demurrer to Plaintiff Michelle Tortorelli’s Complaint
an errata with the Declaration of Mark Swannie referred to and relied on within the motion and supporting memorandum but not actually attached.
5. 2026-1537551 Defendants Costa Victoria Healthcare, LLC dba Victoria Healthcare Tortorelli vs. and Rehabilitation Center’s, The Ensign Group, Inc.’s, and Ensign Costa Victoria Services, Inc.’s demurrer to Plaintiff Michelle Tortorelli’s Complaint Healthcare is overruled. LLC 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.)
2nd cause of action for willful misconduct
To establish willful misconduct, a plaintiff must prove the basic elements of a negligence cause of action—duty, breach of duty, causation, and damage—as well as the following additional elements that raise the negligent actors’ acts or omissions above a basic want of ordinary care: (1) actual or constructive knowledge of the peril, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (
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Defendants argue that California law does not recognize an independent cause of action for willful misconduct, but rather finds that willful misconduct is “an aggravated form of negligence,” relying on the case of Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.
This case that Defendants rely on do not actually stand for the idea that a demurrer can be sustained on the sole grounds that willful misconduct is a species of negligence and not a separate tort. Rather, in Berkley the court analyzed the pleading requirements of
this form of negligence, ultimately concluding that the plaintiff did not sufficiently allege all of the elements. (Id. at 526, noting that the pleading requirements of willful misconduct “are similar to negligence but stricter.”)
Additionally/alternatively, Defendants argue that Plaintiff fails to allege the specific acts or omissions on the part of defendants amounting to aggravated negligence sufficient to constitute willful misconduct.
Within this case of action, Plaintiff alleges among other things, that Defendants “knew that if they did not comply with their respective duties of care, and if they did not provide adequate care, custody, supervision, assessment, reassessment, monitoring, investigation, appropriate care planning, and provision of care consistent with his plan of care, to meet his needs and prevent known risks to him, Mr. Tortorelli would probably sustain serious injury including but not limited to skin breakdown or even death.” (Complaint, ¶ 48.) Plaintiff outlines the risks that Defendants allegedly were aware of, and claim that Defendants intentionally failed to care for and treat the decedent. (Complaint, ¶¶ 48-49.)
The Court finds that Plaintiff adequately pleads specific acts of willful misconduct here, in alleging that Defendants knowingly neglected the decedent, and were aware of the consequences of such neglect.
3rd cause of action for negligence
The elements of negligence are the existence of a legal duty of care, breach of that duty, causation, and damages. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)
In the Complaint, Plaintiff alleges Defendants owed a duty of care to the decedent and breached that duty in failing “to provide such care and treatment as was necessary to meet Mr. Tortorelli’s needs....” (Complaint, ¶¶55, 58.)
Defendants argue that this cause of action is barred by the one-year statute of limitations for professional negligence claims set forth in Code Civ. Proc., § 340.5. The decedent passed away on 1/18/24; this Complaint was filed on 1/2/26, more than a year after.
Under Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, claims based on a facilities’ failure to provide basic custodial care are not subject to MICRA’s statute of limitations set forth in Code Civ. Proc., § 340.5. (Id. at fn. 7.)
“[W]hen a plaintiff asserts a claim against a health care provider on a legal theory other than professional negligence, courts must determine whether the claim is nonetheless based on the health care provider’s professional negligence, which would require application of MICRA. [] To make that determination, courts must examine not only the legal theory alleged, but also the nature of the health care provider’s alleged conduct and the legislative history of the MICRA provision at issue.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347 [internal citations omitted; emphasis in original].)
Here, the Court finds that Plaintiff’s claim for negligence against the moving defendants is not based on allegations of professional negligence.
Plaintiff does not allege that the medical care provided to the decedent by the moving defendants fell below the standard of care. Rather, Plaintiff alleges an outright failure to provide care. (See e.g., Complaint, ¶ 19.)
In Holland v. Silverscreen Healthcare, Inc. (2025) 18 Cal.5th 364, 380, the California Supreme Court stated that “a failure of staff to attend to, monitor, or assist a resident in obtaining appropriate medical care generally falls on the custodial side of the line because such omissions involve “not ... the undertaking of medical services, but... the failure to provide medical care.” (Citing to Covenant Care, supra, 32 Cal.4th at 783.)
The Supreme Court held that “allegations that a skilled nursing facility failed to provide “nutrition, hydration, and medication” and left the patient “in his bed, unattended and unassisted, for excessively long periods,” causing death from starvation, dehydration, and sepsis stated a claim of custodial neglect, rather than professional negligence.” (Holland, supra, 18 Cal.5th 364 at 380.)
Similar allegations are stated in Plaintiff’s Complaint, here.
Accordingly, the demurrer is overruled.
Plaintiff shall give notice.
6. 2026-1545921 Plaintiff King Shin Ship Management Co., Limited’s (“Plaintiff”) King Shin Ship application for right to attach order and order for issuance of writ of Management attachment after hearing, against defendant Beyond Loan 1 LLC Co. vs. Beyond (“Defendant”), is denied. Loan 1 LLC