This case was last updated from Los Angeles County Superior Courts on 06/18/2019 at 22:29:12 (UTC).

ALEXANDER CORDOVA VS SILVER LAKE MEDICAL CENTER ET AL

Case Summary

On 07/13/2017 ALEXANDER CORDOVA filed a Personal Injury - Medical Malpractice lawsuit against SILVER LAKE MEDICAL CENTER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM D. STEWART and GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8462

  • Filing Date:

    07/13/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM D. STEWART

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

CORDOVA ALEXANDER

Defendants and Respondents

KHANKHANIAN MOEZ M.D.

SUCCESS HEALTHCARE 1

SILVER LAKE MEDICAL CENTER

DOES 1 TO 20

OFOEGBU KINGSLEY MD

SLMC INC

DALE BRENT J. M.D.

Other

ALDERLAW PC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LEIB DANIEL C. ESQ.

GLOTZER JOSHUA W. ESQ.

ALDER C MICHAEL

LIEB DANIEL C.

GLOTZER JOSHUA WILLIAM ESQ.

Defendant and Respondent Attorneys

MCKENNA ROBERT L. III. ESQ.

PAPPAS LOUIS W. ESQ.

WEISS DAVID J. ESQ.

PAPPAS LOUIS WILLIAM

SCHAFER TERRENCE JOSEPH

WEISS DAVID JAY ESQ.

PAPPAS LOUIS WILLIAM ESQ.

JONAS ALESSA RUTH

 

Court Documents

COURT ORDER RE TRANSFER OF COMPLICATED PERSONAL INJURY CASE TO INDEPENDENT CALENDAR COURT

8/27/2018: COURT ORDER RE TRANSFER OF COMPLICATED PERSONAL INJURY CASE TO INDEPENDENT CALENDAR COURT

Motion for Summary Judgment

10/12/2018: Motion for Summary Judgment

Notice of Posting of Jury Fees

11/8/2018: Notice of Posting of Jury Fees

Notice of Stay of Proceedings

11/14/2018: Notice of Stay of Proceedings

Notice of Ruling

1/4/2019: Notice of Ruling

Notice

2/5/2019: Notice

Case Management Statement

2/20/2019: Case Management Statement

Request for Judicial Notice

5/1/2019: Request for Judicial Notice

Ex Parte Application

5/21/2019: Ex Parte Application

Notice of Ruling

5/22/2019: Notice of Ruling

Declaration

6/3/2019: Declaration

Notice

6/4/2019: Notice

NOTICE OF CHANGE OF ADDRESS

3/2/2018: NOTICE OF CHANGE OF ADDRESS

Unknown

7/13/2018: Unknown

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF MINAS SAMUELIAN

8/14/2018: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND TO FILE FIRST AMENDED COMPLAINT; DECLARATION OF MINAS SAMUELIAN

APPUCATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, CIVIL, EX PARTE

9/14/2017: APPUCATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, CIVIL, EX PARTE

DEFENDANT MOIEZ KHANKHANIAN, M.D.'S ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL

9/14/2017: DEFENDANT MOIEZ KHANKHANIAN, M.D.'S ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL

PROOF OF SERVICE OF SUMMONS

7/27/2017: PROOF OF SERVICE OF SUMMONS

67 More Documents Available

 

Docket Entries

  • 06/17/2019
  • Case Management Statement; Filed by Silver Lake Medical Center (Defendant)

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  • 06/14/2019
  • Case Management Statement; Filed by Alexander Cordova (Plaintiff)

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  • 06/14/2019
  • Case Management Statement; Filed by Brent J. M.D. Dale (Defendant)

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  • 06/13/2019
  • Case Management Statement; Filed by Kingsley, MD Ofoegbu (Defendant)

    Read MoreRead Less
  • 06/13/2019
  • Notice of Change of Firm Name; Filed by Moez, M.D. Khankhanian (Defendant)

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  • 06/12/2019
  • Case Management Statement; Filed by Moez, M.D. Khankhanian (Defendant)

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  • 06/04/2019
  • Motion for Summary Judgment; Filed by Kingsley, MD Ofoegbu (Defendant)

    Read MoreRead Less
  • 06/04/2019
  • Separate Statement; Filed by Kingsley, MD Ofoegbu (Defendant)

    Read MoreRead Less
  • 06/04/2019
  • Other - (Evidence in Support of Defendant, Kingsley Ofoegbu, M.D.'s Motion for Summary Judgment); Filed by Kingsley, MD Ofoegbu (Defendant)

    Read MoreRead Less
  • 06/04/2019
  • Answer; Filed by Moez, M.D. Khankhanian (Defendant)

    Read MoreRead Less
121 More Docket Entries
  • 07/24/2017
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 07/24/2017
  • Proof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 07/24/2017
  • Proof-Service/Summons

    Read MoreRead Less
  • 07/20/2017
  • Proof of Service (summons and complaint ); Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 07/20/2017
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 07/20/2017
  • Proof of Service (not Summons and Complaint)

    Read MoreRead Less
  • 07/13/2017
  • Complaint; Filed by Alexander Cordova (Plaintiff)

    Read MoreRead Less
  • 07/13/2017
  • COMPLAINT FOR DAMAGES

    Read MoreRead Less
  • 07/13/2017
  • Complaint

    Read MoreRead Less
  • 07/11/2017
  • SUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC668462    Hearing Date: June 26, 2020    Dept: A

The Superior Court is re-opening under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology such as Court Call or LACourtConnect )(when it becomes available on August 6 for Branch Civil)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Cordova v Silver Lake Medical Center

Demurrer; Motion to Strike

Calendar:

08

Case No.:

BC668462

Hearing Date:

June 26, 2020

Action Filed:

July 13, 2017

Trial Date:

N/A

MP:

Success Healthcare 1, LLC dba Silver Lake Medical Center

RP:

Alexander Cordova

ALLEGATIONS:

Alexander Cordova ("Plaintiff") alleges that he was hospitalized as a psychiatric patient of Success Healthcare 1, LLC d/b/a/ Silver Lake Medical Center ("Success"), Brent J. Dale, M.D. ("Dale"), and Moiez Khankhanian, M.D. ("Khankhanian") (collectively, "Defendants") on July 24, 2016 in their psychiatric facility. Plaintiff alleges he was diagnosed with significant psychiatric disorders, including bipolar disorder, depression, paranoia, schizophrenia, psychosis, violent behavior, aggression, and disorientation prior to this date. Plaintiff alleges Defendants placed a "hold" on him under Welfare & Institutions Code, § 5150. Plaintiff alleges that Defendants failed to provide appropriate care because he was able to attempt suicide by fashioning a strangling device around his neck in an attempt to hang himself.

Plaintiff filed the Original Complaint on July 13, 2017, the First Amended Complaint on May 13, 2019, the Second Amended Complaint on October 23, 2019, and the Third Amended Complaint ("TAC") on March 12, 2020, alleging three causes of action sounding in: (1) Medical Negligence; (2) Dependent Adult Abuse; and (3) Premises Liability.

PRESENTATION:

Success filed the instant demurrer and motion to strike on April 16, 2020. Opposition to both demurrer and motion to strike was filed on June 15, 2020. Reply to both was filed on June 19, 2020. The hearing date for the demurrer and motion to strike is June 26, 2020.

RELIEF REQUESTED:

Success demurs to the Second Cause of Action for Dependent Adult Abuse and the Third Cause of Action for Premises Liability.

Success moves to strike the punitive damages allegations in the TAC.

DISCUSSION:

Demurrer

Standard of Review

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (Code Civ. Proc. §430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to Code Civ. Proc. § 430.10(e), the party against whom a complaint has been filed demurs to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.

It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

Meet and Confer

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civil Procedure §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civil Procedure §§ 430.41(a)(2) & (3).

On review of the Declaration of Renick, the Court concludes that Success has satisfied its obligation to meet and confer pursuant to Code of Civil Procedure § 430.41.

Merits:

I. Second Cause of Action: Dependent Adult Abuse

Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), Welf. & Inst. Code §15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age. (Welf. & Inst. Code, §15610.23, subd. (a).) The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) he is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious. (See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666.) For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789.) “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–5, as modified (Aug. 24, 2011) (emphasis original) (internal citations omitted).

Success argues that Plaintiff fails to plead sufficient facts to support a dependent adult abuse claim, contending that Plaintiff's allegations all go to Defendants' failure to fulfill its professional obligations as a psychiatric facility. Success argue that, to successfully plead a dependent adult abuse cause of action, Plaintiff must plead facts supporting a legal or factual conclusion that he was injured as a result of Defendant's negligence in fulfilling non-medical duties and contend that Plaintiff has not done so.

Plaintiff argues he established the first element of the EADACPA by asserting that he had mental limitations restricting his ability to carry out normal activities, could not protect his rights, and was admitted as an inpatient to a psychiatric facility. (Demurrer, p. 3, lines 10-13.) As the court previously noted in its prior March 6, 2020 tentative, although Plaintiff's assertion alone is not sufficient evidence to prove he was a dependent adult within the definitions of Welf. & Inst. Code § 15610.23(a), Plaintiff did meet the first element due to the existence of a "hold" on Plaintiff under Welf. & Inst. Code § 5150 on the day of Plaintiff's injury. (TAC ¶ 9.) This is sufficient to support an inference of Plaintiff's status as a dependent adult.

Plaintiff argues he established the second element of the EADACPA by alleging conduct constituting dependent adult abuse and neglect through (1) Defendants' lack of supervision and care allowed Plaintiff to harm himself; (2) Defendants' understaffing resulted in a failure to supervise and care for Plaintiff; (3) Defendants failed to exercise the degree of care that a reasonable person would to care for and treat a dependent adult; (4) Defendants failed to protect Plaintiff from hazards in his room despite knowing of his psychotic and suicidal tendencies; and (5) Defendants failed to take appropriate steps to hospitalize, examine, monitor, supervise, diagnose, treat, and care for Plaintiff despite having known, should have known, and had reason to believe Plaintiff posed a risk of danger to himself.

On review of the TAC, Plaintiff alleges Defendants committed neglect by ordering only 15-minute checks for him, rather than the "1:1 Supervision or Level II Line-of-Sight supervision" available to higher-risk rated patients. (TAC ¶¶ 34N-Q.) Plaintiff alleges that Defendants neglected him by failing to increase the level of observation after his condition changed and worsened from July 21, 2016 to July 24, 2016. (TAC ¶¶ 34T-Z.) Plaintiff further alleges that Defendants' failure to use ligature-resistant doors and door hardware within his room constitutes neglect. (TAC ¶ 34RR.)

Plaintiff's allegations of neglect are insufficient to support the second element of the EADACPA. On the issues (1), (2), and (3), the Court previously noted in its prior October 4, 2019 tentative that “[t]he regulations applicable to acute psychiatric hospitals ‘define those facilities' duties of care owed to their residents and therefore define duties of care applicable to elder abuse of those residents.’ [Citation].” Fenimore v. Regents of University of California (2016) 245 Cal. App. 4th 1339, 1348; see also 22 California Code of Regulations §77061. The Court went on to provide in the same October 4, 2019 tentative: "Here, Plaintiff has failed to allege any facts that would support an inference of understaffing under Success’ obligations under 22 California Code of Regulations §77061, nor does Success’ checking on Plaintiff every 5 to 10 minutes support an inference of neglect or deprivation of care. Delaney v. Baker (1999) 20 Cal.4th 23, 34. Whether Success’ actions in monitoring Plaintiff violated the requisite standard of care is a matter that can be litigated through the first cause of action sounding in negligence, but the factual allegations cannot support the enhanced remedies under EADACPA." These allegations rise only to the level of professional negligence and cannot support a dependent adult abuse cause of action. Plaintiff's allegation that the failure to use ligature-resistant doors and door hardware constituted neglect fails the EADACPA second element under the same analysis. Plaintiff cites only papers and recommendations to support its allegations of neglect, as well as Success' general policy that: "The hospital staff shall assess and monitor environmental issues related to prevention of suicide." (TAC ¶¶ 34FF-MM.) The determination that Plaintiff's condition did not require his placement in a room with ligature-resistant doors and hardware is a medical decision and raises only professional negligence claims. The decision does not give rise to neglect that is "essentially equivalent to conduct that would support recovery of punitive damages" as defined under the EADACPA. The Court finds that the allegation that Success' failure to provide a ligature-resistant door and hardware constituted ordinary negligence and neglect is conclusory and unsupported, and thus also cannot support a dependent adult abuse cause of action. See also (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 404.) The statutory definition of “neglect” does not speak to the undertaking of medical services, but the failure to provide medical care.

II. Third Cause of Action: Premises Liability

Since Rowland v. Christian (1968) 69 Cal. 2d 108, 118-19, the liability of landowners for injuries to people on their property has been governed by general negligence principles. (See Civ. Code §1714(a); Pineda v. Ennabe (1998) 61 Cal. App. 4th 1403, 1407; Claxton v. Atlantic Richfield Co. (2003) 108 Cal. App. 4th 327, 335-36 (Everyone is responsible for both their own willful acts and also for injury suffered by another due to their lack of care, except so far as the injury was self-inflicted); Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, 664, 672.) Thus, on a negligence theory, the elements of a claim for injuries suffered by an invitee due to a dangerous condition on the premises, both natural and artificial, are duty, breach, causation, and damages. (See Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205 (Plaintiff shopper slipped on a puddle of milk on the floor of defendant store and suffered significant injuries to his knee.); Cf. also with Civ. Code §1714(a) (Implicitly, that the defendant owned the property, the defendant was negligent in the use or maintenance of the property, and the defendant's negligence was a substantial factor in causing plaintiff's injury); Sprecher v. Adamson Companies (1981) 30 Cal. 3d 358, 370-71. Accordingly, as with a negligence cause of action, a complaint for damages for premises liability must allege: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. (Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.)

Success argues that Plaintiff failed to establish a cause of action for premises liability, as Plaintiff alleges not that the door of the room was inherently unsafe, defective, or in need of repair, but only that there was a problem with the decision to place Plaintiff in a room without a ligature-resistant door. Success contends that the decision on what kind of room was required to address Plaintiff's needs was a medical decision, and would thus constitute professional negligence only, and would thus not support a premises liability claim. Plaintiff argues that the room that Plaintiff's holding room was a safety hazard due to not being equipped with a ligature-resistant door and hardware, and that Defendants were negligent under the premises liability cause of action for knowing of Plaintiff's suicide risk and failing to remedy or warn against the danger.

Plaintiff's allegations do not support a premises liability claim. Plaintiff does not allege that there was a dangerous condition on Defendants' premises but restates the above allegations of neglect due to Defendants' decision not to provide a ligature-resistant door and hardware in Plaintiff's room. As stated above, Defendants' decision in these circumstances was a medical decision, and thus goes only to a professional negligence claim. The Court thus finds that these allegations are conclusory and do not support a premises liability claim.

III. Conclusion

Accordingly, the Court will sustain the demurrer as to the second cause of action sounding in dependent adult abuse and the third cause of action sounding in premises liability.

Leave to Amend

The Court notes that Plaintiff has submitted a third amended complaint and finds that Plaintiff has not met his burden of establishing that further amendment can cure the current defects in the TAC. Plaintiff has offered no new facts that could justify further amendment. Accordingly, the Court will overrule the demurrer as to the third cause of action sounding in premises liability but sustain the demurrer with regard to the second cause of action sounding in dependent adult abuse, without leave to amend.

Motion to Strike

Standard of Review

The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436,(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc., §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc., §431.10. The court may also “[s]trike out 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(b).

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. “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).

Success argues that Plaintiff is not permitted to recover punitive damages due to Success' partial automatic stay due to bankruptcy proceedings, the terms of which permit collection only from "applicable insurance proceeds and/or providers". (Motion to Strike, p. 3, lines 6-14.) Success also argues that Plaintiff fails to state sufficient specific facts to support an award of punitive damages, and that Plaintiff fails to meet the employer liability bar pursuant to Civil Code § 3294(b). (Motion to Strike, p. 5, lines 1-5; p. 5, lines 15-27.)

As stated above, the Court finds that Plaintiff failed to establish sufficient facts alleging its second cause of action sounding in dependent adult abuse. Because Plaintiff's allegations in support of punitive damages lie only with this second cause of action under the EADACPA, the Court finds that Plaintiff has failed to state sufficient facts supporting an award for punitive damages. (TAC ¶¶ 38, 40.)

Accordingly, the motion to strike will be granted.

RULING: BELOW,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant's demurrer and motion to strike came on regularly for hearing on Jun 26, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND to the Second Cause of Action for Dependent Adult Abuse and OVERRULED AS TO the Third Cause of Action for Premises Liability.

THE MOTION TO STRIKE IS GRANTED

DATE: _______________ _______________________________

JUDGE

Case Number: BC668462    Hearing Date: March 06, 2020    Dept: A

Cordova v Silver Lake Medical Center

Demurrer; Motion to Strike

Calendar:

13

Case No.:

BC668462

Hearing Date:

March 06, 2020

Action Filed:

July 13, 2017

Trial Date:

Not Set

MP:

Defendant Success Healthcare 1, LLC d/b/a Silver Lake Medical Center

RP:

Plaintiff Alexander Cordova

ALLEGATIONS:

Plaintiff Alexander Cordova (“Plaintiff”) alleges that on July 24, 2016, he was a patient of Defendants Success Healthcare 1, LLC d/b/a Silver Lake Medical Center (“Success”); Brent J. Dale, M.D. (“Dale”); Moiez Khankhanian, M.D. (“Khankhanian”); and Kingsley Ofoegbu, M.D. (“Ofoegbu” and collectively the “Defendants”) and hospitalized in their Ingleside psychiatric facility. He alleges that prior to this date, he had been diagnosed with signification psychiatric disorders, including bipolar disorder, depression, paranoia, schizophrenia, psychosis, violent behavior, aggression, and disorientation. He alleges Defendants placed a “hold” on Plaintiff under Welfare & Institutions Code, §5150. Plaintiff alleges that Defendants failed to provide him appropriate care because he was able to attempt suicide by fashioning a strangling device around his neck in an attempt to hang himself.

Plaintiff filed the initial Complaint on July 13, 2017, filed the First Amended Compliant (“FAC”) on May 13, 2019, and thereafter filed the operative Second Amended Complaint (“SAC”) on October 23, 2019, alleging two causes of action for (1) Medical Malpractice, and (2) Dependent Adult Abuse.

PRESENTATION:

Success filed the instant demurrer and motion to strike on January 06, 2020. Plaintiff opposed both on January 31, 2020, and reply briefs were filed on February 06, 2020. The Court hear oral arguments on February 14, 2020, and permitted the parties to file supplemental briefs 5 days and 2 days prior to March 06, 2020. Plaintiff field their supplemental brief on February 28, 2020.

RELIEF REQUESTED:

Success demurs to the Second Cause of Action for Dependent Adult Abuse.

Success moves to strike the punitive damages allegations in the SAC.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

On review of the Declaration of Renick, the Court concludes that Success has satisfied the minimum requirements under the code to satisfy the obligation to meet and confer.

---

Second Cause of Action (Dependent Adult Abuse) – Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), Welf. & Inst. Code §15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age. Welf. & Inst. Code §15610.23,(a). The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious. See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666. For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789. “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–5, as modified (Aug. 24, 2011) (emphasis original)(internal citations omitted).

As to the first element of EADACPA, the Court notes that the assertion that Plaintiff was a dependent adult, as stated in SAC ¶26, is inadequate to establish the facts supporting an inference of Plaintiff’s status as a dependent adult under the code. Nevertheless, the factual allegations stated in Plaintiff’s first cause of action, in SAC ¶9, alleging Plaintiff’s various psychiatric disorders, and the placement of a “hold” on Plaintiff under Welf. & Inst. Code §5150 on the day of Plaintiff’s injury is sufficient to support an inference of Plaintiff’s status as a dependent adult.

The next necessary element for the cause of action is satisfaction of one of the three prongs of Welf. & Inst. Code §15610.07(a), which require allegations of either: “(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. [¶ or] (3) Financial abuse, as defined in Section 15610.30.” In the SAC, Plaintiff alleges that Defendants committed neglect by making “a conscious decision not to provide adequate supervision to its patients and to understaff its facility”. SAC ¶33. Further Plaintiff’s SAC alleges that during the relevant period of time Success monitored Plaintiff at 19:30, 19:40, and was discovered during his suicide attempt at 19:45. SAC ¶30.

These allegations do not rise to the level of neglect or deprivation of care necessary to support a claim under EADACPA. As the Court has previously noted in its prior tentative on October 04, 2019, “[t]he regulations applicable to acute psychiatric hospitals ‘define those facilities' duties of care owed to their residents and therefore define duties of care applicable to elder abuse of those residents.’ [Citation].” Fenimore v. Regents of University of California (2016) 245 Cal. App. 4th 1339, 1348; see also 22 California Code of Regulations §77061. Here, Plaintiff has failed to allege any facts that would support an inference of understaffing under Success’ obligations under 22 California Code of Regulations §77061, nor does Success’ checking on Plaintiff every 5 to 10 minutes support an inference of neglect or deprivation of care. Delaney v. Baker (1999) 20 Cal.4th 23, 34. Whether Success’ actions in monitoring Plaintiff violated the requisite standard of care is a matter that can be litigated through the first cause of action sounding in negligence, but the factual allegations cannot support the enhanced remedies under EADACPA.

Accordingly, the Court will sustain the demurrer.

Leave to Amend – The Court notes that Plaintiff has requested leave to amend in the opposition papers. In the supplemental brief provided by Plaintiff, Plaintiff proposes dozens of new factual allegations that could serve to substantiate the instant cause of action for Adult Dependent Abuse. Plaintiff’s Supplemental Brief, pp. 4-11. Without specifically deciding on the sufficiency of the proposed allegations to maintain the cause of action, the Court nevertheless finds that Plaintiff has met their burden of establishing that further amendment may cure the current defects in the SAC. Accordingly, the Court will sustain the demurrer with leave to amend.

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Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc. §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc. §431.10. The court may also “[s]trike out 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(b).

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. “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).

The motion to strike is predicated on the Court sustaining the demurrer to the Second Cause of Action, and Plaintiff’s opposition is predicated on the Court overruling the demurrer to the Second Cause of Action. As the court is inclined to sustain the demurrer with leave to amend, the instant motion to strike is mooted by the amendment.

Accordingly, the motion to strike is moot.

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RULING: below:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Success Healthcare 1, LLC d/b/a Silver Lake Medical Center’s Demurrer and Motion to Strike came on regularly for hearing on March 06, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITH LEAVE TO AMEND; AND

THE MOTION TO STRIKE IS MOOT.

DATE: _______________ _______________________________

JUDGE

Case Number: BC668462    Hearing Date: February 14, 2020    Dept: A

Cordova v Silver Lake Medical Center

Demurrer; Motion to Strike

Calendar:

06

Case No.:

BC668462

Hearing Date:

February 14, 2020

Action Filed:

July 13, 2017

Trial Date:

Not Set

MP:

Defendant Success Healthcare 1, LLC d/b/a Silver Lake Medical Center

RP:

Plaintiff Alexander Cordova

ALLEGATIONS:

Plaintiff Alexander Cordova (“Plaintiff”) alleges that on July 24, 2016, he was a patient of Defendants Success Healthcare 1, LLC d/b/a Silver Lake Medical Center (“Success”); Brent J. Dale, M.D. (“Dale”); Moiez Khankhanian, M.D. (“Khankhanian”); and Kingsley Ofoegbu, M.D. (“Ofoegbu” and collectively the “Defendants”) and hospitalized in their Ingleside psychiatric facility. He alleges that prior to this date, he had been diagnosed with signification psychiatric disorders, including bipolar disorder, depression, paranoia, schizophrenia, psychosis, violent behavior, aggression, and disorientation. He alleges Defendants placed a “hold” on Plaintiff under Welfare & Institutions Code, §5150. Plaintiff alleges that Defendants failed to provide him appropriate care because he was able to attempt suicide by fashioning a strangling device around his neck in an attempt to hang himself.

Plaintiff filed the initial Complaint on July 13, 2017, filed the First Amended Compliant (“FAC”) on May 13, 2019, and thereafter filed the operative Second Amended Complaint (“SAC”) on October 23, 2019, alleging two causes of action for (1) Medical Malpractice, and (2) Dependent Adult Abuse.

PRESENTATION:

Success filed the instant demurrer and motion to strike on January 06, 2020. Plaintiff opposed both on January 31, 2020, and reply briefs were filed on February 06, 2020.

RELIEF REQUESTED:

Success demurs to the Second Cause of Action for Dependent Adult Abuse.

Success moves to strike the punitive damages allegations in the SAC.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

On review of the Declaration of Renick, the Court concludes that Success has satisfied the minimum requirements under the code to satisfy the obligation to meet and confer.

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Second Cause of Action (Dependent Adult Abuse) – Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), Welf. & Inst. Code §15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age. Welf. & Inst. Code §15610.23,(a). The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious. See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666. For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789. “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–5, as modified (Aug. 24, 2011) (emphasis original) (internal citations omitted).

As to the first element of EADACPA, the Court notes that the assertion that Plaintiff was a dependent adult, as stated in SAC ¶26, is inadequate to establish the facts supporting an inference of Plaintiff’s status as a dependent adult under the code. Nevertheless, the factual allegations stated in Plaintiff’s first cause of action, in SAC ¶9, alleging Plaintiff’s various psychiatric disorders, and the placement of a “hold” on Plaintiff under Welf. & Inst. Code §5150 on the day of Plaintiff’s injury is sufficient to support an inference of Plaintiff’s status as a dependent adult.

The next necessary element for the cause of action is satisfaction of one of the three prongs of Welf. & Inst. Code §15610.07(a), which require allegations of either: “(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. [¶ or] (3) Financial abuse, as defined in Section 15610.30.” In the SAC, Plaintiff alleges that Defendants committed neglect by making “a conscious decision not to provide adequate supervision to its patients and to understaff its facility”. SAC ¶33. Further Plaintiff’s SAC alleges that during the relevant period of time Success monitored Plaintiff at 19:30, 19:40, and was discovered during his suicide attempt at 19:45. SAC ¶30.

These allegations do not rise to the level of neglect or deprivation of care necessary to support a claim under EADACPA. As the Court has previously noted in its prior tentative on October 04, 2019, “[t]he regulations applicable to acute psychiatric hospitals ‘define those facilities' duties of care owed to their residents and therefore define duties of care applicable to elder abuse of those residents.’ [Citation].” Fenimore v. Regents of University of California (2016) 245 Cal. App. 4th 1339, 1348; see also 22 California Code of Regulations §77061. Here, Plaintiff has failed to allege any facts that would support an inference of understaffing under Success’ obligations under 22 California Code of Regulations §77061, nor does Success’ checking on Plaintiff every 5 to 10 minutes support an inference of neglect or deprivation of care. Delaney v. Baker (1999) 20 Cal.4th 23, 34. Whether Success’ actions in monitoring Plaintiff violated the requisite standard of care is a matter that can be litigated through the first cause of action sounding in negligence, but the factual allegations cannot support the enhanced remedies under EADACPA.

Accordingly, the Court will sustain the demurrer.

Leave to Amend – The Court notes that Plaintiff has requested leave to amend in the opposition papers. Plaintiff, however, does not offer the Court any information that would indicate that further amendment could cure the defect in the pleadings. Moreover, the factual allegations that presently exist in the SAC indicate to the Court that Plaintiff will not be capable of alleging facts necessary to support a claim under EADACPA as the fact alleged support the opposite inference that Success did not neglect or deprive Plaintiff of care. Accordingly, the Court will sustain the demurer without leave to amend.

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Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc. §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc. §431.10. The court may also “[s]trike out 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(b).

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. “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).

The motion to strike is predicated on the Court sustaining the demurrer to the Second Cause of Action, and Plaintiff’s opposition is predicated on the Court overruling the demurrer to the Second Cause of Action. As the Court is inclined to sustain the demurrer to the Second Cause of Action without leave to amend, the Court is similarly inclined to grant the motion to strike. Specifically, the alleged facts that indicate Success’ actions in monitoring Plaintiff do not support an inference of conscious disregard necessary to support a claim for punitive damages. SAC ¶30.

Accordingly, the Court will grant the motion to strike.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Success Healthcare 1, LLC d/b/a Silver Lake Medical Center’s Demurrer and Motion to Strike came on regularly for hearing on February 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND; AND

THE MOTION TO STRIKE IS GRANTED.

DATE: _______________ _______________________________

JUDGE

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