This case was last updated from Los Angeles County Superior Courts on 10/05/2021 at 13:38:45 (UTC).

LUTHER DAVIS POWERS, ET AL. VS DRIFTWOOD HEALTHCARE & WELLNESS CENTER, LLC, ET AL.

Case Summary

On 01/20/2021 LUTHER DAVIS POWERS filed an Other lawsuit against DRIFTWOOD HEALTHCARE WELLNESS CENTER, LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2194

  • Filing Date:

    01/20/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs

POWERS CLAUDIA

DAVIS POWERS LUTHER

Defendants

DRIFTWOOD HEALTHCARE & WELLNESS CENTER LLC DBA DRIFTWOOD HEALTHCARE CENTER

ROCKPORT ADMINISTRATIVE SERVICES LLC

CITRUS WELLNESS CENTER LLC

Attorney/Law Firm Details

Plaintiff Attorney

GHARIBIAN ARTIN

Defendant Attorney

YOUNG PROBAL G

 

Court Documents

Declaration - DECLARATION DECLARATION OF JANET POWERS AS SUCCESSOR IN INTEREST TO LUTHER DAVIS POWERS PURSUANT TO CCP 377.32

9/13/2021: Declaration - DECLARATION DECLARATION OF JANET POWERS AS SUCCESSOR IN INTEREST TO LUTHER DAVIS POWERS PURSUANT TO CCP 377.32

Amended Complaint - AMENDED COMPLAINT (1ST)

9/13/2021: Amended Complaint - AMENDED COMPLAINT (1ST)

Minute Order - MINUTE ORDER (COURT ORDER)

9/15/2021: Minute Order - MINUTE ORDER (COURT ORDER)

Stipulation and Order - JOINT STIPULATION ALLOWING LEAVE TO FILE FIRST AMENDED COMPLAINT AND TRANSFERRING THE ACTION TO JANET WHITE AS LUTHER DAVIS POWERS SUCCESSOR-IN-INTEREST

9/15/2021: Stipulation and Order - JOINT STIPULATION ALLOWING LEAVE TO FILE FIRST AMENDED COMPLAINT AND TRANSFERRING THE ACTION TO JANET WHITE AS LUTHER DAVIS POWERS SUCCESSOR-IN-INTEREST

Case Management Statement

6/9/2021: Case Management Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [CASE MANAGEMENT ORDER]

6/23/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [CASE MANAGEMENT ORDER]

Case Management Order

6/23/2021: Case Management Order

Reply - REPLY TO DEFENDANT ROCKPORT ADMINISTRATIVE SERVICES, LLC AND CITRUS WELLNESS CENTER, LLCS OPPOSITION TO PLAINTIFFS DEMURRER

8/3/2021: Reply - REPLY TO DEFENDANT ROCKPORT ADMINISTRATIVE SERVICES, LLC AND CITRUS WELLNESS CENTER, LLCS OPPOSITION TO PLAINTIFFS DEMURRER

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

8/11/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

Answer

4/30/2021: Answer

Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURRER)

4/23/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURRER)

Notice of Ruling

4/23/2021: Notice of Ruling

Motion to Strike (not anti-SLAPP) - without Demurrer

3/8/2021: Motion to Strike (not anti-SLAPP) - without Demurrer

Opposition - OPPOSITION TO DEFENDANTS MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

4/12/2021: Opposition - OPPOSITION TO DEFENDANTS MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

Reply - REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE PUNITIVE DAMAGES ALLEGATIONS

4/16/2021: Reply - REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE PUNITIVE DAMAGES ALLEGATIONS

Civil Case Cover Sheet

1/20/2021: Civil Case Cover Sheet

Declaration - DECLARATION OF CLAUDIA POWERS (AS SUCCESSOR IN INTEREST TO LUTHER DAVIS POWERS PURSUANT TO CCP 377.32)

1/20/2021: Declaration - DECLARATION OF CLAUDIA POWERS (AS SUCCESSOR IN INTEREST TO LUTHER DAVIS POWERS PURSUANT TO CCP 377.32)

Complaint

1/20/2021: Complaint

23 More Documents Available

 

Docket Entries

  • 12/13/2022
  • Hearing12/13/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 12/06/2022
  • Hearing12/06/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/10/2022
  • Hearing02/10/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 09/21/2021
  • DocketNotice (OF ENTRY OF ORDER); Filed by Luther Davis Powers (Plaintiff)

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  • 09/15/2021
  • Docketat 1:30 PM in Department 37; Court Order

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  • 09/15/2021
  • DocketJoint Stipulation Allowing Leave to file First Amended Complaint and Transferring the Action to Janet White as Luther Davis Powers Successor-In-Interest; Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 09/15/2021
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 09/15/2021
  • DocketCertificate of Mailing for ((Court Order) of 09/15/2021); Filed by Clerk

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  • 09/13/2021
  • DocketDeclaration (of Janet Powers as Successor in Interest to Luther Davis Posers Pursuant to CCP 377.32); Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 09/13/2021
  • DocketAmended Complaint ( (1st)); Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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22 More Docket Entries
  • 02/10/2021
  • DocketProof of Service by Substituted Service; Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 01/27/2021
  • DocketProof of Service by Substituted Service; Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 01/27/2021
  • DocketProof of Service by Substituted Service; Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 01/22/2021
  • DocketCertificate of Mailing for ([Notice of Case Management Conference]); Filed by Clerk

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  • 01/22/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 01/20/2021
  • DocketDeclaration (of Claudia Powers (as Successor in Interest to Luther Davis Powers Pursuant C.C.P. 377.32)); Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 01/20/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 01/20/2021
  • DocketSummons (on Complaint); Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 01/20/2021
  • DocketComplaint; Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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  • 01/20/2021
  • DocketCivil Case Cover Sheet; Filed by Luther Davis Powers (Plaintiff); Claudia Powers (Plaintiff)

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Tentative Rulings

b"

Case Number: 21STCV02194 Hearing Date: August 11, 2021 Dept: 37

\r\n\r\n

HEARING DATE: August 11, 2021 \r\n

\r\n\r\n

CASE NUMBER: 21STCV02194

\r\n\r\n

CASE NAME: Luther Davis Powers, et al. v. Driftwood\r\nHealthcare & Wellness Center, LLC, et al.

\r\n\r\n

MOVING PARTIES: Plaintiffs, Luther Davis Powers, by and through his Successor-in-Interest\r\nClaudia Powers and Claudia Powers, an individual

\r\n\r\n

OPPOSING PARTIES: Defendants, Citrus Wellness Center, LLC and Rockport\r\nAdministrative Services, LLC

\r\n\r\n

TRIAL DATE: December\r\n13, 2022

\r\n\r\n

PROOF OF SERVICE: OK

\r\n\r\n

\r\n\r\n

MOTION: Plaintiffs’\r\nDemurrer to Defendants’ Answer to Complaint

\r\n\r\n

OPPOSITION: July\r\n29, 2021

\r\n\r\n

REPLY: August\r\n3, 2021

\r\n\r\n

\r\n\r\n

TENTATIVE: Plaintiffs’\r\ndemurrer is sustained as to the seventeenth and twenty-second affirmative\r\ndefenses and otherwise overruled. Defendants shall have 20 days to amend. Plaintiff is to give notice.

\r\n\r\n

\r\n\r\n

Background

\r\n\r\n

This is an elder abuse action arising out of\r\nPlaintiff, Luther Powers’ (“Mr. Powers”) residency at Defendant, Driftwood\r\nHealthcare & Wellness Center, LLC, dba Driftwood Healthcare Center’s\r\n(“Driftwood”) skilled nursing facility. (the “Facility”) Mr. Powers is deceased\r\nand brings this action through his wife and successor-in-interest, Plaintiff\r\nClaudia Powers. (“Ms. Powers”) Further, Defendants Citrus Wellness Center, LLC\r\n(“Citrus”) and Rockport Administrative Services, LLC (“Rockport”) (the\r\n“Management Defendants”) are alleged to be the Facility’s parent companies,\r\noperators, and/or management companies.

\r\n\r\n

According to the Complaint, the Management Defendants\r\nare liable to Plaintiffs because they ratified the conduct of co-defendants\r\nregarding the understaffing and sub-standard care provided to Mr. Powers and\r\nothers at the Facility. Further, the Complaint alleges that all defendants were\r\nengaged in creating policies and procedures at the Facility which unlawfully\r\nfocused on increasing earnings rather than providing appropriate care to\r\nresidents, including Mr. Powers. All Defendants also allegedly failed to comply\r\nwith applicable state and federal rules and regulations in running the\r\nFacility. Additionally, the Managements Defendants allegedly operated in such a\r\nway that they were mere alter-egos of one another.

\r\n\r\n

Mr. Powers allegedly suffered injuries due to\r\nDefendants’ conduct because he was known to be at high-risk for developing\r\npressure ulcers but despite this, was not turned and repositioned at regular\r\nintervals. Defendants’ conduct in failing to turn and reposition Mr. Powers\r\nallegedly led to him developing a stage IV pressure ulcer and to his death on\r\nJanuary 23, 2019.

\r\n\r\n

Plaintiffs’ operative Complaint alleges the following\r\ncauses of action: (1) elder abuse/neglect [Pursuant to Welfare and Institutions\r\nCode §§15600, et seq.], (2) negligence/willful misconduct against Management\r\nDefendants (3) violation of Resident’s Bill of Rights [Pursuant to Health and\r\nSafety Code §1430(b)] against Driftwood, (4) wrongful death. The Complaint\r\nprays for punitive damages against Defendants.

\r\n\r\n

On April 30, 2021, Defendants filed their answer to\r\nthe Complaint. Plaintiffs now demur to sixth, seventh, eighth, ninth,\r\nsixteenth, seventeenth, twenty-second and twenty-fourth affirmative defenses of\r\nDefendants Rockport and Citrus’ answer. Rockport and Citrus oppose the\r\ndemurrer.

\r\n\r\n

Discussion[1]

\r\n\r\n
  1. Legal Authority

\r\n\r\n

A party against whom an answer has been filed may object by\r\ndemurrer. Unlike a demurrer to a complaint or cross-complaint, a demurrer\r\nto an answer is limited to three grounds:

\r\n\r\n

\r\n\r\n

(a) The\r\nanswer does not state facts sufficient to constitute a defense;

\r\n\r\n

(b) The\r\nanswer is uncertain; or

\r\n\r\n

(c) Where\r\nthe answer pleads a contract, it cannot be ascertained from the answer whether\r\nthe contract is written or oral.

\r\n\r\n

(Code Civ. Proc., § 430.20.)

\r\n\r\n

\r\n\r\n

A general demurrer may be made on the ground that an answer\r\ndoes not state facts sufficient to constitute a defense. (Timberidge Enterprises,\r\nInc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880; Code\r\nCiv. Proc. § 430.20.) “Generally speaking, the determination whether\r\nan answer states a defense is governed by the same principles which are\r\napplicable in determining if a complaint states a cause of\r\naction.” (South Shore Land Co. v. Petersen (1964) 226\r\nCal.App.2d 725, 732; In re Quantification Settlement Agreement Cases (2011) 201\r\nCal.App.4th 758, 813 (Quantification) [“affirmative defenses\r\ncannot be pled as mere legal conclusions, but must instead be alleged with as\r\nmuch factual detail as the allegations of a complaint.”].)

\r\n\r\n

\r\n\r\n

Affirmative defenses are pled based upon facts\r\ndemonstrating that no cause of action exists, notwithstanding the truth of the\r\ncomplaint’s allegations. (Walsh v. W. Valley Mission Cmty. College\r\nDist. (1998) 66 Cal.App.4th 1532, 1542 n.3.) “The phrase\r\n‘new matter’ refers to something relied on by a defendant which is\r\nnot put in issue by the plaintiff. Thus, where matters are not\r\nresponsive to essential allegations of the complaint, they must be\r\nraised in the answer as new matter. Where, however, the answer\r\nsets forth facts showing some essential allegation of the complaint is not\r\ntrue, such facts are not new matter, but only a traverse.” (State\r\nFarm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721,\r\n725 (State Farm).)

\r\n\r\n

\r\n\r\n

The same pleading of ultimate facts in support of such\r\nnew matter, rather than legal conclusions, is required as in pleading the\r\ncomplaint. As\r\na general rule, the answer must allege facts constituting the affirmative\r\ndefense in the same manner as a complaint must do for a cause of action. (FPI\r\nDevelopment, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) “Generally\r\nit is an abuse of discretion to sustain a demurrer without leave to amend if\r\nthere is any reasonable possibility that the defect can be cured by\r\namendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

\r\n\r\n

\r\n\r\n
  1. Analysis

\r\n\r\n

Plaintiffs contend that Rockport and Citrus’ sixth,\r\nseventh, eighth, ninth, sixteenth, seventeenth, twenty-second and twenty-fourth\r\naffirmative defenses are insufficiently pled because the answer does not\r\ndemonstrate that Rockport and Citrus are “healthcare providers” being sued for\r\n“professional negligence” such that these affirmative defenses would apply.\r\n(Demurrer, 3-7.) According to Plaintiffs, Rockport and Citrus may not assert\r\nthese affirmative defense because they are alleged to be owners, managers or\r\noperators of Driftwood. (Id.)

\r\n\r\n

In opposition, Rockport and Citrus contend that the\r\ndemurrer is premature because they are entitled to assert any and all\r\naffirmative defenses at the time of answer which may have “some chance of\r\nsuccess.” Rockport and Citrus cite to Lynch & Fraytag v. Cooper\r\n(1990) 218 Cal.App.3d 603, 613 (Lynch) for this argument. (Opposition,\r\n3.) Additionally, Rockport and Citrus contend that their affirmative defenses\r\nare appropriately alleged because the Complaint alleges that all defendants\r\nwere alter egos and joint ventures and thus, all facts in the Complaint\r\nstemming from professional negligence apply to all defendants. (Opposition, 4.)

\r\n\r\n

Rockport and Citrus’ reliance on Lynch is\r\nmisplaced. Lynch stands for the proposition that asserting inconsistent\r\naffirmative defenses is permissible and does not necessarily constitute\r\nperjury. (Lynch, supra, 218 Cal.App.3d at 613.) The issue in the instant\r\nmotion is whether Rockport and Citrus can assert any affirmative defenses\r\navailable to healthcare providers and under MICRA, not whether their\r\naffirmative defenses are inconsistent.

\r\n\r\n

In reply, Plaintiffs contend that Rockport and Citrus\r\nmay not assert affirmative defenses pertaining to healthcare providers because\r\nthey have not alleged facts in their answer or opposition which demonstrate\r\nthat they are healthcare providers. (Reply, 2-4.) According to Plaintiff,\r\nRockport and Citrus were required to affirmatively allege that they were\r\nhealthcare providers because the applicability of affirmative defenses is a new\r\nmatter and must be specially pleaded in the answer. (Id.) Plaintiffs\r\ncite to Harris v. City of Santa Monica (2013) 56 Cal.4th 203\r\n(Harris) in support of this argument.

\r\n\r\n

Harris is not helpful to\r\nPlaintiffs’ argument. While Harris stated the general principle that “It\r\nhas long been held that “if the onus of proof is thrown upon\r\nthe defendant, the matter to be proved by him is new matter,” Harris\r\ndiscussed the “same-decision showing” affirmative defense, which is not at\r\nissue in this motion. (Id. at 239.) Harris did not discuss\r\nwhether an entity was required to allege that it was a healthcare provider or\r\nsued for professional negligence in order to assert affirmative defenses under\r\nMICRA.

\r\n\r\n

The court has reviewed Defendants’ answer. Based on\r\nthis review, the court finds that the 17th and 22nd\r\naffirmative defenses are insufficiently pled.

\r\n\r\n

The seventeenth affirmative defense asserts that the\r\nComplaint is barred by Civil Code section 1714.8, which provides in pertinent\r\npart as follows: “[n]o health care provider shall be liable for professional\r\nnegligence or malpractice for any occurrence or result solely on the basis that\r\nthe occurrence or result was caused by the natural course of a disease or\r\ncondition, or was the natural or expected result of reasonable treatment\r\nrendered for the disease or condition.” Defendants’ seventeenth affirmative\r\ndefense does not plead any facts to demonstrate how this section applies and is\r\nthus insufficient.

\r\n\r\n

The twenty-second affirmative defense asserts that the\r\nComplaint is barred in whole or in part by Health and Safety Code section\r\n1432.1, which provides in pertinent part as follows: “[n]o licensee shall be\r\ncited for any violation caused by any person licensed pursuant to the Medical\r\nPractice Act (Chapter 5 (commencing with Section 2000 ) of Division 2 of\r\nthe Business and Professions Code) if the person is independent of, and not connected\r\nwith, the licensee and the licensee shows that he or she has exercised\r\nreasonable care and diligence in notifying these persons of their duty to the\r\npatients in the licensee's long-term health care facility.” The twenty-second\r\naffirmative defense does not plead any facts demonstrating how this applies and\r\nthus, is also insufficient.

\r\n\r\n

Rockport and Citrus may assert the remaining\r\naffirmative defenses. The court agrees that Rockport and Citrus were not\r\nrequired to allege that they are “healthcare providers” sued for “professional\r\nnegligence” because of the Complaint’s alter ego allegations. The Complaint\r\nmakes no other allegations against these defendants other than that they were\r\nthe joint ventures and alter egos of Driftwood. Thus, the Complaint’s\r\nallegations about Driftwood’s professional negligence as a healthcare provider\r\nalso apply to Rockport and Citrus.

\r\n\r\n

For these reasons, Plaintiffs’ demurrer is sustained\r\nas to the seventeenth and twenty-second affirmative defenses and otherwise\r\noverruled.

\r\n\r\n

Conclusion

\r\n\r\n

Plaintiffs’ demurrer is sustained as to the\r\nseventeenth and twenty-second affirmative defenses and otherwise overruled. Defendants\r\nshall have 20 days to amend. Plaintiff\r\nis to give notice.

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1]\r\nPlaintiffs submit the declaration of their counsel, Justin Vitug (“Vitug”) to\r\ndemonstrate compliance with statutory meet and confer requirements. Vitug\r\nattests that on May 7, 2021, the parties met and conferred regarding the\r\narguments raised in the instant demurrer but that on May 11, 2021, confirmed\r\nthey could not reach an agreement. (Vitug Decl. ¶ 4, Exhs. 2-3.) The Vitug\r\nDeclaration is sufficient for purposes of Code of Civil Procedure section\r\n430.41.

\r\n\r\n
\r\n\r\n
\r\n\r\n"

Case Number: 21STCV02194    Hearing Date: April 23, 2021    Dept: 37

HEARING DATE: April 23, 2021

CASE NUMBER: 21STCV02194

CASE NAME: Luther Davis Powers, et al. v. Driftwood Healthcare & Wellness Center, LLC, et al.

MOVING PARTIES: Defendants, Driftwood Healthcare & Wellness Center, LLC dba Driftwood Healthcare Center, Citrus Wellness Center, LLC and Rockport Administrative Services, LLC

OPPOSING PARTIES: Plaintiffs, Luther Davis Powers, by and through his Successor-in-Interest Claudia Powers and Claudia Powers, an individual

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Strike Portions of Complaint

OPPOSITION: April 12, 2021

REPLY: April 16, 2021

TENTATIVE: Defendants’ motion is denied. Plaintiffs are to give notice.

Background

This is an elder abuse action arising out of Plaintiff, Luther Powers’ (“Mr. Powers”) residency at Defendant, Driftwood Healthcare & Wellness Center, LLC, dba Driftwood Healthcare Center’s (“Driftwood”) skilled nursing facility. (the “Facility”) Mr. Powers is deceased. His wife and successor-in-interest, Plaintiff Claudia Powers (“Ms. Powers”) brings this action. Defendants Citrus Wellness Center, LLC (“Citrus”) and Rockport Administrative Services, LLC (“Rockport”) (the “Management Defendants”) are alleged to be the Facility’s parent companies, operators, and/or management companies.

According to the Complaint, the Management Defendants are liable to Plaintiffs because they ratified the conduct of co-defendants regarding the understaffing and sub-standard care provided to Mr. Powers and others at the Facility. Further, the Complaint alleges that all defendants were engaged in creating policies and procedures at the Facility which unlawfully focused on increasing earnings rather than providing appropriate care to residents, including Mr. Powers. All Defendants also allegedly failed to comply with applicable state and federal rules and regulations in running the Facility. Additionally, the Managements Defendants allegedly operated in such a way that they were mere alter-egos of one another.

Mr. Powers allegedly suffered injuries due to Defendants’ conduct. He was known to be at high-risk for developing pressure ulcers, but despite this he was not turned and repositioned at regular intervals. Defendants’ conduct in failing to turn and reposition Mr. Powers allegedly led to him developing a stage IV pressure ulcer and that caused his death on January 23, 2019.

Plaintiffs’ operative Complaint alleges the following causes of action: (1) elder abuse/neglect [Pursuant to Welfare and Institutions Code §§15600, et seq.], (2) negligence/willful misconduct against Management Defendants (3) violation of Resident’s Bill of Rights [Pursuant to Health and Safety Code §1430(b)] against Driftwood, (4) wrongful death. The Complaint prays for punitive damages against Defendants.

Defendants now move to strike the following punitive damages allegations and prayer for punitive damages from the Complaint, as follows:

1. “For exemplary and punitive damages pursuant to Civil Code §3294” [Compl., Prayer, at 21:3].

2. “. . . oppression or malice.” [Compl. at 8:13].

3. “. . . malicious, oppressive, fraudulent. . .” [Compl. at 8:18-19].

4. “. . . malicious, oppressive, fraudulent. . .” [Compl. at 13:1-2].

5. “. . . malice, oppression fraud. . .” [Compl. at 15:1-2].

6. “. . .malice, and/or fraud. . .” [Compl. at 15:9].

7. “. . . to an award of punitive damages pursuant to Civil Code §3294.” [Compl. at 15:10].

(Notice of Motion, 2.) Defendants additionally move to strike the entire Complaint in the alternative on the grounds that it fails to allege material dates that meet the applicable statute of limitations. Plaintiffs oppose the motion.

Discussion[1]

  1. Legal Standard

     

    Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, 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. (b) Strike 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.”  The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc., § 437.)  

    Motions to strike are used to challenge defects in the pleadings not subject to demurrer.  (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].)  Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading.  (Code Civ. Proc., § 435, subd. (b)(1).)  The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ. Proc., § 452.)  The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.”  (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

  2. Analysis

     

  1. Punitive Damages Allegations

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294 subd. (a).) “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.”  (Civ. Code, § 3294 subd. (c)(1).)  “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”  (Civ. Code, § 3294 subd. (c)(2).)  “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.”  (Civ. Code, § 3294, subd. (c)(3).)  A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.”  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

 Inc. v. Superior Court (2004) 32 Ca1.4th 771, 789.)

Defendants contend that the Complaint’s punitive damage allegations must all be stricken because the Complaint fails to plead that Defendants acted with malice, oppression or fraud with the required specificity. (Motion, 5-7.)

In opposition, Plaintiffs contend that the Complaint pleads malice, fraud or oppression with the required specificity because it alleges that Defendants knew that Mr. Powers was at high-risk of skin breakdown and failed to provide interventions to prevent Mr. Powers from developing such skin breakdown. (Opposition, 3-5.) Additionally, Plaintiffs point to the Complaint’s allegations about Defendants’ intentional understaffing and failure to follow regulations as evidence that the Complaint sufficiently states a claim for punitive damages. (Id.) Plaintiffs cite to Delaney and Sababin, discussed above, as well as Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1348 (Fenimore) in support of their arguments.

In Fenimore, the Court of Appeal held that while lone allegations of understaffing and undertraining leading to injury are insufficient to arise to recklessness, they can demonstrate recklessness when there is a showing of a knowing pattern of violations of staffing regulations. (Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1349-50.)

In reply, Defendants contend that Plaintiffs’ reliance on each of Delaney, Fenimore and Sababin is misplaced. (Reply, 1-3.) According to Defendants, these cases do not articulate a standard for pleading a claim for punitive damages. (Id.) The court disagrees. Although each of Delaney, Fenimore and Sababin discuss other issues beyond demurrers or motions to strike, the fact that they discuss other issues do not make the discussion in these cases regarding a Plaintiff’s pleadings inapplicable. For example, Fenimore held that the complaint at issue stated “at least one viable theory of elder abuse based on recklessness.” (Fenimore, supra, 245 Cal.App.4th at 1351.)

Here, the Complaint alleges that Management Defendants are liable for Plaintiffs’ injuries because they “combined their property, skill and/or knowledge” with the other defendants to operate the Facility and ratified the conduct of the Facility through their “officers, directors, and managing agents.” (Complaint, ¶¶ 9-11.) Mr. Powers’ injuries were allegedly the “direct result and product of the financial and control policies and practices’ Defendants engaged in. (Complaint ¶¶ 12, 47.) Specifically, the Management Defendants allegedly focused their policies on “attainment of increased revenues” rather than providing quality care, which led to Mr. Powers’ injuries. (Complaint ¶¶ 13-14, 16-17.) Further, the Facility allegedly knew on admission that Mr. Powers was dependent on the Facility for medical and custodial care and was a high risk for developing skin breakdown but despite this, failed to provide interventions to prevent skin breakdown. (Complaint ¶ 20.) Defendants also engaged in violations of various regulations governing skilled nursing facilities. (Complaint ¶¶ 31-41.)

Liberally construing the allegations of the Complaint in favor of Plaintiffs, the court finds that the Complaint sufficiently alleges a claim for punitive damages. The Complaint alleges all Defendants were allegedly engaged in a joint venture to operate the facility in a manner that increased profits but decreased patient care to residents, including Mr. Powers. Additionally, the Complaint alleges that Mr. Powers was a known risk for skin-breakdown but that despite this, Mr. Powers was not provided the required interventions. The Complaint also alleges that Mr. Powers suffered injuries as a direct result of all Defendants’ policies and practices in operating the Facility. Such allegations are sufficient to state a claim for punitive damages.

For these reasons, Defendants’ motion is denied as to its request to strike punitive damages.

  1. Statute of Limitations

Defendants alternatively contend that Plaintiffs’ entire Complaint should be stricken because the Complaint does not plead any relevant dates regarding Defendants’ wrongful conduct other than Mr. Powers’ date of birth and date of death. (Motion, 8.) Thus, according to Defendants, Plaintiffs have failed to demonstrate that the Complaint was timely filed within the two-year statute of limitations. (Id.) Plaintiffs’ opposition does not respond to Defendants’ statute of limitations argument.

Plaintiffs are not obligated to allege dates showing that the statute of limitations has not expired. If defendants wish to assert the statute of limitations, it is an affirmative defense on which defendants have the burden of proof. As such, it is not a required element of any of plaintiffs’ causes of action.

Conclusion

Defendants’ motion is denied. Plaintiffs are to give notice.


[1] Defendants submit the declaration of their counsel, Probal G. Young (“Young”) to demonstrate their compliance with statutory meet and confer obligations prior to filing the instant motion. Young attests that he and Plaintiffs’ counsel Mr. Gharibian met and conferred by email regarding the arguments raised in the instant motion but were unable to reach an agreement. (Young Decl. ¶¶ 3-4.) Although the court ordinarily expects the parties to meet and confer telephonically, the Young Declaration is sufficient for purposes of Code of Civil Procedure section 435.5 in this instance.

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