This case was last updated from Los Angeles County Superior Courts on 01/16/2022 at 09:48:23 (UTC).

XANDRA KAYDEN, BY AND THROUGH HER CONSERVATOR, STEPHEN GOLDMAN, D.O. VS JEFFREY SIEGEL, A CALIFORNIA LICENSED PROFESSIONAL FIDUCIARY, ET AL.

Case Summary

On 09/02/2020 XANDRA KAYDEN, BY AND THROUGH HER CONSERVATOR, STEPHEN GOLDMAN, D O filed an Other lawsuit against JEFFREY SIEGEL, A CALIFORNIA LICENSED PROFESSIONAL FIDUCIARY. 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:

    *******3725

  • Filing Date:

    09/02/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

XANDRA KAYDEN BY AND THROUGH HER CONSERVATOR STEPHEN GOLDMAN D.O.

Defendants

CANTALOUPE HOLDINGS A DELAWARE LLC DBA BEACHWOOD POST-ACUTE AND REHAB AN ENTITY OF UNKNOWN FORM

PERSONAL CARE INC. A CALIFORNIA CORPORATION DBA PERSONAL CARE AGENCY AN ENTITY OF UNKNOWN FORM

AQUINO ELENA

JEFFREY SIEGEL A CALIFORNIA LICENSED PROFESSIONAL FIDUCIARY

HERNANDEZ RHODA S.

PERSONAL CARE DBA PERSONAL CARE AGENCY AN ENTITY OF UNKNOWN FORM

CANTALOUPE HOLDINGS DBA BEACHWOOD POST-ACUTE AND REHAB AN ENTITY OF UNKNOWN FORM

JEFFREY SIEGEL

Attorney/Law Firm Details

Plaintiff Attorney

DEMIRJIAN KRIS

Defendant Attorneys

ADLER JAMES EMANUEL

WILSON WILLIAM

ADLER JAMES E.

 

Court Documents

Notice of Ruling

12/7/2021: Notice of Ruling

Demurrer - with Motion to Strike (CCP 430.10)

12/7/2021: Demurrer - with Motion to Strike (CCP 430.10)

Motion to Strike (not initial pleading)

12/7/2021: Motion to Strike (not initial pleading)

Reply - REPLY MEMORANDUM IN SUPPORT OF DEMURRER OF DEFENDANT JEFFREY SIEGEL TO FIRST AMENDED COMPLAINT

9/30/2021: Reply - REPLY MEMORANDUM IN SUPPORT OF DEMURRER OF DEFENDANT JEFFREY SIEGEL TO FIRST AMENDED COMPLAINT

Reply - REPLY MEMORANDUM IN SUPPORT OF DEMURRER OF DEFENDANT JEFFREY SIEGEL TO FIRST AMENDED COMPLAINT

9/30/2021: Reply - REPLY MEMORANDUM IN SUPPORT OF DEMURRER OF DEFENDANT JEFFREY SIEGEL TO FIRST AMENDED COMPLAINT

Reply - REPLY MEMORANDUM IN SUPPORT MOTION OF DEFENDANT JEFFREY SIEGEL TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

9/30/2021: Reply - REPLY MEMORANDUM IN SUPPORT MOTION OF DEFENDANT JEFFREY SIEGEL TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

10/7/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

Notice of Ruling

10/12/2021: Notice of Ruling

Amended Complaint - SECOND AMENDED COMPLAINT

11/5/2021: Amended Complaint - SECOND AMENDED COMPLAINT

Notice - NOTICE OF ERRATA

11/8/2021: Notice - NOTICE OF ERRATA

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE)

11/19/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE)

Answer

12/7/2021: Answer

Answer

9/17/2021: Answer

Opposition - OPPOSITION PLAINTIFF XANDRA KAYDENS OPPOSITION TO DEFENDANT JEFFREY SIEGELS MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

9/24/2021: Opposition - OPPOSITION PLAINTIFF XANDRA KAYDENS OPPOSITION TO DEFENDANT JEFFREY SIEGELS MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

Opposition - OPPOSITION PLAINTIFF XANDRA KAYDENS OPPOSITION TO DEMURRER OF DEFENDANT JEFFREY SIEGEL TO THE FIRST AMENDED COMPLAINT

9/24/2021: Opposition - OPPOSITION PLAINTIFF XANDRA KAYDENS OPPOSITION TO DEMURRER OF DEFENDANT JEFFREY SIEGEL TO THE FIRST AMENDED COMPLAINT

Case Management Order

8/19/2021: Case Management Order

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

8/19/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [CASE MANAGEMENT ORDER]

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: FAILURE T...)

8/19/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: FAILURE T...)

44 More Documents Available

 

Docket Entries

  • 12/06/2022
  • Hearing12/06/2022 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 11/29/2022
  • Hearing11/29/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/31/2022
  • Hearing08/31/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 03/10/2022
  • Hearing03/10/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 02/15/2022
  • Hearing02/15/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 12/07/2021
  • DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by Jeffrey Siegel (Defendant)

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  • 12/07/2021
  • DocketMotion to Strike (not initial pleading); Filed by Jeffrey Siegel (Defendant)

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  • 12/07/2021
  • DocketNotice of Ruling; Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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  • 12/07/2021
  • DocketAnswer; Filed by Cantaloupe Holdings (Defendant)

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  • 11/19/2021
  • Docketat 08:30 AM in Department 37; Order to Show Cause Re: Failure to File Proof of Service - Held - Continued

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53 More Docket Entries
  • 10/30/2020
  • DocketDeclaration re: Due Diligence (Declaration of Reasonable Diligence); Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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  • 10/30/2020
  • DocketProof of Personal Service; Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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  • 09/29/2020
  • DocketProof of Service by Mail; Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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  • 09/29/2020
  • DocketProof of Service by Substituted Service; Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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  • 09/11/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 09/11/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 09/04/2020
  • DocketSummons (on Complaint); Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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  • 09/02/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 09/02/2020
  • DocketComplaint; Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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  • 09/02/2020
  • DocketCivil Case Cover Sheet; Filed by Xandra Kayden, by and through her Conservator, Stephen Goldman, D.O. (Plaintiff)

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Tentative Rulings

b'

Case Number: 20STCV33725 Hearing Date: October 7, 2021 Dept: 37

\r\n\r\n

HEARING DATE: October\r\n7, 2021

\r\n\r\n

CASE NUMBER: 20STCV33725

\r\n\r\n

CASE NAME: Xandra Kayden, by and through her\r\nconservator, Stephen Goldman, D.O. v. Jeffrey Siegel, a California licensed\r\nprofessional fiduciary, et al.

\r\n\r\n

MOVING PARTY: Defendant,\r\nJeffrey Siegel, a California licensed professional fiduciary

\r\n\r\n

OPPOSING PARTY: Plaintiff,\r\nXandra Kayden, by and through her conservator, Stephen Goldman, D.O.

\r\n\r\n

TRIAL DATE: December\r\n6, 2022

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PROOF OF SERVICE: OK

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MOTION: Defendant’s\r\nDemurrer to First Amended Complaint, Defendant’s Motion to Strike Portions of First\r\nAmended Complaint

\r\n\r\n

OPPOSITION: September\r\n24 2021

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REPLY: September 30,\r\n2021

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TENTATIVE: \r\nSiegel’s\r\ndemurrer is sustained as to the second and fourth cause of action and otherwise\r\noverruled. Siegel’s motion to strike is granted. Plaintiff is granted 30 days\r\nleave to amend. Siegel is to give notice.

\r\n\r\n

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Background

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\r\n\r\n

This is an elder abuse action arising out of care and\r\ntreatment provided to Plaintiff, Xandra Kayden. (“Plaintiff”) Plaintiff brings\r\nthis action through her conservator, Stephen Goldman, D.O. (“Mr. Goldman”) Plaintiff alleges that is 80 years old with\r\ndementia and that until December 2017, was able to function normally at home\r\nconsistent with her age. In late 2017, Plaintiff suffered an episode of agitated\r\nbehavior with paranoia for which she required hospitalization. According to the\r\nComplaint, Plaintiff was allegedly introduced to Defendant Jeffrey Siegel\r\n(“Siegel”) during her hospitalization and signed a Trust Agreement on January\r\n9, 2018 appointing Sigel as her trustee. After Siegel allegedly gained control\r\nof Plaintiff’s affairs, Siegel then hired Defendant Personal Care Agency\r\n(“Personal Care”) to provide 24/7\r\nin-home care for Plaintiff. Defendant Elena Aquino (“Aquino”) provided\r\nPlaintiff care through Personal Care and allegedly failed to provide adequate\r\nassistance such that Plaintiff became more debilitated. Plaintiff was also\r\nallegedly overmedicated and sustained other injuries during this time through\r\nPersonal Care, Aquino and Defendant Rhoda S. Hernandez. (“Hernandez”)

\r\n\r\n

\r\n\r\n

Plaintiff’s Complaint alleges the following causes of\r\naction: (1) violation of Patient’s Rights (Health and Safety Code §\r\n1430(b)), (2) elder abuse, (3) violation of Penal Code § 368, (4) constructive\r\nfraud, (5) breach of fiduciary duty against Siegel, (6) accounting against\r\nSiegel.

\r\n\r\n

\r\n\r\n

On June 16, 2021, Plaintiff filed the operative First\r\nAmended Complaint. (“FAC”) The FAC alleges the same six causes of action.

\r\n\r\n

Defendant now demurs to the FAC’s second, fourth and\r\nfifth causes of action. Defendant additionally moves to strike portions of the\r\nFAC. Plaintiff opposes both motions.

\r\n\r\n

DEMURRER

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Discussion[1]

\r\n\r\n
  1. Legal\r\nStandard

\r\n\r\n

A demurrer is an objection to a pleading, the grounds\r\nfor which are apparent from either the face of the complaint or a matter of\r\nwhich the court may take judicial notice. \r\n(Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the\r\nsufficiency of a pleading “by raising questions of law.” (Postley\r\nv. Harvey (1984) 153 Cal.App.3d 280, 286.) \r\nThe court “treat[s] the demurrer as admitting all material facts\r\nproperly pleaded, but not contentions, deductions or conclusions of fact or\r\nlaw. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the\r\npurpose of determining its effect, its allegations must be liberally construed,\r\nwith a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75\r\nCal.App.4th 594, 601.) “When a court\r\nevaluates a complaint, the plaintiff is entitled to reasonable inferences from\r\nthe facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

\r\n\r\n

The general rule is that the plaintiff need only\r\nallege ultimate facts, not evidentiary facts. \r\n(Doe v. City of Los Angeles\r\n(2007) 42 Cal.4th 531, 550.) “All that\r\nis required of a plaintiff, as a matter of pleading, even as against a special\r\ndemurrer, is that his complaint set forth the essential facts of the case with\r\nreasonable precision and with sufficient particularity to acquaint the\r\ndefendant with the nature, source and extent of his cause of action.” (Rannard\r\nv. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored\r\nand are granted only if the pleading is so incomprehensible that a defendant\r\ncannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017)\r\n14 Cal.App.5th 841, 848, fn. 3, citing Lickiss\r\nv. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in\r\nsome respects uncertain, courts strictly construe a demurrer for uncertainty\r\n“because ambiguities can be clarified under modern discovery procedures.” (Khoury\r\nv. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

\r\n\r\n

Demurrers do\r\nnot lie as to only parts of causes of action where some valid claim is alleged\r\nbut “must dispose of an entire cause of action to be sustained.” (Poizner\r\nv. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse\r\nof discretion to sustain a demurrer without leave to amend if there is any\r\nreasonable possibility that the defect can be cured by amendment.” (Goodman\r\nv. Kennedy (1976) 18 Cal.3d 335, 349.) \r\n

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  1. Analysis

\r\n\r\n\r\n\r\n
  1. Second Cause of Action: Elder\r\nAbuse

\r\n\r\n

California’s Elder Abuse Act (the “Act”) defines dependent\r\nadult abuse as either “(a) physical abuse, neglect, financial abuse,\r\nabandonment, isolation, abduction, or other treatment with resulting physical\r\nharm or pain or mental suffering; (b) the deprivation by a care custodian of\r\ngoods or services that are necessary to avoid physical harm or mental\r\nsuffering.” (Welf. and Inst. Code §15610.07.) Physical\r\nabuse of a dependent adult is defined by welfare and Institutions Code section\r\n15610.63, subdivision (d) as “unreasonable physical constraint, or prolonged or\r\ncontinual deprivation of food or water.”

\r\n\r\n

\r\n\r\n

Neglect under the Act is not "the substandard\r\nperformance of medical services," but is rather the failure of those\r\nresponsible to carry out their custodial obligations. (Covenant Care Inc. v.\r\nSuperior Court (2004) 32 Ca1.4th 771, 783.) Thus, when the issue is\r\nthe medical care of a dependent adult, "the statutory definition of\r\n\'neglect\' speaks not of the undertaking of medical services, but of the failure\r\nto provide medical care." (Ibid.)

\r\n\r\n

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For conduct to constitute neglect within the Act, Plaintiff\r\nmust allege facts establishing that defendant “(1) had responsibility for\r\nmeeting the basic needs of the elder or dependent adult, such as nutrition,\r\nhydration, hygiene or medical care; (2) knew of conditions that made the elder\r\nor dependent adult unable to provide for his or her own basic needs; and (3)\r\ndenied or withheld goods or services necessary to meet the elder or dependent\r\nadult’s basic needs, either with knowledge that injury was substantially\r\ncertain to befall the elder or dependent adult . . . or with conscious\r\ndisregard of the high probability of such injury.” (Id.) “Facts\r\nconstituting the neglect and establishing the causal link between the neglect\r\nand the injury ‘must be pleaded with particularity.’” (Carter v. Prime Healthcare Paradise\r\nValley (2011) 198\r\nCal.App.4th 396, at 406-407.)

\r\n\r\n

\r\n\r\n

Siegel contends\r\nthat the second cause of action is insufficiently pled because it attempts to\r\nimpose liability on Siegel, a trustee, the duties of a conservator of that\r\nperson. (Demurrer, 8-13.) Siegel also contends that the second cause of action\r\nis insufficiently pled because the FAC fails to attach a copy of the January 9,\r\n2018 Declaration of Trust or allege its terms. (Id.) Additionally Siegel\r\ncontends that the second cause of action is insufficiently pled because Siegel did not act in a custodial care\r\ncapacity as required under the Act. (Demurrer, 8-13.)

\r\n\r\n

\r\n\r\n

In opposition,\r\nPlaintiff contends that the FAC sufficiently alleges that Siegel acted as a\r\ncare custodian for Plaintiff within the meaning of the EADCPA and that the\r\nsecond cause of action sufficiently pleads all elements of a claim for elder\r\nabuse. (Opposition, 9-11.)

\r\n\r\n

\r\n\r\n

Here, the FAC\r\nalleges that Plaintiff was 80 years old with dementia. (FAC ¶ 12.) Stephen\r\nGoldman, D.O. is alleged to be Plaintiff’s conservator. (FAC ¶ 6.) While\r\nPlaintiff was hospitalized, she was allegedly introduced to Siegel and on\r\nJanuary 9, 2018, signed a Trust Agreement appointing Siegel as her trustee.\r\n(FAC ¶ 14.) As trustee, Siegel allegedly had power of attorney over “all of\r\nPlaintiff’s personal, medical and financial affairs” and his relationship with\r\nPlaintiff was “more akin to a conservator and was a fiduciary.” (Id.)\r\nAfter Siegel gained control of Plaintiff’s affairs, Siegel allegedly hired\r\nPersonal Care to provide 24/7 care. (FAC ¶¶ 15-18.) Additionally, Siegel “was a care custodian of Xandra as he was\r\nessentially an administrator of her care.” (FAC ¶\r\n57.) Thereafter, Plaintiff allegedly declined in health due to Siegel’s hiring\r\nof Personal Care to provide home health. (see FAC ¶¶ 31-39.)

\r\n\r\n

\r\n\r\n

Plaintiff’s\r\nsecond cause of action is insufficiently pled. The FAC still fails to allege\r\nthat Siegel had any responsibility to meet Plaintiff’s basic needs and act as a\r\ncare custodian for Plaintiff. Although the FAC now alleges that Siegel’s role\r\nwas “more akin to a conservator and was a fiduciary,” the FAC still alleges\r\nthat Goldman was appointed as Plaintiff’s conservator. Further, the FAC still\r\nalleges that Siegel’s role in Plaintiff’s care involved hiring Personal Care to\r\nprovide home health. The FAC also does not plead any details of what the Trust\r\nAgreement between Plaintiff and Siegel involved. Thus, the FAC does not plead\r\nelder abuse against Siegel with particularity.

\r\n\r\n

\r\n\r\n

For these\r\nreasons, Siegel’s demurrer is sustained as to the second cause of action.

\r\n\r\n

\r\n\r\n
  1. Fourth Cause of Action:\r\nConstructive Fraud

\r\n\r\n

“Constructive\r\nfraud is a unique species of fraud applicable only to a fiduciary or\r\nconfidential relationship.” (Assilzadeh v. California Federal Bank (2000)\r\n82 Cal.App.4th 399, 415.) “Most acts by an agent in breach of his\r\nfiduciary duties constitute constructive fraud.” (Id.) “Elements of\r\n[a] constructive fraud cause of action are: (1) a fiduciary or\r\nconfidential relationship; (2) nondisclosure (breach of fiduciary duty); (3)\r\nintent to deceive, and (4) reliance and resulting injury.” (Prakashpalan v.\r\nEngstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105,\r\n1131.) Constructive fraud allows conduct that falls short of actual fraud\r\nto be treated as such when the parties are in a fiduciary relationship. (Estate\r\nof Gump (1991) 1 Cal.App.4th 582, 601.)

\r\n\r\n

\r\n\r\n

Siegel\r\ncontends that the fourth cause of action is insufficiently pled because the FAC\r\nfails to plead any of the required elements of constructive fraud. (Demurrer,\r\n13-14.) In opposition, Plaintiff contends that the fourth cause of action is\r\nsufficiently pled because the FAC alleges that Siegel and Plaintiff had a\r\n“special relationship, both fiduciary and confidential in nature,” and that\r\nSiegel’s actions violated the duties required of him in connection with this\r\nrelationship. (Opposition, 12-14.)

\r\n\r\n

\r\n\r\n

Here, the FAC’s fourth cause of action is alleged\r\nagainst all Defendants. Specifically, the FAC alleges that at all relevant\r\ntimes, “a special relationship, both fiduciary and confidential in nature,”\r\nexisted between Plaintiff and “Defendants.” (FAC ¶ 65.) Specifically, Siegel was entrusted\r\nto “act as Plaintiff’s fiduciary, both medically and financially.” (Id.)\r\nPlaintiff was allegedly totally dependent upon “Defendants” for her medical and\r\npersonal needs.” (FAC ¶¶ 66-69.) “Defendants” duties required that they “be\r\ntruthful” about Plaintiff’s “medical condition, injuries, the success of\r\nactions taken,” and other facts. (FAC ¶ 70.) “Defendants” breached their\r\n“duties and obligations” to Plaintiff and “robbed her of the ability to\r\nfunction normally, or at the least, with some measure of quality in her life.”\r\n(FAC ¶ 71.) Specifically, Siegel allegedly “failed to make sure that Plaintiff\r\nwas receiving appropriate care,” by, for example, taking “steps to block the\r\ninformation regarding Xandras lack of care” and not responding to calls from\r\nthe hospital. (FAC ¶ 72.)

\r\n\r\n

The court finds the fourth cause of action insufficiently pled. Although\r\nthe fourth cause of action now alleges that Siegel had a relationship with\r\nPlaintiff that was “both fiduciary and confidential,” the fourth cause of\r\naction does not allege how Siegel intended to deceive Plaintiff in connection\r\nwith this relationship. Additionally, the fourth cause of action is\r\ninsufficiently pled because it alleges that Plaintiff relied on all Defendants\r\ndue to the each of their “special relationship” with Plaintiff. Thus, the FAC\r\ninsufficiently pleads how Plaintiff suffered injury due to her reliance on\r\nSiegel, and not the other defendants.

\r\n\r\n

For these reasons, Siegel’s demurrer to the fourth cause of action is\r\nsustained.

\r\n\r\n
  1. Fifth Cause of Action: Breach of\r\nFiduciary Duty

\r\n\r\n

“The elements of a cause of action for breach of fiduciary duty are: (1)\r\nthe existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3)\r\ndamage proximately caused by the breach.” (Stanley v. Richmond (1995)\r\n35 Cal.App.4th 1070, 1086.)

\r\n\r\n

Siegel contends that the fifth cause of action is\r\ninsufficiently pled because the FAC fails to allege that Siegel owed the duties\r\nalleged or that he breached duties to Plaintiff because it does not follow from\r\nthe allegations about his role as Plaintiff’s trustee that he had a duty to act\r\nas her guardian. (Demurrer, 14.) In opposition, Plaintiff contends that the\r\nfifth cause of action is sufficiently pled because the Complaint alleges that\r\nSiegel breached duties to Plaintiff “in every material respect.” (Opposition,\r\n14-15.)

\r\n\r\n

Here, the FAC alleges that Siegel was Plaintiff’s\r\nfiduciary and owed a duty to act in Plaintiff’s best interest in her personal,\r\nmedical and financial affairs. (FAC ¶¶ 76-77.) Siegel allegedly breached his\r\nduties in every aspect by, for example, “taking compensation for tasks never\r\nperformed” and “providing substandard care which he never monitored.” (FAC ¶\r\n78.) Siegel also allegedly “refused to return calls” or “address the concerns”\r\nof “friends and relatives of Plaintiff.” (Id.) Siegel also did not “take\r\nany kind of affirmative or corrective action to alleviate Plaintiff’s\r\nsuffering.” (Id.) Siegel also “hired caregivers who were incapable of\r\nrecognizing her medical care” leading to a decline in Plaintiff’s health. (FAC ¶\r\n80.)

\r\n\r\n

Liberally construing the allegations of the FAC in favor of Plaintiff,\r\nthe court finds the fifth cause of action sufficiently pled. The FAC now\r\nalleges that Siegel’s hiring of Personal Care constitutes a breach of his\r\nfiduciary duties. The FAC also alleges that Siegel was a fiduciary who had a\r\nduty to act in Plaintiff’s best interest in her personal, medical and financial\r\naffairs. Such allegations are sufficient to state a claim for breach of fiduciary\r\nduty.

\r\n\r\n

For these reasons, Siegel’s demurrer to the fifth cause of action is\r\noverruled.

\r\n\r\n

Conclusion

\r\n\r\n

Siegel’s demurrer is sustained as to the second and fourth cause of\r\naction and otherwise overruled. Plaintiff is granted 30 days leave to amend.\r\nSiegel is to give notice.

\r\n\r\n

MOTION TO\r\nSTRIKE

\r\n\r\n

Siegel moves to strike all of the following from the FAC:

\r\n\r\n
  1. Paragraph 56 of the First Amended Complaint

  2. That portion of paragraph 58 of the First\r\nAmended Complaint at page 19 line 25, that reads, “treble damages pursuant to\r\nCivil Code §3345.”

  3. That portion of paragraph 58 of the First\r\nAmended Complaint at page 19 line 26, that reads, “and to attorneys fees\r\npursuant to W & I Code §15657.”

  4. Paragraph 59 of the First Amended Complaint

  5. That portion of paragraph 73 of the First\r\nAmended Complaint at page 23 line 8, that reads, “entitled and to attorneys\r\nfees [ . . . . . . . .] pursuant to W & I Code §15657.”

  6. That portion of paragraph 73 of the First\r\nAmended Complaint at page 23 line 8, that reads, “entitled and to [ . . . . . .\r\n. . ] punitive damages pursuant to W & I Code §15657.”

  7. Paragraph 74 of the First Amended Complaint

  8. That portion of paragraph 83 of the First\r\nAmended Complaint at page 25 line 28, that reads, “treble damages pursuant to\r\nCivil Code §3345.”

  9. That portion of paragraph 89 of the First\r\nAmended Complaint at page 27 lines 28 – page 26, line 1, that reads, “and to\r\nattorneys fees pursuant to W & I Code §15657.”

  10. Paragraph 84 of the First Amended Complaint,\r\nconcerning punitive damages, in its entirety.

  11. That portion of paragraph 86 of the First\r\nAmended Complaint at page 24 lines 2- 3, that reads, “together with all other\r\nremedies attendant to the financial abuse of an elder under the Welfare &\r\nInstitutions Code.”

  12. Item number 3 of the Prayer,

  13. Item number 5 of the Prayer

  14. Item\r\nnumber 6 of the Prayer

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

According to Siegel, these items can be organized into the following\r\ncategories: (1) allegations asserting entitlement to relief under Welfare and\r\nInstitutions Code §15657, (2)\r\nallegation in the sixth cause of action that Plaintiff is entitled to remedies\r\nfor financial elder abuse, (3) allegations and prayer for punitive damages, (4)\r\nallegations and prayer for treble damages.

\r\n\r\n

Discussion

\r\n\r\n
  1. Legal\r\nStandard

    Pursuant to Code of Civil\r\nProcedure, section 436, “the court may, upon a motion made pursuant to Section\r\n435, or at any time in its discretion, and upon terms it deems proper: (a)\r\nStrike out any irrelevant, false, or improper matter inserted in any pleading.\r\n(b) Strike out all or any part of any pleading not drawn or filed in conformity\r\nwith the laws of this state, a court rule, or an order of the court.” The\r\ngrounds for a motion to strike must “appear on the face of the challenged\r\npleading or from any matter of which the court is required to take judicial\r\nnotice.” (Code Civ. Proc., § 437.)

    Motions to strike are used\r\nto challenge defects in the pleadings not subject to demurrer. (Ferraro\r\nv. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing\r\nthat an objection that the complaint failed to state facts sufficient to\r\nconstitute a cause of action is ground for a general demurrer, not a motion to\r\nstrike.].) Any party may move to strike the whole or any part of a\r\npleading within the time allotted to respond to the pleading. (Code Civ.\r\nProc., § 435, subd. (b)(1).) The allegations of a complaint “must be\r\nliberally construed, with a view to substantial justice between the\r\nparties.” (Code Civ. Proc., § 452.) The court “read[s] allegations\r\nof a pleading subject to a motion to strike as a whole, all parts in their\r\ncontext, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998)\r\n67 Cal.App.4th 1253, 1255.)

    II. Analysis

\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
  1. Request for Remedies under EADCPA

\r\n\r\n

First, Siegel moves to strike all requests for remedies\r\nunder the EADCPA. (Motion, 7.) According to Siegel, all such requests and\r\nallegations must be stricken because Plaintiff’s claim for elder abuse is\r\ninsufficiently pled. (Id.)

\r\n\r\n

The court agrees with Siegel. The court has found that\r\nPlaintiff’s second cause of action for elder abuse is insufficiently pled.\r\nThus, because Plaintiff’s remaining causes of action do not support requests\r\nfor remedies under the EADCPA, Siegel’s motion is granted as to all requests\r\nfor remedies under the EADCPA. (Notice of Motion, items 1, 3, 5, 6, 9, 12.)

\r\n\r\n
  1. Request for Financial Elder Abuse Remedies in Connection\r\nwith Sixth Cause of Action

\r\n\r\n

Siegel contends that the FAC’s request for financial\r\nelder abuse remedies in connection with the sixth cause of action must be\r\nstricken because the FAC fails to allege a claim for financial elder abuse.\r\n(Motion, 8.) In opposition, Plaintiff contends that Siegel’s motion must be\r\ndenied because “the accounting cause of action references the breach of\r\nfiduciary claim which do allege the wrongful conduct as required.” (Opposition,\r\n3.)

\r\n\r\n

The court agrees with Siegel that the request for\r\nfinancial elder abuse remedies in connection with the sixth cause of action\r\nmust be stricken. Plaintiff does not dispute that the FAC did not plead a claim\r\nfor financial elder abuse. Plaintiff has cited to no authority in support of\r\nthe argument that a request for financial elder abuse remedies is proper in\r\nconnection with an accounting cause of action. Although the accounting cause of\r\naction does reference the breach of fiduciary duty cause of action, the breach\r\nof fiduciary duty cause of action does not also state a claim for financial elder\r\nabuse.

\r\n\r\n

For these reasons, Siegel’s motion is granted as to\r\nthe request to strike financial elder abuse remedies. (Notice of Motion, item 11.)

\r\n\r\n
  1. Request for Punitive Damages

\r\n\r\n

Plaintiff may recover damages “in an action from\r\nbreach “not arising from contract” if Plaintiff proves by clear and convincing\r\nevidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294 subd.\r\n(a).) “Malice means conduct which is intended by the defendant to cause injury\r\nto the plaintiff or despicable conduct which is carried on by the defendant\r\nwith a willful and conscious disregard of the rights or safety of\r\nothers.” (Civ. Code, § 3294 subd. (c)(1).) “Oppression’ means\r\ndespicable conduct that subjects a person to cruel and unjust hardship in\r\nconscious disregard of that person\'s rights.” (Civ. Code, §\r\n3294 subd. (c)(2).) “Fraud means an intentional misrepresentation,\r\ndeceit, or concealment of a material fact known to the defendant with the\r\nintention on the part of the defendant of thereby depriving a person of\r\nproperty or legal rights or otherwise causing injury.” (Civ. Code, §\r\n3294, subd. (c)(3).) A plaintiff’s “conclusory characterization\r\nof defendant’s conduct as intentional, willful and fraudulent is a patently\r\ninsufficient statement of ‘oppression, fraud, or malice, express or\r\nimplied, within the meaning of section 3294.” (Brousseau v.\r\nJarrett (1977) 73 Cal.App.3d 864.)

\r\n\r\n

Siegel contends that the FAC’s allegations and prayer\r\nfor punitive damages must be stricken because the FAC fails to\r\nplead that Siegel acted with malice, oppression or fraud sufficient to support\r\na request for punitive damages. (Motion, 8-10.) In opposition, Plaintiff\r\ncontends that the FAC properly pleads a claim for punitive damages because the\r\nFAC sufficiently alleges that Siegel is a “care custodian subject to the elder\r\nabuse statutes.” (Opposition, 4.)

\r\n\r\n

The court agrees with Siegel that the request for\r\npunitive damages must be stricken. The court has found that Plaintiff’s second\r\ncause of action for elder abuse is insufficiently pled. Thus, because\r\nPlaintiff’s remaining causes of action do not support requests for punitive\r\ndamages, Siegel’s motion is granted as to the request to strike punitive\r\ndamages. (Notice of Motion, 4, 6, 7, 10 and 13.)

\r\n\r\n
  1. Request for Treble\r\nDamages

\r\n\r\n

Siegel contends that the FAC’s prayer for treble\r\ndamages should be stricken because the FAC does not plead unfair competition or\r\ndeceptive practices such that Civil Code section 3345 would apply. (Motion,\r\n10.) Additionally, Siegel contends that the request for treble damages must be\r\nstricken because the request for punitive damages must also be stricken and\r\nthus, there are no penalties to treble under Civil Code section 3345. (Id.)\r\nCivil Code section 3345, subdivision (b) provides in pertinent part:

\r\n\r\n

“Whenever a trier of fact is authorized by a statute\r\nto impose either a fine, or a civil penalty or other penalty, or any other remedy\r\nthe purpose or effect of which is to punish or deter, and the amount of the\r\nfine, penalty, or other remedy is subject to the trier of fact’s discretion,\r\nthe trier of fact shall consider all of the following factors, in addition to\r\nother appropriate factors, in determining the amount of fine, civil penalty or\r\nother penalty, or other remedy to impose. Whenever the trier of fact makes an\r\naffirmative finding in regard to one or more of the following factors, it may\r\nimpose a fine, civil penalty or other penalty, or other remedy in an amount up\r\nto three times greater than authorized by the statute…”

\r\n\r\n

In opposition, Plaintiff contends that the FAC is\r\nsufficient to support a request for treble damages because the FAC sufficiently\r\npleads a claim for elder abuse and in support of a request for punitive\r\ndamages. (Opposition, 7-8.)

\r\n\r\n

The court agrees with Siegel that the request for\r\ntreble damages must be stricken. The court has found that Plaintiff’s second\r\ncause of action for elder abuse is insufficiently pled. Thus, because\r\nPlaintiff’s remaining causes of action do not support requests for treble\r\ndamages, Siegel’s motion is granted as to the request to strike treble damages.\r\n(Notice of Motion, 2, 8, 14.)

\r\n\r\n

Conclusion

\r\n\r\n

Siegel’s motion is granted. Siegel is to give notice.

\r\n\r\n

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

[1]\r\nSiegel submits a declaration from its counsel, James E. Adler (“Adler”) to\r\ndemonstrate its compliance with statutory meet and confer requirements. Adler\r\nattests that on July 14, 2021, the parties met and conferred telephonically\r\nregarding the arguments raised in this demurrer but were unable to reach an\r\nagreement. (Young Decl. ¶ 2.) The Adler Declaration is sufficient for purposes\r\nof Code of Civil Procedure section 430.41.

\r\n\r\n
\r\n\r\n
\r\n\r\n'

Case Number: 20STCV33725    Hearing Date: May 21, 2021    Dept: 37

HEARING DATE: May 17, 2021

CASE NUMBER: 20STCV33725

CASE NAME: Xandra Kayden, by and through her conservator, Stephen Goldman, D.O. v. Jeffrey Siegel, a California licensed professional fiduciary, et al.

MOVING PARTY: Defendant, Jeffrey Siegel

OPPOSING PARTY: Plaintiff, Xandra Kayden, by and through her conservator, Stephen Goldman, D.O.

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Demurrer to Complaint, Defendant’s Motion to Strike Portions of Complaint

OPPOSITION: May 4, 2021

REPLY: May 10, 2021

TENTATIVE: Siegel’s demurrer is sustained. Having sustained Siegel’s demurrer, Siegel’s motion to strike is moot. Plaintiff is granted 30 days leave to amend. Siegel is to give notice.

Background

This is an elder abuse action arising out of care and treatment provided to Plaintiff, Xandra Kayden. (“Plaintiff”) Plaintiff brings this action through her conservator, Stephen Goldman, D.O. (“Mr. Goldman”) Plaintiff alleges that she is 80 years old with dementia and that until December 2017, was able to function normally at home consistent with her age. In late 2017, Plaintiff suffered an episode of agitated behavior with paranoia for which she required hospitalization. According to the Complaint, Plaintiff was allegedly introduced to Defendant Jeffrey Siegel (“Siegel”) during her hospitalization and signed a Trust Agreement on January 9, 2018 appointing Sigel as her trustee. After Siegel allegedly gained control of Plaintiff’s affairs, Siegel then hired Defendant Personal Care Agency (“Personal Care”) to provide 24/7 in-home care for Plaintiff. Defendant Elena Aquino (“Aquino”) provided Plaintiff care through Personal Care and allegedly failed to provide adequate assistance such that Plaintiff became more debilitated. Plaintiff was also allegedly overmedicated and sustained other injuries during this time through Personal Care, Aquino and Defendant Rhoda S. Hernandez. (“Hernandez”)

Plaintiff’s Complaint alleges the following causes of action: (1) violation of Patient’s Rights (Health and Safety Code § 1430(b)), (2) elder abuse, (3) violation of Penal Code § 368, (4) constructive fraud, (5) breach of fiduciary duty against Siegel, (6) accounting against Siegel.

Siegel now demurs to the first through fifth causes of action and moves to strike portions of the Complaint. Plaintiff opposes the motion.

DEMURRER

Discussion[1]

  1. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

  1. Analysis

  1. First Cause of Action: Violation of Patient’s Bill of Rights (Health and Safety Code § 1430(b)

Health and Safety Code section 1430 provides that “[a] current or former resident or patient of a skilled nursing facility . . . may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” (Health & Safety Code, § 1430(b).) “The licensee shall be liable for the acts of the licensee’s employees.” (Id.)  

Siegel contends that the first cause of action is insufficiently pled as to him because the first cause of action only permits actions by residents of nursing homes against nursing homes, and Siegel is not a nursing home. (Demurrer, 10-12.) In opposition, Plaintiff contends that the first cause of action is sufficiently pled because it alleges that Siegel was a care custodian for Plaintiff and thus, is “ultimately liable” for violations of patient’s bill of rights. (Opposition, 9.)

The court agrees with Siegel that the first cause of action is insufficiently pled. Health and Safety Code section 1430 states on its face that it applies only to current or former residents of a skilled nursing facility. Siegel is not alleged to be a nursing facility and thus, the first cause of action is insufficiently pled as to him.

For these reasons, Siegel’s demurrer to the first cause of action is sustained.

  1. Second Cause of Action: Elder Abuse

California’s Elder Abuse Act (the “Act”) defines dependent adult abuse as either “(a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. and Inst. Code §15610.07.) Physical abuse of a dependent adult is defined by welfare and Institutions Code section 15610.63, subdivision (d) as “unreasonable physical constraint, or prolonged or continual deprivation of food or water.”  

Neglect under the Act is not "the substandard performance of medical services," but is rather the failure of those responsible to carry out their custodial obligations. (Covenant Care Inc. v. Superior Court (2004) 32 Ca1.4th 771, 783.) Thus, when the issue is the medical care of a dependent adult, "the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care." (Ibid.)  

For conduct to constitute neglect within the Act, Plaintiff must allege facts establishing that 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 . . . or with conscious disregard of the high probability of such injury.” (Id.) “Facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity.’” (Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, at 406-407.) 

Siegel contends that the second cause of action is insufficiently pled because it attempts to impose liability on Siegel, a trustee, the duties of a conservator of that person. (Demurrer, 10.) Additionally Siegel contends that the second cause of action is insufficiently pled because Siegel did not act in a custodial care capacity as required under the Act. (Demurrer, 12-14.)

Plaintiff’s opposition does not respond to Siegel’s first argument. Plaintiff contends that the second cause of action is sufficiently pled because the Complaint alleges at paragraphs 12-39 that Siegel acted in a manner which constitutes elder abuse of Plaintiff. (Opposition, 10-11.)

Here, the Complaint alleges that Plaintiff was 80 years old with dementia. (Complaint ¶ 12.) While Plaintiff was hospitalized, she was allegedly introduced to Siegel and on January 9, 2018, signed a Trust Agreement appointing Siegel as her trustee. (Complaint ¶ 14.) AS trustee, Siegel allegedly had power of attorney over “all of Plaintiff’s personal, medical and financial affairs” despite Plaintiff having no recollection of how this came about. (Id.) After Siegel gained control of Plaintiff’s affairs, Siegel allegedly hired Personal Care to provide 24/7 care. (Complaint ¶¶ 15-18.) Thereafter, Plaintiff allegedly declined in health due to Siegel’s hiring of Personal Care to provide home health. (see Complaint ¶¶ 31-39.)

Plaintiff’s second cause of action is insufficiently pled. The Complaint fails to allege that Siegel had any responsibility to meet Plaintiff’s basic needs and act as a care custodian for Plaintiff. Indeed, the Complaint admits that Siegel became Plaintiff’s trustee and that thereafter, chose to hire Personal Care to provide Plaintiff home health. (see Complaint, ¶¶ 15-18.) Such allegations are insufficient to plead that Siegel was a care custodian for purposes of liability under the Act.

For these reasons, Siegel’s demurrer to the second cause of action is sustained.

  1. Third Cause of Action: Violation of Penal Code § 368

Siegel contends that the third cause of action is insufficiently pled because Penal Code section 368 cannot provide a basis for tort liability. (Demurrer, 16-17.) Penal Code section 368 provides in pertinent part:

(Penal Code § 368, subd. (b)(1).) Siegel also cites to People v. Heitzman (1994) 9 Cal.4th 189, (People) in support of his argument. In People, the California Supreme Court held that “when an individual's criminal liability is based on the failure to act, it is well established that he or she must first be under an existing legal duty to take positive action.” (Id. at 1233-1234.)

In opposition, Plaintiff contends that a civil cause of action under Penal Code section 368 is appropriate because she is a member of the public that this statute was designed to protect. (Opposition, 11.) Plaintiff cites to Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1224 (Angie M) in support of this argument.

Plaintiff’s reliance on Angie M misplaced. Although Angie M articulated the general principle that “Civil actions lie in favor of crime victims,” Angie M analyzed on whether civil causes of action exist for minor victims of sexual abuse. (Id. at 1224.) Specifically, the Angie M court noted that a civil claim was appropriate in this instance in part because the Legislature has impliedly recognized a right to a civil action for victims of “childhood sexual abuse.” (Id. at 1225.)

The court finds the third cause of action insufficiently pled. As discussed above, the Complaint fails to sufficiently allege that Siegel had any duty to Plaintiff under the Act because the Complaint does not allege that Siegel was a care custodian for Plaintiff. Thus, pursuant to People, Plaintiff may not allege a claim under Penal Code section 368 because the Complaint does not allege that Siegel was under any duty to take positive action.

  1. Fourth Cause of Action: Constructive Fraud

“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.) “Most acts by an agent in breach of his fiduciary duties constitute constructive fraud.” (Id.) “Elements of [a] constructive fraud cause of action are: (1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.) Constructive fraud allows conduct that falls short of actual fraud to be treated as such when the parties are in a fiduciary relationship. (Estate of Gump (1991) 1 Cal.App.4th 582, 601.) 

Siegel contends that the fourth cause of action is insufficiently pled because the Complaint fails to plead any of the required elements of constructive fraud. (Demurrer, 17.) In opposition, Plaintiff contends that the fourth cause of action is sufficiently pled because the Complaint alleges that Siegel acted as a trustee and thus, in a fiduciary capacity. (Opposition, 12-14.)

Here, the Complaint alleges that at all relevant times, “a special relationship, both fiduciary and confidential in nature,” existed between Plaintiff and “Defendants.” (Complaint ¶ 63.) Specifically, Siegel was entrusted to act as Plaintiff’s fiduciary and thus had a “heightened duty” to ensure Plaintiff received appropriate care. (Id.) “Defendants” obligations to Plaintiff allegedly required that they be “truthful about her medical conditions, injuries, the success of actions taken” and other matters. (Complaint ¶ 68.) Defendants allegedly breached their duty through “acts and failures to act.” (Complaint ¶ 69.)

The court finds the fourth cause of action insufficiently pled. Although the Complaint alleges that Siegel was a trustee and had power of attorney, the fourth cause of action now alleges that all Defendants had a “special relationship” with Plaintiff. Further, all Defendants are alleged to have various unspecific duties to Plaintiff, including being “truthful about her medical conditions.” The Complaint also does not allege what Siegel, and not the other defendants, allegedly did which breached his fiduciary duties, other than conclusory statements that all defendants breached their duties. Such allegations are insufficient to state a claim for constructive fraud.

For these reasons, Siegel’s demurrer to the fourth cause of action is sustained.

  1. Fifth Cause of Action: Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

Siegel contends that the fifth cause of action is insufficiently pled because the Complaint fails to allege that Siegel owed the duties alleged or that he breached duties to Plaintiff. (Demurrer, 17-18.) Specifically, Siegel contends that as trustee, it does not follow that he had duties as a conservator to monitor Plaintiff’s medical care and treatment. (Demurrer, 10.) In opposition, Plaintiff contends that the fifth cause of action is sufficiently pled because the Complaint alleges that Siegel breached duties to Plaintiff “in every material respect.” (Opposition, 14-15.)

Here, the Complaint alleges that Siegel was Plaintiff’s fiduciary and owed a duty to act in Plaintiff’s best interest in her personal, medical and financial affairs. (Complaint ¶¶ 74-75.) Siegel allegedly breached his duties in every aspect by, for example, “taking compensation for tasks never performed” and “providing substandard care which he never monitored.” (Complaint ¶ 76.)

The court finds the fifth cause of action insufficiently pled. Although the Complaint alleges that Siegel was a trustee and fiduciary, the Complaint fails to allege what actions Siegel engaged in which constitutes a breach of his trustee duties. Instead, the Complaint alleges in a conclusory fashion that Siegel “took compensation” “for tasks never performed” and “never monitored” substandard care provided to Plaintiff. Such allegations are insufficient to state a claim for breach of fiduciary duty.

For these reasons, Siegel’s demurrer to the fifth cause of action is sustained.

Conclusion

Siegel’s demurrer is sustained.

MOTION TO STRIKE

Having sustained Siegel’s demurrer, Siegel’s motion to strike is moot.


[1] Siegel submits a declaration from its counsel, James E. Adler (“Adler”) to demonstrate its compliance with statutory meet and confer requirements. Adler attests that on January 8, 2021, the parties met and conferred telephonically regarding the arguments raised in this demurrer but were unable to reach an agreement. (Young Decl. ¶ 2.) The Adler Declaration is sufficient for purposes of Code of Civil Procedure section 430.41.

Tentative Rulings - Main Menu     Home

Case Number: 20STCV33725    Hearing Date: May 17, 2021    Dept: 37

DEPARTMENT 37
Case Number: 20STCV33725   

HEARING DATE: May 17, 2021

CASE NUMBER: 20STCV33725

CASE NAME: Xandra Kayden, by and through her conservator, Stephen Goldman, D.O. v. Jeffrey Siegel, a California licensed professional fiduciary, et al.

MOVING PARTY: Defendant, Jeffrey Siegel

OPPOSING PARTY: Plaintiff, Xandra Kayden, by and through her conservator, Stephen Goldman, D.O.

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Demurrer to Complaint, Defendant’s Motion to Strike Portions of Complaint

OPPOSITION: May 4, 2021

REPLY: May 10, 2021

TENTATIVE: Siegel’s demurrer is sustained. Having sustained Siegel’s demurrer, Siegel’s motion to strike is moot. Plaintiff is granted 30 days leave to amend. Siegel is to give notice.

Background

This is an elder abuse action arising out of care and treatment provided to Plaintiff, Xandra Kayden. (“Plaintiff”) Plaintiff brings this action through her conservator, Stephen Goldman, D.O. (“Mr. Goldman”) Plaintiff alleges that she is 80 years old with dementia and that until December 2017, was able to function normally at home consistent with her age. In late 2017, Plaintiff suffered an episode of agitated behavior with paranoia for which she required hospitalization. According to the Complaint, Plaintiff was allegedly introduced to Defendant Jeffrey Siegel (“Siegel”) during her hospitalization and signed a Trust Agreement on January 9, 2018 appointing Sigel as her trustee. After Siegel allegedly gained control of Plaintiff’s affairs, Siegel then hired Defendant Personal Care Agency (“Personal Care”) to provide 24/7 in-home care for Plaintiff. Defendant Elena Aquino (“Aquino”) provided Plaintiff care through Personal Care and allegedly failed to provide adequate assistance such that Plaintiff became more debilitated. Plaintiff was also allegedly overmedicated and sustained other injuries during this time through Personal Care, Aquino and Defendant Rhoda S. Hernandez. (“Hernandez”)

Plaintiff’s Complaint alleges the following causes of action: (1) violation of Patient’s Rights (Health and Safety Code § 1430(b)), (2) elder abuse, (3) violation of Penal Code § 368, (4) constructive fraud, (5) breach of fiduciary duty against Siegel, (6) accounting against Siegel.

Siegel now demurs to the first through fifth causes of action and moves to strike portions of the Complaint. Plaintiff opposes the motion.

DEMURRER

Discussion[1]

  1. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

  1. Analysis

  1. First Cause of Action: Violation of Patient’s Bill of Rights (Health and Safety Code § 1430(b)

Health and Safety Code section 1430 provides that “[a] current or former resident or patient of a skilled nursing facility . . . may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” (Health & Safety Code, § 1430(b).) “The licensee shall be liable for the acts of the licensee’s employees.” (Id.)  

Siegel contends that the first cause of action is insufficiently pled as to him because the first cause of action only permits actions by residents of nursing homes against nursing homes, and Siegel is not a nursing home. (Demurrer, 10-12.) In opposition, Plaintiff contends that the first cause of action is sufficiently pled because it alleges that Siegel was a care custodian for Plaintiff and thus, is “ultimately liable” for violations of patient’s bill of rights. (Opposition, 9.)

The court agrees with Siegel that the first cause of action is insufficiently pled. Health and Safety Code section 1430 states on its face that it applies only to current or former residents of a skilled nursing facility. Siegel is not alleged to be a nursing facility and thus, the first cause of action is insufficiently pled as to him.

For these reasons, Siegel’s demurrer to the first cause of action is sustained.

  1. Second Cause of Action: Elder Abuse

California’s Elder Abuse Act (the “Act”) defines dependent adult abuse as either “(a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. and Inst. Code §15610.07.) Physical abuse of a dependent adult is defined by welfare and Institutions Code section 15610.63, subdivision (d) as “unreasonable physical constraint, or prolonged or continual deprivation of food or water.”  

Neglect under the Act is not "the substandard performance of medical services," but is rather the failure of those responsible to carry out their custodial obligations. (Covenant Care Inc. v. Superior Court (2004) 32 Ca1.4th 771, 783.) Thus, when the issue is the medical care of a dependent adult, "the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care." (Ibid.)  

For conduct to constitute neglect within the Act, Plaintiff must allege facts establishing that 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 . . . or with conscious disregard of the high probability of such injury.” (Id.) “Facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity.’” (Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, at 406-407.) 

Siegel contends that the second cause of action is insufficiently pled because it attempts to impose liability on Siegel, a trustee, the duties of a conservator of that person. (Demurrer, 10.) Additionally Siegel contends that the second cause of action is insufficiently pled because Siegel did not act in a custodial care capacity as required under the Act. (Demurrer, 12-14.)

Plaintiff’s opposition does not respond to Siegel’s first argument. Plaintiff contends that the second cause of action is sufficiently pled because the Complaint alleges at paragraphs 12-39 that Siegel acted in a manner which constitutes elder abuse of Plaintiff. (Opposition, 10-11.)

Here, the Complaint alleges that Plaintiff was 80 years old with dementia. (Complaint ¶ 12.) While Plaintiff was hospitalized, she was allegedly introduced to Siegel and on January 9, 2018, signed a Trust Agreement appointing Siegel as her trustee. (Complaint ¶ 14.) AS trustee, Siegel allegedly had power of attorney over “all of Plaintiff’s personal, medical and financial affairs” despite Plaintiff having no recollection of how this came about. (Id.) After Siegel gained control of Plaintiff’s affairs, Siegel allegedly hired Personal Care to provide 24/7 care. (Complaint ¶¶ 15-18.) Thereafter, Plaintiff allegedly declined in health due to Siegel’s hiring of Personal Care to provide home health. (see Complaint ¶¶ 31-39.)

Plaintiff’s second cause of action is insufficiently pled. The Complaint fails to allege that Siegel had any responsibility to meet Plaintiff’s basic needs and act as a care custodian for Plaintiff. Indeed, the Complaint admits that Siegel became Plaintiff’s trustee and that thereafter, chose to hire Personal Care to provide Plaintiff home health. (see Complaint, ¶¶ 15-18.) Such allegations are insufficient to plead that Siegel was a care custodian for purposes of liability under the Act.

For these reasons, Siegel’s demurrer to the second cause of action is sustained.

  1. Third Cause of Action: Violation of Penal Code § 368

Siegel contends that the third cause of action is insufficiently pled because Penal Code section 368 cannot provide a basis for tort liability. (Demurrer, 16-17.) Penal Code section 368 provides in pertinent part:

(Penal Code § 368, subd. (b)(1).) Siegel also cites to People v. Heitzman (1994) 9 Cal.4th 189, (People) in support of his argument. In People, the California Supreme Court held that “when an individual's criminal liability is based on the failure to act, it is well established that he or she must first be under an existing legal duty to take positive action.” (Id. at 1233-1234.)

In opposition, Plaintiff contends that a civil cause of action under Penal Code section 368 is appropriate because she is a member of the public that this statute was designed to protect. (Opposition, 11.) Plaintiff cites to Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1224 (Angie M) in support of this argument.

Plaintiff’s reliance on Angie M misplaced. Although Angie M articulated the general principle that “Civil actions lie in favor of crime victims,” Angie M analyzed on whether civil causes of action exist for minor victims of sexual abuse. (Id. at 1224.) Specifically, the Angie M court noted that a civil claim was appropriate in this instance in part because the Legislature has impliedly recognized a right to a civil action for victims of “childhood sexual abuse.” (Id. at 1225.)

The court finds the third cause of action insufficiently pled. As discussed above, the Complaint fails to sufficiently allege that Siegel had any duty to Plaintiff under the Act because the Complaint does not allege that Siegel was a care custodian for Plaintiff. Thus, pursuant to People, Plaintiff may not allege a claim under Penal Code section 368 because the Complaint does not allege that Siegel was under any duty to take positive action.

  1. Fourth Cause of Action: Constructive Fraud

“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.) “Most acts by an agent in breach of his fiduciary duties constitute constructive fraud.” (Id.) “Elements of [a] constructive fraud cause of action are: (1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.) Constructive fraud allows conduct that falls short of actual fraud to be treated as such when the parties are in a fiduciary relationship. (Estate of Gump (1991) 1 Cal.App.4th 582, 601.) 

Siegel contends that the fourth cause of action is insufficiently pled because the Complaint fails to plead any of the required elements of constructive fraud. (Demurrer, 17.) In opposition, Plaintiff contends that the fourth cause of action is sufficiently pled because the Complaint alleges that Siegel acted as a trustee and thus, in a fiduciary capacity. (Opposition, 12-14.)

Here, the Complaint alleges that at all relevant times, “a special relationship, both fiduciary and confidential in nature,” existed between Plaintiff and “Defendants.” (Complaint ¶ 63.) Specifically, Siegel was entrusted to act as Plaintiff’s fiduciary and thus had a “heightened duty” to ensure Plaintiff received appropriate care. (Id.) “Defendants” obligations to Plaintiff allegedly required that they be “truthful about her medical conditions, injuries, the success of actions taken” and other matters. (Complaint ¶ 68.) Defendants allegedly breached their duty through “acts and failures to act.” (Complaint ¶ 69.)

The court finds the fourth cause of action insufficiently pled. Although the Complaint alleges that Siegel was a trustee and had power of attorney, the fourth cause of action now alleges that all Defendants had a “special relationship” with Plaintiff. Further, all Defendants are alleged to have various unspecific duties to Plaintiff, including being “truthful about her medical conditions.” The Complaint also does not allege what Siegel, and not the other defendants, allegedly did which breached his fiduciary duties, other than conclusory statements that all defendants breached their duties. Such allegations are insufficient to state a claim for constructive fraud.

For these reasons, Siegel’s demurrer to the fourth cause of action is sustained.

  1. Fifth Cause of Action: Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

Siegel contends that the fifth cause of action is insufficiently pled because the Complaint fails to allege that Siegel owed the duties alleged or that he breached duties to Plaintiff. (Demurrer, 17-18.) Specifically, Siegel contends that as trustee, it does not follow that he had duties as a conservator to monitor Plaintiff’s medical care and treatment. (Demurrer, 10.) In opposition, Plaintiff contends that the fifth cause of action is sufficiently pled because the Complaint alleges that Siegel breached duties to Plaintiff “in every material respect.” (Opposition, 14-15.)

Here, the Complaint alleges that Siegel was Plaintiff’s fiduciary and owed a duty to act in Plaintiff’s best interest in her personal, medical and financial affairs. (Complaint ¶¶ 74-75.) Siegel allegedly breached his duties in every aspect by, for example, “taking compensation for tasks never performed” and “providing substandard care which he never monitored.” (Complaint ¶ 76.)

The court finds the fifth cause of action insufficiently pled. Although the Complaint alleges that Siegel was a trustee and fiduciary, the Complaint fails to allege what actions Siegel engaged in which constitutes a breach of his trustee duties. Instead, the Complaint alleges in a conclusory fashion that Siegel “took compensation” “for tasks never performed” and “never monitored” substandard care provided to Plaintiff. Such allegations are insufficient to state a claim for breach of fiduciary duty.

For these reasons, Siegel’s demurrer to the fifth cause of action is sustained.

Conclusion

Siegel’s demurrer is sustained.

MOTION TO STRIKE

Having sustained Siegel’s demurrer, Siegel’s motion to strike is moot.


[1] Siegel submits a declaration from its counsel, James E. Adler (“Adler”) to demonstrate its compliance with statutory meet and confer requirements. Adler attests that on January 8, 2021, the parties met and conferred telephonically regarding the arguments raised in this demurrer but were unable to reach an agreement. (Young Decl. ¶ 2.) The Adler Declaration is sufficient for purposes of Code of Civil Procedure section 430.41.

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