FADDIS, et al. vs GRANDCARE INC, et al.

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 05/09/2024 Hearing on Demurrer in Department 53

Tentative Ruling

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23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 05/09/2024 Hearing on Demurrer in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendants Grandcare, Inc. dba Mountain Manor Senior Residence and Grandcare Management Co., LLC’s (“Defendants”) demurrer to Plaintiffs Patrick Faddis (“Faddis”), through his guardian ad litem, and Maria Faddis’ (jointly, “Plaintiffs”) complaint is OVERRULED for the reasons explained herein.

Defendants’ request for judicial notice is denied. Defendants fail to legally support their contention that the Court may take judicial notice of a webpage printout as an “official act” of a legislative, executive, or judicial department of the United States. The papers included as Exhibit 1 are not authenticated (nor can they be by counsel for purposes of demurrer without constituting extrinsic evidence). Further, judicial notice is not proper merely because the website contains a “.gov” website address. Moreover, Exhibit 1 does not include all of the pages described in the request.

Background

This is an elder abuse case. Plaintiffs allege Defendants failed to provide adequate staff to supervise its residents, failed to properly train staff, failed to treat residents, and improperly retained violent and aggressive residents. (Complaint, ¶ 2.) Plaintiffs further allege Defendants’ failure to provide appropriate staffing and supervision resulted in Faddis being placed with a roommate, with a known history of agitation and aggression, who physically assaulted and sexually molested Faddis. (Id., ¶¶3, 17, 25-30.) Defendants allegedly engaged in business practices that resulted in chronic understaffing and underfunding of its facilities, despite representing that it would provide a high level of care to residents and prospective residents. (Id., ¶¶4, 14-20, 31-36.)

Plaintiffs allege eight causes of action: (1) Elder Neglect / Abuse; (2) Negligence / Negligence Per Se; (3) Violation of Health and Safety Code section 1430; (4) Unfair Business Practices [Business and Professions Code section 17200]; (5) Fraud / Misrepresentation; (6) Battery; (7) Assault; and (8) Loss of Consortium.

Defendants demur to the fourth cause of action for Unfair Business Practices under Business and Professions Code section 17200 on the grounds that the complaint fails to state sufficient facts to support this cause of action and is uncertain. Defendants also demur to the fifth cause of action for Fraud / Misrepresentation on the grounds that the complaint fails to state sufficient facts to support this cause of action and is uncertain.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 05/09/2024 Hearing on Demurrer in Department 53

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.)

A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. §452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111- 1112.) 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. (Blank, supra, 39 Cal.3d at p. 318; William S.

Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616, fn. 2.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Discussion

As a threshold matter, Defendants argue Plaintiffs’ claims that reference statements Defendants allegedly made to the California Department of Public Health are based on

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 05/09/2024 Hearing on Demurrer in Department 53

inadmissible hearsay and, therefore, are subject to demurrer. This argument is meritless. As indicated above, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) Allegations that Defendants made certain statements to certain persons or entities are allegations of fact which are taken as true for purposes of demurrer.

Defendants offer no legal authority showing that this is a proper ground for a demurrer. Instead, Defendants cite to authority, such as Nevarrez v. San Marino Skilled Nursing and Wellness Center (2013) 221 Cal.App.4th 102, which has nothing to do with allegations tested on demurrer. Additionally, whether or not Plaintiffs’ hearsay allegations would be admissible at trial is not relevant to the disposition of this motion.

Special Demurrer for Uncertainty

A demurrer will lie if the pleading is uncertain, ambiguous and unintelligible. (Code Civ. Proc. § 430.10(f).) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Inds. Reg. Auth. (2012) 208 Cal.App.4th 1125, 1135.) The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Nevertheless, a demurrer for uncertainty may be sustained when a defendant cannot reasonably determine what it is required to respond to; for example, when a plaintiff joins multiple causes of action as one, fails to properly identify each cause of action, or fails to state against which party each cause of action is asserted if there are multiple defendants. (Ibid.)

A special demurrer for uncertainty must be disregarded where it fails to specify the particular allegations or defects giving rise to the demurrer. (Taliaferro v. Salyer (1958) 162 Cal.App.2d 685, 688.)

Although Defendants demur to both the fourth and fifth cause of action on the grounds that they are uncertain, Defendants fail to identify which allegations they contend are uncertain. They only generally claim that Plaintiffs’ allegations are vague, but Defendants do not explain how the supposedly vague allegations cause the complaint to be uncertain. This is sufficient reason to disregard Defendants’ special demurrer to both causes of action. The Court OVERRULES the demurrer on this ground.

Fifth Cause of Action for Fraud/Misrepresentation

Defendants argue Plaintiffs have failed to sufficiently allege their cause of action for

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 05/09/2024 Hearing on Demurrer in Department 53

fraud / misrepresentation because Plaintiffs’ allegations lack specificity. Specifically, Defendants contend Plaintiff has not alleged who made the allegedly fraudulent representations, what was said, when it was said, and to which plaintiff the representations were made. Additionally, Defendants argue that the alleged representations to a third-party entity (the California Department of Public Health) regarding Defendants’ compliance with application regulations does not support Plaintiffs’ cause of action.

Plaintiffs argue they have sufficiently alleged constructive fraud through their allegations that Defendant was Faddis’ fiduciary, that Defendant failed to disclose relevant information to Plaintiffs regarding Defendants’ alleged regulatory violations, alleged practices of understaffing, and alleged practice of admitting aggressive residents. Plaintiffs argue they have sufficiently alleged Defendant committed fraud by misrepresenting to the Department of Public Health that it would comply with applicable regulations.

In reply, Defendants argue Plaintiffs have failed to allege that Defendants were in a fiduciary relationship with Faddis at the time the alleged misrepresentations were made, which was prior to his admission. Additionally, Defendants contend Plaintiffs were required to articulate a “special relationship” existed between them at the time Defendants’ allegedly made representations to the California Department of Public Health in order to state a cause of action for fraud based on statements made to a third party, which Plaintiffs failed to do.

Initially, the Court notes a general demurrer must be overruled if plaintiff states the essential facts of a valid cause of action. The test is whether the complaint states any valid claim entitling plaintiff to relief. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39; New Livable Calif. v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714-715; see also Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 [general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory”].) Here, the Court concludes Plaintiffs have sufficiently stated a cause of action for fraudulent concealment.

The elements of a claim for fraudulent concealment require the plaintiff to show that: “(1) the defendant ... concealed or suppressed a material fact, (2) the defendant [was] under a duty to disclose the fact to the plaintiff, (3) the defendant ... intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff [was] unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 05/09/2024 Hearing on Demurrer in Department 53

the fact, the plaintiff must have sustained damage. [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1130.)

It is generally true that a claim based in fraud must be pled with a heightened degree of factual specificity. This requirement exists to ensure the defendant can understand the nature of the charges being advanced. (See, e.g., Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) However, unlike when a defendant makes an affirmative misrepresentation, a plaintiff alleging a fraudulent omission or concealment may not be able to specifically allege certain information. As a result, plaintiffs alleging intentional concealment or nondisclosure are entitled to some leeway given that such facts are likely to be more or solely within defendant’s knowledge. (Alfaro v. Community Housing Improvement System & Planning Association (2009) 171 Cal.App.4th 1356, 1384 [“How does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where it never happened?’”].)

Plaintiffs have sufficiently alleged that Defendants failed to disclose material facts regarding Defendants’ alleged regulatory failures, their alleged practice of understaffing their facility, and their admission of a resident with allegedly known aggressive behaviors who Defendants were allegedly not equipped to care for and who they roomed with Faddis. (Complaint, ¶¶17, 26, 82, 86, 88-90.) Plaintiffs have alleged Defendants had a duty to disclose these facts to Plaintiffs as Faddis’ fiduciary and care custodians. (Id., ¶¶ 31, 39, 86-88.)

Plaintiffs further allege Defendants intentionally failed to disclose these facts to induce Plaintiffs to place Faddis in Defendants’ facility and to allow him to remain there. (Id., ¶81, 85, 88.) Plaintiffs also allege that if they had known the concealed facts, they would not have placed Faddis in Defendants’ facility or allowed him to remain there. (Id., ¶88.) Finally, Plaintiffs sufficiently allege that they have been damaged as a result of Defendants’ failure to disclose these material facts. (Id., ¶¶ 29, 85.)

Because Plaintiffs have sufficiently stated a cause of action for fraudulent concealment, the Court need not address the remainder of the parties’ arguments. Defendants’ demurrer to the fifth cause of action is OVERRULED.

Fourth Cause of Action for Unfair Business Practices

Defendants demur to Plaintiffs’ fourth cause of action on the basis Plaintiffs have failed to sufficiently allege their fraud claims. As a result, Defendants contend Plaintiffs’ claim for unfair business practices pursuant to Business and Professions Code section 17200 fails as well. As discussed above, Plaintiffs’ have sufficiently a cause of action for fraudulent concealment, and therefore, Defendants’ demurrer on this ground must be

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006808: FADDIS, et al. vs GRANDCARE INC, et al. 05/09/2024 Hearing on Demurrer in Department 53

overruled as well.

Additionally, the Court notes that Defendants did not demurrer to Plaintiff’s third cause of action for violation of the California’s Patient’s Bill of Rights and Health and Safety Code section 1430. “By proscribing ‘any unlawful’ business practice, section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. [Citation.] Virtually any law — federal, state or local — can serve as a predicate for a [UCL] action.” (Best v. Ocwen Loan Servicing, LLC (2021) 64 Cal.App.5th 568, 580 [internal quotations and citations omitted].) Plaintiffs’ allegations in the third cause of action are also sufficient to support a cause of action for violation of Business and Professions Code section 17200.

Defendants’ demurrer to the fourth cause of action is OVERRULED.

Disposition

Based on the foregoing, Defendants’ demurrer is OVERRULED in its entirety.

Defendants shall file and serve an answer to the complaint by no later than May 20, 2024.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; Cal. Rules of Court, rule 3.1312.)