Shirley A Walski et al vs Covenant Living West

Case Number

Case Type Civil Law & Motion Hearing Date / Time

Fri, 07/31/2026 - 10:00 Nature of Proceedings CMC; Demurrer and Motion to Strike Tentative Ruling For the reasons set forth below: 1. The demurrer of Covenant Living West, to the first and third causes of action, is sustained with leave to amend. a. Plaintiffs shall file and serve their first amended complaint no later than August 14, 2026.

2. As plaintiffs are being given leave to file a first amended complaint, the motion to strike portions of plaintiffs' complaint is taken off-calendar as moot. Background: This action commenced on December 9, 2025, by the filing of the complaint by Shirley A. Walski ("Walski") by and through her Successor-in-Interest Shirley-Frances McEntire ("McEntire") and Shirley-Frances McEntire Individually (collectively "plaintiffs") against defendant Covenant Living West dba Samarkand Skilled Nursing Facility ("Samarkand") for: (1) Elder Abuse; (2) Negligence; (3) Violation of Residents' Rights; and (4) Wrongful Death.

As alleged in the complaint: Walski was an elder of 65 years of age or over who had physical or mental limitations that restricted her ability to carry out normal activities or to protect her rights, including physical or developmental disabilities and who was admitted as an inpatient to a 24-hour health facility pursuant to Health and Safety Code section 1250.3. (Compl., P. 8.) Walski was admitted to Samarkand on December 23, 2024. (Compl., P. 13.) Samarkand was to provide care or services to dependent adults and the elderly, including Walski, and were to be care custodians of Walski in a trust and fiduciary relationship with Walski. (Compl., P. 9.)

Samarkand and its employees neglected Walski and failed to exercise the degree of care that reasonable persons in a like position would exercise by denying or withholding goods or services necessary to meet the basic needs of Walski. (Compl., P. 10.) As a result of Samarkand's wrongdoing, Walski suffered physical harm, pain, and mental suffering. (Compl., P. 11.) During her admission at Samarkand, Walski suffered from multiple urinary tract infections, pneumonia, malnutrition and pressure injuries, which caused Walski extreme pain and suffering and her untimely demise. (Compl., P. 14.)

Samarkand neglected to provide medical care for Walski's physical and mental health needs by failing to take all the necessary steps to properly care for her, failed to adequately inform Walski's physician of the nature and extent of her needs and failed to carry out doctor's orders adequately and completely for her treatment and failed to adequately and appropriately document Walski's plan of care. (Compl., P. 15.) Samarkand's neglect of Walski was reckless, oppressive, and malicious because the individuals who cared for Walski knew that taking the necessary precautions to prevent her from incurring avoidable falls was critical to Walski's health, well-being, and prognosis. (Compl., P. 16.)

By failing to address Walski's patient care issues, Samarkand knew that it was highly probably that she would suffer injury and they knowingly disregarded that risk. (Ibid.) Samarkand had advance knowledge of the unfitness of their employees and employed them with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct, and Samarkand's conduct was on the part of an officer, director, or managing agent of Samarkand. (Compl., P. 12.)

Samarkand now demurs to the first cause of action for elder abuse and the third cause of action for violation of residents' rights, arguing that plaintiffs fail to state facts sufficient to state a cause of action. Plaintiffs oppose the demurrer. Samarkand now also moves to strike six portions of plaintiffs' complaint.

Plaintiffs oppose the motion to strike. Analysis: Demurrer "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: "(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. "(b) The person who filed the pleading does not have the legal capacity to sue. "(c) There is another action pending between the same parties on the same cause of action. "(d) There is a defect or misjoinder of parties. "(e) The pleading does not state facts sufficient to constitute a cause of action. "(f) The pleading is uncertain.

As used in this subdivision, "uncertain" includes ambiguous and unintelligible. "(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. "(h) No certificate was filed as required by Section 411.35." (Code Civ. Proc., Sec. 430.10.)

"When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." (Code Civ. Proc., Sec. 430.30, subd. (a).) "[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law." (Travelers Indem. Co. of Connecticut v.

Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. " '[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.

The courts of this state have . . . long since departed from holding a plaintiff strictly to the 'form of action' he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.' " [Citations.]" (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.) "To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged." (C.A. v.

William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A demurrer searches for defects in the allegations of the pleading. "A demurrer is simply not the appropriate procedure for determining the truth of disputed facts." (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

First Cause of Action for Elder Abuse " 'Abuse of an elder or a dependent adult' " means any of the following: (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (3) Financial abuse, as defined in Section 15610.30." (Welf. & Inst. Code, Sec. 15610.07, subd. (a).)

Plaintiffs allege that Samarkand neglected Walski as defined in Welfare & Institutions Code section 15610.57 (Compl., P. 10.), which provides: "(a) " 'Neglect' " means either of the following: (1) 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. (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. (b) Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. A person shall not be deemed neglected or abused for the sole reason that the person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration. (5) Substantial inability or failure of an elder or dependent adult to manage their own finances. (6) Failure of an elder or dependent adult to satisfy any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health. (c) Neglect includes being homeless if the elder or dependent adult is also unable to meet any of the needs specified in paragraphs (1) to (5), inclusive, of subdivision (b)."

" '[N]eglect' " within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from " 'professional negligence.' " As used in the Act, neglect refers not to the substandard performance of medical services but, rather, 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.' " [Citation.] Thus, the statutory definition of " 'neglect' " speaks not of the undertaking of medical services, but of the failure to provide medical care. [Citation.]" (Covenant Care, Inc. v.

Superior Court (2004) 32 Cal.4th 771, 783 (Covenant Care).) "[C]laims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care providers. Statutorily, as well as in common parlance, the function of a health care provider is distinct from that of an elder custodian, and " 'the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care' " [Citation.] does not mean that the two functions are the same." (Covenant Care, supra, 32 Cal.4th at p. 786.)

Elder abuse, based on neglect, is a statutory cause of action and must be pled with particularity. "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. [Citation.]" (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)

Here, plaintiffs' allegations fail to show anything sufficiently egregious to constitute neglect within the meaning of the Elder Abuse Act. The allegations of the complaint are as conclusory as possible and are only set forth in the most general terms. There is a complete lack of particularity regarding any actions that plaintiffs allege Samarkand engaged in that constitute neglect for purposes of a claim of elder abuse. Plaintiffs are required to plead specifics such as how, when, where, and by whom specific neglectful acts or omissions were undertaken. Plaintiffs also fail to plead sufficient grounds upon which Samarkand, as a corporate employer, would be liable.

While the court recognizes that some of this information would be unavailable to plaintiff prior to undertaking some discovery, the cause of action cannot withstand demurrer without substantially more. The demurer to the first cause of action will be sustained with leave to amend. Should plaintiffs choose not to include an elder abuse cause of action in an amended complaint, plaintiffs may later move to amend their complaint should discovery disclose legally sufficient grounds for so doing.

Third Cause of Action for Violation of Residents' Rights The third cause of action for violation of residents' rights is also a statutory cause of action, with enhanced penalties, that must also be pled with particularity. Included in several subdivisions of Health & Safety Code section 1430, are many rights of residents, or patients, of skilled nursing facilities. By way of the complaint, plaintiffs claim that Samarkand violated 12 categories of those rights. In doing so, plaintiffs simply say what the right is and then in conclusory fashion state that Samarkand violated the right.

As with the elder abuse cause of action, the allegations are entirely conclusory and give no detail or description of any act or omission on behalf of Samarkand. The demurrer to the third cause of action will be sustained for the same reasons as it is being sustained as to the first cause of action. Plaintiffs will be given leave to amend.

Motion to Strike Samarkand moves to strike six portions of plaintiffs' complaint, primarily related to allegations that Walski suffered pain and suffering, requests for attorneys' fees, and a request for exemplary damages. "The court may, upon a motion made pursuant to Section 435, 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., Sec. 436.) "Irrelevant matter" includes a "demand for judgment requesting relief not supported by the allegations of the complaint." (Code Civ.

Proc., Sec. 431.10, subds. (b)(3), (c).) "The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (Code Civ. Proc., Sec. 437, subd. (a).) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., Sec. 452.) "[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth." (Clauson v.

Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

As plaintiffs are being given leave to amend the complaint, the motion to strike will be taken off-calendar as moot.

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