Masaoka vs. ALHV, LLC

Elder/dependent abuse & neglect is a statutory cause of action. Pursuant to Welfare & Institutions Code section 15657, a plaintiff is entitled to certain remedies if she proves “by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.”

Welfare & Institutions Code section 15610.07 defines abuse of an elder or dependent adult as: (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.

Plaintiff alleges that Decedent was an elder – 91 years old – when, as a result of the reckless neglect of Defendants, suffered a fall resulting in injury and harm. (Complaint, ¶¶ 69-71.)

Plaintiff must allege conduct distinct from just professional negligence of a healthcare provider, as elder abuse includes the egregious withholding of medical care and only applies to neglect that is at a minimum reckless (as opposed to just simple or gross negligence). (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406–407; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 786; Delaney v. Baker (1999) 20 Cal.4th 23, 35; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88.)

Here, Plaintiff’s allegation of one fall is not sufficient to state a claim for elder abuse.

3rd cause of action for violations of Resident Rights (Health & Safety Code, § 1430(b)

Health & Safety Code §1430(b) states in part that “[a] current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients’ Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation...”

As stated with respect to the second cause of action above, Plaintiff’s claims are centered around one occurrence of a fall. Plaintiff fails to allege how Defendant violated Decedent’s rights pursuant to § 1430(b).

4th cause of action for unfair competition (Bus. & Prof. Code, § 17200.)

Business & Professions Code, § 17200 prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”

Plaintiff alleges that “Defendants’ violations of The Elder and Dependent Adult Civil Protection Act and Resident Rights and other applicable provisions, as alleged herein, including Defendant’s understaffing and its representations that it could care for Plaintiff

when it could not, constitute unfair business practices in violation of Business & Professions Code §§17200, et seq.” (Complaint, ¶ 81.)

Because the causes of action for elder abuse and violation of Resident Rights are insufficiently pled, Plaintiff’s cause of action pursuant to § 17200 is also deficient. Plaintiff fails to allege an unlawful, unfair or fraudulent business practice.

Special demurrer

Defendant’s special demurrer is overruled.

The Complaint is not so confusing that Defendant cannot determine how to respond. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.)

MOTION TO STRIKE

Defendant ALHV, LLC’s motion to strike portions of Plaintiff’s Complaint is granted with 15 days leave to amend.

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10(b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App. 3d 1, 6.)

Because Plaintiff fails to state sufficient facts to allege elder abuse, the allegations related to Plaintiff’s punitive damages claims lack support. Code Civ. Proc., § 425.13 provides that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed...”

Additionally, Plaintiff’s claims for pre-judgment interest and attorney fees are improperly pled as there is no legal authority that provides for these forms of relief given Plaintiff’s remaining

negligence claim. (See Greater Westchester Homeowners Assn v. Los Angeles (1979) 26 Cal. 3d 86, 102; Curtis v. State of California (1982) 128 Cal. App. 3d 668.)

Defendant shall give notice of both rulings.