Catherine Moseley Jackson, in her individual capacity and as successor-in-interest to the Estate of Blair Moseley vs. BHC Sierra Vista Hospital, Inc.

34-2022-00331719-CU-PO-GDS: Catherine Moseley Jackson, in her individual capacity and as successor-in-interest to the Estate of Blair Moseley vs. BHC Sierra Vista Hospital, Inc. 07/25/2024 Hearing on Demurrer in Department 53

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendant Viet X. Le, M.D. (“Dr. Le”) demurs to Plaintiffs Catherine Moseley Jackson (“Jackson”), Lester Burnette (“Burnette”), and Brandon Moseley Williams (“Williams”) (collectively, “Plaintiffs”) in their individual capacity and as successor-in-interest to the estate of Blair Moseley’s third amended complaint (“3AC”). Defendant Turning Point Community Programs (“Turning Point”) filed a joinder to Dr. Le’s demurrer and asserts additional bases for demurrer. Dr. Le and Turning Point’s demurrers are ruled upon as follows.

Background

This action arises out of the circumstances of Blair Moseley’s (“Decedent”) death. Decedent was a young woman with a history of psychiatric issues. (3AC ¶10.) In late March 2022, Decedent was placed on an involuntary psychiatric hold following a mental health. (3AC ¶23.) She was transferred to a hospital operated by Defendant BHC Sierra Vista Hospital, Inc. (“Sierra Vista”) to continue her mental health and physical treatment. (3AC ¶24.) The 3AC avers that during that time Decedent’s mother, Plaintiff Jackson contacted Sierra Vista to speak to Decedent and/or her assigned case manager but was provided with no response. (3AC ¶25.)

Despite multiple attempts from family members to speak to Decedent while she was hospitalized at Sierra Vista, Jackson was unable to speak to her daughter. (3AC ¶25-27.) On April 19, 2022, Jackson was informed that Decedent was no longer at Sierra Vista and that Jackson should file a missing person’s report. (3AC ¶28.) That same day, Decedent’s brother, Plaintiff Williams attempted to reach Decedent at Sierra Vista and was informed that she was no longer there and that Sierra Vista did not know to where she had been released. (3AC ¶29.)

Thereafter, a case manager at Sierra Vista informed Williams that Decedent was transferred from Sierra Vista to Defendant Turning Point, which operates a Crisis Residential Program. (3AC ¶32-33.)

On April 24, 2022, Jackson was informed by the Sacramento County Coroner that Decedent had died after being struck by a car on Interstate 5. (3AC ¶31.)

Plaintiffs bring the following causes of action against Defendants Turning Point, Sierra Vista, and Dr. Le, the psychiatrist who discharged Decedent from Sierra Vista: (1) wrongful death/professional negligence, (2) general negligence, (3) fraud/intentional misrepresentation, (4) negligent misrepresentation, (5) and violations of the Elder Abuse and Dependent Adult Civil Protective Act.

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Dr. Le now demurs to all causes of action against him. Turning Point filed a notice of joinder to Dr. Le’s demurrer and included additional bases for demurrer for the causes of action against them. Plaintiffs oppose.

Request for Judicial Notice

Dr. Le requests the Court take judicial notice of various provisions of the Welfare & Institutions Code. The request is granted. (See Evid. Code §452, subd. (a).)

Turning Point requests the Court to take judicial notice of Welfare & Institutions Code section 5150 et seq. and Plaintiffs’ 3AC. These requests are granted. (See Evid. Code §452, subds. (a) and (d).) It also requests the Court to take judicial notice that (1) its Crisis Residential Program is voluntary, (2) its CSP-Henrietta House is not a locked facility, and (3) Decedent was an adult not under a conservatorship or guardianship at the time of her treatment and/or death. These requests are denied. These facts are not the type of factual assertions that are of “such common knowledge that they cannot reasonably be the subject of dispute” and thus, are not appropriate for judicial notice. (See Evid. Code §452, subd. (g) and (h).)

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court, supra, 153 Cal.App.3d at 905.) “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 demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39; Bagatti v. Dept. of Rehabilitation (2002) 97 Cal.App.4th 344, 352.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co., supra, 19 Cal.4th at 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v.

Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) The Court treats as true not only the complaint’s material factual allegations, but also facts that may be implied or inferred from those expressly alleged. (Amarel, supra, 202 Cal.App.3d at 141.) “A court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the

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matters which have been pled or are proper subjects of judicial notice.” (Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 722, fn. 7.) The Court is to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank, supra, 39 Cal.3d at 318.) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief, we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.)

Nonetheless, “[t]he plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action.” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; see Sui v. Price (2011) 196 Cal.App.4th 933, 938.) “Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43–44, internal citations omitted.)

Discussion

Dr. Le’s Demurrer

At the outset, the Court notes that Dr. Le’s Notice of Demurrer fails to comply with Code of Civil Procedure section 1010 and California Rules of Court, rule 3.1110. The Notice of Demurrer simply states that it is being brought pursuant to Section “430.10(e)(f)” and does not otherwise identify which causes of action Dr. Le demurs to or the specific grounds as to each cause of action. In general, the trial court may consider only the grounds stated in the notice of motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545.)

However, “[a]n omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [citing Carrasco v. Craft (1985) 164 Cal.App.3d 796, 807-808; 366-388 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1200].) The “Introduction” in Dr. Le’s memorandum of points and authorities identifies these three bases for demurrer: (1) that all Plaintiffs’ causes of action are barred by Welfare & Institutions Code section 5259.3 as to Dr.

Le; (2) that Plaintiffs’ second cause of action for general negligence is duplicative of the first cause of action for medical malpractice; and (3) that Plaintiffs’ fifth cause of action fails to plead facts sufficient to constitute a cause of action and is procedurally barred. While not identified in the “Introduction” as a ground for demurrer, Dr. Le also argues that the 3AC is uncertain under Code of Civil Procedure section 430.10, subdivision (f). Counsel is admonished for failing to comply with the notice requirements.

Nevertheless, the Court finds that the supporting papers have sufficiently identified the four bases for demurrer in Dr. Le’s motion.

Uncertainty

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A demurrer for uncertainty will be sustained only where the pleading is so uncertain that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) The favored approach is to clarify theories in the complaint through discovery. (Ibid. See also 1 Weil & Brown, Civil Procedure Before Trial (Rutter Group 2014), §7:85, p. 7(l)-39.)

Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Servs. Dist. (1982) 135 Cal.App.3d 797, 809.) It is rare for the Court to sustain a demurrer on the grounds of uncertainty, particularly since pleadings are to be liberally construed.

Dr. Le contends that the 3AC is uncertain because it violates California Rules of Court, rule 2.112. Dr. Le provides no other basis for the 3AC’s uncertainty. Neither does Dr. Le explain the specific violations of Rule 2.112 which cause the uncertainty. The Court assumes that Dr. Le means either that Plaintiffs failed to identified which Plaintiffs bring which causes of action against him or, related to his second argument that the second cause of action is duplicative of the first, the numerical citation to each cause of action is incorrect. The Court does not find that these issues make the 3AC so uncertain that Dr. Le cannot respond to the allegations therein.

Accordingly, Dr. Le’s demurrer on this basis is OVERRULED.

Welfare & Institutions Code’s Bar Against Liability

Dr. Le also argues that all the causes of action against him are barred by Welfare & Institutions Code section 5259.3. As a preliminary matter, Dr. Le has failed to establish that the provisions of the Welfare & Institutions Codes he cites applies under the circumstances. The 3AC refers to Decedent’s “5150 hold” following “a mental breakdown resulting in unprovoked aggression.” (3AC ¶23.) It does not otherwise refer to the basis for Decedent’s possible release and/or transfer to Turning Point. Dr.

Le, however, makes the “reasonable inference” that Decedent’s 5150 hold was extended pursuant to Welfare & Institutions Code section 5250. The Court cannot make such an inference from the allegations in the 3AC. The Court will not speculate as to what resulted in Decedent’s hospitalization pass the 72-hour 5150 hold and cannot premise its ruling based on such speculation. Moreover, Dr. Le makes various references to facts not contained in the 3AC in support of this basis for demurrer. (See MPA 5:2-8.)

For instance, the memorandum of points and authorities quotes from the Decedent’s discharge summary. (MPA 5:19-6:2.) While some portions of that summary are quoted in the 3AC, Dr. Le apparently introduces this evidence, without requesting judicial notice, and without providing any proper citation. Extrinsic evidence is not allowed on demurrer. (SKF Farms v. Superior Court, supra, 153 Cal.App.3d at

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905.) Neither would the facts contained in a discharge summary be appropriate for judicial notice in any event.

On the face of the Complaint, it is unclear that Section 5259.3’s bar against liability even applies. Dr. Le’s suggestion of “reasonable inference” and reliance on improperly introduced extrinsic evidence is insufficient to support this basis for demurrer. In any event, Section 5259.3 bars civil and criminal liability against a healthcare provider “for any action by a person released” under specific provisions of the Welfare & Institutions Code. (Emphasis added.) Plaintiffs bring this action against Dr. Le for his actions not for Decedent’s own actions after being released.

Accordingly, Dr. Le’s demurrer on this basis is also OVERRULED.

Duplicative Action

Dr. Le also argues that the second cause of action for general negligence is duplicative of the first cause of action for professional negligence or medical malpractice. In opposition, Plaintiffs assert that they “sufficiently pleaded their first and second causes of action” without addressing Dr. Le’s contention that the two causes of action are duplicative. (Opp.13:22-23.) Indeed, Plaintiffs group their argument as to these two causes of action together and argue that they state facts sufficient to constitute a cause of action for professional negligence without making a distinction between the two causes of action. (See Opp. 13:22-18:5.)

Dr. Le’s argument is thus effectively unopposed. A party’s failure to oppose an argument in its opposition is construed as a concession on the merits of that argument. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.)

Moreover, the Court finds the factual basis for Plaintiffs’ second cause of action indistinct from the first cause of action for professional negligence. A “merely duplicative pleading which adds nothing to the complaint by way of fact or theory” is not sufficient to survive demurrer. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)

Dr. Le’s demurrer as to the second cause of action for general negligence is SUSTAINED, without leave to amend.

Fifth Cause of Action

Plaintiffs also bring a cause of action for violation of the Elder Abuse and Dependent Adult Civil Protective Act. Dr. Le contends that fifth cause of action was added to the 3AC without court approval. Plaintiffs’ first amended complaint (“1AC”) contained four (4) causes of action: wrongful death/professional negligence, general negligence, fraud/intentional misrepresentation,

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and negligence misrepresentation. Defendant Sierra Vista demurred to all causes of action against it in the 1AC. The Court sustained Sierra Vista’s demurrer to the third and fourth causes of action, with leave to amend. (MPA 9:7-9; Minute Order 8/3/23.) The Court did not grant leave to add any new cause of action in its ruling on the prior demurrer. (MPA 9:9-10.) The Court specifically ruled that Sierra Vista’s demurrer was “SUSTAINED with leave to amend as to the third and fourth causes of action.” (Minute Order 8/3/23 at p.7; see Harris v. Wachovia Mortgage, FBS (2019) 185 Cal.App.4th 1018, 1023.) Neither have Plaintiffs sought leave to amend to add this cause of action.

Dr. Le’s demurrer as to the fifth cause of action is SUSTAINED on this basis. The Court does not address the sufficiency of the allegations in the fifth cause of action as it is not properly before the court. If Plaintiff seeks to add a new cause of action, it must move for leave to do so.

Turning Point’s Joinder

A notice of joinder is not a proper motion unless: (1) relief is sought on behalf of the joining party; (2) it is timely filed; (3) it contains points and authorities; and (4) it specifically states the grounds for the demurrer separately as prescribed under California Rules of Court, rule 3.1320, subdivision (a). (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163, fn.3 [the trial court construed the defendant’s notice of joinder as a motion].) The failure to comply with the procedural requirements associated with an independent motion is grounds for denial of a notice of joinder. (See, e.g., Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.)

Turning Points has satisfied the requirements to join Dr. Le’s demurrer and the joinder is GRANTED.

For the same reasons as explained regarding Dr. Le’s demurrer, Turning Points’ demurrer is SUSTAINED as the second and fifth causes of action against it.

Turning Points further demurs to the 3AC on the following additional bases: (1) that Plaintiffs lack standing to sue in a representative capacity for Decedent; (2) Plaintiff Williams’ claims as representative of Decedent’s Estate is time-barred; (3) Plaintiffs fail to state a cause of action negligence; and (4) Plaintiffs fail to state a cause of action for fraud and negligent misrepresentation.

Standing to Sue

Turning Point first argues that Plaintiffs lack standing to sue in a representative capacity because they failed to comply with Code of Civil Procedure 377.32. In opposition, Plaintiffs simply assert that they have standing to sue under Section 377.60, subdivision (a) and are not asserting

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survival claims.

As Turning Point observes in reply, the caption of the 3AC indicates that Plaintiffs are suing in their individual capacity, as well as successors-in-interest to Decedent’s estate. If this is the case, it does appear that Plaintiffs are asserting survival claims in this action. Nevertheless, the Court shall OVERRULE Turning Point's demurrer on standing grounds.

Section 377.32 requires a “person who seeks to commence an action or proceeding as the decedent’s successor in interest execute and file an affidavit or a declaration under penalty of perjury” regarding their authority to do so on decedent’s behalf. “Section 377.32, however, ‘does not require that the affidavit be filed as a condition precedent to commencing or continuing the action.’ [Citation.]” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614 [citing Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523-1524].)

Failure to file the affidavit could possibly subject the action to a plea in abatement. (Parsons, supra, at 1524.) Such a plea in abatement may be raised by demurrer or answer. (V & P Trading Co., Inc. v. United Charter, LLC (2012) 212 Cal.App.4th 126, 133-134.) “The objection may be raised by demurrer when the ground for objection appears on the face of the complaint or from any matter that is subject to judicial notice; otherwise, the objection may be raised by answer.” (Id. at 134.)

Plaintiffs allege that they are the surviving parents and brother of Decedent. (3AC ¶1.) The 3AC indicates that they bring the instant action in their individual capacity as well as successors-ininterest to the estate of Decedent. On the face of the complaint, they have standing to sue in their representative capacities. Turning Point’s contention that Plaintiffs have failed to comply with the filing of affidavits required by Section 377.32 does not appear on the face of the complaint. Neither has Turning Point requested judicial notice of any documents, such as the Register of Actions, demonstrating lack of the required affidavits.

The Court notes that Turning Point did request judicial notice of various other documents in its demurrer. Accordingly, nothing properly before the Court on the instant demurrer indicates that Plaintiffs lack standing to sue or that they failed to comply with Code of Civil Procedure section 377.32 such that a plea in abatement is warranted.

Turning Point’s demurrer on this basis is therefore OVERRULED. The Court makes no determination as to whether Plaintiffs have standing to sue as successors-in-interest, only that Turning Point has failed to meet its burden on demurrer.

Statute of Limitations

“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (E-Fab, Inc. v. Accountants, Inc. Serv. (2007) 153 Cal.App.4th 1308, 1315-1316.) The running of the statute must appear “clearly and

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affirmatively” from the face of the complaint. (Committee for Green Foothills v. Santa Clara Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) “[A] demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. It must appear affirmatively that, upon the facts stated, the right of action is necessarily barred.” (Valvo v. University of Southern California (1977) 67 Cal.App.3d 887, 895 [citing Pike v. Zadig (1915) 171 Cal. 273, 277].)

Code of Civil Procedure section 366.1 provides as follows:

If a person entitled to bring an action dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced before the expiration of the later of the following times: (a) Six months after the person's death. (b) The limitations period that would have been applicable if the person had not died.

Turning Point contends that Plaintiff Williams’s addition to the instant action occurred over a year after Decedent’s death and “later than the applicable one-year statute of limitations under Code of Civil Procedure §340.5.” (MPA 10:12-14.)

Turning Point miscites Section 340.5. In pertinent part, Section 340.5 states that “the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Emphasis added.) “The one-year limitations period, however, does not begin to run until the plaintiff discovers both his or her injury and its negligent cause.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189 [emphasis added]; see also Hills v.

Aronsohn (1984) 152 Cal.App.3d 753, 759 [“for the one-year limitations period to be activated not only must the patient be aware of her harm, but also she must be aware of the negligent cause of her harm”].) The 3AC avers that Decedent died on April 24, 2022. (3AC ¶31.) It alleges that the medical records Plaintiff received from Sierra Vista indicate various questionable conduct related to Defendants’ treatment of Decedent shortly prior to her death. (3AC ¶¶41-67.) The 3AC does not indicate when Plaintiffs received these medical records or when Williams became aware of the alleged negligent cause of Decedent’s death.

As the statute of limitations issue does not appear on the face of the complaint, Turning Point’s demurrer on this basis is OVERRULED.

Somewhat relatedly, Turning Point also argues that the Court did not grant Plaintiffs leave to add Williams as a plaintiff in this action in its ruling on Sierra Vista’s demurrer to the 1AC. The Court’s ruling stated as follows:

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Leave to amend will be granted as this is the first challenge to the pleadings and it appears that Plaintiffs can correct this deficiency simply by naming Mr. Williams as a plaintiff together with his parents.

(Minute Order 8/4/23 at p.7.) While not entirely clear, the Court’s rationale for granting leave to amend was twofold: (1) that this was the first challenge to the pleadings and (2) that Plaintiffs may be able to correct deficiencies in the third and fourth causes of action by naming Williams as a plaintiff. The Court construes this as leave to add Williams to the Complaint. Indeed, based on the Court’s reasoning for sustaining the demurrer to these causes of action, granting leave to amend without allowing Plaintiffs to add Williams as a plaintiff would be an idle act. Turning Point’s demurrer on this basis is OVERRULED.

Failure to State a Cause of Action

Turning Point also contends that Plaintiffs fail to state a cause of action for its first, third, and fourth causes of action for wrongful death/professional negligence, fraud/intentional misrepresentation, and negligent misrepresentation, respectively. The Court does not address Plaintiffs’ second and fifth causes of action as they have been sustained on other grounds.

Professional Negligence and Wrongful Death

To state a cause of action for professional negligence, a plaintiff must allege (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 [citing 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 891, p. 350].)

Turning Point contends that Plaintiffs have failed adequately plead duty and causation. The Court disagrees. The 3AC alleges that Sierra Vista referred Decedent to Turning Point and was directly transported to Turning Point’s facility. (3AC ¶124.) It also alleges that instructions from Sierra Vista indicate that if Decedent’s symptoms worsened, Turning Point was to bring Decedent back to Sierra Vista. (3AC ¶124.) The 3AC further avers that Turning Point failed to supervise Decedent and lost track of her while she was at their facility. (3AC ¶ 85.) Turning Point contends that as a “voluntary” program, it has no duty to Decedent. First, the Court denied Turning Point’s request for judicial notice of the “voluntary” nature of Turning Point’s program.

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This alone dispenses with this argument on demurrer. While the Court need not proceed further, it notes that Turning Point’s contention that as a “voluntary” program it is somehow absolved from all duties to a patient in its care is untenable. Unless a patient is placed on an “involuntary” hold, a patient’s treatment by a medical provider is voluntary. Indeed, as Plaintiffs point out, this duty of care “exists whether the patient is hospitalized at the time or not.” (Kockelman v. Segal (1998) Cal.App.4th 491, 505.) Turning Point’s contention that Plaintiffs cannot establish a legal duty in their individual capacities is unavailing. Plaintiffs bring a wrongful death action, which is a statutory claim. (Lattimore, supra, 239 Cal.App.4th at 968.) Plaintiffs are required to establish an underlying tort, not a separate legal duty as to them in their individual capacities.

In addition, causation is normally a question of fact that cannot be resolved on demurrer. (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1190.) “Under well established principles general allegations of proximate causation and resulting injury and damages suffice to state a cause of action.” (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 514; see also Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548 [“A plaintiff need not plead evidentiary facts supporting the allegation of ultimate fact.”].)

Here, Plaintiffs have plead that Decedent was under Turning Point’s care from April 12, 2022 to April 23, 2022, at which point Turning Point loss track of Decedent. (3AC ¶101-103.) The 3AC also alleges that Turning Point, a residential crisis center, allowed her to leave their facility in a dangerous and dire physical and mental condition. (3A ¶103.) At the pleading stage, these are sufficient ultimate facts to survive demurrer.

Accordingly, Turning Point’s demurrer in this ground is OVERRULED.

Fraud and Negligent Misrepresentation

The elements of fraud “are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) A failure to disclose a material fact can constitute actionable fraud. (Collins v eMachines, Inc. (2011) 202 Cal.App.4th 249, 255.) When pleading a claim for fraud/negligent misrepresentation, each and every element must be alleged, “and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Stansfield v.

Starkey (1990) 220 Cal.App.3d 59, 73; Cadlo v Owens-Illinois, lnc. (2004) 125 Cal.App.4th 513, 519 [stating that “[e]ach element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged”].)

While fraud must be plead with specificity, this particularity requirement is less stringent in cases of nondisclosure. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) “Less specificity should be required of fraud claims

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when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy [citation]; even under the strict rules of common law pleading, one of the cannons was that less particularly is required when the facts lie more in the knowledge of the opposite party.” (Ibid.) A Plaintiff asserting a concealment theory will “not be able to specify the time, place, and specific content of an omission as precisely as would Plaintiffs in a false representation claim.” (Falk v. General Motors Corporation (N.D.Cal. 2007) 496 F.Supp.2d 1088, 1098-99.) Such a claim “can succeed without the same level of specificity required by a normal fraud claim.” (Id.)

The 3AC alleges that Turning Point’s actions constituted a misrepresentation of material fact, concealment of material fact, and/or a false promise. (3AC ¶119.)

Turning Point contends that Plaintiffs have failed to allege its fraud claim with the requisite level of specificity required by law. It further argues that as a medical healthcare provider, it is legally and ethically required to maintain confidential patient information and documents such that Plaintiffs’ requested disclosure would violate both state and federal privacy rights. Turning Point further notes that the 3AC’s assertion that Plaintiff Williams was on the release of information at Sierra Vista is not germane to whether Turning Point could disclose information to Williams.

The Court finds that Plaintiffs have alleged the requisite level of specificity required to allege fraud/negligent misrepresentation at the pleading stage. Plaintiffs recount specific misrepresentations made by Turning Point’s agents regarding Decedent’s whereabouts and her enrollment in its program. (See 3AC ¶121-125.) Turning Point’s argument regarding its duties as a healthcare provider are unavailing. First, the 3AC expressly alleges that “there was an ROI for WILLIAMS.” (3AC ¶122.) The Court takes the factual allegations in the complaint as true on demurrer. Thus, on the face of the complaint, Williams was entitled to disclosure of information regarding Decedent. Second, Turning Points’ agents did provide information to Plaintiffs, albeit apparently false information. Its privacy concerns do not protect it from voluntarily providing false information to Plaintiffs.

Turning Point’s demurrer on this basis is OVERRULED.

Disposition

Dr. Le’s demurrer is SUSTAINED in part and OVERRULED in part. The demurrer is sustained as to the second and fifth causes of action, without leave to amend. Should Plaintiffs seek to add new causes of action, Plaintiffs must file a motion for leave to amend. The remaining grounds for Dr. Le’s demurrer are overruled.

Turning Point’s joinder is GRANTED. Its demurrer is SUSTAINED in part and OVERRULED

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00331719-CU-PO-GDS: Catherine Moseley Jackson, in her individual capacity and as successor-in-interest to the Estate of Blair Moseley vs. BHC Sierra Vista Hospital, Inc. 07/25/2024 Hearing on Demurrer in Department 53

in part. The demurrer is sustained as to the second and fifth cause of action, without leave to amend. Should Plaintiffs seek to add new causes of action, Plaintiffs must file a motion for leave to amend. The remaining grounds for Turning Point’s demurrer are overruled.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)