Zenab Aly vs. Saddleback Memorial Medical Center

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.September 14, 2017

Hugh R. Burns, Esq. (SBN 149749) Dilkash A. Khan, Esq. (SBN 228871) 9 Sinclitico & Burns, A Professional Law Corporation 111 W. Ocean Blvd. Suite 2425 3 Long Beach, California 90802 Tel.: (562) 628-1919 4 . Attorneys for Defendant, SADDLEBACK MEMORIAL 51 MEDICAL CENTER 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF ORANGE —- CENTRAL JUSTICE CENTER 10 11 ZENAB ALY, an individual, CASE NO. 30-2017-00943817-CU-MC-CJC ~ 12 Plaintiff, [Before Hon. John C. Gastelum, Dept. C-13] 25, Zaz 13 v. DEFENDANT SADDLEBACK 2 g 5 MEMORIAL MEDICAL CENTER'S g 2 8 14 SADDLEBACK MEMORIAL MEDICAL DEMURRER TO PLAINTIFF'S FIRST g 2 w 15 CENTER; a domestic non-profit AMENDED COMPLAINT; oS 2 organization; ANDY N TRUONG, MD, an DECLARATION OF DILKASH A. KHAN, S 5 16 individual; ARASH AMINIAN, MD, an ESQ.; AND [PROPOSED] ORDER individual; and DOES 1 through 50 17 inclusive, DATE: March 27,2018 TIME: 2:00 p.m. 18 Defendants. DEPT.: C-11 19 RESERVATION#: 72741489 20 Complaint Filed: September 14,2017 21 Trial Date: None 22 23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE and notice is hereby given that on March 27, 2018, at 2:00 25 p.m., or as soon thereafter as the matter may be heard in Department “C11” of the Orange 26 County Superior Court located at 700 Civic Center Drive West, Santa Ana California 92701, 27 Defendants, SADDLEBACK MEMORIAL MEDICAL CENTER, will and hereby does demur 28 1 DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT p t to Plaintiff’s First Amended Complaint specifically as to Plaintiff's first cause of action for 2 negligence, second cause of action for breach of written contract, and third cause of action for 3 elder abuse/neglect. 4 This Demurreris brought pursuant to Code of Civil Procedure, Section 430.10(¢e) and (f). 5 Plaintiff fails to state facts sufficient to support her causes of action for negligence, breach of 6 written contract, and elder abuse/neglect and these causes action are pled vaguely and TW ambiguously. 8 This Demurrer is based on this Notice, the attached Memorandum of Points and 9 Authorities, declaration of Dilkash A. Khan, Esq., the documents, records and pleadings on file 10 herein, and upon such further oral and documentary evidence as may be submitted at the hearing 11 of this Demurrer. Ca 12 2 = © 13 DATED: January 24, 2018 SINCLITICO & BURNS £52 28 14 -/ se By: £22 15 ADILKASKYA. KHAN,Esq., gob Attorngy/ for Defendant SADDLEBACK SR 16 MEMORIAL MEDICAL CENTER 17 18 19 20 21 22 23 24 25 26 27 28 2 EE DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT Z0 80 6 VI NY O4 IT YD ‘H OY ag O N O 6Z bZ 3L NS “O AT E N V 0 0 1S IM LL L S N Y N g 9 O O I L N O N I S J r © ® N A L BR W N M N O N N N N N N N N em t m m pe e be d he b e k e m ee d fe ed e d 0 ~ 1 N Y L n B R W N = O D N Y N n e w = O DEMURRER TO FIRST AMENDED COMPLAINT Defendant, Saddleback Memorial Medical Center, hereby submits their Demurrer to Plaintiff's First Amended Complaint as follows: AS TO THE FIRST CAUSE OF ACTION The first cause of action contained in Plaintiff's First Amended Complaint against defendant SADDLEBACK MEMORIAL MEDICAL CENTER is pled vaguely, ambiguously, ~uncertainly(see, Codeof Civil Procedure 430.10(f)).— AS TO THE SECOND CAUSE OF ACTION The second cause of action contained in Plaintiff's First Amended Complaint fails to allege facts sufficient to constitute any cause of action against defendant SADDLEBACK MEMORIAL MEDICAL CENTER (see, Code of Civil Procedure 430.10(e)) and the second cause of actionis also pled vaguely, ambiguously, uncertainly (see, Code of Civil Procedure 430.10(f)). AS TO THE THIRD CAUSE OF ACTION The third cause of action contained in Plaintiff's First Amended Complaint fails to allege facts sufficient to constitute any cause of action against defendant SADDLEBACK MEMORIAL MEDICAL CENTER (see, Code of Civil Procedure 430.10(e)), and the third cause of action is also pled vaguely, ambiguously, and uncertainly (see, Code of Civil Procedure 430.10(f)). DATED: January 24, 2018 SINCLITICO & BURNS By: DILKASH A. KHAN, Esq., Attorney for Defendants SADDLEBACK MEMORIAL MEDICAL CENTER MEMORANDUM OF POINTS AND AUTHORITIES 1 2 I. INTRODUCTION 3 On or about September 14, 2017, Plaintiff Zenab Aly (hereinafter referred to as “Plaintiff”), filed a Complaint against Defendants, Saddleback Memorial Medical Center 4 . . (“SBMMC”), Andy M. Truong, M.D., and Arash Aminian, M.D. (collectively referred to as 5 “Defendants™). Though SBMMC filed a Demurrer and Motion to Strike to Plaintiff's Complaint, 6 co-defendant Dr. Aminian's Demurrer and Motion to Strike were heard prior to SBMMC's 7 Motions. Thereafter Plaintiff filed and served a First Amended Complaint ("FAC") inthis | 2 matter. Plaintiff in the FAC has alleged professional negligence against all the Defendants. However, in addition to professional negligence, Plaintiff has also alleged breach of written ? contract and elder abuse against SBMMC. 10 Essentially, Plaintiff's FAC sets forth the following fact pattern: 11 e From April 25, 2017 to May 23, 2017, Plaintiff was a patient at Saddleback Memorial Medical Center. (See, FAC 14) - 12 ez e On the evening of April 25, 2017, Plaintiff, at time 87 years old, presented to SBMMC. g sz 13 Plaintiff and her two daughters were advised that she would be admitted to SBMMC due to a 2 8 5 calcaneus fracture (right), and due to her pain, she would be held for a possible CT scan. (See, gz 14 FACT 16 & 18) $5 w = 2 = 15 e Plaintiff was administered several medications including Xanax, Colace, and Percocet during SR 16 her admission to SBMMC. (See, FAC 18) 17 e Plaintiff was also advised that she would be in need of a walking boot and medication. (See, FAC 19) 18 ¢ Plaintiff was subsequently evaluated, the following day, on the evening of April 26, 2017, by 19 an orthopedic surgeon. (See, FAC § 19) 20 ¢ When Plaintiff was evaluated by co-defendant Arash Arminian, M.D. ("Dr. Aminian") on April 26, 2015, she was advised that the pharmacy was closed and that she would have to wait 21 until the morning of April 27, 2015, obtain a walking boot and then be discharged from the facility. (See, FAC 20) 22 23 e Plaintiff remained at SBMMC overnight at which time she fell out of her hospital bed and thereby suffered a right hip intertrochanteric fracture. Surgical intervention in the form of a 24 right intramedullary nailing was performed on the Plaintiff. (See, FAC 21) 25 As will be discussed further below, these allegations, even if taken as true for purposes of this 26 Demurrer, are insufficient to support claims for the damages associated with Plaintiff's negligence claim as well Plaintiff's claim for breach of written contract and elder abuse. As such, the Court 27 should sustain this Demurreras explained in further detail below. 28 II. AUTHORITY FOR DEMURRER 28 1 Code of Civil Procedure § 430.10(e) providesthat a party against whom a complaint has been 2 filed may demurrer on the grounds that the complaint, or a cause of action therein, does not state facts 3 sufficient to constitute a cause of action. Code of Civil Procedure section § 430.10(f) also allows a 4 party to file a demurrer on the grounds that the allegations are ambiguous and unintelligible. 5 III. PLAINTIFF'S NEGLIGENCE CLAIM AND RESPECTIVE REQUEST FOR DAMAGES ARE UNINTELLIGIBLE AS THEY INCORPORATE THAT ARE 6 IRRELEVANT AND NOT RECOVERABLE Plaintiff asserts four different prayers for relief under the First Cause of Action for 2 Negligence, and with one exception, they are flatly inapplicable to ordinary negligence, as pled by Plaintiff. Prayer #1 states: "For general compensatory damages under Welfare & Institutions Code 9 §15657(b) according to proof at trial." (Plaintiff's Complaint pg. 12 lines 18-19) Welfare & Institutionsp 10 Code §15657 is an elder abuse statute, and governs causes of action for "physical abuse" and "neglect" 11 as defined specifically for purposes of that cause of action, and when the defendant has been guilty of > recklessness, fraud, malice or oppression in the abuse or neglect of the plaintiff. No reasonable person 5 = could call suchacts, if adequately alleged and proved, mere or even gross negligence. © 5rd FIZ 13 Further, the citation to the specific subsection (b) is completely inapposite. That subsection 8&8 pp 2 - 3 14 permits the plaintiff in a wrongful death action to recover damages, up to $250,000, for the decedent's I< 2 Fm 15 pre-death pain and suffering. In this action no one has died, and thus no relief is available to Plaintiff in >Z 3 gro any event under subsection (b). Plaintiff does plead a cause of action for elder abuse, discussed infra. Sg 1 : -— 6 Her prayers for relief under the Welfare & Institutions Code should remain there where they belong. 17 Prayer #3 requests treble damages under Civil Code §3345. (Plaintiff's Complaint pg. 12 lines 18 22-23) Civil Code §3345 "shall apply only in actions brought by, on behalf of, or for the benefit of seniorcitizens or disabled persons...to redress unfair or deceptive acts or practices or unfair methods of19 : p competition" (emphasis supplied). Simply put, it is impossible for garden-variety duty-and-breach-of- 20 duty negligence to include acts of kind contemplated by this statute. 21 And indeed, in alleging the First Cause of Action, Plaintiff makes no reference to any kind of 22 business practice whatsoever, whether with Plaintiff or with the general public. Instead, it consists 23 solely ofa recitation of the alleged conduct of Defendants in providing medical care to Plaintiff. In fact, Plaintiff makes no allegations about Defendants’ business practices at all, anywhere in the Complaint.oO 2 . . . . 24 Prayer #4 is inapposite for the same reasons as #1, requesting relief under Welfare & 25 Institutions Code §15657(a), an elder abuse provision. (Plaintiff's Complaint pg. 12 line 25) It should 76 therefore be stricken. 7 /11 117 70 80 6 VI NY O4 IT ¥D *H OV 3g O N O 6Z ¥Z 3L IN S “Q AT EN YI I0 1S 3M LL ) S N A G 3 CO IL IT ON IS Y d . © ® N A L E W N o N N N N N R m m e m b m m m m m be m e d pe ed e k pe e S N B R W N = S D N Y E W N e o 2 ~~ 28 _existenceofacontract. IV. PLAINTIFF HAS FAILED TO ALLEGE FACTS SUFFICIENT TO MAINTAIN A BREACH OF WRITTEN CONTRACT CLAIM AND AGAIN HAS INCOPORATED DAMAGES THAT IRRELEVANT AND NOT RECOVERABLE To state a cause of action for breach of contract, a plaintiff must allege facts that satisfy the following elements: (i) the existence of a contract, (ii) the plaintiff’s performance of the contract or excuse for nonperformance, (iii) defendant’s breach, and (iv) the resulting damage. Otworth v. Southern Pac. Transportation Co., 166 Cal.App.3d 452, 458 (1985) (Otworth). Plaintiff's breach of contract allegations fail both because she has failed to adequately allege the With respectto the first element, the existence of a contract, “[i]f the action is based on an alleged breach ofa written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” Otworth, supra, 166 Cal.App.3d at p. 459; Harris v. Rudin. Richman & Appel (1999) 74 Cal.App.4th 299, 307 [same]; see also Wise v. Southern Pac. Co., 223 Cal.App.2d 50, 59 (1963) [“where a written instrumentis the foundation of a cause of action, it may be pleaded in haec verba by attaching a copy as an exhibit and incorporating it by proper reference”), disapproved on other grounds as stated in Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 510 (1994). In this case, Plaintiff has not attached a written copy ofsaid contract. As such, pursuant to California caselaw, Plaintiff is required to set out terms verbatim in the body of the FAC. In this case, Plaintiff has generally alleged in the FAC: "...Defendants agreed to provide medical facilities and personnel to diagnose, treat and care for plaintiff for a medical complaint which included but was not limited to a calcaneu fracture (right), and to provide medical care, nursing care and assistance; and Plaintiff agreed to pay for said services, either personally or by and through her medical insurance." (See, Plaintiff's FAC page 9 lines 1-6) These are simply allegations by the Plaintiff of what she believes were the terms of the contract. However, Plaintiff must set out the exact terms of the contract between SBMMC and Plaintiff in the FAC or attach a copy of the contract, neither of which Plaintiff has done. In addition, the test for causation in a breach of contract action is whether the breach was a substantial factor in causing the damages. US Ecology, Inc. v. State of California 129 Cal.App.4th 887, 909 (2005). In the context of breach of contract, it has been said that the term “substantial factor” has no precise definition, but is something that is more than a slight, trivial, negligible, or theoretical factor in producing a particular result. Haley v. Casa Del Rey : Homeowners Assn. 153 Cal.App.4th 863, 871-872 (2007). In this case, other than stating that 2 the rails were not up on Plaintiff's bed, Plaintiff has not demonstrated this was a substantial 3 factor in causing Plaintiff to fall. Plaintiff has failed to allege when or how the Plaintiff fell orif 4 any members of Plaintiff's family were present at that time. 5 As such, Plaintiff's breach of written contract cause of action is uncertain, vague and 6 ambiguous. Forthis reason too, the Demurrer should be sustained. Defendant SBMMC further refers to and incorporates each of its arguments regarding L ~ Plaintiff's request for damages in Section III herein because the prayer for damagesas tothe 8 breach of written contract claim specifically request for damages #1, #3, and #4 (pg. 12 lines 12- 9 14 and lines 16-18) are irrelevant and not recoverable. 10 V. PLAINTIFF DOES NOT PLEAD FACTS SUFFICIENT TO STATE A CAUSE OF ACTION UNDER THE DEPENDENT ADULT ABUSE ACT tH Plaintiff's first cause of action alleges violations of theElder Abuse Dependent Adult Civil 32 12 Protection Act (“EADACP”). However, as will be shown, Defendants alleged acts and/or omissions 2 B Z 13 constitute, at most, professional negligence, not dependent adult abuse. Although similar in name, 2 Z 3 14 “neglect” as defined by Welfare and Institutions Code §15610.57"" is significantly different from : ° z 5 “negligence” as related to a medical malpractice claim. In order to establish elder abuse, the plaintiff gn & must demonstrate “egregious acts of misconduct distinct from professional negligence...” Covenant 8 16 Care. Inc. v. Superior Court (2004) 32 Cal. App.4" 771, 784. (Emphasis added) 17 As stated by the Supreme Court, “Professional negligence’ is no strangerto statutory 18 definition. In 1975, the Legislature passed the Medical Injury Compensation Reform Act (MICRA) containing no fewer than six sections defining ‘professional negligence’ as ‘a negligentact or omission 19 to act by a health care providerin the rendering ofprofessional services, which act or omission is the 20 proximate cause of a personal injury or wrongful death, provided that such services are within the scope 21 of services for which the provider is licensed and which are not within any restriction imposed by the 29 licensing agency orlicensed hospital.” Central Pathology Service Medical Clinic, Inc. v. Superior Court. (1992) 3 Cal. 4th 181, 187 citing and referring to (§ 364. subd. (f)(2), 667.7. subd. (e)(4), 1295. 23 subd. (2)(2); Bus. & Prof. Code. § 6146. subd. (c)(3);Civ. Code. § 3333.1. subd. (c)(2), 3333.2. subd. 24 (c)2)). (Emphasis added) 25 Here,the acts and/or omissions that Plaintiff claims Defendant committed arise from the 2% context of Defendant’s rendering professional services to Plaintiff. Plaintiff was being offered care and treatment for her medical needs. As such, Plaintiff may have a cause of action under professional 27 negligence, but not dependent adult abuse. “The elements of a cause of action for elder[or dependent 28 7 ~DEFENDANT'SDEMURRER TOFIRST AMENDED COMPLAINT 70 90 8 VI NY OL IT Y) ‘H OV 3E O N C §z 7y Z L N G "G AT E NY IO 0 LS IM LL L S N U N g * OO IL IT ON IS — a W N © 0 a Oh Wa 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adult] abuse are statutory...” Intrieri v. Superior Court (2004) 117 Cal. App.4th 72, 82. Statutory causes of action must be pleaded with particularity. Covenant Care. Inc. v. Superior Court (2004) 32 Cal.4th 771,790. The liberal pleading standard applicable to most common law torts does not apply to a cause of actionfor elder abuse. Conclusory language may not be pled as a substitute for specific facts apprising a defendant ofthe basis upon which relief is sought. Belgen v. Superior Court (1981) 125 Cal. App.3d 959. As discussed below, the cause of action fails for the following reasons: First, Plaintiff's Complaint speculative and ambiguous allegations. Second, Plaintiff's Complaintfails to allege the type of egregious-acts-ofmisconduct on-the part of hospital personnel requiredto-constitute a pleadingof dependent adult abuse. Third, the Complaint fails to set forth specific factual pleading amounting to authorization orratification on the part of an officer, director or managing agent of the dependant hospital. A. Plaintiff's Allegations Are Ambiguous and Uncertain In Ankeny v. Lockhead Missiles & Space Co. 88 Cal. App 3d 531 (1979) the Court provided: A pleading must allege facts and not conclusion and material facts must be alleged directly and not by way ofrecital...in pleadings the essential facts upon which a determination of controversy depends should be stated with clearness and precision so that nothing is left to surmise. Those recitals, references to, or allegations of material facts left to surmise are subject to special demurrer for uncertainty. Ankeny at 537. Here, Plaintiff's allegations are ambiguous and uncertain. Plaintiff alleges that due to her age, fractured heel, and administration of medications, she fell because she was not supervised through the night and therefore she fell. Plaintiff's claim that she suffered a broken hip does meet the threshold to allege a negligence claim. However, beyond this alleged fact that Plaintiff suffered a broken hip while as a patient at SBMMC,the otherallegations that Plaintiff has alleged do not provide as any specific information as to the basis for attempting to allege an elder abuse claim. Plaintiff generally recites that SBMMC "...repeatedly and continually, and knowingly failed to adequately supervise and train their staff, to hire enough staff, to ensure that their employees were qualifed to do their jobs they were hired to do, or adequately supervise the care of the patients of [SBMMC]". Other than this generalrecital Plaintiff does not allege with specificity how SBMMC failed to hire enoughstaff or failed to ensure that employees were qualified fortheirjobs. For the reasons stated above, Plaintiff's allegations are ambiguous and speculative and cannot support the respective cause of action for elder abuse. 111 20 80 6 YI NY OI IY D ‘H OV E O N O G Z Z 3L NS “G AT E NY IO 0 LS IM LL L S N Y N g § OO LL IT ON IS Ww W N N ~ J a w h + = o o o o B. There Are No Factual Allegations of Conduct on the Part of the Defendant that Amount to Acts of Egregious Misconduct As noted by the California Supreme Court in Delaney v. Baker (1999) 20 Cal4™ 23, 32, “the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.” In Covenant Care. Inc. v. Superior Court (2004) 32 Cal.4" 771, 784, the Court stated that recovery against a health care provider under the Act was intended only for “egregious acts of misconduct distinct from professional negligence...” (Emphasis added) Delaneyv.Baker (1999) 20 Cal. 4th 23 isthe seminalcase that illustrates the pleadingand proof requirements a plaintiff must make to support a cause of action for elder abuse or neglect. In reviewing legislative intent, the Supreme Court in Delaney stated that the goal of the Elder Abuse Act was to provide heightened remedies for acts of egregious abuse against elder and dependent adults. 1d. at 35. As such, according to Delaney, in order to prevail on an elder abuse cause of action, a plaintiff must demonstrate clear and convincing evidence that a defendantis guilty of something more than professional negligence. He or she must plead and show reckless, oppressive, fraudulent or malicious conduct. Id. at 31. The latter three categories of conduct involve intentional, willful or conscious wrongdoing of a despicable or injurious nature. Recklessness refers to actions showing a subjective disregard of the high probability that injury will occur. Id. at 31-32, 35. As such, the Delaney case shows that although the plaintiff is not required to prove his or her case in his pleading, the plaintiff must state facts which would, if true, constitute clear and convincing evidence of reckless, oppressive, fraudulent or malicious conduct on the part of the defendant — in this case, Saddleback Memorial Medical Center. Plaintiff has alleged that she suffered a broken hip when she fell out of bed at SBMMC in April 2015. However, Plaintiff has failed to establish that this incident occurred as result of conduct by SBMMC which was intentional, willful or conscious wrongdoing of a despicable or injurious nature. Here, there are no facts alleged that would take this case out of the realm of ordinary medical negligence and place it into the realm of dependent adult abuse. In conjunction with the foregoing, a plaintiff must plead his allegations of abuse and neglect with particularity (Covenant Care. Inc. v. Superior Court (2004) 32 Cal.4th 771, 790) because “the elements of a cause of action for elder [or dependent adult] abuse are statutory...” (Intrieri v. Superior Court (2004) 117 Cal. App.4th 72, 82). In short, the liberal pleading standard applicable to most common law torts does not apply to a cause of action for elder abuse. The facts in Mack v. Soung (2000) 80 Cal. App. 4th 966, 973 illustrate the foregoing points and differences. In Mack v. Soung, a doctor was found to have committed neglectrather than negligence, because he had purposefully concealed the existence of serious bedsores on a nursing ~DEFENDANT'S DEMURRERTO FIRSTAMENDEDCOMPLAINT 2 0 8 0 6 YI NH OL IT YY D *H OY IG O N O G Z p Z 3 L N S " G A I B N Y I 0 0 1 S I M LL L S N Y N G 3 OO IL IT ON IS — © 0 Wu oN Un BA W w W N N N N N N N N N m e e m p m p m pe d pe ed pe d be d fe ed e d 0 0 ~ ~ O N B R W N e e O N D S Y n y B e W N = O home patient under his care, opposed the patient's hospitalization when circumstances indicated that hospitalization was medically necessary, and then gave notice of withdrawal as the patient's physician and abandoned her care when she becamecritically ill (Id). These types of egregious facts are simply not present in Plaintiff's pleading. The allegations do not and cannot show the nursing staff’s complete abandonment of care and intentional concealment thereof like that found in Mack v. Soung, supra. A Dependent Adult Abuse cause of action requires the pleading of egregious acts of abuse, which arise above, beyond and distinct from any facts plead in support of a cause of action for ~medical/professional negligence. Bernum v. Superior Court 123Cal. App. 4th 113,123 (2004)-A~ cause of action for Dependent Adult Abuse, distinctly, requires that the complaint show something more than “inadvertence, incompetence. unskillfulness, or a failure to take precaution.” Id. at 122 The complaint must plead “a conscious choice of action with knowledge ofthe serious danger to others involved in it.” Id. at 122 (Emphasis Added) Here, the Plaintiff has failed to do this. Instead, Plaintiff has alleged a negligence claim,i.e., that the staff at SBMMC allegedly inadavertently failed to take precautions to prevent Plaintiff's fall. C. There Are No Facts Alleged of Authorization or Ratification on the Part of an Officer, Director, or Managing Agent of the Hospital Welfare & Institutions Code section 15657(c) provides that in order to maintain an action forelder or dependent adult abuse against a corporate entity, “[t]he standards set forth in subdivision (b) of section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based uponthe acts of an employee shall be satisfied.” In other words, as provided in Civil Code section 3294, the plaintiff must establish authorization orratification on the part of an officer, director or managing agent of the corporation. Here, even if the court holds that the Plaintiff has alleged facts of the type of egregious misconduct necessary to maintain a cause of action for dependent adult abuse (which she has not) against SBMMC,she still cannot proceed on the cause of action in the absence of factual allegations of authorization orratification of such conduct by an officer, director, or managing agent of SBMMC. Plaintiff's claim of dependent adult abuse fails because she has failed to plead facts with sufficient particularity that the corporate managing agent of SBMMC allegedly ratified its employees’ alleged intentional conduct. In College Hospital v. Superior Court (1994) 8 Cal. 4 704, 723, the court held that punitive damages may be pled against an employer, based on the acts of an employee only where such conduct has been performed by an agent employed in a managerial capacity and acting in the scope of employment orratified or approved by a managerial agent of the organization. Here, Plaintiff has failed to meet these requirements in pleading the cause of action. 10 70 80 6 VI NY O4 IY D ‘H OV Ig O N O G Z L N G “G AT E NY I0 0 L S M LL L S N Y N g 3 OO IL IM ON IS o h © N A Wn BR W N N O R N N R N R m m e k pe d pe e h e pe t p e e d e d p e w h H W N = O O Y Y R E Ww W N e © 26 D. Plaintiff's Request for Damages Under Welfare and Institutions Code Section 15657(b) is Inapplicable Welfare & Institutions Code §15657(b) is inapplicable. As noted above, this subsection permits the plaintiff in a wrongful death action to recover damages, up to $250,000, for the decedent's pre-death pain and suffering. In this action no one has died, and thus no relief is available to Plaintiff in any event under subsection (b). IV. CONCLUSION For these reasons, this Court should sustain Defendant SBMMC's demurrer as to Plaintiff's first cause of action for negligence, second cause of action for breach of written contract, and third cause of action for elder abuse/neglect without leave to amend. DATED: January 24, 2018 SINCLITICO & BURNS i. > DilKash A. Khan, Esq. Attorneys for Defendant, SADDLEBACK MEMORIAL MEDICAL CENTER 1 DECLARATION OF DILKASH A. KHAN, ESQ. 2 I, Dilkash A. Khan, declare as follows: > 1. I am an attorney at law duly licensed to practice before all the Courts within the ) State of California and am an associate of the firm of Sinclitico & Burns,attorneys of record for 5 Saddleback Memorial Medical Center. The following information is within my personal 7 _ knowledge,and ifcalled to testify as a witness,I could and wouldcompetently dosounder oath.| 8 2. On January 19, 2018, I met and conferred in good faith with Plaintiff's counsel, 9 Ahmed Khalil, Esq. in this matter via telephone pursuant to Code of Civil Procedure section 10 430.41 . As the demurring party, I identified the specific causes of action that I believe are 1 subject to demurrer and identified the legal support for the basis of the deficiencies. 5 : 12 3. Plaintiff's counsel and I not reach a resolution regarding the objections raised g : : 13 in the Demurrer and Motion to Strike. 28 14 : 5 o s 4. Plaintiff's counsel did indicate that he would consider sending a stipulation = : % 16 clarifying the damages and striking the irrelevant damages asserted with Plaintiff's first, second 17 and third cause of action in Plaintiff's First Amended Complaint. To date, I have not received a 18 proposed stipulation. 19 20 I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct. 22 Executed this 24th day of January, 2018, at Long Beach, California. 23 24 = DILKASH A” KHAN 26 Declarant 27 28 12 ~DEFENDANT'SDEMURRER TO FIRSTAMENDEDCOMPLAINT