This case was last updated from Los Angeles County Superior Courts on 10/02/2020 at 12:26:07 (UTC).

DEDICATO TREATMENT CENTER, INC. VS MICHAEL D. ANDERSON

Case Summary

On 09/12/2018 DEDICATO TREATMENT CENTER, INC filed a Contract - Other Contract lawsuit against MICHAEL D ANDERSON. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is RICK BROWN. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5959

  • Filing Date:

    09/12/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

RICK BROWN

 

Party Details

Plaintiffs and Defendants

DEDICATO TREATMENT CENTER INC.

ANDERSON MICHAEL D.

Cross Plaintiffs and Not Classified By Court

PAWLIK LINDA JEAN

LINDA JEAN PAWLIK

MICHAEL D. ANDERSON AN INDIVIDUAL

Attorney/Law Firm Details

Plaintiff Attorneys

SHANEYFELT DAVID ALLEN

SMITH SEAN EDWARD

SCHICK MALCOLM

Defendant, Cross Plaintiff and Not Classified By Court Attorney

ANDERSON MICHAEL DALE

 

Court Documents

Memorandum of Costs (Summary) - Memorandum of Costs (Summary)

3/25/2020: Memorandum of Costs (Summary) - Memorandum of Costs (Summary)

Minute Order - Minute Order (Ruling on Submitted Matter)

3/16/2020: Minute Order - Minute Order (Ruling on Submitted Matter)

Notice of Ruling - Notice of Ruling

2/27/2020: Notice of Ruling - Notice of Ruling

Objection (name extension) - Objection Evidentiary Objections to Dedicato's Opp to MSJ

2/20/2020: Objection (name extension) - Objection Evidentiary Objections to Dedicato's Opp to MSJ

Declaration (name extension) - Declaration of Keith Marshall

2/11/2020: Declaration (name extension) - Declaration of Keith Marshall

Opposition (name extension) - Opposition to Demurrer to SAC

2/10/2020: Opposition (name extension) - Opposition to Demurrer to SAC

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

1/14/2020: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

1/14/2020: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

Ex Parte Application (name extension) - Ex Parte Application Defendant's Ex Parte Application to Shorten Time on Defendant's MSJ or to Continue Trial

12/18/2019: Ex Parte Application (name extension) - Ex Parte Application Defendant's Ex Parte Application to Shorten Time on Defendant's MSJ or to Continue Trial

Motion for Summary Judgment - Motion for Summary Judgment

12/3/2019: Motion for Summary Judgment - Motion for Summary Judgment

Opposition (name extension) - Opposition Linda Pawlik's Opposition to Demurrer to First Amended Complaint in Intervention

10/30/2019: Opposition (name extension) - Opposition Linda Pawlik's Opposition to Demurrer to First Amended Complaint in Intervention

Declaration (name extension) - Declaration of Sean E. Smith, Esq. Re: Meet and Confer in Support of Demurrer

10/15/2019: Declaration (name extension) - Declaration of Sean E. Smith, Esq. Re: Meet and Confer in Support of Demurrer

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

10/15/2019: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Answer - Answer

7/1/2019: Answer - Answer

Notice of Case Reassignment/Vacate Hearings - Notice of Case Reassignment/Vacate Hearings

2/25/2019: Notice of Case Reassignment/Vacate Hearings - Notice of Case Reassignment/Vacate Hearings

Answer - Answer

11/30/2018: Answer - Answer

Summons - on Complaint

9/12/2018: Summons - on Complaint

56 More Documents Available

 

Docket Entries

  • 02/17/2021
  • Hearing02/17/2021 at 10:00 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Tax Costs

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  • 07/28/2020
  • DocketMotion to Tax Costs; Filed by: Linda Jean Pawlik (Cross-Complainant)

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  • 07/28/2020
  • DocketHearing on Motion to Tax Costs scheduled for 02/17/2021 at 10:00 AM in Spring Street Courthouse at Department 26

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  • 07/15/2020
  • DocketMemorandum of Costs (Summary); Filed by: Dedicato Treatment Center, Inc. (Defendant in Intervention); Total Costs: 2723.06

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  • 07/15/2020
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by: Dedicato Treatment Center, Inc. (Defendant in Intervention)

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  • 06/30/2020
  • DocketOrder on Defendant's MSJ; Filed by: Michael D. Anderson, an individual (Non-Party); As to: DEDICATO TREATMENT CENTER, INC. (Plaintiff)

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  • 06/30/2020
  • DocketNon-Jury Trial scheduled for 04/06/2021 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 06/30/2020

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  • 05/29/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 05/29/2020
  • DocketReset - Court Unavailable, Non-Jury Trial scheduled for 08/17/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Continued - by Court was rescheduled to 04/06/2021 08:30 AM

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  • 04/02/2020
  • DocketAddress for Michael Dale Anderson (Attorney) updated

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89 More Docket Entries
  • 11/30/2018
  • DocketUpdated -- Event scheduled for 09/18/2019 at 08:30 AM in Chatsworth Courthouse at Department F43 Type changed from Order to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 to Non-Jury Trial

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  • 11/06/2018
  • DocketProof of Personal Service; Filed by: DEDICATO TREATMENT CENTER, INC. (Plaintiff); As to: MICHAEL D. ANDERSON (Defendant); Service Date: 10/22/2018; Service Cost: 53.90; Service Cost Waived: No

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  • 09/13/2018
  • DocketCase assigned to Hon. Rick Brown in Department F43 Chatsworth Courthouse

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  • 09/13/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 scheduled for 09/18/2019 at 08:30 AM in Chatsworth Courthouse at Department F43

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  • 09/12/2018
  • DocketComplaint; Filed by: DEDICATO TREATMENT CENTER, INC. (Plaintiff); As to: MICHAEL D. ANDERSON (Defendant)

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  • 09/12/2018
  • DocketCivil Case Cover Sheet; Filed by: DEDICATO TREATMENT CENTER, INC. (Plaintiff)

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  • 09/12/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 09/12/2018
  • DocketOrder to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740); Filed by: Clerk

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  • 09/12/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/12/2018
  • DocketThe case is placed in special status of: Collections Case (CCP 3.740)

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Tentative Rulings

Case Number: 18CHLC25959    Hearing Date: March 03, 2020    Dept: 26

Dedicato Treatment Ctr., Inc. v. Anderson, et al.

MOTION FOR SUMMARY JUDMENT

(CCP § 437c)

TENTATIVE RULING:

Defendant Michael D. Anderson’s Motion for Summary Judgment is GRANTED.

ANALYSIS:

Plaintiff Dedicato Treatment Center, Inc. (hereinafter referred to as “Plaintiff”) filed this action against Defendant Michael Anderson (“Defendant”) on September 12, 2019, arising from an insufficient check issued for Plaintiff’s drug treatment and addiction services rendered to Lina Pawlik (“Pawlik”). Defendant filed an Answer on November 30, 2018. Defendant filed the instant Motion for Summary Judgment on December 3, 2019. Plaintiff filed its opposition on February 11, 2020 and Defendant replied on February 20, 2020.

Discussion

Defendant brings the instant Motion for Summary Judgment on the grounds that he cannot be liable for an insufficient check issued in a representative capacity. This affirmative defense is alleged in the Answer at paragraph 27, specifically that “Plaintiff is not entitled to any recovery from defendants because defendant acted as the agent, servant and/or employee of a third party and in issuing the check in question, did so in the course and scope of such relationship. Accordingly, the signatures of defendant on such check was an authorized signature of the third parry as a represented Person and defendant is not liable pursuant to Commercial Code § 3402.” (Answer, filed 11/30/18, ¶27.)

Defendant relies on Cohen v. Disner (1995) 36 Cal.App.4th 855, which explains:

[Civil Code] Section 1719 imposes liability for “the amount owing upon that check.” (§ 1719, subd. (a), italics supplied.) The plain meaning of “to owe” is “to be under obligation to pay or repay in return for something received.” (Webster's New Internat. Dict. (3d ed. 1976), p. 1612, italics supplied.) By appropriate substitution, section 1719 may be read as imposing liability for the amount the maker is under obligation to pay upon the check, plus treble damages to $500.

By acknowledging there must be an enforceable obligation to pay, section 1719 echoes the UCC, which precludes recovery where the payee has no “right to enforce the obligation of a party to pay an instrument.” (UCC, § 3305, subd. (a).) If the maker has no enforceable obligation to pay a dishonored check, there is no amount “owing upon that check” under the plain language of section 1719.

(Cohen v. Disner (1995) 36 Cal.App.4th 855, 860–861.) Defendant presents the following evidence to demonstrate that he had no obligation on the check issued to Plaintiff. Defendant was retained to provide legal services to Pawlik in November 2014. (Motion, Separate Statement of Facts, No. 2; Anderson Decl., ¶2 and Exh. A.) In November 2017, Defendant deposited funds from an unrelated settlement into Pawlik’s client trust account for her future use. (Motion, Separate Statement of Facts, No. 3; Anderson Decl., ¶3 and Exh. A.) Defendant arrived at Plaintiff’s facility on June 29, 2018 and explained that he was Pawlik’s attorney. (Motion, Separate Statement of Facts, No. 5; Anderson Decl., ¶6 and Exh. A.) Pawlik and Plaintiff entered into an admissions agreement whereby she agreed to be solely financially responsible for all fees assessed by Plaintiff. (Motion, Separate Statement of Facts, No. 6; Anderson Decl., ¶8 and Exhs. A-B.) On the same date, Defendant issued a $15,000.00 check on Pawlik’s behalf from her client trust account to Plaintiff. (Motion, Separate Statement of Facts, No. 7; Anderson Decl., ¶¶9-10 and Exhs. A, C.) The check clearly indicates it is drawn from the client trust account. (Motion, Separate Statement of Facts, No. 8; Anderson Decl., ¶10 and Exhs. A, C.) On July 5, 2018, at Pawlik’s request, Defendant stopped payment on the check. (Motion, Separate Statement of Facts, No. 10; Anderson Decl., ¶13 and Exhs. A, C.)

This evidence carries Defendant’s initial burden of proof to demonstrate that he had no obligation under the check to Plaintiff. Specifically, that Defendant was not under “obligation to pay or repay in return for something received.” The services contracted for were solely for, and the responsibility of, Pawlik, such that Defendant was under no obligation to pay for them. The burden now shifts to Plaintiff to demonstrate a basis to hold Defendant liable for the services rendered to Pawlik from June 29, 2018 to July 5, 2018.

In its opposition, Plaintiff contends that Defendant is liable for the obligation to pay the check because it alleges he stopped the check in order to defraud Plaintiff. (Opp., p. 7:5-16.) Plaintiff argues that Defendant was in control of Pawlik and was trying to “foist” her off on Plaintiff, and stopped the funds on the check in order to do so. (Ibid.) Plaintiff cannot rely on this argument in its opposition papers where no such facts are alleged in the Complaint. (Compl., ¶¶5-14.) The pleadings frame the issues for summary judgment and Plaintiff cannot now rely on a new theory of liability to overcome summary judgment. (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Finally, the Court notes that the evidence Plaintiff submits to controvert Defendant’s contention that he was ordered by Pawlik to stop the check, even if it could be considered, is based wholly on Marshall’s speculation that Defendant stopped the check on his own initiative. (Opp., Separate Statement of Facts, No. 10; Marshall Decl., ¶18.) Such speculation is insufficient to create a triable issue of material fact.

Therefore, Defendant Michael D. Anderson’s Motion for Summary Judgment is GRANTED. To the extent Plaintiff asks in opposition for leave to amend the Complaint, such a request must be made pursuant to a noticed motion for leave to amend.

Moving party to give notice.

Case Number: 18CHLC25959    Hearing Date: February 25, 2020    Dept: 26

Dedicato Treatment Ctr., Inc. v. Anderson, et al.

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435-436)

TENTATIVE RULING:

Cross-Defendant Dedicato Treatment Center, Inc., LLC’s Demurrer to the 3rd Cause of Action of the Second Amended Cross-Complaint-in-Intervention is OVERRULED.

The Motion to Strike Portions of the Second Amended Cross-Complaint-in-Intervention is GRANTED WITHOUT LEAVE TO AMEND.

ANALYSIS:

Plaintiff/Cross-Defendant Dedicato Treatment Center, Inc. (hereinafter referred to as “Cross-Defendant”) filed this action against Defendant Michael Anderson (“Defendant”) on September 12, 2019, arising from an insufficient check issued for Cross-Defendant’s drug treatment and addiction services rendered to Lina Pawlik (“Pawlik”).

On July 1, 2019, Pawlik filed a Cross-Complaint-in-Intervention, and then on September 17, 2019, filed a First Amended Cross-Complaint against Cross-Defendant alleging the following causes of action: (1) negligence; (2) intentional infliction of emotional distress; (3) dependent adult abuse and neglect; (4) breach of fiduciary duty; (5) rescission of void contract; and (6) unjust enrichment. On November 13, 2019, the Court ruled on Cross-Defendant’s demurrer and motion to strike the First Amended Cross-Complaint-in-Intervention as follows. By sustaining the demurrer with leave to amend as to the third and sixth causes of action, and overruling the demurrer as to the second, fourth and fifth causes of action. The Court also granted the motion to strike the punitive damages and attorney’s fees allegations and requests.

On December 13, 2019, Pawlik filed the Second Amended Cross-Complaint-in-Intervention alleging the following causes of action: (1) negligence; (2) intentional infliction of emotional distress; (3) dependent adult abuse and neglect; (4) breach of fiduciary duty; and (5) rescission of void contract. On January 14, 2020, Cross-Defendant filed the instant Demurrer and Motion to Strike the Second Amended Cross-Complaint-in-Intervention. Pawlik filed oppositions on February 10, 2020 and Cross-Defendant replied on February 13, 2020.

Meet and Confer Requirement

Counsel for Cross-Defendant declares that on December 17, 2019, he sent a letter setting forth Cross-Defendant’s objections to the third cause of action of the Second Amended Cross-Complainant in Intervention (“SACC in Intervention”). (Schick Decl. ¶ 4; Exh. B.) The letter also explained the basis of Cross-Defendant’s Motion to Strike Portions of the SACC in Intervention. On January 10, 2020, counsel for Cross-Defendant and counsel for Pawlik spoke over the telephone regarding Cross-Defendant’s intent to file a demurrer and motion to strike, but the parties did not reach an agreement. (Id. ¶5.) Therefore, the Court finds Defendant’s attempt to meet and confer compliant with Code of Civil Procedure sections 430.41 and 435.5.

Demurrer to 3rd Cause of Action for Defendant Adult Abuse / Neglect

In order to bring a claim for neglect under the Elder Abuse and Dependent Adult Civil Protection Act,

[t]he plaintiff must allege . . . facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citation] (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citation] and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness).

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406–07.) In ruling on the demurrer to the same cause of action in the First Amended Cross-Complaint-in-Intervention, the Court ruled that Pawlik did not allege what conditions Cross-Defendant knew of that inhibited Pawlik from providing for her own needs, nor how Cross-Defendant failed to meet such needs. The Court found that the First Amended Cross-Complaint-in-Intervention’s conclusory allegation that “CROSSDEFENDANTS denied PAWLIK goods and services necessary to meet PAWLIK’s basic needs, such as food, water, a place to sleep, medical supervision and drug detoxification,” did not factually allege how Cross-Defendant “knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs”. (Citing Carter, supra, at 406-407; FACC in Intervention at ¶33.)

In the SACC in Intervention, Pawlik has alleged additional facts demonstrating what conditions Cross-Defendant knew of that inhibited Pawlik from providing for her own needs. Specifically, Pawlik now alleges that Cross-Defendant’s full evaluation made it aware she was unable to provide for her own basic needs, including basic hygiene, shelter, hydration, nutrition and medical care. (SACC in Intervention, ¶32.) This was evidenced by Pawlik’s condition upon admission: she appeared in soiled clothing, had a foul odor, and needed assistance walking. (Ibid.) Further, allegedly upon Pawlik’s admission to Cross-Defendant’s facility it was apparent she could not take care of herself because she was incontinent and needed constant prompting and assistance to clean herself, shower, change clothes and get around the facility, could not follow basic instructions, and could not remember basic facts. (Ibid.)

Pawlik also alleges additional facts regarding Cross-Defendant’s failure to meet such needs by leaving her in front of Las Encinas Mental Health Hospital in a compromised physical and psychiatric state, with no money and no place to go, and without ensuring that it provided Pawlik with goods and services necessary to meet her basic needs either at its facility or upon successful admission to another facility. (Id. at ¶33.)

The Court finds these facts adequately allege a claim for dependent elder abuse and neglect within the meaning of the statute. Cross-Defendant argues that its conduct in leaving Pawlik outside Las Encinas Mental Health Hospital instead of walking her inside cannot amount to dependent elder abuse and neglect because it transported her to the hospital for the obvious purpose of medical treatment Cross-Defendant could not provide. This argument seeks to interject facts into the SACC in Intervention that are not alleged therein, specifically, that Cross-Defendant’s dropping Pawlik off in front of Las Encinas Mental Health Hospital amounted to transportation to that facility and that it did so to provide medical care. This is the same argument previously made in the demurrer to the FACC in Intervention and addressed by the Court in its November 13, 2019 ruling. Cross-Defendant cannot transform the allegation that it discharged, dumped, and abandoned Pawlik into an allegation of “transportation.”

The demurrer to the third cause of action for dependent elder abuse and neglect is OVERRULED.

Motion to Strike Punitive Damages and Attorneys’ Fees

Cross-Defendant again moves the Court to strike Cross-Complainant’s request for punitive damages from on the ground that Cross-Complainant has not alleged, and cannot allege oppressive, fraudulent, or malicious conduct. Cross-Defendant also seeks to strike the request for attorney’s fees brought under Cross-Complainant’s Elder Abuse claim.

In opposition, Pawlik again argues that the SACC in Intervention sufficiently alleges that Cross-Defendant acted with a conscious disregard for the “rights, health, and safety of [Cross-Complainant]” by “(2) forcefully removing PAWLIK from the DEDICATO facility without her consent; (3) dropping PAWLIK off in front of Las Encinas Mental Health Hospital, without any money or place to go, and in physical and emotional distress . . .” The Court agrees that these allegations show a conscious disregard for Pawlik’s rights, health and safety and that such alleged conduct was despicable given her inability to care for her own basic needs, as detailed above. (See SACC in Intervention, ¶¶ 32-33.)

The Court, however, pointed out in its November 13, 2019 ruling that such allegations are made against a corporate employer and therefore must allege “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice” on behalf of an officer, director, or managing agent of Cross-Defendant as required under Civil Code section 3294, subdivision (b). The only allegations of corporate involvement is the reiterated claim that “The wrongful conduct described above was known to, was ratified, and/or authorized by Dr. Keith L. Marshall, the CEO and Clinical Director of DEDICATO.” (SACC in Intervention, ¶¶17, 24, 28, 38, 45.) This conclusory statement is an insufficient allegation of facts to show advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice” on behalf of an officer, director, or managing agent of Cross-Defendant. No facts are alleged regarding the degree of Marshall’s knowledge or involvement in the admission and treatment of Pawlik. No facts are alleged from which it can be discerned that Marshall was even aware of Pawlik’s admission and treatment at Cross-Defendant’s facility. The allegations, therefore, remain insufficient to support a claim for punitive damages.

Finally, as previously noted, the request for attorney’s fees request made under Elder Abuse, Welfare & Institutions Code § 15657(c) provides that “The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.”

For the foregoing reasons, and based on Pawlik’s opportunity to amend, the motion to strike is GRANTED WITHOUT LEAVE TO AMEND.

Moving party to give notice.

Case Number: 18CHLC25959    Hearing Date: November 13, 2019    Dept: 94

Dedicato Treatment Ctr., Inc. v. Anderson

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435-436)

TENTATIVE RULING:

The Demurrer to the 3rd Cause of Action is SUSTAINED WITH LEAVE TO AMEND. The Demurrer to the 6th Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND. The demurrer to the 2nd, 4th and 5th Causes of Action is OVERRULED. The Motion to Strike is GRANTED WITH LEAVE TO AMEND.

ANALYSIS:

I. Background

Plaintiff/Cross-Defendant Dedicato Treatment Center, Inc. (hereinafter referred to as “Cross-Defendant”) filed this action against Defendant Michael Anderson (“Defendant”) on September 12, 2019, arising from an insufficient check issued for Cross-Defendant’s services rendered to Lina Pawlik.

On July 1, 2019, Linda Pawlik filed a Cross-Complaint-in-Intervention, and then on September 17, 2019, filed a First Amended Cross-Complaint against Cross-Defendant alleging the following causes of action:

  1. negligence;

  2. intentional infliction of emotional distress;

  3. dependent adult abuse and neglect;

  4. breach of fiduciary duty;

  5. rescission of void contract;

  6. unjust enrichment.

II. Demurrer

A. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers.”) A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) If the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

B. Analysis

1. Meet and Confer

Counsel for Cross-Defendant declares that on September 23, 2019, he sent a letter setting forth Cross-Defendant’s objections to the 2nd through 6th Causes of Action of the First Amended Cross-Complainant (“FACC”). (Smith Decl. ¶ 4; Exh. A.) On October 4, 2019, counsel for Plaintiff and counsel for Defendant spoke over the telephone regarding Defendant’s intent to file a demurrer, and the parties did not reach an agreement. (Id. ¶ 5.) The Court finds Defendant’s attempt to meet and confer compliant with Code Civ. Proc. § 430.41.

2. 2nd Cause of Action: Intentional Infliction of Emotional Distress

“A cause of action for intentional in¿iction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to in¿ict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.)

The FACC alleges that Cross-Defendant engaged in various acts which constitute intentional inflictions of emotional distress:

  1. DEDICATO’s representation that they would treat PAWLIK without having any intention of doing so; (2) forcefully removing PAWLIK from the DEDICATO facility without her consent; (3) dropping PAWLIK off in front of Las Encinas Mental Health Hospital, without any money or place to go, and in physical and emotional distress; (4) leaving PAWLIK essentially homeless, requiring her to ask a friend to rent her a hotel room so she would not sleep on the street that night; and (5) refusing to refund the $15,000 paid for 30 days of treatment despite refusing to provide the promised treatment.

    (FACC ¶ 26.)

Here, the FACC that Cross-Complainant “was injured and hurt in her health, strength and activity, sustaining serious personal injuries to his [sic] body and suffered extreme humiliation and emotional distress all of which have required medical care and treatment.” (FACC ¶ 27.) Cross-Defendant provides no authority in support of its argument that an allegation of injury in the form of “extreme humiliation” is insufficient to withstand demurrer. The FACC factually alleges that Cross-Complainant was “discharg[ed], dump[ed] and abandon[ed] . . . in front of Las Encinas Mental Health Hospital, in a compromised psychiatric condition,” and a s result suffered “extreme humiliation.” (FACC ¶¶ 22-23.)

As to Defendant’s argument that the conduct was not outrageous, Defendant submits no authority that “discharging, dumping and abandoning of PAWLIK in front of Las Encinas Mental Health Hospital, in a compromised psychiatric condition” despite representing to Cross-Complainant that she “qualified and would be treated at the DEDICATO facility for a period of thirty (30) days” cannot constitute outrageous conduct. (FACC ¶¶ 14, 22.) “Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144, 160, 176.) Cross-Defendant provides no authority that such conduct cannot be outrageous as a matter of law.

The demurrer to the 2nd Cause of Action is OVERRULED.

3. 3rd Cause of Action: Dependent Adult Abuse and Neglect

In order to bring a claim for neglect under the Elder Abuse and Dependent Adult Civil Protection Act,

[t]he plaintiff must allege . . . facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citation] (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citation] and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness).

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406–07.

Defendant argues that the FACC fails to factually allege neglect under the Elder Abuse Act.

Specifically, the FACC alleges that Defendant engaged in neglect of Cross-Complainant by “discharging, dumping and abandoning PAWLIK in front of Las Encinas Mental Health Hospital, in a compromised psychiatric condition, with no place to go, in a compromised psychiatric condition . . .”

Defendant contends that no authority exists for the argument that a defendant committed neglect by transferring a patient to different facility. However, the FACC does not allege that Defendant transferred Cross-Complainant to another facility. The FACC alleges that Cross-Complainant “discharge[ed], dump[ed] and abandon[ed] PAWLIK in front of Las Encinas Mental Health Hospital.” (FACC ¶ 33.)

Nevertheless, similar to the 2nd Cause of Action, the FACC is conclusory. The FACC does not allege what conditions Cross-Defendant knew of that inhibited Cross-Complainant from providing for her own needs, nor how Defendant failed to meet such needs. The FACC merely alleges that “CROSSDEFENDANTS denied PAWLIK goods and services necessary to meet PAWLIK’s basic needs, such as food, water, a place to sleep, medical supervision and drug detoxification,” but does not factually allege how Cross-Defendant “knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs. (Carter supra at 406-407; FACC ¶ 33.)

However, the FACC alleges that Cross-Defendant represented to Cross-Complainant that she “qualified and would be treated at the DEDICATO facility for a period of thirty (30) days for treatment of her “alcohol and drug dependencies.” (FACC ¶¶ 9, 14.) In light of the probability of a successful factual amendment to the 3rd Cause of Action, the demurrer to the 3rd Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

4. 4th Cause of Action: Breach of Fiduciary Duty

“Breach of ¿duciary duty is a tort that by de¿nition may be committed by only a limited class of persons.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 592.) “A ¿duciary 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 bene¿t of the other party. Such a relation ordinarily arises where a con¿dence is reposed by one person in the integrity of another, and in

such a relation the party in whom the con¿dence is reposed, if he voluntarily accepts or assumes to accept the con¿dence, 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.)

“The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.”

(Gutierrez v. Girardi (2011) 194 Cal. App. 4th 925, 932.)

The FACC alleges that “PAWLIK’s “care custodian” within the meaning of California Health and Safety Code § 15610.17, and by way of their special relationship with PAWLIK, CROSS-DEFENDANTS owed PAWLIK a fiduciary duty with all of the rights, duties and obligations attendant thereto.” (FACC ¶ 42.)

Section 15610.17 provides a list of agencies and entities which constitute a “care custodian.” Defendant does not argue that it is not a care custodian pursuant to the statutory definition of § 15610.17. However, Defendant argues that § 15610.17 does not state that a care custodian owes a fiduciary duty to those in its care. “DEDICATO's duty was limited to exercising reasonable care in providing PAWLIK with the appropriate care.” (Demurrer 8:7-8.)

In opposition, Plaintiff cites to Estate of Odian (2006) 145 Cal.App.4th 152, where the court noted that “care custodians” as defined under § 15610.17 were added to former Probate Code § 21350 “for the purpose of preventing ‘unscrupulous persons in fiduciary relationships from obtaining gifts from elderly persons through undue influence or other overbearing behavior[,]’ the court determined that the underlying problem the Legislature sought to remedy by amending section 21350(a) to add care custodians to the list of presumptively barred transferees was that ‘care custodians are often working alone and in a position to take advantage of the person they are caring for.’” (Id. at p. 166)

Cross-Complainant unavailingly argues that a demurrer is improper for resolution of this matter as “[w]hether a fiduciary duty exists is generally a question of law. (Marzec v. California Pub. Employees Ret. Sys. (2015) 236 Cal. App. 4th 889, 915.) However, Cross-Complainant has alleged that a fiduciary arose between Cross-Defendant and herself based upon Cross-Defendant’s role as a care custodian, and has provided authority for such proposition. Cross-Defendant provides no authority in support of its contention that Cross-Defendant “alcohol treatment and residential care facility” owes its patients no fiduciary duty. (FACC ¶ 8.)

The demurrer to the 4th Cause of Action is OVERRULED.

5. 5th Cause of Action: Rescission of a Void Contract

Civil Code § 1689 provides that a party to a contract may rescind the contract: “(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party[, and] (2) If the consideration for the obligation of the rescinding party fails, in whole or in part, through the fault of the party as to whom he rescinds . . .”

Civil Code § 1691 provides that “to effect a rescission a party to the contract must, promptly upon discovering the facts which entitle him to rescind if he is free from duress, menace, undue influence or disability and is aware of his right to rescind: (a) Give notice of rescission to the party as to whom he rescinds . . .”

Cross-Defendant contends that Cross-Complainant seeks to rescind the contract on the “basis that PAWLIK lacked the mental capacity to contract.” (Demurrer 8:25-26.) Specifically, the FACC alleges that “[a]t the time PAWLIK and CROSS-DEFENDANTS entered into the Contract, PAWLIK was substantially unable to resist fraud or undue influence.” (FACC ¶ 50.)

First, Cross-Defendant argues that Cross-Complainant failed to attach a copy of the written contract or state the terms of the contract verbatim. However, “a plaintiff may plead the legal effect of the contract rather than its precise language.” (Miles v. Deutsche Bank Nat'l Tr. Co. (2015) 236 Cal. App. 4th 394, 402.) Such effect is pled into the FACC. (FACC ¶ 12.)

Second, Cross-Defendant argues that Cross-Complainant waived her right to rescission by “waiting about a year to provide DEDICATO with notice of rescission.” (Demurrer 9:2-3.) However, Cross-Defendant seeks to raise an evidentiary argument. When Cross-Complainant “discover[ed] the facts which entitle [her] to rescind” the agreement is a factual issue improper for resolution at this stage in the proceedings.

Third, Cross-Defendant argues that Cross-Complainant failed to restore the value of the four days of treatment Cross-Complainant received. However, the FACC clearly alleges that “PAWLIK made an offer to pay a pro-rata daily amount of $500 for the three (3) days she stayed at DEDICATO’s facility, for a total sum of $1,500. DEDICATO rejected PAWLIK’s offer.” (FACC ¶ 51.) “PAWLIK has restored, or offered to restore, to CROSS-DEFENDANTS everything of value received from CROSS-DEFENDANTS.” (FACC ¶ 52.)

In light of the foregoing, the demurrer to the 5th Cause of Action is OVERRULED.

6. 6th Cause of Action: Unjust Enrichment

“Unjust enrichment is not a cause of action, just a restitution claim.” (Hill v. Roll Internat. Corp. (2011) 195 Cal. App. 4th 1295, 1307.)

First, as stated above, unjust enrichment is not a cause of action. Second, there are no grounds for this claim. The FACC alleges that “If DEDICATO is awarded the entire sum of $15,000, CROSS-DEFENDANTS will be unjustly enriched by an amount to be determined according to proof at trial.” The FACC fails to allege that Cross-Defendant has received and is currently retaining any benefit at Cross-Complainant’s detriment.

The demurrer to the 6th Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND.

III. Motion to Strike

A. Legal Standard

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228-1229. Civil Code section 3294 provides punitive damages are available in non-contract actions where defendant is guilty of malice, oppression, or fraud, defined as follows:

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Civil Code § 3294(b) provides that “[w]ith 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.

B. Discussion

Cross-Defendant moves the Court to strike Cross-Complainant’s request for punitive damages from the FACC on the ground that Cross-Complainant has not alleged, and cannot allege oppressive, fraudulent, or malicious conduct. Cross-Defendant also seeks to strike the request for attorney’s fees brought under Cross-Complainant’s Elder Abuse claim.

Cross-Complainant argues that the FACC sufficiently alleges that Cross-Defendant acted with a conscious disregard for the “rights, health, and safety of [Cross-Complainant]” by “(2) forcefully removing PAWLIK from the DEDICATO facility without her consent; (3) dropping PAWLIK off in front of Las Encinas Mental Health Hospital, without any money or place to go, and in physical and emotional distress . . .”

However, such allegations are made against a corporate employer. Nowhere in the FACC has Cross-Complainant alleged “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice” was on behalf of an officer, director, or managing agent of Cross-Defendant as required under Civil Code § 3294(b).

As to Cross-Complainant’s Attorney’s fees request made under her Elder Abuse, Welfare & Institutions Code § 15657(c) provides that “The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.”

Therefore, the motion to strike punitive damages is GRANTED WITH LEAVE TO AMEND.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.