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1 MICHAEL J. LEVANGIE, State Bar #160163
ERIC S. EMANUELS, State Bar No. 140168
2 j/BRYAN L. MALONE, State Bar # 144082
PROUT- LEVANGIE
3 202 IN Street
Sacramento, CA 95811
4 Tel: (916)443-4849
Fax: (916)443-4855
5
Attorneys for Defendant,
6 Saint Claire's Nursing Center, Inc.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SACRAMENTO
10
11 EDITH M. HUDDLESTON, and MARTINA CASE NO. 34-2008-00008404
K. ZUBEIDI, as individuals and as Successors
12 in Interest of ERNEST HUDDLESTON
(Decedent), DEFENDANT'S NOTICE OF DEMURRER
13 AND DEMURRER TO PLAINTIFFS'
Plaintiffs, FIRST AMENDED COMPLAINT;
MEMORANDUM OF POINTS AND
v. AUTHORITIES; DECLARATION OF
BRYAN L. MALONE
SAINT CLAIRE'S NURSING CENTER, INC.
and DOES 1 through 50 inclusive,
DATE: January 23, 2009
Defendants. TIME: 2:00 p.m.
DEPT.: 53
18
TRIAL: None set
19
20
21 TO PLAINTIFFS EDITH M. HUDDLESTON, and MARTINA K. ZUBEIDI, as Individuals and
as Successors in Interest of ERNEST HUDDLESTON (Deceased) AND THEIR ATTORNEYS
22 OF RECORD:
23 PLEASE TAKE NOTICE that on January 23, 2008, at 2:00 p.m., or as soon thereafter as
24 the matter may be heard in Department 53 of the above-entitled Court located at located at 800
25 9lh Street, Sacramento, California, Defendant SAINT CLAIRE'S NURSING CENTER, INC.
26 (hereinafter also "Saint Claire's") will and does hereby move this Court for an Order sustaining
27 their demurrer to Plaintiffs' First Amended Complaint and to each of the following causes of
28 action, on the following grounds:
1
Demurrer to First Amended Complaint
I:\Client\Huddleston\Pleading\demurrcr.doc
1 1. The Second Cause of Action for Elder Abuse/Neglect fails to state facts sufficient
2 to constitute a cause of action. Code of Civil Procedure §430.10(e).
3 2. The Third Cause of Action for Negligence Per Se fails to state facts sufficient to
4 constitute a cause of action. Code of Civil Procedure §430.10(e).
5 3. The Fourth Cause of Action for Fraud/Misrepresentation fails to state facts
6 sufficient to constitute a cause of action. Code of Civil Procedure §430.10(e).
7 4. The Fifth Cause of action for Unfair Business Practices fails to state facts
8 sufficient to constitute a cause of action, and is uncertain. Code of Civil Procedure §430.10(e)
9 and (f).
10 5. The Sixth Cause of Action for Wrongful Death1 fails to state facts sufficient to
11 constitute a cause of action. Code of Civil Procedure §430.10(e).
12 This Demurrer is based on this Notice, defendant's Demurrer and Memorandum of Points
13 and Authorities in support thereof, the complete file and records of this action, and upon such
14 oral and/or further documentary evidence as may be presented at the hearing on this matter.
15 Please note, pursuant to Local Rule 3.04, the Court will make a tentative ruling on the
16 merits of this matter by 2:00 p.m., the Court day before the hearing. To receive the tentative
17 ruling, call the department in which the matter is to be heard at (916) 448-8239 (Department 53)
18 or (916) 448-8234 (Department 54). If you do not call the Court and the opposing party by
19 4:00 p.m. the Court day before the hearing, no hearing will be held.
20 DATED: November 14, 2008 PROTJT- LEVANGIE
21
.
22 MICHAEL J. LEVANGIE
ERIC S. EMANUELS
23 BRYAN L. MALONE
Attorneys for Defendant
24
25
26
27
_„ Plaintiffs' First Amended Complaint contains a typographical error at page 13 designating this
cause of action as the "Fifth" Cause of Action (sic); it is the Sixth Cause of Action.
2
Demurrer to First Amended Complaint
r\Clicnt\l-luddleston\Plcadmg\dcmurrer.doc
1 TABLE OF CONTENTS
2
3 NOTICE OF DEMURRER AND DEMURRER TO FIRST
AMENDED COMPLAINT 1
4
MEMORANDUM OF POINTS AND AUTHORITIES 3
5
I. INTRODUCTION 3
6
II. DEFENDANT MAY DEMUR TO PLAINTIFFS' FIRST
7 AMENDED COMPLAINT. 4
8 III. ARGUMENT. 5
9 A. DEMURRER TO SECOND CAUSE OF ACTION:
PLAINTIFFS HAVE FAILED TO STATE A CAUSE OF
10 ACTION FOR ELDER ABUSE. 5
11 B. DEMURRER TO THE THIRD CAUSE OF ACTION:
PLAINTIFFS HAVE FAILED TO STATE A CAUSE OF
12 ACTION FOR NEGLIGENCE PER SE. 7
13
C. DEMURRER TO THE FOURTH CAUSE OF ACTION:
14 PLAINTIFFS HAVE FAILED TO STATE SUFFICIENT
FACTS TO CONSTITUTE A CAUSE OF ACTION
15 FOR FRAUD/MISREPRESENTATION. 9
16 D. DEMURRER TO THE FIFTH CAUSE OF ACTION. 11
17 1. PLAINTIFFS HAVE FAILED TO STATE FACTS
SUFFICIENT TO CONSTITUTE A CAUSE OF
18 ACTION FOR UNFAIR BUSINESS PRACTICE. 11
19 2. THE CAUSE OF ACTION FOR UNFAIR BUSINESS
PRACTICE IS ALSO UNCERTAIN. 13
20
E. DEMURRER TO SIXTH CAUSE OF ACTION:
21 THE SIXTH CAUSE OF ACTION FOR WRONGFUL
DEATH FAILS TO STATE FACTS SUFFICIENT TO
22 CONSTITUTE A CAUSE OF ACTION. 14
23
IV. CONCLUSION. 14
24
DECLARATION OF BRYAN L. MALONE 15
25
26
27
28
i
Table of Contents
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1 TABLE OF AUTHORITIES
2 Cases
3 Ankenv v. Lockheed Missile & Space Company (1979) 88 Cal.App.3d 531 4,5,7
4 Arikat v. J.P. Morgan Chase & Company 430 F.Supp.2d 1013 10
5 Branick v. Downey Sav. & Loan Assn. (2006) 39 Cal.4th 235 12, 13
6 Californians for Disability Rights v. Mervvn's. LLC(2006) 39 Cal.4th 223 12
7 C & H Foods Company v. Hartford Insurance Company (1984) 163 Cal.App.3d 1055 7
8 Committee on Children's Television Inc. v. General Foods Corp. (1983) 35 Cal.Sd 197 5,10
9 Delaney v. Baker (1999) 20 Cal.4lh 23 6
10 Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420 8
11 G.D. Searle & Company v. Superior Court (1975) 49 Cal.AoD.3d 22 6
12 Goldrich v. Natural Y Surgical Specialties (1994) 25 Cal.App.4th 772 11
13 Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845 12, 13
14 Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 7
15 Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.Sd 566 5,7
16 Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4lh 88 14
17 Kasky v. Nike, Inc. (2002) 27 Cal.4th 939 12
18 Khoury v. Malv's of California, Inc. (1993) 14 Cal.App.4th 612 11
19 Lazar v. Superior Court (1996) 12 Cal.4th 631 9,10,11
20 Moore v. Regents of the University of California (199) 51 Cal.Sd 120, 134, fn.12 7
21 Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037 13
22 Peart v. Ferro (2004) 119 Cal.App.4th 60 8
23 People ex rel. Lockyerv. Brar(2004) 115 Cal.App.4th 1315 12
24 Perkins v. Superior Court (1981) 1 17 Cal.App.3d 1 5
25 Pinney & Topliff v. Chrysler Corp. (S.D. Cal. 1959) 176 F.Supp. 108. 10
26 Ouiroz v Seventh Ave. Center (2006) 140 Cal.App.4th. 4th 1256 8
27 Schauer v. Mandarin Gyms of Calif. (2005) 125 Cal.App.4th 949 10
28
ii
Table of Contents
I:\client\Huddleston\Pleading\demurrer.toc.doc
1 Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167. 10
2 Spates v. Dameron Hosp. Assn. (2003) 1 14 Cal.App.4th 208 8
3 Stansfield v. Starkev (1990) 220 Cal.Apo.3d 59 10
4 Tarmann v. State Farm (1991) 2 Cal.App.4th 153 9
5 Wilhelm v. Pray, Price (1986) 186 Cal.App.3d 1324 10
6 Codes
7 Business and Professions Code §17200 11,12,13
8 Business and Professions Code 1 7204 12
9 Business and Professions Code 17535 12
10 22CCR§72311 7
11 22CCR§72315 7
12 22 CCR §72527 7
13 41 CFR §483.13 and 41 CFR §483.15 7
14 Civil Code §3294(b) 6
15 Code of Civil Procedure §430.10 4
16 Code of Civil Procedure §430.10(e). 2
17 Code of Civil Procedure §430.10(f). 13
18 Code of Civil Procedure § 430.30(a) 5
19 Code of Civil Procedure §430.40(a) 5
20 Evidence Code §669 8
21 Evidence Code §669(a) 8
22 Evidence Code §669(b) 8,9
23 Welfare & Institutions Code §15657 5,6
24
25
26
27
28
iii
Table of Contents
I:\client\Huddleston\Pleading\demurrer.toc.doc
1 MICHAEL J. LEVANGIE, State Bar #160163
ERIC S. EMANUELS, State Bar No. 140168
2 BRYAN L. MALONE, State Bar # 144082
PROUT* LEVANGIE
3 2021 N Street
Sacramento, CA 95811
4 Tel: (916)443-4849
Fax: (916)443-4855
5
Attorneys for Defendant,
6 Saint Claire's Nursing Center, Inc.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SACRAMENTO
10
II EDITH M. HUDDLESTON, and MARTINA CASE NO. 34-2008-00008404
K. ZUBEIDI, as individuals and as Successors
12 in Interest of ERNEST HUDDLESTON
(Decedent), MEMORANDUM OF POINTS AND
13 AUTHORITIES IN SUPPORT OF
Plaintiffs, DEMURRER TO COMPLAINT
14
v.
15 DATE: January 23, 2009
SAINT CLAIRE'S NURSING CENTER, INC. TIME: 2:00 p.m.
16 and DOES 1 through 50 inclusive, DEPT.: 53
17 Defendants. TRIAL: None set
18
19 I.
20 INTRODUCTION.
21 Demurring party here is defendant SAINT CLAIRE'S NURSING CENTER, INC.
22 (hereinafter also "Saint Claire's" for brevity). Plaintiffs are EDITH M. HUDDLESTON, and
23 MARTINA K. ZUBEIDI, as Individuals and as Successors in Interest of ERNEST
24 HUDDLESTON (Deceased). Essentially, this case concerns the alleged neglect and wrongful
25 death of Ernest Huddleston.
26 Ernest Huddleston was admitted to Saint Claire's facility on May 25, 2007 for
27 rehabilitation subsequent to bilateral knee surgery (See First Amended Complaint, at ^5). At that
28 time, he was 87 years old with a history of diabetes, renal insufficiency, hypertension,
Demurrer to First Amended Complaint
l:\Client\Huddleston\Plcadmg\dcmurrer.doc
1 hypolhyroidism, and mild dementia. (Id.) Plaintiffs allege Mr. Huddleston was to receive "total
2 care" (First Amended Complaint, at 1[6), yet he sustained a fractured hip as a result of falling out
3 of his bed, was not taken to the hospital and his family and physician were not contacted. (First
4 Amended Complaint, at T[16). Among other things, plaintiffs also claim that during his residency
5 at Saint Claire's, defendant failed to implement a resident care plan, monitory fluid intake,
6 provide a dietician's assessment and oversight for a patient with a history of recurrent urinary
7 tract infections. (First Amended Complaint, at ^18-19). During hospitalization at Mercy
8 General Hospital for his hip fracture, plaintiffs alleged a bed sore was discovered on Mr.
9 Huddleston's heel and, post-operatively, he started a downward spiral with a decline of mental
10 function. (First Amended Complaint, at TJ17). Mr. Huddleston was discharged home from the
11 hospital with a home health aide, and thereafter died on September 29, 2007. (Id.)
12 As set forth below, this Demurrer is appropriate and should be sustained for plaintiffs'
13 failure to allege facts sufficient to constitute a cause of action against SAINT CLAIRE'S.
14 II.
15 DEFENDANT MAY DEMUR TO PLAINTIFFS' FIRST AMENDED COMPLAINT.
16 Defendant's Demurrer to the First Amended Complaint is appropriate. It is well settled
17 that plaintiffs must set forth specific facts in a complaint so that the defendants may plead
18 intelligently and responsively to the pleading without having to guess or speculate as to the items
19 of material or essential facts. Ankeny v. Lockheed Missile & Space Company (1979) 88
20 Cal.App.3d 531, 537. Indeed, Code of Civil Procedure §430.10 provides, in pertinent part:
21 The party against whom a complaint or cross-complaint has been
filed may object, by demurrer or answer as provided in Section
22 430.30, to the pleading on any one or more of the following
grounds:...
23
(e) The pleading does not state facts sufficient to constitute a
24 cause of action.
25 (f) The pleading is uncertain. As used in this subdivision,
"uncertain" includes ambiguous and unintelligible.
26
27 When examining a complaint for its legal sufficiency to withstand a demurrer, "[a]
28 demurrer admits all material and issuable facts properly pleaded [Citations omitted]. However, it
_
Demurrer to First Amended Complaint
I:\Clicnt\Huddleston\Pleading\demurrerdoc
1 does not admit contentions, deductions or conclusions of fact or law therein. [Citations
2 omitted.]" Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.Sd 566, 572. Code of Civil
3 Procedure § 430.30(a) provides:
4 When any ground for objection to a complaint, cross-complaint, or
answer appears on the face thereof, or from any matter of which
5 the court is required to or may take judicial notice, the objection on
that ground may be taken by a demurrer to the pleading.
6
7 As demonstrated below, plaintiffs' First Amended Complaint on its face does not state facts
8 sufficient to constitute a cause of action against defendant SAINT CLAIRE'S. It does not
9 contain a statement of facts constituting a cause of action in ordinary and concise language, nor
10 refrain from pleading conclusions of law. See Perkins v. Superior Court (1981) 117 Cal.App.3d
11 1. Therefore, demurrer is warranted and appropriate.
12 Defendant submits that this Demurrer is timely under Code of Civil Procedure §430.40(a)
13 pursuant to date of service of the First Amended Complaint and upon agreement of counsel.2
14 III.
15 ARGUMENT.
16 A. DEMURRER TO SECOND CAUSE OF ACTION: PLAINTIFFS HAVE
FAILED TO STATE A CAUSE OF ACTION FOR ELDER ABUSE.
17
18 Plaintiffs Second Cause of Action is one stated for Abuse/Neglect of an Elder, Dependent
19 Adult. Presumably, this is an attempt to state a cause of action under Welfare & Institutions
20 Code §15657 (Elder Abuse and Dependent Adult Civil Protection Act). Flowever, absent
21 specific facts against SAINT CLAIRE'S, the cause of action must fail.
22 An action for elder abuse must be pled with strict particularity, both clearly and concisely,
23 in order to provide the fullest possible detail of the charges. Committee on Children's
24 Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197. Material and essential facts must
25 be alleged directly and not by way of recital, and they must be stated with clearness and precision
26 so that nothing is left to surmise. Ankeny v. Lockheed Missiles and Space Company (1979) 88
27
See Declaration of Bryan L. Malone.
5
Demurrer to First Amended Complaint
IACIient\Huddleston\Pleading\demurrer.doc
1 Cal.App.3d 531,537.
2 Plaintiffs' cause of action is directed toward defendant, a corporation. To obtain the
3 enhanced remedies, therefore, Plaintiffs must plead sufficient facts that (1) SAINT CLAIRE's
4 employees are liable for physical abuse or neglect and (2) such employees were reckless,
5 oppressive, fraudulent or malicious in the commission of this abuse, and (3) their officers,
6 directors, or managing agents knowingly hired an unfit employee with conscious disregard for
7 the safety of others or authorized, ratified the abuse or was personally guilty of oppression, fraud
8 or malice. See, e.g., Delanev v. Baker (1999) 20 Cal.4th 23, California Welfare & Institutions
9 Code §15657; Civil Code §3294(b). In Delanev, the California Supreme Court defined
10 recklessness as follows:
11 Recklessness refers to a subjective state of culpability greater than
simple negligence, which has been described as a deliberate
12 disregard of the high degree of probability that an injury will occur.
Recklessness, unlike negligence, involves more than inadvertence,
13 incompetence, unskillfulness, or a failure to take precautions but
rather rises to the level of a conscious choice of action with
14 knowledge of the serious danger to others involved. Id.
15 Oppressive, fraudulent or malicious conduct involves intentional, willful, or conscious
16 wrongdoing of a despicable or injurious nature. Id. However, plaintiffs First Amended
17 Complaint here contains boilerplate conclusory language without factually-specific allegations of
18 the high degree of probability that an injury would occur. At most, plaintiffs' allegations allege
19 negligence in the performance of professional services and care of Ernest Huddleston, arguendo.,
20 but not elder abuse. Those allegations complain of conduct such as a failure to follow and adhere
21 to all physician's orders, accurately monitor and record decedent's condition, failure to accurately
22 monitor and record intake of fluids, and failure to properly and accurately administer medication,
23 e.g. (See First Amended Complaint, at Tf33). Absent factual allegations (as opposed to self-
24 serving and unsubstantiated conclusions) that defendant intended to injure Ernest Huddleston, or
25 acted specifically in conscious disregard for the decedent's safety, the Complaint fails to plead a
26 cause of action for Elder Abuse. G.D. Searle & Company v. Superior Court (1975) 49
27 Cal.App.3d 22, 32.
28 ///
6
Demurrer to First Amended Complaint
I \Client\Huddleston\Pleading\demurrer doc
1 Importantly, the First Amended Complaint also contains no factual allegations of
2 ratification, authorization or tacit approval by any director, officer, or managing agent of SAINT
3 CLAIRE'S. In order to establish ratification against corporate employers, plaintiff must plead
4 facts, rather than mere conclusions, establishing the employer's advanced knowledge,
5 authorization or ratification. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168.
6 [Emphasis added.] In fact, the California Supreme Court has criticized pleading agency or
7 employment in a conclusory fashion as an egregious example of generic boilerplate that is
8 improper. Moore v. Regents of the University of California (199) 51 Cal.3d 120, 134, fn.12.
9 Herein, plaintiffs have done just that; they simply plead:
10 [EJach and every defendant was the agent and employee of each and every other
defendant; and, in doing the things alleged, was acting within the course and
11 scope of such agency and employment; and, in doing the acts herein alleged, was
acting with the consent, permission and authorization of each of the remaining
12 defendants. All actions of each defendant herein alleged were ratified and
approved by the officers or managing agents of every other defendant.
13
14 (See First Amended Complaint, at ^(11) Notably, there is not one single employee, agent or
15 officer of this demurring party specifically named in the First Amended Complaint, either by
16 name or position with the company, as having perpetrated or condoned any of the alleged
17 harmful acts. Such conclusory allegations cannot be considered in determining the legal
18 sufficiency of plaintiffs' claims in a demurrer and, therefore, plaintiffs lack sufficient facts to
19 state a cause of action against these demurring parties for elder abuse. Gruenberg v. Aetna
20 Insurance Company (1973) 9 Cal.3d 566, 572; C & H Foods Company v. Hartford Insurance
21 Company (1984) 163 Cal.App.3d 1055, 1062; Ankeny, supra, 88 Cal.App.3d at 537.
22 Therefore, the Demurrer to the Second Cause of Action should be sustained.
23 B. DEMURRER TO THE THIRD CAUSE OF ACTION: PLAINTIFFS HAVE
FAILED TO STATE A CAUSE OF ACTION FOR NEGLIGENCE PER SE.
24
25 Plaintiffs' Third Cause of Action is one stated for Negligence Per Se based upon the
26 alleged violations of certain regulations pertaining to skilled nursing care facilities, including 41
27 CFR §483.13 and §483.15, and 22 CCR §72311, 22 CCR §72315 and 22 CCR §72527. (First
28 Amended Complaint, at 1J42). However, review of plaintiffs pleading reveals plaintiffs are
_
Demurrer to First Amended Complaint
I.\Chcnt\Huddleston\Pleading\demurrer.doc
1 mistakenly using this doctrine rather than stating specific facts constituting a cause of action.
2 The Demurrer should be sustained.
3 The doctrine of "negligence per se" creates a presumption of negligence if and only if
4 four elements have been established: (1) the defendant violated a statute, ordinance, or regulation
5 of a public entity; (2) the violation proximately caused death or injury to person or property, (3)
6 the death or injury resulted from occurrence of the nature which the statute, ordinance, or
7 regulation was designed to prevent; and (4) a person suffering death or injury was one of class of
8 persons for whose protection statute, ordinance, or regulation was adopted. See Evidence Code
9 §669; Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 218. These latter two
10 elements are determined by the Court as a matter of law. Galvez v. Frields (2001) 88
11 Cal.App.4th 1410, 1420. Accordingly, there is a difference between the using the doctrine of
12 negligence per se to establish a presumption of negligence and pleading a separate cause of
13 action entitled "negligence per se".
14 In Quiroz v Seventh Ave. Center (2006) 140 Cal.App.4th. 4th 1256, the Court of Appeal
15 noted that "negligence per se" is an evidentiary doctrine codified at Evidence Code §669. If the
16 presumption of negligence is established under subdivision Evidence Code §669(a), it may be
17 rebutted under subdivision (b) by proof that:
18 (1) The person violating the statute, ordinance, or regulation did what might
reasonably be expected of a person of ordinary prudence, acting under similar
19 circumstances, who desired to comply with the law; or
20 (2) The person violating the statute, ordinance, or regulation was a child and
exercised the degree of care ordinarily exercised by persons of his maturity,
21 intelligence, and capacity under similar circumstances, but the presumption may
not be rebutted by such proof if the violation occurred in the course of an activity
22 normally engaged in only by adults and requiring adult qualifications."
23 Evidence Code §669(b). Therefore, the doctrine of negligence per se does not establish tort
24 liability; rather, it merely codifies the rule that a presumption of negligence arises from the
25 violation of a statute which was enacted to protect a class of persons of which the plaintiff is a
26 member against the type of harm that the plaintiff suffered as a result of the violation. Peart v.
27 Ferro (2004) 119 Cal.App.4th 60, 80.
28 Here, plaintiffs have failed to plead facts to establish the elements to constitute a separate
8
Demurrer to First Amended Complaint
l:\Client\Huddleston\Pleading\demurrer.doc
1 cause of action for "negligence per se" against defendant SAINT CLAIRE'S. Specifically,
2 plaintiffs failed to allege facts of any statutory violation by defendant which proximately or
3 actually caused injury to Ernest Huddleston as a result of the violation of statute by defendant.
4 Although various regulations are identified in paragraph 42 of the First Amended Complaint,
5 supra, plaintiffs have not established the manner in which these regulations have allegedly been
6 violated by defendant and what harm plaintiff had suffered due to each such violation. The
7 activities complained of, such as defendant's alleged failure to accurately monitor decedent's
8 condition and provide safe living accommodations (First Amended Complaint, at §43), are only
9 generalities; there are no facts showing an activity or failure on defendant's part is something
10 specifically proscribed by a specific regulation, nor that such violation specifically harmed the
11 decedent. As a result, plaintiffs conclusion that "[defendants' violation of said regulations
12 resulted in injuries, abuse and neglect suffered by Decedent and was the actual and proximate
13 cause of his injuries and decline of his medical condition, his need for sustained medical care,
14 mental pain and suffering and death." (First Amended Complaint, at §45) is vacuous.
15 Considering the rebuttable nature of the doctrine under Evidence Code §669(b), supra,
16 and the lack of sufficient facts stated by plaintiffs, defendant's Demurer to the Third Cause of
17 Action for Negligence Per Se should be sustained.
18 C. DEMURRER TO THE FOURTH CAUSE OF ACTION: PLAINTIFFS
HAVE FAILED TO STATE SUFFICIENT FACTS TO CONSTITUTE A
19 CAUSE OF ACTION FOR FRAUD/MISREPRESENTATION.
20 Plaintiffs' Fourth Cause of Action purports to be one for Fraud/Misrepresentation.
21 However, when pleading fraud against a corporation, a plaintiff must not only plead the cause of
22 action factually and with specificity but, additionally, must identify the names of persons who
23 made representations, their authority to speak for the corporation, to whom they spoke, what they
24 said or wrote, and when such was said or written. See Lazar v. Superior Court (1996) 12 Cal.4n
25 631; Tarmann v. State Farm (1991) 2 Cal.App.4th 153. As stated further below, plaintiffs have
26 failed to meet their pleading burden and; absent sufficient specific facts to constitute a cause of
27 action, the cause of action must fail.
28 Fraud causes of action are subject to a stricter pleading standard because they involve a
9
Demurrer to First Amended Complaint
IACIient\Hudclleston\Pleading\demurrer.doc
1 serious attack on character. In other words, fairness requires allegations of fraud be pled with
2 particularity so the Court can weed out non-meritorious actions before defendant is required to
3 answer. Committee on Children's Television Inc. v. General Foods Corp. 0983) 35 Cal.3d 197;
4 Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167. The effect of these pleading requirements
5 are such that the policy of liberal construction of a pleading will not be invoked to sustain a
6 pleading defective in any respect; rather, every element of the cause of action for fraud must be
7 alleged in full both factually and specifically. Wilhelm v. Pray, Price (1986) 186 Cal.App.3d
8 1324. [Emphasis added.] The particularity requirement mandates facts that show "how, when,
9 where, to whom, and by what means the representations were tendered." Lazar, supra, at 645;
10 Stansfield v. Starkev (1990) 220 Cal.App.3d 59, 73; Arikat v. J.P. Morgan Chase & Company
11 430 F.Supp.2d 1013 (N.D. Cal.3d 2006).
12 The effect of the requirement is two-fold: (1) general pleading of the legal conclusion of
13 "fraud" is insufficient; the facts constituting fraud must be alleged; and (2) every element of the
14 cause of action for fraud must be alleged in the proper manner (factually and specifically), and
15 the policy of liberal construction of pleading will not usually be invoked to sustain a pleading
16 that is defective in any material respect. Committee on Children's Television Inc., supra, at 216-
17 217; see also Schauer v. Mandarin Gyms of Calif. (2005) 125 Cal.App.4th 949, 961. Similarly,
18 there must be a false representation of promise of a material fact, and knowledge of its falsity
19 when made, coupled with an intent to deceive, or suppression of a material fact, and reliance and
20 resulting damage. Pinnev & Topliff v. Chrysler Corp. (S.D. Cal. 1959) 176 F.Supp. 108.
21 Plaintiffs' Fourth Cause of Action fails to meet this strict pleading requirement. Plaintiffs
22 fail to plead the identity of a single person who made an alleged misrepresentation that Ernest
23 Huddleston would receive e.g. "wonderful care by a professional care staff that provides
24 assistance with activities of daily living," (First Amended Complaint, at ^50), by name,
25 description or title. It cannot be determined what representation was made by what individual, in
26 what matter and under what authority such representation was made, and there has been no
27 pleadings of any justifiable reliance by plaintiffs.
28 Further, plaintiffs have not pleaded that any factual statements were made with an intent
TO
Demurrer to First Amended Complaint
1 \Clicnt\Huddleslon\Plcading\demurrcr doc
1 to misrepresent and/or deceive decedent. With unsupported conclusions, plaintiffs allege
2 defendants failed to disclose "important facts" that would have impacted the decision to admit
3 decedent to the facility, yet there is nothing demonstrating what those facts are/were, when they
4 were omitted, etc. (See First Amended Complaint, at ^|51). In Goldrich v. Natural Y Surgical
5 Specialties (1994) 25 Cal.App.4th 772, a plaintiff alleged the manufacturer of a breast implant
6 falsely and fraudulently represented its product was safe for use. Such allegations were found
7 conclusory and insufficient for establishing fraud in a complaint. Id. Similarly, plaintiffs'
8 conclusion here that defendant acted "fraudulently" (First Amended Complaint at ^|59) must be
9 viewed in a similar fashion for what it is: defective pleading.
10 In short, the Fourth Cause of Action does not contain any of the Lazar elements required
11 for a fraud cause of action against a corporation; namely, the First Amended Complaint does not
12 identify the names of persons who made misrepresentations, their authority to speak on behalf of
13 the corporation, to whom they spoke, what they said or wrote and when it was said or written or
14 any justifiable reliance by plaintiff. Lazar, supra, at 631. This lack of specificity renders the
15 cause of action fatal and the Demurrer should be sustained.
16 D. DEMURRER TO THE FIFTH CAUSE OF ACTION.
17 1. PLAINTIFFS HAVE FAILED TO STATE FACTS SUFFICIENT
TO CONSTITUTE A CAUSE OF ACTION FOR UNFAIR
18 BUSINESS PRACTICE.
19 Plaintiffs have failed to plead facts sufficient to establish that SAINT CLAIRE'S engaged
20 in unfair business practices and therefore, demurrer should be sustained.
21 A plaintiff alleging unfair business practices under Business and Professions Code
22 §17200, et seq., must state with reasonable particularity the facts supporting the statutory
23 elements of the violation. Khoury v. Malv's of California, Inc. (1993) 14 Cal.App.4th 612, 619.
24 [Emphasis added.] The Court of Appeals in Khoury held that a demurrer was properly sustained
25 because the complaint "identifies no particular section of the statutory scheme which was
26 violated and fails to describe with any reasonable particularity the facts supporting violation."
27 (Id.)
28 The Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) was enacted to
_
Demurrer to First Amended Complaint
1 \Client\Huddlcston\Pleading\demurrer doc
1 protect consumers as well as competitors from unlawful, unfair or fraudulent business acts or
2 practices, by promoting fair competition in commercial markets for goods and services. Kasky v.
3 Nike, Inc. (2002) 27 Cal.4th 939, 949. However, in recent years, the UCL became prone to the
4 sort of abuse "which made the Trevor Law Group a household name in California in 2002 and
5 2003. The abuse [was] a kind of legal shakedown scheme: Attorneys form[ed] a front
6 'watchdog' or 'consumer' organization. They scourfed] public records on the Internet for what
7 [were] often ridiculously minor violations of some regulation or law by a small business, and
8 sue[d] that business in the name of the front organization." People ex rel. Lockyer v. Brar (2004)
9 115Cal.App.4thl315, 1317.
10 After Proposition 64, only those private persons "who [have] suffered injury in fact and
11 [have] lost money or property" (§§ 17204, 17535) may sue to enforce the unfair competition and
12 false advertising laws. Uninjured persons may not sue (§§ 17204, 17535), and private persons
13 may no longer sue on behalf of the general public (Prop. 64, § 1, subd. (f)). Branick v. Downey
14 Sav. & Loan Assn. (2006) 39 CaUth 235; Californians for Disability Rights v. Mervyn's. LLC
15 (2006) 39 Cal.4th 223. [Emphasis added.]
16 In the instant matter, plaintiffs have failed to plead injury in fact. Rather, plaintiffs plead
17 that defendant made a considered decision as a scheme to save money to be more profitable
18 because of their lack of compliance with state regulations. (See First Amended Complaint, at
19 1|63). While certain regulations were allegedly violated, there are no reasonable and particular
20 facts stated as to each. Absent identifying a particular section of the statutory scheme that was
21 violated with reasonable and particular facts, the cause of action is subject to demur without
22 leave to amend. Gregory v. Albertson's. Inc. (2002) 104 Cal.App.4lh 845.
23 The cause of action is also want for reasonable particularity what is an unfair business
24 practice in the first instance. For example, plaintiffs plead that defendant made a practice of
25 generally not advising new residents and responsible parties of their legal rights and defendant's
26 prior regulatory violations (First Amended Complaint, at T|62), and there was a considered
27 decision to protect and promote financial condition at the expense of legal obligations to resident
28 patients (First Amended Complaint, at 1J61), e.g. Such allegations do not satisfy the requirements
12
Demurrer to First Amended Complaint
I.\Client\Huddleston\Plcading\dcmurrer doc
1 of Khoury, supra: plaintiffs have not pleaded with facts any meaningful basis supporting a
2 statutory cause of action. In fact, plaintiffs have failed to identify any "injury in fact" suffered as
3 a result of the vaguely alleged statutory violations by SAINT CLAIRE'S. As a result, plaintiffs
4 lack standing to allege a claim based upon Business & Professions Code §17200.
5 Further, activities complained of such as holding out to the public that it could provide
6 "specialty care to residents with dementia" when employees had no such training or
7 qualifications (First Amended Complaint, at 1J63), are wholly irrelevant if plaintiffs are
8 attempting to state a claim on behalf of the general public; such an action is not permitted.
9 Branick, supra.
10 Plaintiffs have not only failed to identify the particular section of the code violated by
11 defendants, but have also failed to allege any facts supporting the statutorily required elements of
12 violation. Plaintiffs' complaint contains only contentions, deductions and legal conclusions,
13 which are not considered in evaluating a demurrer. Payne v. National Collection Systems, Inc.
14 (2001) 91 Cal.App.4th 1037, 1043. Therefore, the Demurrer should be sustained.
15 2. THE CAUSE OF ACTION FOR UNFAIR BUSINESS
PRACTICE IS ALSO UNCERTAIN.
16
17 Plaintiffs have collectively combined SAINT CLAIRE'S and unspecified Doe defendants
18 together for purposes of pleading this cause of action, rendering the allegations unclear and
19 uncertain. Demurrer is sought pursuant to Code of Civil Procedure §430.10(f).
20 A plaintiff must plead factually as to how a particular defendant engaged in a violation of
21 a particular statute of the Business and Professions Code in order to establish a cause of action
22 for unfair business practices. Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845. But here,
23 in a boilerplate fashion, plaintiffs contend that it was a "part of a general business practice."
24 (First Amended Complaint, at 1f61). What is absent are specific facts as to how a particular
25 defendant such as SAINT CLAIRE'S, in a particular circumstance relating to decedent Ernest
26 Huddleston or the plaintiffs, violated a unique statute which was a substantial factor in causing
27 harm to the decedent. Therefore, plaintiffs' cause of action for unfair business practices is
28 uncertain under Code of Civil Procedure §430.10(f) and must fail.
_
Demurrer to First Amended Complaint
r\Client\Huddleston\Pleading\demurrer doc
1 E. DEMURRER TO SIXTH CAUSE OF ACTION: PLAINTIFFS FAIL TO
STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION
2 FOR WRONGFUL DEATH.
3 Plaintiffs' First Amended Complaint contains a cause of action for wrongful death.
4 Although plead as what would be the Sixth Cause of Action in numerical order, it is mistakenly
5 identified as the Fifth Cause of Action (see First Amended Complaint, at page 14). This appears
6 to be a typographical error. Regardless, plaintiffs have failed to state facts sufficient to constitute
7 a Wrongful Death cause of action against SAINT CLAIRE'S. The demurrer should be sustained.
8 Setting aside meaningless boilerplate conclusions, plaintiffs have not stated any facts
9 demonstrating breach of a duty owed by SAINT CLAIRE'S and any causal connection thereto to
10 the death of Ernest Huddleston which occurred sometime later on September 29, 2007. In fact,
11 the Complaint is otherwise wholly devoid of any charging allegations (intentional and/or
12 negligent) demonstrating responsibility for the death of Ernest Huddleston on the part of this
13 defendant. This is important because, even though wrongful death is a statutorily-created action3,
14 a wrongful death suit based on negligence must set forth the necessary elements: duty, breach,
15 causation and damages. See Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88,
16 105. [Emphasis added.]
17 IV.
18 CONCLUSION.
19 Based upon plaintiffs' failure to plead sufficient facts demonstrating viable claims against
20 SAINT CLAIRE'S, this demurring defendant respectfully requests its Demurrer to the plaintiffs
21 First Amended Complaint be sustained in its entirety, including as to the Second, Third, Fourth,
22 Fifth, and Sixth Causes of Action, each.
23 DATED: November 14, 2008 PROUT- LEVANGIE
24
By:.
25 BRYAN L. MALONE
Attorneys for Defendant
26
27
28 3
Code of Civil Procedure §377.60.
14
Demurrer to First Amended Complaint
I. \Client\Huddleston\Pleading\demurrer doc
1 MICHAEL J. LEVANGIE, State Bar # 160163
ERIC S. EMANUELS, State Bar No. 140168
2 BRYAN L. MALONE, State Bar # 144082
PROUT- LEVANGIE
3 202 IN Street
Sacramento, CA 95811
4 Tel: (916)443-4849
Fax: (916)443-4855
5
Attorneys for Defendant,
6 Saint Claire's Nursing Center, Inc.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SACRAMENTO
10
11 EDITH M. HUDDLESTON, and MARTINA CASE NO. 34-2008-00008404
K. ZUBEIDI, as individuals and as Successors
12 in Interest of ERNEST HUDDLESTON
(Decedent), DECLARATION OF BRYAN L. MALONE
13
Plaintiffs,
14 DATE: January 23, 2009
v. TIME: 2:00 p.m.
15 DEPT.: 53
SAINT CLAIRE'S NURSING CENTER, INC.
16 and DOES 1 through 50 inclusive, TRIAL: None set
17 Defendants.
18
19 1, Bryan L. Malone, declare:
20 1. I am an attorney at law duly licensed to practice before all courts of the State of
21 California. I am an associate with Prout LeVangie, counsel of record for defendant Saint Claire's
22 Nursing Center, Inc. in the within matter. The following facts are within my personal knowledge
23 and, if called to testify as a witness thereto, I could and would do so competently and truthfully.
24 2. Pursuant to my discussions with Rebekah Gibson of the York Law Corporation,
25 counsel of record for plaintiffs, it was agreed that defendant would have until November 14,
26 2008 to file and serve its responsive pleading to plaintiffs' First Amended Complaint. This was
27 confirmed in writing on November 12, 2008.
28 3. Counsel previously attempted to meet and confer regarding deficiencies in
15
Demurrer to First Amended Complaint
l:\Client\Hiiddleston\Pleadmg\demurrerdoc
1 plaintiffs' pleading. We were unable to resolve our differences informally, thus necessitating the
2 within demurrer. Based on my discussions with Ms. Gibson, she was informed that a demurrer
3 to the First Amended Complaint would be filed.
4 I declare under penalty of perjury that the foregoing is true and correct. Executed this 1411
5 day of November, 2008, at Sacramento, California.
f • •rvyH/]/}. " : V \$J(0H&
Bryan L. MaYone
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Demurrer to First Amended Complaint
l:\Client\Huddleston\Plcadmg\demurrer.doc
1 Huddleston v. Saint Claire's Nursing Center, Inc.
Sacramento County Superior Court Case No. 34-2008-00008404
2
3 PROOF OF SERVICE
4 I, the undersigned, declare that I am, and was at the time of service of the papers herein
referred to, over the age of 18 years and not a party to the within action or proceeding. My
5 business address is 2021 N Street, Sacramento, California, 95811, which is located in the county
in which the within-mentioned service occurred.
6
On November 14, 2008,1 served the following document(s):
7 1) DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS'
FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES;
8 DECLARATION OF BRYAN L. MALONE;
2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
9 DEMURRER TO COMPLAINT;
3) DECLARATION OF BRYAN L. MALONE.
10
to each addressee named below:
11
Wendy York
12 Rebekah R. Gibson
York Law Corporation
13 1111 Exposition Boulevard, Building 500
Sacramento, CA 95815
14 Ph: (916) 643-2200
Fax: (916) 643-4680
15
Preview
1 MICHAEL J. LEVANGIE, State Bar #160163 ERIC S. EMANUELS, State Bar No. 140168 2 j/BRYAN L. MALONE, State Bar # 144082 PROUT- LEVANGIE 3 202 IN Street Sacramento, CA 95811 4 Tel: (916)443-4849 Fax: (916)443-4855 5 Attorneys for Defendant, 6 Saint Claire's Nursing Center, Inc. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SACRAMENTO 10 11 EDITH M. HUDDLESTON, and MARTINA CASE NO. 34-2008-00008404 K. ZUBEIDI, as individuals and as Successors 12 in Interest of ERNEST HUDDLESTON (Decedent), DEFENDANT'S NOTICE OF DEMURRER 13 AND DEMURRER TO PLAINTIFFS' Plaintiffs, FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND v. AUTHORITIES; DECLARATION OF BRYAN L. MALONE SAINT CLAIRE'S NURSING CENTER, INC. and DOES 1 through 50 inclusive, DATE: January 23, 2009 Defendants. TIME: 2:00 p.m. DEPT.: 53 18 TRIAL: None set 19 20 21 TO PLAINTIFFS EDITH M. HUDDLESTON, and MARTINA K. ZUBEIDI, as Individuals and as Successors in Interest of ERNEST HUDDLESTON (Deceased) AND THEIR ATTORNEYS 22 OF RECORD: 23 PLEASE TAKE NOTICE that on January 23, 2008, at 2:00 p.m., or as soon thereafter as 24 the matter may be heard in Department 53 of the above-entitled Court located at located at 800 25 9lh Street, Sacramento, California, Defendant SAINT CLAIRE'S NURSING CENTER, INC. 26 (hereinafter also "Saint Claire's") will and does hereby move this Court for an Order sustaining 27 their demurrer to Plaintiffs' First Amended Complaint and to each of the following causes of 28 action, on the following grounds: 1 Demurrer to First Amended Complaint I:\Client\Huddleston\Pleading\demurrcr.doc 1 1. The Second Cause of Action for Elder Abuse/Neglect fails to state facts sufficient 2 to constitute a cause of action. Code of Civil Procedure §430.10(e). 3 2. The Third Cause of Action for Negligence Per Se fails to state facts sufficient to 4 constitute a cause of action. Code of Civil Procedure §430.10(e). 5 3. The Fourth Cause of Action for Fraud/Misrepresentation fails to state facts 6 sufficient to constitute a cause of action. Code of Civil Procedure §430.10(e). 7 4. The Fifth Cause of action for Unfair Business Practices fails to state facts 8 sufficient to constitute a cause of action, and is uncertain. Code of Civil Procedure §430.10(e) 9 and (f). 10 5. The Sixth Cause of Action for Wrongful Death1 fails to state facts sufficient to 11 constitute a cause of action. Code of Civil Procedure §430.10(e). 12 This Demurrer is based on this Notice, defendant's Demurrer and Memorandum of Points 13 and Authorities in support thereof, the complete file and records of this action, and upon such 14 oral and/or further documentary evidence as may be presented at the hearing on this matter. 15 Please note, pursuant to Local Rule 3.04, the Court will make a tentative ruling on the 16 merits of this matter by 2:00 p.m., the Court day before the hearing. To receive the tentative 17 ruling, call the department in which the matter is to be heard at (916) 448-8239 (Department 53) 18 or (916) 448-8234 (Department 54). If you do not call the Court and the opposing party by 19 4:00 p.m. the Court day before the hearing, no hearing will be held. 20 DATED: November 14, 2008 PROTJT- LEVANGIE 21 . 22 MICHAEL J. LEVANGIE ERIC S. EMANUELS 23 BRYAN L. MALONE Attorneys for Defendant 24 25 26 27 _„ Plaintiffs' First Amended Complaint contains a typographical error at page 13 designating this cause of action as the "Fifth" Cause of Action (sic); it is the Sixth Cause of Action. 2 Demurrer to First Amended Complaint r\Clicnt\l-luddleston\Plcadmg\dcmurrer.doc 1 TABLE OF CONTENTS 2 3 NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT 1 4 MEMORANDUM OF POINTS AND AUTHORITIES 3 5 I. INTRODUCTION 3 6 II. DEFENDANT MAY DEMUR TO PLAINTIFFS' FIRST 7 AMENDED COMPLAINT. 4 8 III. ARGUMENT. 5 9 A. DEMURRER TO SECOND CAUSE OF ACTION: PLAINTIFFS HAVE FAILED TO STATE A CAUSE OF 10 ACTION FOR ELDER ABUSE. 5 11 B. DEMURRER TO THE THIRD CAUSE OF ACTION: PLAINTIFFS HAVE FAILED TO STATE A CAUSE OF 12 ACTION FOR NEGLIGENCE PER SE. 7 13 C. DEMURRER TO THE FOURTH CAUSE OF ACTION: 14 PLAINTIFFS HAVE FAILED TO STATE SUFFICIENT FACTS TO CONSTITUTE A CAUSE OF ACTION 15 FOR FRAUD/MISREPRESENTATION. 9 16 D. DEMURRER TO THE FIFTH CAUSE OF ACTION. 11 17 1. PLAINTIFFS HAVE FAILED TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF 18 ACTION FOR UNFAIR BUSINESS PRACTICE. 11 19 2. THE CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICE IS ALSO UNCERTAIN. 13 20 E. DEMURRER TO SIXTH CAUSE OF ACTION: 21 THE SIXTH CAUSE OF ACTION FOR WRONGFUL DEATH FAILS TO STATE FACTS SUFFICIENT TO 22 CONSTITUTE A CAUSE OF ACTION. 14 23 IV. CONCLUSION. 14 24 DECLARATION OF BRYAN L. MALONE 15 25 26 27 28 i Table of Contents I:\client\Huddleston\Pleading\demurrer.toc.doc 1 TABLE OF AUTHORITIES 2 Cases 3 Ankenv v. Lockheed Missile & Space Company (1979) 88 Cal.App.3d 531 4,5,7 4 Arikat v. J.P. Morgan Chase & Company 430 F.Supp.2d 1013 10 5 Branick v. Downey Sav. & Loan Assn. (2006) 39 Cal.4th 235 12, 13 6 Californians for Disability Rights v. Mervvn's. LLC(2006) 39 Cal.4th 223 12 7 C & H Foods Company v. Hartford Insurance Company (1984) 163 Cal.App.3d 1055 7 8 Committee on Children's Television Inc. v. General Foods Corp. (1983) 35 Cal.Sd 197 5,10 9 Delaney v. Baker (1999) 20 Cal.4lh 23 6 10 Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420 8 11 G.D. Searle & Company v. Superior Court (1975) 49 Cal.AoD.3d 22 6 12 Goldrich v. Natural Y Surgical Specialties (1994) 25 Cal.App.4th 772 11 13 Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845 12, 13 14 Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 7 15 Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.Sd 566 5,7 16 Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4lh 88 14 17 Kasky v. Nike, Inc. (2002) 27 Cal.4th 939 12 18 Khoury v. Malv's of California, Inc. (1993) 14 Cal.App.4th 612 11 19 Lazar v. Superior Court (1996) 12 Cal.4th 631 9,10,11 20 Moore v. Regents of the University of California (199) 51 Cal.Sd 120, 134, fn.12 7 21 Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037 13 22 Peart v. Ferro (2004) 119 Cal.App.4th 60 8 23 People ex rel. Lockyerv. Brar(2004) 115 Cal.App.4th 1315 12 24 Perkins v. Superior Court (1981) 1 17 Cal.App.3d 1 5 25 Pinney & Topliff v. Chrysler Corp. (S.D. Cal. 1959) 176 F.Supp. 108. 10 26 Ouiroz v Seventh Ave. Center (2006) 140 Cal.App.4th. 4th 1256 8 27 Schauer v. Mandarin Gyms of Calif. (2005) 125 Cal.App.4th 949 10 28 ii Table of Contents I:\client\Huddleston\Pleading\demurrer.toc.doc 1 Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167. 10 2 Spates v. Dameron Hosp. Assn. (2003) 1 14 Cal.App.4th 208 8 3 Stansfield v. Starkev (1990) 220 Cal.Apo.3d 59 10 4 Tarmann v. State Farm (1991) 2 Cal.App.4th 153 9 5 Wilhelm v. Pray, Price (1986) 186 Cal.App.3d 1324 10 6 Codes 7 Business and Professions Code §17200 11,12,13 8 Business and Professions Code 1 7204 12 9 Business and Professions Code 17535 12 10 22CCR§72311 7 11 22CCR§72315 7 12 22 CCR §72527 7 13 41 CFR §483.13 and 41 CFR §483.15 7 14 Civil Code §3294(b) 6 15 Code of Civil Procedure §430.10 4 16 Code of Civil Procedure §430.10(e). 2 17 Code of Civil Procedure §430.10(f). 13 18 Code of Civil Procedure § 430.30(a) 5 19 Code of Civil Procedure §430.40(a) 5 20 Evidence Code §669 8 21 Evidence Code §669(a) 8 22 Evidence Code §669(b) 8,9 23 Welfare & Institutions Code §15657 5,6 24 25 26 27 28 iii Table of Contents I:\client\Huddleston\Pleading\demurrer.toc.doc 1 MICHAEL J. LEVANGIE, State Bar #160163 ERIC S. EMANUELS, State Bar No. 140168 2 BRYAN L. MALONE, State Bar # 144082 PROUT* LEVANGIE 3 2021 N Street Sacramento, CA 95811 4 Tel: (916)443-4849 Fax: (916)443-4855 5 Attorneys for Defendant, 6 Saint Claire's Nursing Center, Inc. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SACRAMENTO 10 II EDITH M. HUDDLESTON, and MARTINA CASE NO. 34-2008-00008404 K. ZUBEIDI, as individuals and as Successors 12 in Interest of ERNEST HUDDLESTON (Decedent), MEMORANDUM OF POINTS AND 13 AUTHORITIES IN SUPPORT OF Plaintiffs, DEMURRER TO COMPLAINT 14 v. 15 DATE: January 23, 2009 SAINT CLAIRE'S NURSING CENTER, INC. TIME: 2:00 p.m. 16 and DOES 1 through 50 inclusive, DEPT.: 53 17 Defendants. TRIAL: None set 18 19 I. 20 INTRODUCTION. 21 Demurring party here is defendant SAINT CLAIRE'S NURSING CENTER, INC. 22 (hereinafter also "Saint Claire's" for brevity). Plaintiffs are EDITH M. HUDDLESTON, and 23 MARTINA K. ZUBEIDI, as Individuals and as Successors in Interest of ERNEST 24 HUDDLESTON (Deceased). Essentially, this case concerns the alleged neglect and wrongful 25 death of Ernest Huddleston. 26 Ernest Huddleston was admitted to Saint Claire's facility on May 25, 2007 for 27 rehabilitation subsequent to bilateral knee surgery (See First Amended Complaint, at ^5). At that 28 time, he was 87 years old with a history of diabetes, renal insufficiency, hypertension, Demurrer to First Amended Complaint l:\Client\Huddleston\Plcadmg\dcmurrer.doc 1 hypolhyroidism, and mild dementia. (Id.) Plaintiffs allege Mr. Huddleston was to receive "total 2 care" (First Amended Complaint, at 1[6), yet he sustained a fractured hip as a result of falling out 3 of his bed, was not taken to the hospital and his family and physician were not contacted. (First 4 Amended Complaint, at T[16). Among other things, plaintiffs also claim that during his residency 5 at Saint Claire's, defendant failed to implement a resident care plan, monitory fluid intake, 6 provide a dietician's assessment and oversight for a patient with a history of recurrent urinary 7 tract infections. (First Amended Complaint, at ^18-19). During hospitalization at Mercy 8 General Hospital for his hip fracture, plaintiffs alleged a bed sore was discovered on Mr. 9 Huddleston's heel and, post-operatively, he started a downward spiral with a decline of mental 10 function. (First Amended Complaint, at TJ17). Mr. Huddleston was discharged home from the 11 hospital with a home health aide, and thereafter died on September 29, 2007. (Id.) 12 As set forth below, this Demurrer is appropriate and should be sustained for plaintiffs' 13 failure to allege facts sufficient to constitute a cause of action against SAINT CLAIRE'S. 14 II. 15 DEFENDANT MAY DEMUR TO PLAINTIFFS' FIRST AMENDED COMPLAINT. 16 Defendant's Demurrer to the First Amended Complaint is appropriate. It is well settled 17 that plaintiffs must set forth specific facts in a complaint so that the defendants may plead 18 intelligently and responsively to the pleading without having to guess or speculate as to the items 19 of material or essential facts. Ankeny v. Lockheed Missile & Space Company (1979) 88 20 Cal.App.3d 531, 537. Indeed, Code of Civil Procedure §430.10 provides, in pertinent part: 21 The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 22 430.30, to the pleading on any one or more of the following grounds:... 23 (e) The pleading does not state facts sufficient to constitute a 24 cause of action. 25 (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. 26 27 When examining a complaint for its legal sufficiency to withstand a demurrer, "[a] 28 demurrer admits all material and issuable facts properly pleaded [Citations omitted]. However, it _ Demurrer to First Amended Complaint I:\Clicnt\Huddleston\Pleading\demurrerdoc 1 does not admit contentions, deductions or conclusions of fact or law therein. [Citations 2 omitted.]" Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.Sd 566, 572. Code of Civil 3 Procedure § 430.30(a) provides: 4 When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which 5 the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. 6 7 As demonstrated below, plaintiffs' First Amended Complaint on its face does not state facts 8 sufficient to constitute a cause of action against defendant SAINT CLAIRE'S. It does not 9 contain a statement of facts constituting a cause of action in ordinary and concise language, nor 10 refrain from pleading conclusions of law. See Perkins v. Superior Court (1981) 117 Cal.App.3d 11 1. Therefore, demurrer is warranted and appropriate. 12 Defendant submits that this Demurrer is timely under Code of Civil Procedure §430.40(a) 13 pursuant to date of service of the First Amended Complaint and upon agreement of counsel.2 14 III. 15 ARGUMENT. 16 A. DEMURRER TO SECOND CAUSE OF ACTION: PLAINTIFFS HAVE FAILED TO STATE A CAUSE OF ACTION FOR ELDER ABUSE. 17 18 Plaintiffs Second Cause of Action is one stated for Abuse/Neglect of an Elder, Dependent 19 Adult. Presumably, this is an attempt to state a cause of action under Welfare & Institutions 20 Code §15657 (Elder Abuse and Dependent Adult Civil Protection Act). Flowever, absent 21 specific facts against SAINT CLAIRE'S, the cause of action must fail. 22 An action for elder abuse must be pled with strict particularity, both clearly and concisely, 23 in order to provide the fullest possible detail of the charges. Committee on Children's 24 Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197. Material and essential facts must 25 be alleged directly and not by way of recital, and they must be stated with clearness and precision 26 so that nothing is left to surmise. Ankeny v. Lockheed Missiles and Space Company (1979) 88 27 See Declaration of Bryan L. Malone. 5 Demurrer to First Amended Complaint IACIient\Huddleston\Pleading\demurrer.doc 1 Cal.App.3d 531,537. 2 Plaintiffs' cause of action is directed toward defendant, a corporation. To obtain the 3 enhanced remedies, therefore, Plaintiffs must plead sufficient facts that (1) SAINT CLAIRE's 4 employees are liable for physical abuse or neglect and (2) such employees were reckless, 5 oppressive, fraudulent or malicious in the commission of this abuse, and (3) their officers, 6 directors, or managing agents knowingly hired an unfit employee with conscious disregard for 7 the safety of others or authorized, ratified the abuse or was personally guilty of oppression, fraud 8 or malice. See, e.g., Delanev v. Baker (1999) 20 Cal.4th 23, California Welfare & Institutions 9 Code §15657; Civil Code §3294(b). In Delanev, the California Supreme Court defined 10 recklessness as follows: 11 Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate 12 disregard of the high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than inadvertence, 13 incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of action with 14 knowledge of the serious danger to others involved. Id. 15 Oppressive, fraudulent or malicious conduct involves intentional, willful, or conscious 16 wrongdoing of a despicable or injurious nature. Id. However, plaintiffs First Amended 17 Complaint here contains boilerplate conclusory language without factually-specific allegations of 18 the high degree of probability that an injury would occur. At most, plaintiffs' allegations allege 19 negligence in the performance of professional services and care of Ernest Huddleston, arguendo., 20 but not elder abuse. Those allegations complain of conduct such as a failure to follow and adhere 21 to all physician's orders, accurately monitor and record decedent's condition, failure to accurately 22 monitor and record intake of fluids, and failure to properly and accurately administer medication, 23 e.g. (See First Amended Complaint, at Tf33). Absent factual allegations (as opposed to self- 24 serving and unsubstantiated conclusions) that defendant intended to injure Ernest Huddleston, or 25 acted specifically in conscious disregard for the decedent's safety, the Complaint fails to plead a 26 cause of action for Elder Abuse. G.D. Searle & Company v. Superior Court (1975) 49 27 Cal.App.3d 22, 32. 28 /// 6 Demurrer to First Amended Complaint I \Client\Huddleston\Pleading\demurrer doc 1 Importantly, the First Amended Complaint also contains no factual allegations of 2 ratification, authorization or tacit approval by any director, officer, or managing agent of SAINT 3 CLAIRE'S. In order to establish ratification against corporate employers, plaintiff must plead 4 facts, rather than mere conclusions, establishing the employer's advanced knowledge, 5 authorization or ratification. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168. 6 [Emphasis added.] In fact, the California Supreme Court has criticized pleading agency or 7 employment in a conclusory fashion as an egregious example of generic boilerplate that is 8 improper. Moore v. Regents of the University of California (199) 51 Cal.3d 120, 134, fn.12. 9 Herein, plaintiffs have done just that; they simply plead: 10 [EJach and every defendant was the agent and employee of each and every other defendant; and, in doing the things alleged, was acting within the course and 11 scope of such agency and employment; and, in doing the acts herein alleged, was acting with the consent, permission and authorization of each of the remaining 12 defendants. All actions of each defendant herein alleged were ratified and approved by the officers or managing agents of every other defendant. 13 14 (See First Amended Complaint, at ^(11) Notably, there is not one single employee, agent or 15 officer of this demurring party specifically named in the First Amended Complaint, either by 16 name or position with the company, as having perpetrated or condoned any of the alleged 17 harmful acts. Such conclusory allegations cannot be considered in determining the legal 18 sufficiency of plaintiffs' claims in a demurrer and, therefore, plaintiffs lack sufficient facts to 19 state a cause of action against these demurring parties for elder abuse. Gruenberg v. Aetna 20 Insurance Company (1973) 9 Cal.3d 566, 572; C & H Foods Company v. Hartford Insurance 21 Company (1984) 163 Cal.App.3d 1055, 1062; Ankeny, supra, 88 Cal.App.3d at 537. 22 Therefore, the Demurrer to the Second Cause of Action should be sustained. 23 B. DEMURRER TO THE THIRD CAUSE OF ACTION: PLAINTIFFS HAVE FAILED TO STATE A CAUSE OF ACTION FOR NEGLIGENCE PER SE. 24 25 Plaintiffs' Third Cause of Action is one stated for Negligence Per Se based upon the 26 alleged violations of certain regulations pertaining to skilled nursing care facilities, including 41 27 CFR §483.13 and §483.15, and 22 CCR §72311, 22 CCR §72315 and 22 CCR §72527. (First 28 Amended Complaint, at 1J42). However, review of plaintiffs pleading reveals plaintiffs are _ Demurrer to First Amended Complaint I.\Chcnt\Huddleston\Pleading\demurrer.doc 1 mistakenly using this doctrine rather than stating specific facts constituting a cause of action. 2 The Demurrer should be sustained. 3 The doctrine of "negligence per se" creates a presumption of negligence if and only if 4 four elements have been established: (1) the defendant violated a statute, ordinance, or regulation 5 of a public entity; (2) the violation proximately caused death or injury to person or property, (3) 6 the death or injury resulted from occurrence of the nature which the statute, ordinance, or 7 regulation was designed to prevent; and (4) a person suffering death or injury was one of class of 8 persons for whose protection statute, ordinance, or regulation was adopted. See Evidence Code 9 §669; Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 218. These latter two 10 elements are determined by the Court as a matter of law. Galvez v. Frields (2001) 88 11 Cal.App.4th 1410, 1420. Accordingly, there is a difference between the using the doctrine of 12 negligence per se to establish a presumption of negligence and pleading a separate cause of 13 action entitled "negligence per se". 14 In Quiroz v Seventh Ave. Center (2006) 140 Cal.App.4th. 4th 1256, the Court of Appeal 15 noted that "negligence per se" is an evidentiary doctrine codified at Evidence Code §669. If the 16 presumption of negligence is established under subdivision Evidence Code §669(a), it may be 17 rebutted under subdivision (b) by proof that: 18 (1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar 19 circumstances, who desired to comply with the law; or 20 (2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, 21 intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity 22 normally engaged in only by adults and requiring adult qualifications." 23 Evidence Code §669(b). Therefore, the doctrine of negligence per se does not establish tort 24 liability; rather, it merely codifies the rule that a presumption of negligence arises from the 25 violation of a statute which was enacted to protect a class of persons of which the plaintiff is a 26 member against the type of harm that the plaintiff suffered as a result of the violation. Peart v. 27 Ferro (2004) 119 Cal.App.4th 60, 80. 28 Here, plaintiffs have failed to plead facts to establish the elements to constitute a separate 8 Demurrer to First Amended Complaint l:\Client\Huddleston\Pleading\demurrer.doc 1 cause of action for "negligence per se" against defendant SAINT CLAIRE'S. Specifically, 2 plaintiffs failed to allege facts of any statutory violation by defendant which proximately or 3 actually caused injury to Ernest Huddleston as a result of the violation of statute by defendant. 4 Although various regulations are identified in paragraph 42 of the First Amended Complaint, 5 supra, plaintiffs have not established the manner in which these regulations have allegedly been 6 violated by defendant and what harm plaintiff had suffered due to each such violation. The 7 activities complained of, such as defendant's alleged failure to accurately monitor decedent's 8 condition and provide safe living accommodations (First Amended Complaint, at §43), are only 9 generalities; there are no facts showing an activity or failure on defendant's part is something 10 specifically proscribed by a specific regulation, nor that such violation specifically harmed the 11 decedent. As a result, plaintiffs conclusion that "[defendants' violation of said regulations 12 resulted in injuries, abuse and neglect suffered by Decedent and was the actual and proximate 13 cause of his injuries and decline of his medical condition, his need for sustained medical care, 14 mental pain and suffering and death." (First Amended Complaint, at §45) is vacuous. 15 Considering the rebuttable nature of the doctrine under Evidence Code §669(b), supra, 16 and the lack of sufficient facts stated by plaintiffs, defendant's Demurer to the Third Cause of 17 Action for Negligence Per Se should be sustained. 18 C. DEMURRER TO THE FOURTH CAUSE OF ACTION: PLAINTIFFS HAVE FAILED TO STATE SUFFICIENT FACTS TO CONSTITUTE A 19 CAUSE OF ACTION FOR FRAUD/MISREPRESENTATION. 20 Plaintiffs' Fourth Cause of Action purports to be one for Fraud/Misrepresentation. 21 However, when pleading fraud against a corporation, a plaintiff must not only plead the cause of 22 action factually and with specificity but, additionally, must identify the names of persons who 23 made representations, their authority to speak for the corporation, to whom they spoke, what they 24 said or wrote, and when such was said or written. See Lazar v. Superior Court (1996) 12 Cal.4n 25 631; Tarmann v. State Farm (1991) 2 Cal.App.4th 153. As stated further below, plaintiffs have 26 failed to meet their pleading burden and; absent sufficient specific facts to constitute a cause of 27 action, the cause of action must fail. 28 Fraud causes of action are subject to a stricter pleading standard because they involve a 9 Demurrer to First Amended Complaint IACIient\Hudclleston\Pleading\demurrer.doc 1 serious attack on character. In other words, fairness requires allegations of fraud be pled with 2 particularity so the Court can weed out non-meritorious actions before defendant is required to 3 answer. Committee on Children's Television Inc. v. General Foods Corp. 0983) 35 Cal.3d 197; 4 Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167. The effect of these pleading requirements 5 are such that the policy of liberal construction of a pleading will not be invoked to sustain a 6 pleading defective in any respect; rather, every element of the cause of action for fraud must be 7 alleged in full both factually and specifically. Wilhelm v. Pray, Price (1986) 186 Cal.App.3d 8 1324. [Emphasis added.] The particularity requirement mandates facts that show "how, when, 9 where, to whom, and by what means the representations were tendered." Lazar, supra, at 645; 10 Stansfield v. Starkev (1990) 220 Cal.App.3d 59, 73; Arikat v. J.P. Morgan Chase & Company 11 430 F.Supp.2d 1013 (N.D. Cal.3d 2006). 12 The effect of the requirement is two-fold: (1) general pleading of the legal conclusion of 13 "fraud" is insufficient; the facts constituting fraud must be alleged; and (2) every element of the 14 cause of action for fraud must be alleged in the proper manner (factually and specifically), and 15 the policy of liberal construction of pleading will not usually be invoked to sustain a pleading 16 that is defective in any material respect. Committee on Children's Television Inc., supra, at 216- 17 217; see also Schauer v. Mandarin Gyms of Calif. (2005) 125 Cal.App.4th 949, 961. Similarly, 18 there must be a false representation of promise of a material fact, and knowledge of its falsity 19 when made, coupled with an intent to deceive, or suppression of a material fact, and reliance and 20 resulting damage. Pinnev & Topliff v. Chrysler Corp. (S.D. Cal. 1959) 176 F.Supp. 108. 21 Plaintiffs' Fourth Cause of Action fails to meet this strict pleading requirement. Plaintiffs 22 fail to plead the identity of a single person who made an alleged misrepresentation that Ernest 23 Huddleston would receive e.g. "wonderful care by a professional care staff that provides 24 assistance with activities of daily living," (First Amended Complaint, at ^50), by name, 25 description or title. It cannot be determined what representation was made by what individual, in 26 what matter and under what authority such representation was made, and there has been no 27 pleadings of any justifiable reliance by plaintiffs. 28 Further, plaintiffs have not pleaded that any factual statements were made with an intent TO Demurrer to First Amended Complaint 1 \Clicnt\Huddleslon\Plcading\demurrcr doc 1 to misrepresent and/or deceive decedent. With unsupported conclusions, plaintiffs allege 2 defendants failed to disclose "important facts" that would have impacted the decision to admit 3 decedent to the facility, yet there is nothing demonstrating what those facts are/were, when they 4 were omitted, etc. (See First Amended Complaint, at ^|51). In Goldrich v. Natural Y Surgical 5 Specialties (1994) 25 Cal.App.4th 772, a plaintiff alleged the manufacturer of a breast implant 6 falsely and fraudulently represented its product was safe for use. Such allegations were found 7 conclusory and insufficient for establishing fraud in a complaint. Id. Similarly, plaintiffs' 8 conclusion here that defendant acted "fraudulently" (First Amended Complaint at ^|59) must be 9 viewed in a similar fashion for what it is: defective pleading. 10 In short, the Fourth Cause of Action does not contain any of the Lazar elements required 11 for a fraud cause of action against a corporation; namely, the First Amended Complaint does not 12 identify the names of persons who made misrepresentations, their authority to speak on behalf of 13 the corporation, to whom they spoke, what they said or wrote and when it was said or written or 14 any justifiable reliance by plaintiff. Lazar, supra, at 631. This lack of specificity renders the 15 cause of action fatal and the Demurrer should be sustained. 16 D. DEMURRER TO THE FIFTH CAUSE OF ACTION. 17 1. PLAINTIFFS HAVE FAILED TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION FOR UNFAIR 18 BUSINESS PRACTICE. 19 Plaintiffs have failed to plead facts sufficient to establish that SAINT CLAIRE'S engaged 20 in unfair business practices and therefore, demurrer should be sustained. 21 A plaintiff alleging unfair business practices under Business and Professions Code 22 §17200, et seq., must state with reasonable particularity the facts supporting the statutory 23 elements of the violation. Khoury v. Malv's of California, Inc. (1993) 14 Cal.App.4th 612, 619. 24 [Emphasis added.] The Court of Appeals in Khoury held that a demurrer was properly sustained 25 because the complaint "identifies no particular section of the statutory scheme which was 26 violated and fails to describe with any reasonable particularity the facts supporting violation." 27 (Id.) 28 The Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) was enacted to _ Demurrer to First Amended Complaint 1 \Client\Huddlcston\Pleading\demurrer doc 1 protect consumers as well as competitors from unlawful, unfair or fraudulent business acts or 2 practices, by promoting fair competition in commercial markets for goods and services. Kasky v. 3 Nike, Inc. (2002) 27 Cal.4th 939, 949. However, in recent years, the UCL became prone to the 4 sort of abuse "which made the Trevor Law Group a household name in California in 2002 and 5 2003. The abuse [was] a kind of legal shakedown scheme: Attorneys form[ed] a front 6 'watchdog' or 'consumer' organization. They scourfed] public records on the Internet for what 7 [were] often ridiculously minor violations of some regulation or law by a small business, and 8 sue[d] that business in the name of the front organization." People ex rel. Lockyer v. Brar (2004) 9 115Cal.App.4thl315, 1317. 10 After Proposition 64, only those private persons "who [have] suffered injury in fact and 11 [have] lost money or property" (§§ 17204, 17535) may sue to enforce the unfair competition and 12 false advertising laws. Uninjured persons may not sue (§§ 17204, 17535), and private persons 13 may no longer sue on behalf of the general public (Prop. 64, § 1, subd. (f)). Branick v. Downey 14 Sav. & Loan Assn. (2006) 39 CaUth 235; Californians for Disability Rights v. Mervyn's. LLC 15 (2006) 39 Cal.4th 223. [Emphasis added.] 16 In the instant matter, plaintiffs have failed to plead injury in fact. Rather, plaintiffs plead 17 that defendant made a considered decision as a scheme to save money to be more profitable 18 because of their lack of compliance with state regulations. (See First Amended Complaint, at 19 1|63). While certain regulations were allegedly violated, there are no reasonable and particular 20 facts stated as to each. Absent identifying a particular section of the statutory scheme that was 21 violated with reasonable and particular facts, the cause of action is subject to demur without 22 leave to amend. Gregory v. Albertson's. Inc. (2002) 104 Cal.App.4lh 845. 23 The cause of action is also want for reasonable particularity what is an unfair business 24 practice in the first instance. For example, plaintiffs plead that defendant made a practice of 25 generally not advising new residents and responsible parties of their legal rights and defendant's 26 prior regulatory violations (First Amended Complaint, at T|62), and there was a considered 27 decision to protect and promote financial condition at the expense of legal obligations to resident 28 patients (First Amended Complaint, at 1J61), e.g. Such allegations do not satisfy the requirements 12 Demurrer to First Amended Complaint I.\Client\Huddleston\Plcading\dcmurrer doc 1 of Khoury, supra: plaintiffs have not pleaded with facts any meaningful basis supporting a 2 statutory cause of action. In fact, plaintiffs have failed to identify any "injury in fact" suffered as 3 a result of the vaguely alleged statutory violations by SAINT CLAIRE'S. As a result, plaintiffs 4 lack standing to allege a claim based upon Business & Professions Code §17200. 5 Further, activities complained of such as holding out to the public that it could provide 6 "specialty care to residents with dementia" when employees had no such training or 7 qualifications (First Amended Complaint, at 1J63), are wholly irrelevant if plaintiffs are 8 attempting to state a claim on behalf of the general public; such an action is not permitted. 9 Branick, supra. 10 Plaintiffs have not only failed to identify the particular section of the code violated by 11 defendants, but have also failed to allege any facts supporting the statutorily required elements of 12 violation. Plaintiffs' complaint contains only contentions, deductions and legal conclusions, 13 which are not considered in evaluating a demurrer. Payne v. National Collection Systems, Inc. 14 (2001) 91 Cal.App.4th 1037, 1043. Therefore, the Demurrer should be sustained. 15 2. THE CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICE IS ALSO UNCERTAIN. 16 17 Plaintiffs have collectively combined SAINT CLAIRE'S and unspecified Doe defendants 18 together for purposes of pleading this cause of action, rendering the allegations unclear and 19 uncertain. Demurrer is sought pursuant to Code of Civil Procedure §430.10(f). 20 A plaintiff must plead factually as to how a particular defendant engaged in a violation of 21 a particular statute of the Business and Professions Code in order to establish a cause of action 22 for unfair business practices. Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845. But here, 23 in a boilerplate fashion, plaintiffs contend that it was a "part of a general business practice." 24 (First Amended Complaint, at 1f61). What is absent are specific facts as to how a particular 25 defendant such as SAINT CLAIRE'S, in a particular circumstance relating to decedent Ernest 26 Huddleston or the plaintiffs, violated a unique statute which was a substantial factor in causing 27 harm to the decedent. Therefore, plaintiffs' cause of action for unfair business practices is 28 uncertain under Code of Civil Procedure §430.10(f) and must fail. _ Demurrer to First Amended Complaint r\Client\Huddleston\Pleading\demurrer doc 1 E. DEMURRER TO SIXTH CAUSE OF ACTION: PLAINTIFFS FAIL TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION 2 FOR WRONGFUL DEATH. 3 Plaintiffs' First Amended Complaint contains a cause of action for wrongful death. 4 Although plead as what would be the Sixth Cause of Action in numerical order, it is mistakenly 5 identified as the Fifth Cause of Action (see First Amended Complaint, at page 14). This appears 6 to be a typographical error. Regardless, plaintiffs have failed to state facts sufficient to constitute 7 a Wrongful Death cause of action against SAINT CLAIRE'S. The demurrer should be sustained. 8 Setting aside meaningless boilerplate conclusions, plaintiffs have not stated any facts 9 demonstrating breach of a duty owed by SAINT CLAIRE'S and any causal connection thereto to 10 the death of Ernest Huddleston which occurred sometime later on September 29, 2007. In fact, 11 the Complaint is otherwise wholly devoid of any charging allegations (intentional and/or 12 negligent) demonstrating responsibility for the death of Ernest Huddleston on the part of this 13 defendant. This is important because, even though wrongful death is a statutorily-created action3, 14 a wrongful death suit based on negligence must set forth the necessary elements: duty, breach, 15 causation and damages. See Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 16 105. [Emphasis added.] 17 IV. 18 CONCLUSION. 19 Based upon plaintiffs' failure to plead sufficient facts demonstrating viable claims against 20 SAINT CLAIRE'S, this demurring defendant respectfully requests its Demurrer to the plaintiffs 21 First Amended Complaint be sustained in its entirety, including as to the Second, Third, Fourth, 22 Fifth, and Sixth Causes of Action, each. 23 DATED: November 14, 2008 PROUT- LEVANGIE 24 By:. 25 BRYAN L. MALONE Attorneys for Defendant 26 27 28 3 Code of Civil Procedure §377.60. 14 Demurrer to First Amended Complaint I. \Client\Huddleston\Pleading\demurrer doc 1 MICHAEL J. LEVANGIE, State Bar # 160163 ERIC S. EMANUELS, State Bar No. 140168 2 BRYAN L. MALONE, State Bar # 144082 PROUT- LEVANGIE 3 202 IN Street Sacramento, CA 95811 4 Tel: (916)443-4849 Fax: (916)443-4855 5 Attorneys for Defendant, 6 Saint Claire's Nursing Center, Inc. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SACRAMENTO 10 11 EDITH M. HUDDLESTON, and MARTINA CASE NO. 34-2008-00008404 K. ZUBEIDI, as individuals and as Successors 12 in Interest of ERNEST HUDDLESTON (Decedent), DECLARATION OF BRYAN L. MALONE 13 Plaintiffs, 14 DATE: January 23, 2009 v. TIME: 2:00 p.m. 15 DEPT.: 53 SAINT CLAIRE'S NURSING CENTER, INC. 16 and DOES 1 through 50 inclusive, TRIAL: None set 17 Defendants. 18 19 1, Bryan L. Malone, declare: 20 1. I am an attorney at law duly licensed to practice before all courts of the State of 21 California. I am an associate with Prout LeVangie, counsel of record for defendant Saint Claire's 22 Nursing Center, Inc. in the within matter. The following facts are within my personal knowledge 23 and, if called to testify as a witness thereto, I could and would do so competently and truthfully. 24 2. Pursuant to my discussions with Rebekah Gibson of the York Law Corporation, 25 counsel of record for plaintiffs, it was agreed that defendant would have until November 14, 26 2008 to file and serve its responsive pleading to plaintiffs' First Amended Complaint. This was 27 confirmed in writing on November 12, 2008. 28 3. Counsel previously attempted to meet and confer regarding deficiencies in 15 Demurrer to First Amended Complaint l:\Client\Hiiddleston\Pleadmg\demurrerdoc 1 plaintiffs' pleading. We were unable to resolve our differences informally, thus necessitating the 2 within demurrer. Based on my discussions with Ms. Gibson, she was informed that a demurrer 3 to the First Amended Complaint would be filed. 4 I declare under penalty of perjury that the foregoing is true and correct. Executed this 1411 5 day of November, 2008, at Sacramento, California. f • •rvyH/]/}. " : V \$J(0H& Bryan L. MaYone 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Demurrer to First Amended Complaint l:\Client\Huddleston\Plcadmg\demurrer.doc 1 Huddleston v. Saint Claire's Nursing Center, Inc. Sacramento County Superior Court Case No. 34-2008-00008404 2 3 PROOF OF SERVICE 4 I, the undersigned, declare that I am, and was at the time of service of the papers herein referred to, over the age of 18 years and not a party to the within action or proceeding. My 5 business address is 2021 N Street, Sacramento, California, 95811, which is located in the county in which the within-mentioned service occurred. 6 On November 14, 2008,1 served the following document(s): 7 1) DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; 8 DECLARATION OF BRYAN L. MALONE; 2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 9 DEMURRER TO COMPLAINT; 3) DECLARATION OF BRYAN L. MALONE. 10 to each addressee named below: 11 Wendy York 12 Rebekah R. Gibson York Law Corporation 13 1111 Exposition Boulevard, Building 500 Sacramento, CA 95815 14 Ph: (916) 643-2200 Fax: (916) 643-4680 15