Wach vs. East

On demurrer, a complaint must be liberally construed. Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601. All material facts properly pleaded, and reasonable inferences, must be accepted as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.

A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. People v. Lim (1941) 18 Cal. 2d 872, 883. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616. Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief.

Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908. A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300).

Discussion

Second Cause of Action for Medical Battery The elements of a “medical battery” claim in the absence of consent are: [1] defendant performed a medical procedure without plaintiff’s consent, or plaintiff consented to one medical procedure, but defendant performed a substantially different medical procedure; [2] plaintiff was harmed; [3] defendant’s conduct was a substantial factor in causing plaintiff’s harm. CACI 530A.

“Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence— arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.

“The term 'professional negligence' encompasses actions in which 'the injury for which damages are sought is directly related to the professional services provided by the health care provider' or directly related to 'a matter that is an ordinary and usual part of medical professional services." [C]ourts have broadly construed "professional negligence" to mean negligence occurring during the rendering of services for which the health care provider is licensed.'" (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 297 (internal citations omitted).) In So v. Shin (2013) 212 Cal. App.4th 652, the court noted that courts have "broadly interpreted" the term "in the rendering of professional services" used in the MICRA statutes. (Id. at 663.)

A straightforward reading of Plaintiff’s allegations is that, during a procedure he consented to, Dr. East used a medical device improperly. That is medical negligence, not battery.

Accordingly, Providence’s demurrer to the second cause of action for battery is sustained.

Third Cause of Action for Elder Abuse A summary of the standards for The Elder Abuse Act was provided in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, which notes that the Act makes certain enhanced remedies available to a plaintiff who proves abuse of a “person

residing in this state, 65 years of age or older.” Id. at 404; W & I Code § 15610.27. The Act defines abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering or deprivation by a care custodian of goods or services necessary to avoid physical harm or mental suffering. Id., W & I Code § 15610.07(a), (b). It defines neglect as negligent failure of any person having care or custody of an elder to exercise the degree of care that a reasonable person in a like position would exercise, including failure to assist in personal hygiene, providing food, clothing, shelter or medical care for physical and mental health needs, to protect from health and safety hazards, or to prevent malnutrition or dehydration. Id., § 15610.57(a)(1), (b).

In short, neglect under the Elder Abuse Act refers “to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Carter at 404, citing Delaney v. Baker (1999) 20 Cal. 4th 23, 34. Thus, when care of an elder is at issue, the statutory definition of neglect speaks not of the undertaking of services, but of the failure to provide care. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 783.

Neglect “requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.” Winn v. Pioneer Med. Group, Inc. (2016) 63 Cal.4th 148, 160.

To find conduct constituting neglect within the meaning of the Elder Abuse Act and trigger its enhanced remedies, the plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care, knew of conditions that made that person unable to provide for his or her own basic needs, and denied or withheld goods or services necessary to meet those needs either with knowledge that injury was substantially certain to befall them (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness).

Carter, supra, at 406-07. 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. Id. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pled with particularity in accordance with the pleading rules governing statutory claims. Carter, supra, at 407.

In short, health care providers who engage in “simple professional negligence” are not subject to the heightened remedies available under Welf. & Inst. C. § 15657 (general damages, attorney fees and costs). Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781, 784; Worsham v. O'Connor Hosp. (2014) 226 Cal. App. 4th 331, 337.

Here, Plaintiff has not alleged a custodial relationship between himself and Dr. East or Providence. He makes the conclusory allegation that he and Defendants “entered into and maintained a custodial relationship” but does not allege facts showing they had responsibility for meeting his basic needs. Rather, he alleges they were responsible for “care, monitoring, supervision, and protection from known or foreseeable health and safety hazards, especially during the period in which he was rendered unconscious due to anesthesia and sedation.” [Complaint, ¶ 41.] This is medical care by a medical provider, not elder abuse under the statute.

Accordingly, Defendants’ demurrers to the third cause of action for elder abuse are sustained. The case management conference is continued to December 14, 2026 at 10:00

a.m. in Department C27.

Defendant Providence is ordered to give notice of the rulings.

111 2024-01406956 1. Demurrer to Amended Complaint 2. Motion to Strike Portions of Complaint Lancona vs. Bell 3. Case Management Conference 4. Status Conference

(1) DEMURRER

Defendant American General Life Insurance Company’s (“AGL”) demurrer to Plaintiffs Tanner Lancona’s and Audrina Lancona’s Second Amended Complaint (“2AC”) is overruled as to the 1st-4th, 6th, 7th and 13th causes of action and sustained without leave to amend as to the 9th-12th causes of action.

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)

On demurrer, a complaint must be liberally construed. (CCP § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)

The causes of action are addressed below in the same order as the parties did in their briefing.

13th cause of action for breach of contractual duty to pay a covered claim

“A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402.)

The Court already overruled Defendant AGL’s demurrer to Plaintiffs’ breach of contract claim as it was alleged in the original Complaint on 9/15/25. (ROA 103.)

Defendant makes the same arguments again, contending that AGL did not breach the insurance contract because Tanner was not the designated policy beneficiary. Again, Defendant ignores the allegations in the Complaint of vicarious liability. Plaintiffs allege that AGL is vicariously liable for the actions of Cantu, as he was acting within the scope of his employment or agency. (See e.g., 2AC, ¶¶ 4, 50, 82, 95, 100.)

For the same reasons as before, the demurrer to the breach of contract claim is overruled.