Robert Boslego vs Covenant Care California LLC et al

On May 27, 2026, plaintiff filed a petition for trial preference due to his medical conditions. CC opposes this petition on the grounds that plaintiff's moving papers were not supported by evidence in the form of a declaration or any other admissible format. Even if the information presented by plaintiff was admissible, as argued by CC, plaintiff does not meet his burden. On June 22, 2026, CC filed a demurrer to the FAC, arguing that the elements of elder abuse by neglect have not been alleged. Plaintiff opposes this demurrer.

Analysis: (1) Demurrer to FAC "Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we ... assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247 (California Logistics)).

"The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded." (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.) "[I]n ruling on a demurrer the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.)

"Elder abuse claims arise under the Elder Abuse Act found in sections 15600 et seq. 'The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a 'person residing in this state, 65 years of age or older.' [Citation.] In particular, a plaintiff who proves 'by clear and convincing evidence' both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of 'recklessness, oppression, fraud, or malice' in the commission of such abuse may recover attorney fees and costs. [Citation.]" (Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 336 (Worsham).)

"The [Elder Abuse] Act defines neglect as '[t]he 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.' [Citation.] 'Neglect includes, but is not limited to, all of the following: [P.] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. [P.] (2) Failure to provide medical care for physical and mental health needs. ... [P.] (3) Failure to protect from health and safety hazards. [P.] (4) Failure to prevent malnutrition or dehydration.' [Citation.] In short, neglect as a form of abuse 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.' " (Worsham, supra, 226 Cal.App.4th at p. 336, italics in original, internal quotation marks omitted.)

"The Elder Abuse Act does not apply to simple or gross negligence by health care providers. [Citations.] To obtain the enhanced remedies of 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 [citations].

Recklessness, unlike negligence, involves more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.' [Citation.]" (Worsham, supra, 226 Cal.App.4th at pp. 336-337, italics in original, internal quotation marks omitted.)

"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 [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; 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). [Citations.]

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. [Citations.] 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 (Carter).)

The FAC alleges that BV "failed to ... to keep out bacterial infection, and regular monitoring and note-taking to record the progression of the healing of the wound or not." (FAC, P. 7.) Rather than comply with the Cottage treating physician's directive to refer plaintiff to plastic surgery for delayed healing of the scalp, BV did not comply with directive and considered discharging plaintiff. (FAC, P.P. 11-12.) "The conduct amounting to withholding of care was the failure to refer Plaintiff to plastic surgery for advice and treatment, ordered by Plaintiff's neurosurgeon, of a surgical wound on the scalp." (FAC, P. 13.)

This created a known risk for infection of plaintiff's brain and skull. (Ibid.) When plaintiff was discharged by BV, the list of diagnoses did not include any mention of plaintiff's scalp wound condition. (FAC, P.P. 14-15.) This created a high risk of fatality for plaintiff. (FAC, P.P. 16.) BV was aware that plaintiff had suffered a traumatic brain injury and that plaintiff may be incapable of understanding these important would care needs. (FAC, P.P. 17.) BV's "custodial neglect of [p]laintiff's medical care was flagrant and egregious, leading to the infections to his brain and skull, which naturally followed and intensified in the weeks after his premature discharge from BV." (FAC, P. 18.)

After discharge, plaintiff went to the emergency room due to fluid leaking from his scalp that required a craniectomy and the removal of a large portion of plaintiff's skull. (FAC, P. 19.)

Based on a reasonable reading of the FAC, the elements of elder abuse by neglect have been alleged. "[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, supra, 198 Cal.App.4th at pp. 404-405.) The FAC alleges that BV failed to provide medical care for physical and mental health needs. While negligence is alleged, the FAC also alleges that BV failed to provide the directed medical care to his surgical wound. Failure to provide medical care may be considered neglect under the Elder Abuse Act. The FAC alleges sufficient facts to meet the pleading standard for recklessness and other statutory elements of elder abuse. The court will overrule the demurrer.

(2) Trial Preference "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: "(1) The party has a substantial interest in the action as a whole. "(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (Code Civ. Proc., Sec. 36, subd. (a).)

"Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party." (Code Civ. Proc., Sec. 36, subd. (f).)

Plaintiff, as the moving party has the burden of proof. "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, Sec. 500.) However, "[a]n affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.

The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36." (Code Civ. Proc., Sec. 36.5.) "Where a party meets the requisite standard for calendar preference under [Section 36] subdivision (a), preference must be granted. No weighing of interests is involved." (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.)

Having reviewed the evidence and arguments presented by the parties, the information submitted by plaintiff falls short in demonstrating that plaintiff's "health ... is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (See Code Civ. Proc., Sec. 36, subd. (a).) Plaintiff states that he suffered from a number of injuries and medical conditions as of March 2019, December 2020, November 2024, February 2025, June 2025, July 2025, October 2025, and April 2026. However, there is no evidence as to the anticipated prejudicial impact on plaintiff's case if trial preference is not granted. Thus, plaintiff does not carry his burden to show that trial preference is necessary to prevent prejudice.

For example, plaintiff does not state that plaintiff is unlikely to survive due to these medical conditions. Plaintiff does not indicate that plaintiff's medical conditions are worsening such that prejudice will occur absent trial preference. Plaintiff does not indicate how having trial during the preference period would prevent prejudice that might occur if trial is not held during the preference period. There is no evidence that plaintiff's medical conditions will prevent plaintiff from presenting his case if preference is not granted, or how it would be more difficult for plaintiff to present his case if preference is not granted. Plaintiff's statement in his memorandum that he believes his health is "precarious" is insufficient.

The court finds that plaintiff failed to carry his burden of proof. The court is unable to make a finding based on the evidence that plaintiff's "health ... is such that a preference is necessary to prevent prejudicing [plaintiff's] interest in the litigation." (See Code Civ. Proc., Sec. 36, subd. (a).) For all these reasons, the court will deny plaintiff's petition for preference in trial setting.

Tentative Ruling: Matter of Miguel Angeles Living Trust Tentative Ruling: Matter of Miguel Angeles Living Trust