Parisa Anderson vs. Placentia Linda Hospital

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.August 10, 2016

P E T R U L L O LL P LO S AN GE LE S CO RP OR AT E TR IA L LA WY ER S o e a9 a nn Bs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN PATRICK PETRULLO, ESQ. (Cal. Bar No: 134074) SABRINA JANGDA, ESQ. (Cal. Bar No.: 285486) PETRULLO LLP Pacific Corporate Towers 222 N. Sepulveda Blvd., Suite 806 El Segundo, CA 90245 ELECTRONICALLY FILED Superior Court of California, County of Orange 08/22/2017 at 02:41:00 PM Clerk of the Superior Court By Danielle Jurado, Deputy Clerk Telephone: (213) 627-0400 /Telefax: (213) 6270402 Attorneys for MANOR CARE OF HEMET CA, LLC erroneously sued as HCR ManorCare and LAVON LEHMANN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE—CENTRAL JUSTICE CENTER PARISA ANDERSON, Plaintiff VS. PLACENTIA LINDA HOSPITAL, HCR MANORCARE, LAVON LEHMANN, SAMUEL CHEGE, DWANE RICHARDSON, FRED VALTAIRA, KRISTEN MUSTER; and DOES 1 through 10, Defendants. Case No.: 30-2016-00868595 Assigned to Hon. Martha Gooding 1) DEFENDANT’S NOTICE OF DEMURRER AND DPEMURRER TO PLAINTIFF PARISA ANDERSON’S FIRST AMENDED COMPLAINT 2) MEMORANDUM OF POINTS AND AUTHORITIES 3) DECLARATION OF SABRINA JANGDA Date: 11/6/17 Time: 1:30 p.m. Dept: C34 Action Filed: 8/10/2016 Trial Date: None Set. TO THE HONORABLE COURT AND TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Monday, November 6, 2017 at 1:30 p.m. in Department C34of the above-entitled court, located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendant Manor Care of Hemet CA, LLC (“Defendant™) will and hereby does demur to plaintiffs’ First Amended Complaint pursuant to California Code of Civil Procedure sections 430.10, 430.30, and 430.50, California Rules of Court Rule 3.1320, and on the grounds set forth below. This Demurrer is based upon this Notice, the attached Memorandum of Points and DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT P E T R U L L O LL P LO S AN GE LE S C O R P O R A T E T R I A L L A W Y E R S O e ~~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Authorities, declaration of Sabrina Jangda, Esq., the pleadings, papers, and records on file herein, and upon such further oral and documentary evidence as may be presented at the time of the hearing of the Demurrer. FIRST CAUSE OF ACTION (Breach of Fiduciary Duty) 1. Plaintiffs’ First Cause of Action for breach of fiduciary duty fails to state facts sufficient to state a cause of action, and is uncertain, ambiguous, and unintelligible. Cal. Civ. Proc. §§ 430.10(e) and (f). SECOND CAUSE OF ACTION (Unlawful Business Acts & Practices (Probate Code 4742)) 2. Plaintiffs’ Second Cause of Action for unlawful business acts and practices pursuant to Probate Code 4742 fails to state facts sufficient to state a cause of action, and is uncertain, ambiguous, and unintelligible. Cal. Civ. Proc. §§ 430.10(e) and (f). For each of these reasons, the Demurrer should be sustained in its entirety. Defendants’ motion is based on this notice, the supporting memorandum of points and authorities, the request for judicial notice, and the pleadings, files and other matters that may be presented at the hearing. Dated: August 22, 2017 Respectfully submitted, JGHNPAT cK PETRY L0, ESQ. SAB JANGDA, BSQ. Attorneys for MANOR CARE OF HEMET CA, LLC erroneously sued as HCR ManorCare and LAVON LEHMANN PETRULLOQ L 2 DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT P E T R U L L O LL F LO S AN GE LE S CO RP OR AT E TR IA L LA WY ER S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff’s Complaint alleges Defendant breached a fiduciary duty to Plaintiff, and engaged in unlawful business acts and practices against Plaintiff. However, the Complaint is completely devoid of any facts showing that Defendant committed either act. In addition, Plaintiff has sued a number of distinct Defendants, but the Complaint is completely ambiguous as it fails to distinguish which Defendant committed which of the alleged acts. Therefore, all causes of action alleged suffer from uncertainty and failure to state facts sufficient to state a cause of action. Thus, Defendant’s demurrer should be sustained without leave to amend. II. LEGAL STANDARD FOR DEMURRER Code of Civil Procedure § 430.10 states in relevant part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in § 430.10, to the pleading on any one or more of the following grounds:...(e) The pleading does not state facts sufficient to constitute a cause of action and/or (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.” Mere “recitals, references to, or allegations of material facts, which are left to surmise are subject to special Demurrer for uncertainty.” (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal. App.3d 531, 537). A complaint that fails to state the date or time of the facts averred to is uncertain and subject to demurrer on that ground. (Gonzales v. State of California (1977) 68 Cal. App.3d 621, 634.) As such, based upon the language in section 430.10, a demurrer is properly asserted both where a plaintiff has failed to state facts sufficient to constitute a cause of action and where a pleading is ambiguous or unintelligible. Section 430.30 further adds, “when any ground for objection to a complaint...appears on the face thereof, or from any matter of which the Court is required to or may take judicial notice, the objection on the ground may be taken by a demurrer to the pleading.” Accordingly, when a complaint is defective in whole or in part and the defects appear on the face of the complaint, the defendant may properly object by demurrer. Not only 3 DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT P E T R U L L O LL P LO S AN GE LE S CO RP OR AT E TR IA L LA WY ER S 2 ~~ S y n Bs Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does a demurrer test the sufficiency of the actual allegations in the complaint, but it also tests whether those facts are pleaded with sufficient certainty and particularity. (Banerian v. O'Malley (1974) 42 Cal. App.3d 604.) Additionally, although the allegations are presumed to be true, the Court does not accept bare legal conclusions as true for purposes of ruling on a demurrer. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Leave to amend should be denied where facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431.) I. PLAINTIFF CANNOT ALLEGE A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST DEFENDANT | The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Slovensky v. Friedman (2006) 142 Cal. App. 4™ 1518, 1534.) Plaintiff’s first cause of action for breach of fiduciary duty fails as a matter of law, as Plaintiff has not demonstrated the existence of a fiduciary duty with Defendant. Certain relationships give rise to fiduciary duty as a matter of law, including partnerships, joint-venturer relationships, corporate officers and boards of directors and their shareholders, and trustee-beneficiary relationships. (Oakland Raiders v. National Football League (2005) 131 Cal. App. 41 621, 632-633.) Absent a special relationship or agreement between the parties, courts will not impose a fiduciary relationship. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 196, 222 (“before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.”).) Further, courts have held that health care providers do not have a fiduciary duty to patients. (See Moore v. Regents of University of California (1990) 51 Cal.3d 120. 133; Luiz v. Queen of Angeles (1942) 53 Cal.App.2d 310) Here, Plaintiff states no facts to establish any fiduciary relationship between Plaintiff and 4 DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT P E T R U L L O LL P LO S AN GE LE S CO RP OR AT E TR IA L LA WY ER S N N bn BR Ww ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant. In fact, Plaintiff specifically states that she was not notified of Robert Cole’s move to Defendant’s facility because Placentia Linda Hospital, another Defendant unrelated to this answering Defendant, removed her name from the contact list. Plaintiff similarly states no facts to establish any breach of fiduciary duty by Defendant against Plaintiff. Further, Plaintiff was not even a resident at Defendant’s facility. Therefore, her relationship with Defendant is tenuous. Thus, as Plaintiff has failed to plead any facts that demonstrate that Defendant has a fiduciary relationship with Plaintiff, this Court should sustain Defendant’s demurrer without leave to amend. 11. PLAINTIFF CANNOT ALLEGE A CAUSE OF ACTION FOR UNLAWFUL BUSINESS ACTS & PRACTICES AGAINST DEFENDANT Plaintiff claims that Defendant had a duty pursuant to Probate Code section 4742 to act in good faith in honoring Plaintiff’s Power of Attorney and Medical Directive. Probate Code section 4742 states: | (a) A health care provider or health care institution that intentionally violates this part is subject to liability to the aggrieved individual... (b) A person who intentionally falsifies, forges, conceals, defaces, or obliterates an individual’s advance health care directive or a revocation of an advance health care directive without the individual’s consent, or who coerces or fraudulently induces an individual to give, revoke, or not to give an advance health care directive, is subject to liability to that individual... Here, Plaintiff must plead Defendant intentionally violated Probate Code section 4742, However, Plaintiff does not plead any facts to show that Defendant intentionally did not honor her alleged Power of Attorney and Advance Medical Directives. Rather, Plaintiff states that she was removed from the contact list before Robert Cole was transferred to Defendant’s facility. Further, she alleged that Defendant discharge Robert Cole from the facility without her consent. However, there are no facts demonstrating that Defendant knew she had authority to act under the Power of Attorney and Advance Medical Directives, given she was not on the contact list, and that Defendant intentionally ignored the Power of Attorney and Advance Medical 5 DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT P E T R U L L O LL P LO S A N G E L E S C O R P O R A T E T R I A L L A W Y E R S O e Na A 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Directives. As such, Plaintiff fails to plead sufficient facts to plead this cause of action, and therefore, Defendant’s Demurrer should be sustained. III. BOTH CAUSES OF ACTION ARE UNCERTAIN, AMBIGUQUS, AND UNINTELLIGIBLE Defendant’s Demurrer should be sustained because both causes of action alleged against Defendant are uncertain, ambiguous, and unintelligible. “Mere recitals, references to or allegations of material facts which are left to surmise are subject to a special demurrer for uncertainty.” (Bernstein v. Piller (1950) 98 Cal. App.2d 441, 443.) Plaintiff must set forth the essential facts of its case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source, and extent” of her claim. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) Legal conclusions are insufficient. /d. As demonstrated above, the Complaint is devoid of almost any and all facts as to this Defendant. Plaintiff's claim is essentially a conclusory allegation that Defendant breached some fiduciary duty, without any supporting facts to establish the existence of that fiduciary duty or subsequent breach. Plaintiff then claims unlawful business acts and practices, but alleges no facts to support her allegations. Moreover, the entire First Amended Complaint suffers from ambiguity and uncertainty. Plaintiff lumps seven (7) distinct, named Defendants, throughout the entire First Amended Complaint, together in her allegations, attributing various alleged conduct to “Defendants”, making it impossible to understand what each person allegedly did, and why they are being sued. (See FAC at | 19, 24, 25, 28, 29, 30, 33, 34, 35, 36, 37.) (See also Hawley Bros. Hardware Co. v. Brownstone (1899) 123 Cal. 643, 645-648 (holding that a demurrer should have been sustained for uncertainty where the complaint indiscriminately used “defendant” to refer to several possible parties); Code of Civil Procedure § 430.10(f) (a complaint is subject to demurrer 9% LL where it is “uncertain,” “ambiguous,” or “unintelligible.’).) As a result, both causes of action are uncertain under Code of Civil Procedure § 430.10(f) and Defendant’s Demurrer should be sustained without leave to amend. 6 DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT P E T R U L L O LL P LO S AN GE LE S CO RP OR AT E TR IA L LA WY ER S oOo 0 9 O N Wn Bs 10 11 12 13 14 15 16 17 18 19 20 21 2d 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court sustain the Demurrer as to the entire First Amended Complaint without leave to amend. Respectfully submitted, Dated: August 22,2017 PETRULLO LLP AOHN PA pe oi, ESQ. SAB JAXGDA, ESQ. Attorneys for MANOR CARE OF HEMET CA, LLC erroneously sued as HCR ManorCare and LAVON LEHMANN 7 DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT P E T R U L L O LL P LO S AN GE LE S C O R P O R A T E TR IA L L A W Y E R S 1 2 DECLARATION OF SABRINA JANGDA, ESQ. IN SUPPORT OF DEFENDANT’S DEMURRER 3 I, Sabrina Jangda, declare as follows: o w a NN Un a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. I am an attorney at law duly licensed to practice and practicing law before the courts of the State of California and am a senior associate with the law firm of Petrullo LLP, attorneys of record for MANOR CARE OF HEMET CA, LLC erroneously sued as HCR ManorCare and LAVON LEHMANN, and the moving parties herein. I have personal knowledge of the matters set forth herein, except as to those stated upon information and belief and as to those, I am informed and believe them to be true. If called to testify, I could and would competently testify thereto. On August 18, 2017, Defendant’s counsel and Plaintiffs counsel meet and conferred on the phone regarding Manor Care of Hemet CA, LLCS demurrer. Plaintiff's counsel believed that the allegations made in the Complaint against Manor Care of Hemet CA, LLC were sufficient for the pleading stage. . As such, the parties did not reach an agreement resolving the objections raised in the demurrer. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this Gay of August 2017, in Los Angeles, California. 8 DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT P E T R U L L O LL P LO S AN GE LE S CO RP OR AT E TR IA L LA WY ER S bh A W N o e a 10 11 12 13 14 1 wn 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (Sections 1013A(3) C.C.P.) STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. 1 am over the age of 18 and not a party to the within action. My business address is PETRULLO LLP, 222 N. Sepulveda Blvd., Suite 806, El Segundo, CA 90245 On August 22, 2017 I served the foregoing document described as: DEFENDANTS’ NOTICE OF AND DEMURRER TO PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope in the United States mail at Los Angeles, California addressed as follows: Robert Parker Mills P.O. Box 1405 Manhattan Beach, CA 90267 (Tel) 310-469-3514 Attorney for Parisa Anderson [1 (BY MAIL) I placed such envelope with postage thereon fully prepaid to be placed in the United States mail at Los Angeles, California. Executed on August 22, 2017, at Los Angeles, California. (By California law) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. A / N= ES 9 DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT