Demurrer CLMCal. Super. - 2nd Dist.January 16, 2020123 Judge SUPERIOR COURT OF CALIFORNIA, TENTATIVE RULINGS EVENT DATE: EVENT TIME: VENTURA DIVISION September 04, 2020 09/10/2020 08:20:00 AM DEPT.: 40 COUNTY OF VENTURA JUDICIAL OFFICER: Mark Borrell CASE NUM: CASE CATEGORY: EVENT TYPE: CASE TITLE: CASE TYPE:Civil - Unlimited PI/PD/WD - Other 56-2020-00539002-CU-PO-VTA LUPE VALLES VS. MILWOOD HEALTHCARE INC Demurrer (CLM) - to Plaintiffs' First Amended Complaint CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/18/2020 stolo The following is a statement of the court's tentative ruling. The court may adopt, modify or reject the tentative ruling after considering the parties' oral arguments. The tentative ruling will have no legal effect unless adopted by the court. No notice of intent to appear is required. If you wish to submit on the tentative decision, you may send a telefax to Judge Borrell's secretary, Denise Arreola, at 805-477-5894, stating that you submit on the tentative. A copy of the telefax must be sent to all opposing parties contemporaneous with transmission to the court. Please include the hearing date, the case name and case number on your telefax. Do not call in lieu of sending a telefax, nor should you call to see if your telefax has been received. If you submit on the tentative without appearing and the opposing party appears, the hearing will be conducted in your absence. Defendant Milwood Healthcare, Inc. ("Milwood") demurs to the three causes of action set forth in plaintiffs' first amended complaint. Milwood also moves to strike portions of the complaint. Demurrer Milwood asserts that the allegations of the first cause of action, labeled as one for statutory elder abuse, fail to state facts that constitute a cause of action. But read together, those allegations plead that Milwood withheld treatment to plaintiffs' decedent knowing that she was vulnerable, gravely ill, and entirely dependent upon Milwood. When asked by plaintiffs to call 911 - because they recognized the seriousness of their decedent's condition - Milwood allegedly refused. Further, plaintiffs have alleged that Milwood made a conscious decision to understaff the facility, driven by a motive to increase profits, and with indifference to the impact on patient care. Thus, according to the allegations, the failure to provide the care the decedent required was not done inadvertently, but rather as part of a calculated business model. Plaintiffs have further alleged that Milwood was aware of the inadequacy of its staffing and nevertheless misrepresented that condition in an attempt to attract patients like plaintiffs' decedent. These allegations are sufficient for pleading purposes. The court makes no attempt at this stage to determine the truth of these allegations. Milwood demurs to the second cause of action on the ground that it is uncertain and fails to state a cause of action. Demurrers for uncertainty are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer for uncertain should only be sustained if the pleading is so incomprehensible that a defendant cannot reasonably respond. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) The allegations here have not been demonstrated to be uncertain. Milwood contends that the allegations of the second cause of action do not identify the violations it committed that give rise to the cause of action. However, plaintiffs have alleged violations in Paragraph 59 of the first amended complaint. The factual basis for these contentions are set forth in the preceding paragraphs. Therefore, Milwood's objection to the cause of action is without merit. TENTATIVE RULINGS Page: 1 CASE NUMBER: CASE TITLE: LUPE VALLES VS. MILWOOD HEALTHCARE INC 56-2020-00539002-CU-PO-VTA Finally, Milwood argues that it has paid plaintiffs $500 and, because this represents the full amount of the penalty plaintiffs could recover (see Jarman v. HCR Manor Care, Inc. (2020) 10 Cal.5th 375), plaintiffs' second cause of action is moot. This contention is procedurally unsupportable. Even though the receipt of the payment may not be disputed, the argument is premised on facts outside of the allegations of the complaint and not subject to judicial notice. A demurrer may not be made on this ground. (See Jamulians Against the Casino v. Iwasaki (2012) 205 Cal.App.4th 632.) Further, a court may still proceed to trial on a cause of action which is moot (see Plymouth v. Superior Court (1970) 8 Cal.App.3d 454, 460), and here even if plaintiffs have been fully compensated for the statutory penalty issues concerning fees and costs are not resolved by that alleged payment. Therefore, even if part of the second cause of action may be moot, that does not mean that plaintiffs have not pleaded a triable cause of action. Milwood demurred to plaintiffs' third cause of action. Although filing a written opposition to the demurrer, plaintiffs did not address the objections to the third cause of action in that opposition. The court treats this as a concession that the demurrer to the third cause of action should be sustained. At the hearing on the demurrer, plaintiffs' counsel should clarify whether leave to amend is sought as to it. For these reasons, the demurrers to the first and second causes of action are overruled, and the demurrer to the third cause of action as to Milwood is sustained. Leave to amend will be determined at the hearing. Motion to Strike Denied. TENTATIVE RULINGS Page: 2
