This case was last updated from Los Angeles County Superior Courts on 06/11/2019 at 00:16:04 (UTC).

RANDY MCCLOUD VS SOUTHERN CALIFORNIA HOSPITAL AT CULVER CITY

Case Summary

On 11/09/2016 RANDY MCCLOUD filed a Personal Injury - Medical Malpractice lawsuit against SOUTHERN CALIFORNIA HOSPITAL AT CULVER CITY. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judges overseeing this case are NANCY L. NEWMAN and CRAIG D. KARLAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0041

  • Filing Date:

    11/09/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

NANCY L. NEWMAN

CRAIG D. KARLAN

 

Party Details

Petitioner, Plaintiff and Minor

MCCLOUD RANDY

Defendants and Respondents

SOUTHERN CALIFORNIA HOSPITAL AT CULVER

BRENT DALE M.D.

FOUCHE KIM M.D.

PROSPECT MEDICAL HOLDINGS INC.

BLECHMAN BETSY E. M.D.

BESSER EDUARDO M.D.

BOSE SAWARJ M.D.

BIJANPOUR KAMAL M.D.

GOODWIN LAWRENCE JR. M.D.

DOES 1-50

BESSER M.D. EDUARDO

BRENT M.D. DALE

SOUTHERN CALIFORNIA HOSPITAL AT C.C.

BLECHMAN M.D. BETSY E.

FOUCHE M.D. KIM

SOUTHERN CALIFORNIA HEALTHCARE SYSTEM

BIJANPOUR M.D. KAMAL

Guardian Ad Litem

MCCLOUD VIOLA

Attorney/Law Firm Details

Petitioner, Plaintiff and Minor Attorneys

PURCELL BYRON MICHAEL ESQ.

BRACY ALLISON R.

PURCELL BYRON

NAVARRO JULIO C.

Defendant Attorneys

AITELLI JOHN ESQ.

KJAR MCKENNA STOCKALPER

REBACK MCANDREWS KJAR WARFORD STOCKAPLER

FRASER WATSON & CROUTCH

WETKOWSKI MELISSA MARIE

SANCHEZ BRANDON S.

AITELLI JOHN

SANCHEZ BRANDON SPRAGUE

DUMMIT CRAIG S.

DUMMIT CRAIG STEPHEN

CALDERWOOD STEVEN FARRELL

DUMMIT CRAIG S

WETKOWSKI MELISSA M.

REBACK ROBERT CARL ESQ.

 

Court Documents

APPLICATION TO VACATE FINAL STATUS CONFERENCE, TRIAL AND ALL ASSOCIATED STATUTORY CUTOFF DATES AND SET A MANDATORY STATUS CONFERENCE OR, IN THE ALTERNATIVE, TO CONTINUE THE FINAL STATUS CONFERENCE, TR

3/26/2018: APPLICATION TO VACATE FINAL STATUS CONFERENCE, TRIAL AND ALL ASSOCIATED STATUTORY CUTOFF DATES AND SET A MANDATORY STATUS CONFERENCE OR, IN THE ALTERNATIVE, TO CONTINUE THE FINAL STATUS CONFERENCE, TR

NOTICE OF RULING

3/27/2018: NOTICE OF RULING

PROOF OF SERVICE RE: FIRST AMENDED COMPLAINT; NOTICE OF CASE ASSIGNMENT; NOTICE RE: CONTINUANCE OF HEARING; LETTERS OF CONSERVATORSHIP; FOURTH AMENDED GENERAL ORDER. FINAL STATUS CONFERENCE, PERSONAL

4/12/2018: PROOF OF SERVICE RE: FIRST AMENDED COMPLAINT; NOTICE OF CASE ASSIGNMENT; NOTICE RE: CONTINUANCE OF HEARING; LETTERS OF CONSERVATORSHIP; FOURTH AMENDED GENERAL ORDER. FINAL STATUS CONFERENCE, PERSONAL

Unknown

4/18/2018: Unknown

DEFENDANT, PROSPECT MEDICAL HOLDINGS, INC.'S STATEMENT OF PLAINTIFF'S NON-OPPOSITION TO DEFENDANT, PROSPECT MEDICAL HOLDINGS, INC.'S MOTION TO STRIKE TO PLAINTIFF'S FIRST AMENDED COMPLAINT

6/12/2018: DEFENDANT, PROSPECT MEDICAL HOLDINGS, INC.'S STATEMENT OF PLAINTIFF'S NON-OPPOSITION TO DEFENDANT, PROSPECT MEDICAL HOLDINGS, INC.'S MOTION TO STRIKE TO PLAINTIFF'S FIRST AMENDED COMPLAINT

REQUEST FOR DISMISSAL

6/15/2018: REQUEST FOR DISMISSAL

Unknown

7/3/2018: Unknown

Unknown

7/3/2018: Unknown

Unknown

7/26/2018: Unknown

Order

8/2/2018: Order

Minute Order

8/9/2018: Minute Order

Case Management Statement

9/7/2018: Case Management Statement

Case Management Statement

9/20/2018: Case Management Statement

Minute Order

9/25/2018: Minute Order

Case Management Statement

11/29/2018: Case Management Statement

Motion to Strike (not initial pleading)

2/13/2019: Motion to Strike (not initial pleading)

Case Management Statement

2/26/2019: Case Management Statement

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

6/19/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

79 More Documents Available

 

Docket Entries

  • 03/05/2019
  • Notice of Ruling; Filed by PROSPECT MEDICAL HOLDINGS, INC. (Defendant); Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City Erroneously Sued As SOUTHERN CALIFORNIA HEALTHCARE SYSTEM (Defendant); Southern California Hospital at C

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  • 03/04/2019
  • at 08:30 AM in Department N, Craig D. Karlan, Presiding; Case Management Conference - Held - Continued

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  • 03/04/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 02/27/2019
  • Case Management Statement; Filed by Kamal,M.D. Bijanpour (Defendant)

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  • 02/26/2019
  • Case Management Statement; Filed by Kim, M.D. Fouche (Defendant)

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  • 02/26/2019
  • Case Management Statement; Filed by PROSPECT MEDICAL HOLDINGS, INC. (Defendant); Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City Erroneously Sued As SOUTHERN CALIFORNIA HEALTHCARE SYSTEM (Defendant)

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  • 02/13/2019
  • Demurrer - with Motion to Strike (CCP 430.10); Filed by Kamal,M.D. Bijanpour (Defendant)

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  • 02/13/2019
  • Motion to Strike (not initial pleading); Filed by Kamal,M.D. Bijanpour (Defendant)

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  • 01/17/2019
  • DEFENDANTS PROSPECT MEDICAL HOLDINGS, INC. AND SOUTHERN CALIFORNIA HEALTHCARE SYSTEM, INC. DBA SOUTHERN CALIFORNIA HOSPITAL AT CULVER CITY?S MOTION TO STRIKE...; Filed by PROSPECT MEDICAL HOLDINGS, INC. (Defendant); Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City Erroneously Sued As SOUTHERN CALIFORNIA HEALTHCARE SYSTEM (Defendant)

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  • 01/17/2019
  • DEMURRER OF DEFENDANTS, PROSPECT MEDICAL HOLDINGS, INC. AND SOUTHERN CALIFORNIA HEALTHCARE SYSTEM, INC. DBA SOUTHERN CALIFORNIA HOSPITAL AT CULVER CITY TO PLAINTIFF?S SECOND AMENDED COMPLAINT...; Filed by PROSPECT MEDICAL HOLDINGS, INC. (Defendant); Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City Erroneously Sued As SOUTHERN CALIFORNIA HEALTHCARE SYSTEM (Defendant)

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178 More Docket Entries
  • 10/10/2017
  • FIRST AMENDED SUMMONS

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  • 10/10/2017
  • First Amended Complaint; Filed by Plaintiff/Petitioner

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  • 10/10/2017
  • Summons; Filed by Plaintiff/Petitioner

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  • 10/10/2017
  • FIRST AMENDED COMPLAINT FOR DAMAGES: 1. PROFESSIONAL NEGLIGENCE 2. ELDER ABUSE

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  • 06/21/2017
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 06/19/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 06/19/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 11/09/2016
  • Complaint Filed

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  • 11/09/2016
  • COMPLAINT FOR DAMAGES: 1. PROFESSIONAL NEGLIGENCE 2. ELDER ABUSE

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  • 11/09/2016
  • Complaint; Filed by null

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Tentative Rulings

Case Number: BC640041    Hearing Date: July 15, 2020    Dept: N

TENTATIVE RULING

Defendants Prospect Medical Holdings, Inc. and Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City’s Demurrer to Plaintiff’s Third Amended Complaint is OVERRULED. 

Defendants Prospect Medical Holdings, Inc. and Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City’s Motion to Strike Portions of Plaintiff’s Third Amended Complaint is DENIED.

Defendant Kamal Bijanpour, M.D.’s Demurrer to Third Amended Complaint is OVERRULED. 

Defendant Kamal Bijanpour, M.D.’s Motion to Strike Portions of Plaintiff’s Third Amended Complaint is DENIED.

Defendants shall file and serve an answer to the Third Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Moving parties to give notice. 

REASONING

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency(2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrers

Second Cause of Action: Dependent Adult Abuse

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) provides for steep penalties against those who abuse an elder or a dependent adult. Dependent adult abuse includes physical abuse, neglect, isolation, deprivation by a care custodian of necessary goods or services, and financial abuse. (Welf. & Inst. Code, § 15610.07, subd. (a).) Neglect includes failure to assist in personal hygiene, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards. (Welf. & Inst. Code, § 15610.57, subd. (b).) 

[S]everal factors [] must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) 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; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, citations omitted.) 

In the September 4, 2019, minute order, the Court sustained a demurrer to this cause of action, with leave to amend, on the ground that Plaintiff had alleged no specific facts against each Defendant, as he instead relied on a general use of “Defendants” in the allegations contained within this claim. Plaintiff was required to “set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608), but he had failed to do so by simply alleging that the Defendants committed actions that constituted abuse or neglect and how each defendant failed to provide medical services, as compared to a negligence claim which relates to the undertaking of medical services. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)

Upon amending the complaint, Plaintiff now describes the specific role of each Defendant. He alleges Defendant Kamal Bijanpour, M.D., was Plaintiff’s admitting doctor and “care custodian,” but he failed to ensure that Plaintiff was moved to a different facility or that a consultation was promptly scheduled so Plaintiff could receive the proper medical care to address his eye injury. (Third Am. Compl. ¶¶ 78-83.) As to Defendants Prospect Medical Holdings, Inc., and Southern California Healthcare System, Inc., dba Southern California Hospital at Culver City, Plaintiff alleges they assumed care and custody of Plaintiff and were aware he was more vulnerable than other members of the public due to his physical and mental limitations, but failed to ensure that Plaintiff was moved to a different facility or that a consultation was promptly scheduled so that Plaintiff could receive the proper medical care to address his eye injury. (Third Am. Compl. ¶¶ 94-97.) 

The Court finds that the facts set forth in the Third Amended Complaint sufficiently rise to the level of abuse or neglect, particularly because Plaintiff alleges that a physician examined his eye the day after his injury, the physician noticed blood in the canthus area but did not believe further treatment was necessary and sought no such treatment, another employee noticed bleeding the same day, and Plaintiff was transported to the emergency room for an apparent ruptured globe secondary to right ocular trauma at 8:00 p.m. that day, but Plaintiff was not timely or sufficiently treated. (Third Am. Compl. ¶¶ 18-21.) Plaintiff’s eye was observed, examined, and treated with application of a metal eye patch, an ophthalmology consult was ordered but did not take place, Plaintiff was discharged from the emergency room and admitted to Southern California Hospital at Culver City, he was diagnosed with a contusion of the eye ball, and he was not transferred for an ophthalmologist consult until four days after the initial injury. (Third Am. Compl. ¶¶ 21-36.)

These facts allege negligence in the rendering of medical services, but they also allege neglect and failure to meet the applicable standard of care, as the treatment was excessively slow, examination was insufficient, and it took four days for Plaintiff to receive care in an emergent situation. Indeed, when Plaintiff was finally examined by an ophthalmologist, again, four days after his initial injury, emergency surgery was ordered to repair Plaintiff’s ruptured right great globe, and Plaintiff lost his vision as a result of this injury. (Third Am. Compl. ¶¶ 36-38.) 

Notably, Plaintiff was subject to a 5150 psychiatric hold during this period and Defendants were aware of their responsibility to provide Plaintiff with basic care because he could not sufficiently advocate for himself. (Third Am. Compl. ¶¶ 17, 25, 62.) For the purpose of pleading, Defendants failed in this regard, delaying their treatment in such a manner that resulted in vision loss to Plaintiff. These facts go beyond mere negligence and sufficiently allege a claim for dependent adult abuse. As such, the demurrers to the second cause of action are OVERRULED.

Motion to Strike

An award of attorney’s fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).) Plaintiff’s request for attorney’s fees arises out of his dependent abuse claim pursuant to Welfare and Institutions Code section 15657. Subdivision (a) of Welfare and Institutions Code section 15657 states that “[t]he court shall award to the plaintiff reasonable attorney’s fees and costs” where the plaintiff proves liability for specified physical abuse and neglect, including neglect under Welfare and Institutions Code section 15610.57. Accordingly, Defendants’ motions to strike the request for attorney’s fees are DENIED.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

The Court finds that Plaintiff has sufficiently set forth facts supporting an award of punitive damages, as the facts sufficiently allege that Defendants willfully disregarded Plaintiff’s care, understaffed the facility, and recklessly caused Plaintiff to be injured. As the Court stated above, Plaintiff has alleged dependent adult neglect by these defendants in failing to properly treat his eye injury, going beyond mere professional negligence, and the facts alleged rise to the level of malice or oppression, as Defendants operated with a willful and conscious disregard of Plaintiff’s rights and safety by failing to sufficiently examine and treat his eye injury for four days while he was under a 5150 psychiatric hold. As such, Defendants’ motions to strike the request for punitive damages are DENIED.

Defendants also move to strike certain portions of the Third Amended Complaint. Defendants reference certain portions of the Third Amended Complaint which they believe should be stricken as “irrelevant and conclusory,” without identifying which portions qualify as such, and without providing argument as to why any portions are irrelevant and conclusory, instead providing only a conclusory statement to that effect. (See Cal. Rules of Court, rule 3.1113(b) [memorandum in support of motion must contain “arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced”].) Therefore, in all other respects, Defendants’ motions to strike are DENIED.

Defendants shall file and serve their answers to the Third Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Case Number: BC640041    Hearing Date: July 10, 2020    Dept: N

TENTATIVE RULING

Defendants Prospect Medical Holdings, Inc. and Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City’s Demurrer to Plaintiff’s Third Amended Complaint is OVERRULED. 

Defendants Prospect Medical Holdings, Inc. and Southern California Healthcare System, Inc. dba Southern California Hospital at Culver City’s Motion to Strike Portions of Plaintiff’s Third Amended Complaint is DENIED.

Defendant Kamal Bijanpour, M.D.’s Demurrer to Third Amended Complaint is OVERRULED. 

Defendant Kamal Bijanpour, M.D.’s Motion to Strike Portions of Plaintiff’s Third Amended Complaint is DENIED.

Defendants shall file and serve an answer to the Third Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Moving parties to give notice. 

REASONING

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency(2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrers

Second Cause of Action: Dependent Adult Abuse

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) provides for steep penalties against those who abuse an elder or a dependent adult. Dependent adult abuse includes physical abuse, neglect, isolation, deprivation by a care custodian of necessary goods or services, and financial abuse. (Welf. & Inst. Code, § 15610.07, subd. (a).) Neglect includes failure to assist in personal hygiene, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards. (Welf. & Inst. Code, § 15610.57, subd. (b).) 

[S]everal factors [] must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) 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; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, citations omitted.) 

In the September 4, 2019, minute order, the Court sustained a demurrer to this cause of action, with leave to amend, on the ground that Plaintiff had alleged no specific facts against each Defendant, as he instead relied on a general use of “Defendants” in the allegations contained within this claim. Plaintiff was required to “set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608), but he had failed to do so by simply alleging that the Defendants committed actions that constituted abuse or neglect and how each defendant failed to provide medical services, as compared to a negligence claim which relates to the undertaking of medical services. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)

Upon amending the complaint, Plaintiff now describes the specific role of each Defendant. He alleges Defendant Kamal Bijanpour, M.D., was Plaintiff’s admitting doctor and “care custodian,” but he failed to ensure that Plaintiff was moved to a different facility or that a consultation was promptly scheduled so Plaintiff could receive the proper medical care to address his eye injury. (Third Am. Compl. ¶¶ 78-83.) As to Defendants Prospect Medical Holdings, Inc., and Southern California Healthcare System, Inc., dba Southern California Hospital at Culver City, Plaintiff alleges they assumed care and custody of Plaintiff and were aware he was more vulnerable than other members of the public due to his physical and mental limitations, but failed to ensure that Plaintiff was moved to a different facility or that a consultation was promptly scheduled so that Plaintiff could receive the proper medical care to address his eye injury. (Third Am. Compl. ¶¶ 94-97.) 

The Court finds that the facts set forth in the Third Amended Complaint sufficiently rise to the level of abuse or neglect, particularly because Plaintiff alleges that a physician examined his eye the day after his injury, the physician noticed blood in the canthus area but did not believe further treatment was necessary and sought no such treatment, another employee noticed bleeding the same day, and Plaintiff was transported to the emergency room for an apparent ruptured globe secondary to right ocular trauma at 8:00 p.m. that day, but Plaintiff was not timely or sufficiently treated. (Third Am. Compl. ¶¶ 18-21.) Plaintiff’s eye was observed, examined, and treated with application of a metal eye patch, an ophthalmology consult was ordered but did not take place, Plaintiff was discharged from the emergency room and admitted to Southern California Hospital at Culver City, he was diagnosed with a contusion of the eye ball, and he was not transferred for an ophthalmologist consult until four days after the initial injury. (Third Am. Compl. ¶¶ 21-36.)

These facts allege negligence in the rendering of medical services, but they also allege neglect and failure to meet the applicable standard of care, as the treatment was excessively slow, examination was insufficient, and it took four days for Plaintiff to receive care in an emergent situation. Indeed, when Plaintiff was finally examined by an ophthalmologist, again, four days after his initial injury, emergency surgery was ordered to repair Plaintiff’s ruptured right great globe, and Plaintiff lost his vision as a result of this injury. (Third Am. Compl. ¶¶ 36-38.) 

Notably, Plaintiff was subject to a 5150 psychiatric hold during this period and Defendants were aware of their responsibility to provide Plaintiff with basic care because he could not sufficiently advocate for himself. (Third Am. Compl. ¶¶ 17, 25, 62.) For the purpose of pleading, Defendants failed in this regard, delaying their treatment in such a manner that resulted in vision loss to Plaintiff. These facts go beyond mere negligence and sufficiently allege a claim for dependent adult abuse. As such, the demurrers to the second cause of action are OVERRULED.

Motion to Strike

An award of attorney’s fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).) Plaintiff’s request for attorney’s fees arises out of his dependent abuse claim pursuant to Welfare and Institutions Code section 15657. Subdivision (a) of Welfare and Institutions Code section 15657 states that “[t]he court shall award to the plaintiff reasonable attorney’s fees and costs” where the plaintiff proves liability for specified physical abuse and neglect, including neglect under Welfare and Institutions Code section 15610.57. Accordingly, Defendants’ motions to strike the request for attorney’s fees are DENIED.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

The Court finds that Plaintiff has sufficiently set forth facts supporting an award of punitive damages, as the facts sufficiently allege that Defendants willfully disregarded Plaintiff’s care, understaffed the facility, and recklessly caused Plaintiff to be injured. As the Court stated above, Plaintiff has alleged dependent adult neglect by these defendants in failing to properly treat his eye injury, going beyond mere professional negligence, and the facts alleged rise to the level of malice or oppression, as Defendants operated with a willful and conscious disregard of Plaintiff’s rights and safety by failing to sufficiently examine and treat his eye injury for four days while he was under a 5150 psychiatric hold. As such, Defendants’ motions to strike the request for punitive damages are DENIED.

Defendants also move to strike certain portions of the Third Amended Complaint. Defendants reference certain portions of the Third Amended Complaint which they believe should be stricken as “irrelevant and conclusory,” without identifying which portions qualify as such, and without providing argument as to why any portions are irrelevant and conclusory, instead providing only a conclusory statement to that effect. (See Cal. Rules of Court, rule 3.1113(b) [memorandum in support of motion must contain “arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced”].) Therefore, in all other respects, Defendants’ motions to strike are DENIED.

Defendants shall file and serve their answers to the Third Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

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