaped unfair benefits and illegal profits at the expense of Ms. Gonzalez.” (Compl. at ¶¶ 72-73.) Thus, the standing allegations indicate the claim is premised upon the alleged misrepresentation, as opposed to the neglect and abuse directly, but as the reply notes that claim

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is not particularized. Otherwise, no standing allegations exist as to the abuse, neglect, or negligence. While a UCL claim need not be alleged to the same standard applied to “common law fraud claims” the claim must still be “stated with reasonable particularity.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261, as modified on denial of reh'g (Feb. 22, 2018).) Generalized allegations that Mt. View represented it could care for Gonzalez are not reasonably particularized.

Special Demurrer A complaint may also be challenged on demurrer for uncertainty. (Code Civ. Proc., § 430.10, subd. (f).) Demurrers for uncertainty are not favored and this challenge is generally sustained only where the complaint is so ambiguous or unintelligible the defendant cannot reasonably respond. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) A special demurrer for uncertainty lies only where the complaint is so poorly drafted that the defendant cannot reasonably respond.

That is, the defendant cannot reasonably determine what issues must be admitted or denied or what claims are asserted against him. (Ibid.) (Internal citations omitted.) Where it is alleged that a pleading is uncertain, the movant must specify how or why the pleading is uncertain, and where such uncertainty appears in the face of the pleading under attack. (Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809 [overruled on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328].)

In the case at hand, the pleading as a whole differentiates between the care, or lack thereof, provided by Mt. View versus the Hospital. Leave to Amend Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Bounds v.

Superior Court (2014) 229 Cal.App.4th 468, 484 [court should grant leave to amend if in all probability plaintiff will cure defect].) However, no abuse of discretion will be found unless a potentially effective amendment is “both apparent and consistent with the plaintiff’s theory of the case.” (Camsi IV v. Hunter

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Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436 (emphasis added); Schonfeldt v. State of Calif. (1998) 61 Cal.App.4th 1462, 1465 [if no liability as a matter of law, leave to amend should not be granted].) RULING 1. Defendant’s Demurrer to the Second and Fifth is SUSTAINED WITH LEAVE TO AMEND, because Plaintiff failed to state facts sufficient to state a cause of action 2. Defendant’s Demurrer on uncertainty grounds is OVERRULED.

3. Defendant shall have 20 days to file and serve amended pleading.

4. Movant to give Notice.

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