THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN-INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al.

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard at 1:30 p.m. in Department 28, located at 720 9th Street, Sacramento, CA, the Hon. Richard C. Miadich presiding.

Any party who wishes to contest the tentative ruling below must:

(1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and

(2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court.

If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/my/sscdept28

SIP Address:

16039062174@sip.zoomgov.com

(833) 568-8864

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

ID: 16039062174

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with 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 be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Defendants Cogir Management USA, Inc. dba Cogir of Folsom; Well CA WA Tenant, LLC; Cogir Investments, LLC; Welltower OP, Inc.; and Welltower, Inc.’s (collectively, “Defendants”) motion for judgment on the pleadings is ruled upon as follows.

Background

Plaintiffs Thyrza Downer (“Decedent”), by and through her successor-in-interest, Carolyn Holmes, Carolyn Holmes, individually, and Terry Parker (collectively, “Plaintiffs”) filed this elder abuse action on February 24, 2025. Plaintiffs field a First Amended Complaint (“FAC”) on August 18, 2025. At issue in this motion are Plaintiffs’ third cause of action for constructive fraud and fourth cause of action for financial elder abuse.[1]

Plaintiffs allege that Decedent was a full-time resident of Cogir of Folsom, an elder care facility owned and/or operated by Defendants. Plaintiffs further allege that on January 12, 2024, Decedent was assaulted by another resident, identified in the FAC as Doe 1. Plaintiffs allege that

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

Doe 1 approached a nurse’s station and became combative with staff. Decedent was sitting on her wheelchair. Doe 1 proceeded to grab Decedent’s wheelchair and slam it (with Decedent sitting on it) into a door. Decedent then pushed the wheelchair down a hallway and caused Decedent to fall to the floor, resulting in Decedent fracturing her spine. Decedent died as a result of her injuries on January 16, 2024, and her death was deemed a homicide by the medical examiner. Plaintiffs allege that Doe 1 had a prior history of aggressive behavior at the facility and that Defendants knew of this prior behavior, with staff members having expressed concerns to a managerial employee that Doe 1 was too dangerous for the facility.

Discussion

Legal Standard

A motion for judgment on the pleadings has the same function as a general demurrer but may be made after the time for demurrer has expired. (Code Civ. Proc. § 438(f)(2).) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or from any matter of which the court is required to or may take judicial notice. (Code Civ. Proc. § 438(d).) A defendant may bring a motion for judgment on the pleadings on the grounds that the complaint does not state facts sufficient to constitute a cause of action. (Code Civ.

Proc. § 438(c)(1)(B)(ii).) Such a motion may be made as to either the entire complaint or as to any individual causes of action. (Code Civ. Proc. § 438(c)(2)(A).) In ruling on a motion for judgment on the pleadings, the court must accept as true the factual allegations of the complaint and must give them a liberal interpretation. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515- 516.)

Fraud (Constructive) – Third Cause of Action

Plaintiffs bring this cause of action on behalf of Decedent against all Defendants. Under this cause of action, Plaintiffs allege:

45. Ms. Downer was dependent upon Defendants for custodial care and assistance in meeting her basic daily living and health and safety needs when he [sic] resided at Cogir of Folsom. Plaintiff trusted Defendants to faithfully fulfill and observe their custodial duties and to act on Ms. Downer’s behalf for purposes of providing her with care and assistance to meet her daily living and health and safety needs.

46. Defendants accepted Ms. Downer as a resident, accepted her trust and confidence, and accepted the fiduciary relationship which was then and there created.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

47. By virtue of the relationship between Ms. Downer and Defendants, a fiduciary duty existed relating to the care, comfort, safety, and health of Ms. Downer and the disposition and use of money paid on behalf of Ms. Downer for her proper care. Pursuant to this duty, Defendants owed the utmost good faith and fairness to Ms. Downer in all matters pertaining to her health, care, and comfort, and relating to use of the money paid on her behalf and for her proper care. Ms. Downer relied on this fiduciary relationship, and Defendants accepted her reliance.

48. Defendants breached the aforesaid duty, as alleged, and in doing so gained an advantage over Ms. Downer in matters relating to her care, comfort, safety, and health.

(FAC, ¶¶ 45-48.)

Plaintiffs also allege that Defendants were aware, but concealed from Decedent, that they were managing Cogir of Folsom in a manner designed to maximize profit at the expense of patient care and that the facility lacked sufficient staffing to properly care for Decedent. (FAC, ¶¶ 49- 50.) Additionally, Plaintiffs allege that Defendants concealed that they had admitted and retained dangerous residents. (FAC, ¶ 50.) Plaintiffs further allege that had Decedent known of these facts, they would not have agreed to reside at Cogir of Folsom. (FAC, ¶ 51.)

Defendants contend that “no fiduciary duty exists or has been recognized as between a residential care facility for the elderly and its resident.” (Mot. MPA, p. 6:10-11.) Defendants further contend that Plaintiffs make only conclusory allegations to allege breach of a fiduciary duty, but in doing so Plaintiffs fail “(1) to name any specific individual at Cogir Folsom, (2) to identify any speaker or author of a fraudulent statement or omission, (3) to explain when or how the information was allegedly withheld or communicated, [and] (4) to allege any authority to speak on behalf of the corporate defendants.” (Mot. MPA, p. 6:23-26.)

The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation). (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.)

As explained by the Third District Court of Appeal:

“‘Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.’ [Citation.] [¶] ‘[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary’s motives or the principal’s decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. ...’ [Citation.]” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562, 29 Cal.Rptr.2d 463, italics omitted.)

(Mark Tanner Constr. v. Hub Internat. Ins. Servs. (2014) 224 Cal.App.4th 574, 588.)

Thus, constructive fraud requires the existence of a fiduciary or confidential relationship. (Ibid.) A fiduciary relationship has been defined as follows:

A fiduciary relationship is “‘any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent. ’”

(Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29, quoting Herbert v. Lankershim (1937) 9 Cal.2d 409, 483.)

Defendants’ fiduciary relationship argument is rejected. First, that no authority has expressly held that a fiduciary relationship exists between an elder care facility and its residents does not mean that such a relationship cannot exist. Second, Plaintiffs’ allegations satisfy the definition of fiduciary relationship stated above, as Plaintiffs allege that Decedent was dependent upon Defendants for her custodial care needs and thus placed her confidence in the integrity of Defendants to act on her behalf, which Defendants accepted. (See FAC, ¶¶ 45-47.)

Additionally, “[c]onstructive fraud also applies to nonfiduciary ‘confidential relationships.’” (Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 549.) Defendants do not address confidential relationship. While Plaintiffs’ allegations use the term “fiduciary relationship,” the allegations supporting the existence of the relationship also support a confidential relationship. (See ibid.)

Defendants’ arguments regarding breach and specificity are also rejected. Plaintiffs allege that Defendants concealed certain facts. (See FAC, ¶¶ 49-50.) Thus, Plaintiffs’ constructive fraud claim is one of fraudulent concealment. In the fraudulent concealment context, less specificity is required. “It is harder to apply [the requirement of specificity] to a case of simple nondisclosure. ‘How does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

happened, or ‘where’ it never happened?’” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199, citations omitted.) “Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party.” (Ibid., citations omitted.) Here, the FAC includes the facts Plaintiffs allege were concealed. Plaintiffs cannot and need not identify the persons who concealed these facts or how they concealed those facts, as that would require identification of every person with knowledge of those facts authorized to speak on Defendants’ behalf. Therefore, Plaintiffs’ allegations are sufficient to state a fraud claim based on concealment.

Accordingly, Defendants’ motion for judgment on the pleadings as to Plaintiffs’ third cause of action for fraud (constructive) is DENIED.

Financial Elder Abuse – Fourth Cause of Action

Plaintiffs bring this cause of action on behalf of Decedent against all Defendants. Under this cause of action, Plaintiffs allege:

54. Defendants, through their businesses, target dependent adults and the elderly population and take and obtain payments in exchange for services. In order to get dependent and/or elderly residents to pay their high fees, Defendants make false and misleading statements about the care and services that they provide. Throughout her stay at Defendants’ facility, Defendants obtained thousands of dollars of Ms. Downer’s money for services they did not provide.

55. As set forth above, Defendants made promises in exchange for this money, both before, and at the time of admission and throughout Ms. Downer’s residency, that she would be provided with a home that was safe and secure and that she would be provided with adequate supervision and necessary services, and that they would provide services to protect her from neglect and abuse. Specifically, Defendants represented that they provided adequate staffing numbers and sufficiently trained staff and promised to provide custodial care to maintain Ms. Downer’s safety.

56. Ms. Downer paid for these services but Defendants did not provide them. Each of these promises and guarantees was false and fraudulent and Defendants knew or should have known at the time that these promises were made that these promises were false and fraudulent. In fact, as described in more detail above, Defendants continually and consciously failed to provide even the most basic care (e.g., supervision) to Ms. Downer when they failed to provide adequate numbers of trained staff and adequate monitoring and allowed her to be assaulted by DOE 1, which caused Ms. Downer to suffer pain,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

indignity, and mental distress.

57. Defendants also knew at the time that these promises were made that they were unable to provide the promised level of care due to their failure to have sufficient staffing or sufficient training to meet the high acuity needs of their residents, as described in more detail above.

58. In short, Defendants breached their fiduciary obligation to Ms. Downer and fraudulently induced her to pay money through the use of false promises of services that they did not provide and could not provide.

(FAC, ¶¶ 54-58.)

Defendants contend that Plaintiffs fail to allege a claim for financial elder abuse, but instead only allege that Decedent “paid for services that were never provided and that Defendants made false promises about the quality of care.” (Mot. MPA, p. 7:18-19.) Defendants assert that these allegations “reflect a grievance over the adequacy of services rendered, not the wrongful taking or deprivation of property.” (Mot. MPA, p. 7:20-21.) Defendants also argue that Plaintiffs fail to allege specific facts related to any false representations.

“A financial elder abuse claim lies when a person or entity ‘[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both,’ or assists in such conduct.” (Munoz v. Patel (2022) 81 Cal.App.5th 761, 782, citing Welf. & Inst. Code § 15610.30(a)(1), (2).) “Wrongful intent exists when a person or entity ‘takes, secretes, appropriates, obtains, or retains the [elder or dependent adult’s] property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.’” (Id. at p. 782, fn. 10, citing Welf. & Inst. Code § 15610.30(b).)

When wrongful use is based on a contractual right, “the elder must demonstrate a breach of the contract, or other improper conduct.” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 657.) Here, Plaintiffs’ financial elder abuse claim is primarily based on Decedent’s contractual right to receive adequate care in exchange for money. Plaintiffs allege that Defendants wrongfully obtained Decedent’s money via fraudulent means. A fraud claim may serve as a basis for a financial elder abuse claim. (See Welf. & Inst. Code § 15610.30(a)(1).) The allegations to support the alleged fraud are sufficient as discussed in the preceding section. Thus, Plaintiffs’ financial elder abuse claim is adequately pled.

Accordingly, Defendants’ motion for judgment on the pleadings as to Plaintiffs’ fourth cause of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV004537: THYRZA DOWNER, BY AND THROUGH HER SUCCESSOR-IN- INTEREST, CAROLYN HOLMES;, et al. vs COGIR MANAGEMENT USA, INC, et al. 02/09/2026 Hearing on Motion for Judgment on the Pleadings in Department 28

action for financial elder abuse is DENIED.

Disposition

For the reasons stated above, Defendants’ motion for judgment on the pleadings is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

[1] Although the current motion was filed before the FAC and was thus directed at the original Complaint, the FAC

was filed pursuant to stipulation and order which noted that the present motion would remain on calendar since the FAC did not alter the allegations of the third and fourth causes of action.