Kohlman v. Adaptive Behavior Center, Inc.

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed [citations]. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action [citation].” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)

“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113–114.) “[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Ibid.)

A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ (Code Civ. Proc., § 425.10, subd. (a)(1)) and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

“[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) “However, ‘ “[t]he fact that a party has alleged more than is required to justify his right does not obligate him to prove more than is essential, and the unnecessary allegations will be treated as surplusage unless the opposing party would be prejudiced.”” (Ibid.)

“No error or defect in a pleading is to be regarded unless it affects substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “The primary function of a pleading is to give the other party notice so that it may prepare its case [Citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Ibid.)

A. Demurrer

Defendant demurs to the first cause of action for dependent adult neglect and second cause of action for dependent adult neglect (enhanced remedies sought).

In the notice of motion, Defendant presents three arguments: (1) the complaint is barred by res judicata, (2) the first cause of action fails to state facts sufficient to constitute a cause of action and is uncertain, and (3) the second cause of action of action fails to state facts sufficient to constitute a cause of action and is uncertain.

Importantly, Defendant did not present any legal authority or analysis as to its res judicata theory. As such, the Court will not delve into an analysis of that issue. Regardless, the Court has consolidated the two cases at issue in that argument and finds that the causes of action asserted in this case are not barred by the prior filed case. The demurrer is overruled as to any res judicata theory.

Plaintiff brings the first cause of action for dependent adult neglect pursuant to Welfare and Institutions Code sections 377.10, 377.20, 377.30, and 377.34, et seq. as well as 15610.23. Plaintiff brings the second cause of action for dependent adult neglect (enhanced remedies sought) pursuant to Welfare and Institutions Code sections 15657(a) and (b).

In relation to the first cause of action, Defendant argues that “the facts alleged do not rise to the level of neglect under the

Act, and Plaintiff's own sworn statements establish that the conduct alleged amounts to, at most if at all, professional negligence.”

As for the second cause of action, Defendant argues that the second cause of action “fails as a matter of law because it does not allege specific facts demonstrating reckless, oppressive, fraudulent, or malicious conduct as required under welfare and Institutions Code section 15657.”

First, the Court will not consider Plaintiff’s sworn statements. As discussed in the authority above, a demurrer tests the pleadings alone and not the evidence or other extrinsic matters.

Moving to the pleadings alone, the Court finds that Plaintiff sufficiently stated a cause of action for dependent adult neglect and dependent adult neglect with enhanced remedies.

Welfare and Institutions Code sections 15657(a) and (b) states:

“If it is proven by clear and convincing evidence, or by a preponderance of the evidence pursuant to Section 15657.02, that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been

guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

(a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.” (Welf. & Inst. Code, § 15657, subds. (a) and (b).)

“When legislators enacted the Elder Abuse Act, they enhanced the potential sanctions for neglect of elders or certain dependent adults.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155.) “They did so by establishing heightened remedies—allowing not only for a plaintiff's recovery of attorney fees and costs, but also exemption from the damages limitations otherwise imposed by Code of Civil Procedure section 377.34.” (Ibid.) “Unlike other actions brought by a decedent's personal representative or successor in interest, claims under the Act allow for the recovery of damages for predeath pain, suffering, and disfigurement.” (Id. [citing Welf. & Inst.Code § 15657].)

“Section 15610.57, in turn, provides two definitions of neglect.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156; see also Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) “First, [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.’ ” (Id. [citing § 15610.57,

subd. (a)(1)].) “Second, ‘[t]he 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.’” (Id., [citing § 15610.57, subd. (a)(2)].)

“Complementing these two definitions is the statute's explicitly nonexhaustive list of “neglect” examples.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156.) “These include failures “to assist in personal hygiene” or to provide “food, clothing, or shelter” (§ 15610.57, subd. (b)(1)); “to provide medical care for physical and mental health needs” (id., subd. (b)(2)); “to protect from health and safety hazards” (id., subd. (b)(3)); and “to prevent malnutrition or dehydration” (id., subd. (b)(4)).” (Ibid.)

Notably, “section 15657 is explicitly limited to physical abuse and neglect.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 160.) “This qualification on the types of conduct that trigger heightened remedies supports the conclusion that the Legislature explicitly targeted heightened remedies to protect particularly vulnerable and reliant elders and dependent adults. Indeed, the limited availability of heightened remedies is indicative of a determination that individuals responsible for attending to the basic needs of elders and dependent adults that are unable to care for themselves should be subject to greater liability where those caretakers or custodians act with recklessness, oppression, fraud, or malice.” (Id. [citing § 15657].) “The statutory scheme further persuades us that the concept of neglect—though broad enough to encompass settings beyond residential care facilities— is not intended to apply to any conceivable negligent conduct that might adversely impact an elder or dependent adult.” (Ibid.) “Instead, neglect requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.” (Ibid.)

Here, Plaintiff alleges the requisite caretaking or custodial relationship between Defendant and the Decedent. (Complaint, ¶¶ 1-3, 31.) Plaintiff further alleges that Defendant neglected Decedent by: (a) entirely ignoring their obligations to perform basic assessments and to provide custodial care with respect to choke prevention; (b) failing to timely respond after Decedent choked in their custody previously, and properly assess and evaluate his condition; (c) failing to properly monitor and assess Decedent for changes in his overall health condition and to inform his doctor; (d) assisting in the provision of food; (e) communicating vital health and safety information to his other caretakers, and; (f) protecting him from health and safety hazards. (Complaint, ¶¶ 24, 26, 27, 32, and 40.)

Such allegations constitute failures “to protect from health and safety hazards,” which is neglect under the Act.

Plaintiff further alleges that Defendant, by way of its officers, directors, and/or managing agents, has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. (Complaint, ¶¶ 40-46.) Accordingly, Plaintiff has sufficiently pleaded dependent adult neglect and dependent adult neglect with enhanced remedies.

The Demurrer is OVERRULED in its entirety.

B. Motion to Strike

Defendant moves to strike “conclusory allegations of ‘reckless,’ ‘oppressive,’ ‘malicious,’ and ‘fraudulent’ conduct without alleging specific ultimate facts sufficient to support punitive damages or enhanced remedies under Welfare and Institutions Code section 15657 and Civil Code section 3294.”

Civil Code section 3294 states:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and

convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Importantly, corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees,” such as the corporation’s officers, directors, or managing agents. (Id.)

For the reasons discussed above regarding the arguments raised in the Demurrer, the Motion to Strike is DENIED. Plaintiff has sufficiently alleged the requisite malice, oppression, and recklessness among Defendant’s managing agents. (See Complaint, ¶¶ 44- 46.)

Defendant shall file an answer to the Complaint within 20 days.

Plaintiff to give notice.