Preview
Gregory K. Sabo, Esq., Bar No. 169760
David A. Napper, Esq., Bar No. 271464
Gabriella L. Sternfeld, Esq., Bar No. 335488
CHAPMAN GLUCKSMAN
A PROFESSIONAL CORPORATION
11900 WEST OLYMPIC BOULEVARD, SUITE 800
LOS ANGELES, CALIFORNIA 90064-0704
TEL: (310) 207-7722 * FAX: (310) 207-6550
service@cgdrlaw.com
Attorneys for Defendants, PATRICIA WOLLUM
and SUSAN REYNOLDS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA —- ANACAPA DIVISION
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11 MARK SELLARS, individually and as Case No.: 20CV04132
Trustee of the Rosemary Free Trust u/d/t
12 dated September 13, 2000, and REBECCA Assigned for All Purposes to:
MORIN, Conservator of the Estate and Hon.: Thomas Pearce Anderle
13 Person of Rosemary Free Leahy,
NOTICE OF DEMURRER AND
14 Plaintiffs, DEMURRER TO THE FIRST
AMENDED COMPLAINT;
15 MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF
16 GABRIELLA L. STERNFELD IN
PATRICK LEAHY; CHANNE COLES, SUPPORT THEREOF; [PROPOSED]
17 THE LAW OFFICE OF CHANNE G. ORDER
COLES, a California corporation;
18 PATRICIA WOLLUM; SUSAN Date: July 19, 2023
REYNOLDS; HELP UNLIMITED, a Time: 10:00 AM
19 California corporation; and DOES 1-10,
inclusive, Complaint Filed: 12/11/2020
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Defendants.
21 Trial Date: None
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TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:
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PLEASE TAKE NOTICE that on July 19, 2023, at 10:00 a.m., or as soon thereafter as
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the matter may be heard, at the above-captioned Court, located at 1100 Anacapa St., Santa
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Barbara, CA 93101, Defendants, SUSAN REYNOLDS and PATRICIA WOLLUM (the
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“Caregivers”), will and hereby do move this Court for an order sustaining the demurrer to
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0601.045 1
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
Plaintiffs’, MARK SELLARS and REBECCA MORIN (“Plaintiffs”), First Amended Complaint
(“FAC”) and to its first cause of action for Elder Abuse, second cause of action for Financial
Elder Abuse, fourth cause of action for Intentional Infliction of Emotional Distress, and fifth
cause of action for Negligence.
This Demurrer is made on grounds that the entire FAC and its first, second, fourth, and
fifth causes of action fail to allege sufficient facts to constitute causes of action pursuant to
California Code of Civil Procedure § 430.10(e).
This Demurrer is based upon this Notice, the accompanying Memorandum of Points and
Authorities; the Declaration of Gabriella L. Sternfeld; the pleadings, papers, and records on file
10 herein; and upon such other and further oral, documentary, and demonstrative evidence as may be
11 offered at the time of the hearing.
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DATED: June 20, 2023 CHAPMAN GLUCKSMAN
A Professional Corporation
» grea
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GREG K. SABO
16 DAVID A. NAPPER
GABRIELLA STERNFELD
17 Attorneys for Defendants, SUSAN
REYNOLDS and PATRICIA WOLLUM
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0601.045 2
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
Pursuant to California Code of Civil Procedure § 430.10, et seq., Defendants, SUSAN
REYNOLDS and PATRICIA WOLLUM (the “Caregivers”), generally and specially demur to
Plaintiffs’, MARK SELLARS and REBECCA MORIN (“PLAINTIFFS”), First Amended
Complaint as follows:
DEMURRER TO THE FIRST CAUSE OF ACTION
1 The allegations of the first cause of action for “Elder Abuse” fail to state facts
sufficient to constitute a cause of action for which relief may be granted against the Caregivers.
DEMURRER TO THE SECOND CAUSE OF ACTION
2. The allegations of the second cause of action for “Financial Elder Abuse” fail to
10 state facts sufficient to constitute a cause of action for which relief may be granted against the
11 Caregivers.
12 DEMURRER TO THE FOURTH CAUSE OF ACTION
13 3 The allegations of the fourth cause of action for “Intentional Infliction of
14 Emotional Distress” fail to state facts sufficient to constitute a cause of action for which relief
15 may be granted against the Caregivers.
16 DEMURRER TO THE FIFTH CAUSE OF ACTION
17 4 The allegations of the fifth cause of action for “Negligence” fail to state facts
18 sufficient to constitute a cause of action for which relief may be granted against the Caregivers.
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21 DATED: June 20, 2023 CHAPMAN GLUCKSMAN
A Professional Corporation
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q esc
By:
24 GREG K. SABO
DAVID A. NAPPER
25 GABRIELLA STERNFELD
Attorneys for Defendants, SUSAN
26 REYNOLDS and PATRICIA WOLLUM
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0601.045 3
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
The First Amended Complaint filed by Plaintiffs, MARK SELLARS and REBECCA
MORIN (“Plaintiffs”), fails to allege sufficient facts against Defendants, SUSAN REYNOLDS
and PATRICIA WOLLUM (the “Caregivers”), to maintain the causes of action for Elder Abuse,
Financial Elder Abuse, Intentional Infliction of Emotional Distress, and Negligence. Plaintiffs
improperly rely on conclusory assertions, devoid of any factual support, to support their position
that the Caregivers “committed elder abuse” against Rosemary Leahy (“Rosemary”).
As discussed in further detail below, the FAC is defective because it fails to plead any
10 allegation of material fact that will support any of the causes of action alleged against the
11 Caregivers. Specifically, the first, second, fourth, and fifth causes of action fail for the following
12 reasons:
13 The first cause of action for Elder Abuse fails because Plaintiffs did not plead the
14 elements required to support this cause of action. Specifically, Plaintiffs failed to allege that the
15 Caregivers subjected Rosemary to statutorily-defined physical abuse, neglect, or financial abuse,
16 or that they acted with recklessness, malice, oppression, of fraud in the commission of the
17 purported abuse.
18 Similarly, the second cause of action for Financial Elder Abuse fails because there are no
19 allegations that the Caregivers subjected Rosemary to statutorily-defined financial abuse or that
20 they acted recklessly, maliciously, oppressively, or fraudulently in the commission of the
21 purported abuse.
22 The fourth cause of action for Intentional Infliction of Emotional Distress fails because
23 there are no allegations that the Caregivers engaged in any outrageous conduct or had the
24 requisite intent to maintain this cause of action. The only conduct complained of is that
25 Defendant, Patrick Leahy, discussed legal proceedings with the Caregivers in Rosemary’s
26 presence. Such conduct hardly rises to the level of extreme and outrageous sufficient to support a
27 cause of action for Intentional Infliction of Emotional Distress. Furthermore, Plaintiffs failed to
28 allege that the Caregivers acted with the intent of causing severe emotional distress.
0601.045 4
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
Finally, the fifth cause of action for Negligence fails because there are simply no
allegations showing that the Caregivers breached their duties of care to Rosemary or that
Rosemary suffered harm proximately caused by the Caregiver’s purported breach.
For these reasons, and for the reasons set forth below, the Caregivers respectfully request
that the Court sustain their Demurrer to the first, second, fourth, and fifth causes of action,
without leave to amend, as the deficiencies addressed herein cannot be truthfully remedied by
way of amendment.
IL. STATEMENT OF RELEVANT FACTS
Plaintiffs allege that Defendant, Patrick Leahy (“Leahy”), began abusing his wife,
10 Rosemary, in or around 2017, when she began to lose her capacity. FAC at § 1. Plaintiffs allege
11 that Leahy has continuously engaged in “multiple acts of emotional, physical and financial abuse
12 against his own wife.” /d. Among other things, Plaintiffs allege that Leahy deliberately isolated
13 Rosemary from her family and used and gambled Rosemary’s assets for his own benefit and for
14 the benefit of his daughter and others. /d., at J§ 4, 8, 22.
15 Plaintiffs allege that the Caregivers were employed by Defendant, Help Unlimited, Inc.,
16 and were “supposed to provide caregiving services to Rosemary but instead colluded with Mr.
17 Leahy to harm Rosemary.” /d., at | 22-23. Plaintiffs allege that Leahy “enlisted and/or
18 indoctrinated others, including Rosemary’s caregivers, in an attempt to cover his tracks and try to
19 make Mark and other family members look bad before this Court.” /d., at § 55(j). They further
20 allege that Leahy violated the Court’s Elder Abuse Restraining Order by, among other things,
21 “discussing these ongoing legal proceedings directly with Rosemary and with Rosemary’s
22 caregivers in front of Rosemary.” /d., at § 55(1).
23 Even though the FAC acknowledges that Leahy violated this Court’s Elder Abuse
24 Restraining Order by discussing the ongoing legal proceedings with the Caregivers in Rosemary’s
25 presence, Plaintiffs baselessly accuse the Caregivers of conspiring with Leahy to “cast
26 Rosemary’s family in a false light before this Court.” /d., § 65-66. Plaintiffs further allege that
27 “Tflor reasons that are not entirely clear, these caregivers worked against Rosemary’s interests
28 instead of for Rosemary, as they were hired and required to do.” /d., J 66.
0601.045 5
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
On December 11, 2020, Plaintiff Sellars filed the original complaint against Leahy
alleging two (2) causes of action for Elder Abuse and Financial Elder Abuse. Sternfeld
Declaration, at § 3. The FAC was filed on January 23, 2023, by Plaintiffs, MARK SELLARS and
REBECCA MORIN, asserting five (5) causes of action for Elder Abuse, Financial Elder Abuse,
Legal Practice, Intentional Infliction of Emotional Distress, and Negligence against Defendants,
Patrick Leahy, Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum, Susan
Reynolds, and Help Unlimited. Jd., at § 3.
Til. AUTHORITY FOR DEMURRER
A demurrer tests the legal sufficiency of the complaint, and raises issues of law, not fact.
10 Beauchene v. Synanon Foundation, Inc., 88 Cal.App.3d 342, 344 (1979). A demurrer “may be
11 taken to the whole of the complaint... or to any of the causes of action stated therein.” Cal. Code
12 Civ. Proc., § 430.50(a). A demurrer lies when plaintiff's complaint fails to state facts sufficient to
13 constitute a cause of action, or if the complaint is uncertain, ambiguous or unintelligible. Cal. Code
14 Civ. Proc., § 430.10(e) and (f). The grounds for a demurrer must appear on the face of the pleading
15 or from judicially noticeable matters. Cal. Code Civ. Proc., § 430.30(a); Blank v. Kirwan, 39 Cal.
16 3d 311, 318 (1985).
17 A general demurrer tests whether a complaint states facts sufficient to constitute a cause of
18 action. Cal. Code Civ. Proc., § 430,10(e); Ankey v. Lockheed Missile and Space Co., 88 Cal. App.
19 3d 531, 537 (1979). Thus, the sole issue on a general demurrer is whether the facts pleaded, if true,
20 state a valid cause of action. Limandri v. Judkins, 52 Cal. App. 4th 326, 339 (1997). While a
21 demurrer deems true all material factual allegations, conclusions of law, deductions, allegations
22 contradicted by attached exhibits or judicially noticeable facts are not entitled to deference. Vance
23 v. Villa Park Mobilehome Estates, 36 Cal. App. 4th 702, 709 (1995).
24 The court may sustain a demurrer with or without leave to amend. However, if the pleader
25 cannot state a cause of action, the demurrer should be sustained without leave to amend. Blank v.
26 Kirwan, 39 Cal. 3d 311 at 318. PLAINTIFFS bear the burden of establishing the ability to amend
27 to set forth sufficient facts to constitute a cause of action. Jd.
28 Iv. ARGUMENT
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
A THE FIRST CAUSE OF ACTION FOR ELDER ABUSE FAILS TO STATE
FACTS UPON WHICH RELIEF MAY BE GRANTED.
To state a claim for Elder Abuse, the plaintiff must allege and prove, by clear and
convincing evidence, that the defendant: (1) subjected an elder to statutorily defined physical
abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression, of fraud in
the commission of the abuse. Davenport v. Litton Loan Servicing, L.P., 725 F. Supp. 2d 862, 879
(2010) (discussing California’s Elder Abuse Act, Welfare & Institutions Code section 15610, et
seq.). “Neglect,” as defined in California Welfare & Institutions Code, section 15610.57(a)(1),
includes the negligent failure of an elder custodian “to assist in personal hygiene, or in the
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10 provision of food, clothing, or shelter, ‘to provide medical care for physical and mental health
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11 needs, ‘to protect from health and safety hazards,” or “to prevent malnutrition or dehydration.”
12 Arace v. Medico Invs., LLC, 48 Cal. App. 5th 977, 982 (2020); Cal. Welf: & Inst. Code, §
13 15610.57 (b)(1)(4). Thus, the concept of “neglect” speaks to the failure to provide care rather
14 than the undertaking of services. Arace, supra, 48 Cal. App. 5th at 982.
15 Indeed, under the Elder Abuse Act, the term “neglect” “is not intended to apply to any
16 conceivable negligent conduct that might adversely impact an elder or dependent adult.” Winn v.
17 Pioneer Medical Group, Inc., 63 Cal. 4th 148, 160 (2016). Instead, “neglect” refers “‘to the
18 failure of those responsible for attending to the basic needs and comforts of elderly or dependent
a2?
19 adults, regardless of their professional standing, to carry out their custodial obligation: 3.
20 Worsham v. O’Connor Hospital, 226 Cal. App. 4th 331, 336 (2014) (quoting Delaney v. Barker,
21 20 Cal. 4th 23, 82 (1999)).
22 Here, Plaintiffs’ allegations that the Caregivers “committed elder abuse against Rosemary
23 as they failed to protect her and worked with Mr. Leahy against Rosemary’s interests and received
24 compensation for such ‘caregiving’ services” falls far short of what is required to adequately plead
25 a cause of action for Elder Abuse. FAC at | 78. First, Plaintiffs fail to allege that the Caregivers
26 subjected Rosemary to any statutorily defined physical abuse, neglect, or financial abuse. Indeed,
27 the only conduct complained of is that Leahy violated this Court’s Elder Abuse Restraining Order
28 by discussing ongoing legal proceedings with the Caregivers in Rosemary’s presence. Such conduct
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0601.045
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
hardly rises to the level of physical abuse, neglect, or financial abuse, particularly because Leahy —
not the Caregivers — violated this Court’s orders.
Second, there are no allegations in the FAC that the Caregivers acted with recklessness,
malice, oppression, or fraud in the commission of the purported abuse. Other than simply reciting
the statutory language of California Welfare & Institutions Code § 15657, there are no allegations
speaking to recklessness, malice, oppression, or fraud whatsoever. In other words, other than
conclusory allegations, there are no supporting or even ultimate facts showing that the Caregivers
exhibited recklessness, malice, oppression, fraud, or any other type of ill will. Simmons v. Southern
Pac. Transportation Co., 62 Cal. App. 3d 341, 368 (1976). The FAC must do more than simply
10 regurgitate the statutory elements.
11 Finally, there are no allegations whatsoever that the Caregivers negligently failed to attend
12 to Rosemary’s basic needs and comforts in accordance with their professional obligations. Instead,
13 Plaintiffs improperly rely on conclusory assertions that the Caregivers committed elder abuse by
14 “failing to protect Rosemary” and by allegedly working with Leahy against Rosemary’s interests.
15 These claims lack any specificity as to how the Caregivers allegedly failed to attend to Rosemary’s
16 basic needs and comforts; instead, Plaintiffs erroneously claim that the Caregivers are responsible
17 for Leahy’s conduct in violating the Court’s Elder Abuse Restraining Order by discussing the legal
18 proceedings with the Caregivers in Rosemary’s presence.
19 Accordingly, the first cause of action for Elder Abuse must fail as against the Caregivers
20 for failure to allege facts sufficient to constitute a cause of action. The Caregivers respectfully
21 request that the Court sustain their demurrer to this cause of action without leave to amend, as this
22 claim cannot be truthfully cured by amendment.
23 B THE SECOND CAUSE OF ACTION FOR FINANCIAL ELDER ABUSE
24 TO STATE FACTS UPON WHICH RELIEF MAY BE GRANTED.
25 To state a claim for Financial Elder Abuse, the plaintiff must “prove by a preponderance of
26 the evidence that a defendant is liable for financial abuse, as defined in [California Welfare &
27 Institutions Code] Section 15610.30, and where it is proven by clear and convincing evidence that
28 the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
the abuse.” Cal. Welf: & Inst. Code, § 15657.5(b). “Financial abuse” of an elder or dependent adult
occurs when a person or entity does the following: “(1) Takes, secretes, appropriates, obtains, or
retains real or personal property of an elder or dependent adult for a wrongful use or with intent to
defraud, or both; (2) Assists in taking, secreting, appropriating, or retaining real or personal
property ofan elder or dependent adult for a wrongful use or with intent to defraud, or both; or (3)
Takes secretes, appropriates, obtains, or retains or assists in taking, secreting, appropriating, or
retaining real or personal property of an elder or dependent adult by undue influence, as defined in
Section 15610.70.” Cal. Welf. & Inst. Code, § 15610.30(a).
California Welfare & Institutions Code section 15610.30(b) “imposes an additional
10 requirement beyond the existence of improper conduct, namely, that ‘the person or entity knew or
11 should have known that this conduct is likely to be harmful to the elder...adult.’ (Italics added). In
12 statutes and other legal contexts, the italicized phrase ordinarily conveys a requirement for actual
13 or constructive knowledge.” Paslay v. State Farm Gen. Ins. Co., 248 Cal. App. 4th 639, 657 (2016)
14 (quoting Castillo v. Tolls Bros., Inc., 197 Cal. App. 4th 1172, 1196 (2011)). The existence of
15 constructive knowledge is assessed by reference to an objective “reasonable person” measure,
16 “since there is no other way to measure it.” Paslay, supra, 248 Cal. App. 4th at 657 (quoting New
17 v. Consolidated Rock Products Co., 171 Cal. App. 3d 681, 690 (1985)).
18 Here, Plaintiffs’ allegations fall far short of what is required to plead a cause of action for
19 Financial Elder Abuse against the Caregivers because there are simply no allegations that they
20 subjected Rosemary to statutorily defined financial abuse. The conclusory allegations that the
21 Caregivers committed financial elder abuse by failing to protect Rosemary, by working with Leahy
22 against Rosemary’s best interests, and that by receiving compensation for their services are plainly
23 insufficient to show that the Caregivers took, secreted, appropriated, obtained, or retained
24 Rosemary’s real or personal property for a wrongful use or with the intent to defraud. FAC at § 87.
25 The fact that the Caregivers were compensated for their services while working for Rosemary is
26 hardly enough to show that they committed financial elder abuse against Rosemary.
27 Furthermore, and significantly, Plaintiffs fail to allege facts sufficient to show that the
28 Caregivers acted with recklessness, oppression, fraud, or malice in the commission of the purported
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
abuse. Other than alleging intent without any factual predicates, the FAC asserts that
Defendants’ conduct is malicious, oppressive, and/or fraudulent within the meaning of California
Civil Code § 3294 and/or California Welfare & Institutions Code, § 15657.5(b). FAC at 89. There
are no supporting or even ultimate facts showing that the Caregivers exhibited recklessness, malice,
oppression, fraud, or any other type of ill will. Simmons, supra, 62 Cal. App. 3d at 368.
Finally, the FAC fails to satisfy California Welfare & Institutions Code § 15610.30(b),
which imposes a requirement that the defendant knew or should have known that the conduct
complained of is likely to be harmful to the elder or dependent adult. There are no allegations
whatsoever which tend to show that the Caregivers had constructive or actual knowledge that
10 their conduct was likely to be harmful to Rosemary.
11 In light of the foregoing, the Caregivers respectfully submit that the second cause of
12 action for Financial Elder Abuse in deficiently pled for failure to state facts sufficient to state a
13 cause of action. As such, the Caregivers request that the Court sustain their Demurrer to this
14 cause of action, without leave to amend.
15 Cc THE FOURTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION
16 OF EMOTIONAL DISTRESS FAILS BECAUSE PLAINTIFFS FAILED TO
17 ALLEGE OUTRAGEOUS CONDUCT OR INTENT.
18 To state a claim for intentional infliction of emotional distress, a plaintiff must allege and
19 prove the following elements: (1) outrageous conduct by the defendant; (2) an intention by
20 defendant to cause, or reckless disregard of the probability of causing, emotional distress; (3) severe
21 emotional distress; and (4) an actual and proximate causal link between the tortious conduct and
22 the emotional distress. Nally v. Grace Community Church, 47 Cal. 3d 278 (1988). It is not enough
23 that a defendant’s conduct be intentional and outrageous, but it must also be directed at the plaintiff.
24 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (1993).
25 Conduct is considered extreme and outrageous when it exceeds all bounds of decency
26 usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and
27 does cause, mental distress. Molko v. Holy Spirit Assn., 46 Cal. 3d 1092 (1988). Liability for
28 intentional infliction of emotional distress extends only to conduct so extreme and outrageous we S
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Coleman v. Republic Indemnity Insurance, 132 Cal. App. 4th 403, 416
(2005) (citing Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 499 (1970)). Furthermore, liability
does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities. Fisher v. San Pedro Penninsula Hosp., 214 Cal. App. 3d 590 (1989).
Severe emotional distress is defined as “emotional distress of such substantial quality or
enduring quality that no reasonable person in civilized society should be expected to endure it.”
Taylor v. Nabors Drilling USA, LP, 222 Cal. App. 4th 1228, 1246 (2014). Simple allegations of
“discomfort, worry, anxiety, upset stomach, concern, and agitation” are insufficient to sustain a
10 claim for severe emotional distress. Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009).
11 Ordinarily, liability does not extend to mere insults, indignities, threats, annoyances, petty
12 oppressions, or other trivialities. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 617
13 (1989). Similarly, a defendant will not be held legally responsible for “mere profanity, obscenity,
14 or abuse, without circumstances of aggravation, or for insults, indignities or threats which are
15 considered to amount to nothing more than mere annoyances.” Yurick v. Superior Court, 209 Cal.
16 App. 3d 1116, 1128 (1989). A plaintiff's “hurt feelings” are insufficient to justify recovery for
17 intentional infliction of emotional distress. Yurick, supra, 209 Cal. App. 3d at 1128.
18 Here, the allegations in the FAC are insufficient to maintain the fourth cause of action for
19 Intentional Infliction of Emotional Distress. Specifically, the first and second elements of this cause
20 of action are not satisfied: (1) outrageous conduct, and (2) intent. In essence, the FAC alleges that
21 Leahy violated the Court’s Elder Abuse Restraining Order by discussing the ongoing legal
22 proceedings with the Caregivers in Rosemary’s presence. FAC at § 103. Such allegations hardly
23 come close to showing that the Caregivers engaged in outrageous conduct intended which was
24 intended to cause severe emotional distress. Notably, the Court’s Elder Abuse Restraining Order
25 governs Leahy — not the Caregivers — and provided that “Mr. Leahy was not to upset Rosemary by
26 speaking to her about the ongoing legal proceedings and that Mr. Leahy was not to speak to
27 Rosemary in any manner which disparaged Rosemary’s relatives.” FAC at 4 65 (emphases added).
28 The fact that Leahy may have violated the Court’s Elder Abuse Restraining Order by discussing
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
the legal proceedings in Rosemary’s presence is insufficient to show that the Caregivers’ conduct
was outrageous and intended to cause severe emotional distress.
Furthermore, Plaintiffs impermissibly rely on baseless conclusory assertions instead of any
supporting or even ultimate facts which show that the Caregivers are liable for Intentional Infliction
of Emotional Distress. For example, Plaintiffs allege, without any factual support, that the
Caregivers “intentionally engaged in conduct which caused severe emotional distress to Rosemary
and to Mark and to the rest of Rosemary’s family,” and that the Caregivers “conspired with Mr.
Leahy to portray Rosemary’s family in a false light.” /d., at § 103. These allegations, premised on
Leahy’s violation of the Court’s Elder Abuse Restraining Order, are insufficient to show that the
10 Caregivers’ conduct was extreme and outrageous or intended to cause severe emotional distress.
11 At the most, the allegations constitute mere insults, indignities, annoyances, and petty oppressions
12 to which liability does not extend. Fisher, supra, 214 Cal. App. 3d at 617.
13 The FAC fails to allege facts sufficient to show the first two elements required to plead
14 intentional infliction of emotional distress: (1) outrageous conduct and (2) intent. This deficiency
15 alone renders this cause of action fatally flawed. Furthermore, because the FAC fails to allege facts
16 demonstrating outrageous conduct, of such a nature that exceeds all bounds tolerated in a civilized
17 community, the intentional infliction of emotional distress claims fails as a matter of law. For these
18 reasons, the Caregivers respectfully request that the Court sustain their Demurrer to this cause of
19 action, without leave to amend, as the deficiencies herein cannot be truthfully remedied by way of
20 amendment.
21 D. THE FIFTH CAUSE OF ACTION FOR NEGLIGENCE FAILS BECAUSE
22 THERE ARE NO ALLEGATIONS EVIDENCING BREACH OF DUTY OR
23 CAUSATION.
24 To state a claim for negligence, the plaintiff must demonstrate a duty on the part of the
25 defendant, breach of that duty, causation, and damages. Strong v. State of Cal., 201 Cal. App. 4th
26 1439, 1449 (2011). Whether a duty of care exists is a question of law for the court to decide. Strong,
27 supra, 201 Cal. App. 4th at 1449. The plaintiff must “plead specific facts” to show how the conduct
28 at issue caused or contributed to the injury. Christensen v. Superior Court, 54 Cal. 3d 868, 900-901
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
(1991).
Here, the allegations in the FAC fail to show that the Caregivers breached their duties of
care to Rosemary, or that Rosemary was harmed as a proximate result of the alleged breaches.
Instead, the FAC merely alleges that the Caregivers “had the duty to care for and protect
Rosemary. When they were recorded engaging in conduct which was detrimental to Rosemary
and adverse to her interests, they were immediately terminated.” FAC at § 113. There are no
specific facts showing how the Caregivers purportedly breached their duties of care to Rosemary
The fact that Leahy violated the Elder Abuse Restraining Order by discussing the ongoing legal
proceedings with the Caregivers in Rosemary’s presence is not sufficient to demonstrate that the
10 Caregivers breached their duty of care to Rosemary. Furthermore, the FAC contains no facts
11 evidencing that the Caregivers’ conduct proximately caused harm to Rosemary.
12 For these reasons, the fifth cause of action for Negligence is deficiently pled as to the
13 Caregivers and their demurrer to this cause of action should be sustained, without leave to amend.
14 Vv. CONCLUSION
15 The FAC is deficiently pled as to the first, second, fourth, and fifth causes of action for
16 failure to allege facts sufficient to constitute a cause of action as against the Caregivers. As such,
17 the Caregivers respectfully request that the Court issue an Order sustaining the instant Demurrer
18 as to the aforementioned causes of action, without leave to amend.
19
DATED: June 20, 2023 CHAPMAN GLUCKSMAN
A Professional Corporation
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22
GREG K. SABO
23 DAVID A. NAPPER
GABRIELLA STERNFELD
24 Attorneys for Defendants, SUSAN
REYNOLDS and PATRICIA WOLLUM
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26
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0601.045 13
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
DECLARATION OF GABRIELLA L. STERNFELD
I, GABRIELLA L. STERNFELD, declare as follows:
1 I am an attorney licensed to practice before all courts of the State of California. I
am an attorney at the law firm Chapman Glucksman, APC, counsel of record for Defendants,
SUSAN REYNOLDS and PATRICIA WOLLUM (the “Caregivers”). I have personal knowledge
of the facts set forth below and if called upon as a witness, I could and would competently testify
to the same.
2. On June 9, 2023, pursuant to California Code of Civil Procedure § 430.41, I
caused to be transmitted to counsel for Plaintiffs, MARK SELLARS and REBECCA MORIN
10 (“Plaintiffs”), a detailed meet and confer correspondence noting the pleading deficiencies in the
11 First Amended Complaint. A true and correct copy of that correspondence is attached hereto as
12 Exhibit 1. Plaintiffs’ counsel did not respond to my meet and confer correspondence,
13 necessitating the instant Demurrer.
14 3 Attached hereto as Exhibit 2 is a true and correct copy of the original Complaint
15 filed by Plaintiff Sellars on December 11, 2020.
16 4 Attached hereto as Exhibit 3 is a true and correct copy of the FAC filed by
17 Plaintiffs on January 23, 2023.
18 I declare under penalty of perjury under the laws ofthe State of California that the foregoing
19 is true and correct. Executed this 21" day of June, 2023, in Los Angeles, California.
20
21
argon.
Gabriella L. Sternfeld
22
23
24
25
26
27
28
0601.045 14
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND.
AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER
EXHIBIT 1
CHAPMAN GLUCKSMAN
[A PROFESSIONAL CORPORATION
TELEPHONE: WRITER
(310) 207-7722 ATTORNEYS AT LAW GABRIELLA STERNFELD
11900 WEST OLYMPIC BOULEVARD
FACSIMILE: SUITE 800 E-MAIL:
(310) 207-6550 LOS ANGELES, CALIFORNIA 90064-0704 GSTERNFELD@CGDRLAW.COM
WEBSITE:
www.cgdrlaw.com
June 9, 2023
Via E-Mail
DT LAW PARTNERS LLP
David J. Tappeiner
125 East Victoria, Suite 1
Santa Barbara, CA 93101
(805) 456-8323
David@dtlawpartners.com
Re: Sellars, et al. v. Leahy, et al.
Our Clients: Susan Reynolds and Patricia Wollum
Our File No.: 0161.165
Dear Mr. Tappeiner,
Please allow this correspondence to serve as a meet and confer effort regarding pleading
deficiencies in your clients’ First Amended Complaint. This correspondence is made pursuant to
California Code of Civil Procedure section 430.41(a) and 435.5. We are hopeful that the matters
addressed herein can be resolved informally and without Court intervention and welcome the
opportunity to meet and confer. We ask that you let us know by 5:00 p.m. on June 15, 2023,
whether you will agree to resolve the deficiencies addressed above by dismissal or amendment. If
you wish to discuss any of the foregoing over the phone, please let us know and we will make
ourselves available for a conference call to further meet and confer.
I Elder Abuse
To state a claim for Elder Abuse, the plaintiff must allege and prove that a defendant: (1)
subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and (2) acted
with recklessness, malice, oppression, or fraud in the commission of the abuse. Davenport v. Litton
Loan Servicing, L.P., 725 F. Supp. 2d 862, 879 (2010) (discussing California’s Elder Abuse Act,
Welfare & Institutions Code section 15610, et seq.). “Neglect,” as defined in California Welfare
& Institutions Code, section 15610.57(a)(1), includes the negligent failure of an elder custodian
“to assist in personal hygiene, or in the provision of food, clothing, or shelter, 99 66 to provide medical
care for physical and mental health needs, ” «6 ‘to protect from health and safety hazards,” or “to
prevent malnutrition or dehydration.” Arace v. Medico Invs., LLC, 48 Cal. App. 5th 977, 982
(2020); Cal. Welf: & Inst. Code, § 15610.57 (b)(1)(4). Thus, the concept of “neglect” speaks to
the failure to provide care rather than the undertaking of services. Arace, supra, 48 Cal. App. 5th
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at 982. Indeed, under the Elder Abuse Act, the term “neglect” “is not intended to apply to any
conceivable negligent conduct that might adversely impact an elder or dependent adult.” Winn v.
Pioneer Medical Group, Inc., 63 Cal. 4th 148, 160 (2016). Instead, “neglect” refers “‘to the failure
of those responsible for attending to the basic needs and comforts of elderly or dependent adults,
regardless of their professional standing, to carry out their custodial obligations oo . Worsham v.
O’Connor Hospital, 226 Cal. App. 4th 331, 336 (2014) (quoting Delaney v. Barker, 20 Cal. 4th
23, 82 (1999).
Here, Plaintiffs’ allegation that Ms. Wollum and Ms. Reynolds “committed elder abuse
against Rosemary as they failed to protect her and worked with Mr. Leahy against Rosemary’s
interests and received compensation for such ‘caregiving’ services” falls far short of what is
required to adequately plead a cause of action for Elder Abuse. FAC at {| 78. First, Plaintiffs fail
to allege that Ms. Wollum and Ms. Reynolds subjected Rosemary to statutorily-defined physical
abuse, neglect, or financial abuse. Second, Plaintiffs fail to allege that Ms. Wollum and Ms.
Reynolds acted with recklessness, malice, oppression, or fraud in the commission of the abuse.
Furthermore, Plaintiffs FAC fails to allege that Ms. Wollum and Ms. Reynolds negligently
failed to attend to the basic needs and comforts of Rosemary in accordance with their professional
obligations. Instead, Plaintiffs make conclusory assertions that Ms. Wollum and Ms. Reynolds
committed elder abuse by failing to protect Rosemary and worked with Mr. Leahy against
Rosemary’s interests. These assertions lack any specificity as to how Ms. Wollum and Ms.
Reynolds allegedly negligently failed to attend to Rosemary’s basic needs and comforts.
For these reasons, the first cause of action for Elder Abuse is subject to demurrer.
IL. Financial Elder Abuse
To state a claim for Financial Elder Abuse, the plaintiff must allege and prove that a
defendant: (1) subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse;
and (2) acted with recklessness, malice, oppression, or fraud in the commission of the abuse.
Davenport, supra, 725 F. Supp. 2d at 879 (discussing California’s Elder Abuse Act, Welfare &
Institutions Code section 15610, et seg.). California Welfare & Institutions Code section
15610.30(b) “imposes an additional requirement beyond the existence of improper conduct,
namely, that ‘the person or entity Anew or should have known that this conduct is likely to be
harmful to the elder...adult.’ (Italics added). In statutes and other legal contexts, the italicized
phrase ordinarily conveys a requirement for actual or constructive knowledge.” Paslay v. State
Farm Gen. Ins. Co., 248 Cal. App. 4th 639, 657 (2016) (quoting Castillo v. Tolls Bros., Inc., 197
Cal. App. 4th 1172, 1196 (2011)). The existence of constructive knowledge is assessed by
reference to an objective “reasonable person” measure, “since there is no other way to measure it.”
Paslay, supra, 248 Cal. App. 4th at 657 (quoting New v. Consolidated Rock Products Co., 171
Cal. App. 3d 681, 690 (1985)).
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Here, Plaintiffs’ allegations fall far short of what is required to plead a cause of action for
Financial Elder Abuse because, as above, there are simply no allegations that Ms. Wollum or Ms.
Reynolds subjected Rosemary to statutorily-defined financial abuse or that Ms. Wollum or Ms.
Reynolds acted with recklessness, malice, oppression, or fraud in the commission of the abuse.
Plaintiffs’ conclusory assertion that Ms. Wollum and Ms. Reynolds committed financial elder
abuse because they “failed to protect [Rosemary] and worked with Mr. Leahy against Rosemary’s
interests and received compensation for” their services. FAC at §. 87. The fact that Ms. Wollum
and Ms. Reynolds received compensation for their services as caregivers is insufficient to properly
plead that they committed financial elder abuse against Rosemary. Moreover, there are no
allegations that Ms. Wollum or Ms. Reynolds knew or should have known that their alleged
conduct was likely to be harmful to Rosemary.
As such, Plaintiffs’ second cause of action for Financial Elder Abuse is subject to demurrer.
Til. Intentional Infliction of Emotional Distress
To state a claim for Intentional Infliction of Emotional Distress, the plaintiff must allege
and prove the following elements: (1) outrageous conduct by the defendant, (2) an intention by
defendant to cause, or reckless disregard of the probability of causing, emotional distress, (3)
severe emotional distress, and (4) an actual and proximate causal link between the tortious conduct
and the emotional distress. Nally v. Grace Community Church, 47 Cal. 3d 278, 300 (1988). It is
not enough that a defendant’s conduct be intentional and outrageous; it must also be direct at the
plaintiff. Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1003 (1993).
Conduct is considered extreme and outrageous when it exceeds all bounds of decency
usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and
does cause, mental distress. Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 1122 (1988). Liability
for intentional infliction of emotional distress extends only to conduct so extreme and outrageous
as to be “regarded as atrocious, and utterly intolerable in a civilized community.” Coleman v.
Republic Indemnity Insurance, 132 Cal. App. 4th 403, 416 (2005) (citing Alcorn v. Anbro
Engineering, Inc., 2 Cal. 3d 493, 499 (1970)).
Ordinarily, liability does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 617
(1989). Similarly, a defendant will not be held legally responsible for “mere profanity, obscenity,
or abuse, without circumstances of aggravation, or for insults, indignities or threats which are
considered to amount to nothing more than mere annoyances.” Yurick v. Superior Court, 209 Cal.
App. 3d 1116, 1128 (1989). A plaintiff's “hurt feelings” are insufficient to justify recovery for
intentional infliction of emotional distress. Yurick, supra, 209 Cal. App. 3d at 1128.
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The allegations in Plaintiffs’ FAC are insufficient to maintain the fourth cause of action for
Intentional Infliction of Emotional Distress. Specifically, the first and second elements of this
cause of action are not satisfied by the FAC: (1) outrageous conduct, and (2) intent. In essence, the
FAC alleges that Rosemary heard Ms. Wollum and Ms. Reynolds discussing legal proceedings
with Mr. Leahy. FAC at § 103. None of the allegations against Ms. Wollum and Ms. Reynolds
come close to showing that they engaged in outrageous conduct intended to cause Plaintiffs severe
emotional distress. There is simply no allegation whatsoever that Ms. Wollum or Ms. Reynolds’
conduct was directed at Plaintiff with the intent of causing them emotional distress, and none can
be asserted in good faith. The conduct complained of in the FAC does not rise to the level of
extreme and outrageous behavior as to Ms. Wollum and Ms. Reynolds
Preview
Gregory K. Sabo, Esq., Bar No. 169760 David A. Napper, Esq., Bar No. 271464 Gabriella L. Sternfeld, Esq., Bar No. 335488 CHAPMAN GLUCKSMAN A PROFESSIONAL CORPORATION 11900 WEST OLYMPIC BOULEVARD, SUITE 800 LOS ANGELES, CALIFORNIA 90064-0704 TEL: (310) 207-7722 * FAX: (310) 207-6550 service@cgdrlaw.com Attorneys for Defendants, PATRICIA WOLLUM and SUSAN REYNOLDS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA —- ANACAPA DIVISION 10 11 MARK SELLARS, individually and as Case No.: 20CV04132 Trustee of the Rosemary Free Trust u/d/t 12 dated September 13, 2000, and REBECCA Assigned for All Purposes to: MORIN, Conservator of the Estate and Hon.: Thomas Pearce Anderle 13 Person of Rosemary Free Leahy, NOTICE OF DEMURRER AND 14 Plaintiffs, DEMURRER TO THE FIRST AMENDED COMPLAINT; 15 MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF 16 GABRIELLA L. STERNFELD IN PATRICK LEAHY; CHANNE COLES, SUPPORT THEREOF; [PROPOSED] 17 THE LAW OFFICE OF CHANNE G. ORDER COLES, a California corporation; 18 PATRICIA WOLLUM; SUSAN Date: July 19, 2023 REYNOLDS; HELP UNLIMITED, a Time: 10:00 AM 19 California corporation; and DOES 1-10, inclusive, Complaint Filed: 12/11/2020 20 Defendants. 21 Trial Date: None 22 23 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: 24 PLEASE TAKE NOTICE that on July 19, 2023, at 10:00 a.m., or as soon thereafter as 25 the matter may be heard, at the above-captioned Court, located at 1100 Anacapa St., Santa 26 Barbara, CA 93101, Defendants, SUSAN REYNOLDS and PATRICIA WOLLUM (the 27 “Caregivers”), will and hereby do move this Court for an order sustaining the demurrer to 28 0601.045 1 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER Plaintiffs’, MARK SELLARS and REBECCA MORIN (“Plaintiffs”), First Amended Complaint (“FAC”) and to its first cause of action for Elder Abuse, second cause of action for Financial Elder Abuse, fourth cause of action for Intentional Infliction of Emotional Distress, and fifth cause of action for Negligence. This Demurrer is made on grounds that the entire FAC and its first, second, fourth, and fifth causes of action fail to allege sufficient facts to constitute causes of action pursuant to California Code of Civil Procedure § 430.10(e). This Demurrer is based upon this Notice, the accompanying Memorandum of Points and Authorities; the Declaration of Gabriella L. Sternfeld; the pleadings, papers, and records on file 10 herein; and upon such other and further oral, documentary, and demonstrative evidence as may be 11 offered at the time of the hearing. 12 DATED: June 20, 2023 CHAPMAN GLUCKSMAN A Professional Corporation » grea 14 15 GREG K. SABO 16 DAVID A. NAPPER GABRIELLA STERNFELD 17 Attorneys for Defendants, SUSAN REYNOLDS and PATRICIA WOLLUM 18 19 20 21 22 23 24 25 26 27 28 0601.045 2 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER Pursuant to California Code of Civil Procedure § 430.10, et seq., Defendants, SUSAN REYNOLDS and PATRICIA WOLLUM (the “Caregivers”), generally and specially demur to Plaintiffs’, MARK SELLARS and REBECCA MORIN (“PLAINTIFFS”), First Amended Complaint as follows: DEMURRER TO THE FIRST CAUSE OF ACTION 1 The allegations of the first cause of action for “Elder Abuse” fail to state facts sufficient to constitute a cause of action for which relief may be granted against the Caregivers. DEMURRER TO THE SECOND CAUSE OF ACTION 2. The allegations of the second cause of action for “Financial Elder Abuse” fail to 10 state facts sufficient to constitute a cause of action for which relief may be granted against the 11 Caregivers. 12 DEMURRER TO THE FOURTH CAUSE OF ACTION 13 3 The allegations of the fourth cause of action for “Intentional Infliction of 14 Emotional Distress” fail to state facts sufficient to constitute a cause of action for which relief 15 may be granted against the Caregivers. 16 DEMURRER TO THE FIFTH CAUSE OF ACTION 17 4 The allegations of the fifth cause of action for “Negligence” fail to state facts 18 sufficient to constitute a cause of action for which relief may be granted against the Caregivers. 19 20 21 DATED: June 20, 2023 CHAPMAN GLUCKSMAN A Professional Corporation 22 23 q esc By: 24 GREG K. SABO DAVID A. NAPPER 25 GABRIELLA STERNFELD Attorneys for Defendants, SUSAN 26 REYNOLDS and PATRICIA WOLLUM 27 28 0601.045 3 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION The First Amended Complaint filed by Plaintiffs, MARK SELLARS and REBECCA MORIN (“Plaintiffs”), fails to allege sufficient facts against Defendants, SUSAN REYNOLDS and PATRICIA WOLLUM (the “Caregivers”), to maintain the causes of action for Elder Abuse, Financial Elder Abuse, Intentional Infliction of Emotional Distress, and Negligence. Plaintiffs improperly rely on conclusory assertions, devoid of any factual support, to support their position that the Caregivers “committed elder abuse” against Rosemary Leahy (“Rosemary”). As discussed in further detail below, the FAC is defective because it fails to plead any 10 allegation of material fact that will support any of the causes of action alleged against the 11 Caregivers. Specifically, the first, second, fourth, and fifth causes of action fail for the following 12 reasons: 13 The first cause of action for Elder Abuse fails because Plaintiffs did not plead the 14 elements required to support this cause of action. Specifically, Plaintiffs failed to allege that the 15 Caregivers subjected Rosemary to statutorily-defined physical abuse, neglect, or financial abuse, 16 or that they acted with recklessness, malice, oppression, of fraud in the commission of the 17 purported abuse. 18 Similarly, the second cause of action for Financial Elder Abuse fails because there are no 19 allegations that the Caregivers subjected Rosemary to statutorily-defined financial abuse or that 20 they acted recklessly, maliciously, oppressively, or fraudulently in the commission of the 21 purported abuse. 22 The fourth cause of action for Intentional Infliction of Emotional Distress fails because 23 there are no allegations that the Caregivers engaged in any outrageous conduct or had the 24 requisite intent to maintain this cause of action. The only conduct complained of is that 25 Defendant, Patrick Leahy, discussed legal proceedings with the Caregivers in Rosemary’s 26 presence. Such conduct hardly rises to the level of extreme and outrageous sufficient to support a 27 cause of action for Intentional Infliction of Emotional Distress. Furthermore, Plaintiffs failed to 28 allege that the Caregivers acted with the intent of causing severe emotional distress. 0601.045 4 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER Finally, the fifth cause of action for Negligence fails because there are simply no allegations showing that the Caregivers breached their duties of care to Rosemary or that Rosemary suffered harm proximately caused by the Caregiver’s purported breach. For these reasons, and for the reasons set forth below, the Caregivers respectfully request that the Court sustain their Demurrer to the first, second, fourth, and fifth causes of action, without leave to amend, as the deficiencies addressed herein cannot be truthfully remedied by way of amendment. IL. STATEMENT OF RELEVANT FACTS Plaintiffs allege that Defendant, Patrick Leahy (“Leahy”), began abusing his wife, 10 Rosemary, in or around 2017, when she began to lose her capacity. FAC at § 1. Plaintiffs allege 11 that Leahy has continuously engaged in “multiple acts of emotional, physical and financial abuse 12 against his own wife.” /d. Among other things, Plaintiffs allege that Leahy deliberately isolated 13 Rosemary from her family and used and gambled Rosemary’s assets for his own benefit and for 14 the benefit of his daughter and others. /d., at J§ 4, 8, 22. 15 Plaintiffs allege that the Caregivers were employed by Defendant, Help Unlimited, Inc., 16 and were “supposed to provide caregiving services to Rosemary but instead colluded with Mr. 17 Leahy to harm Rosemary.” /d., at | 22-23. Plaintiffs allege that Leahy “enlisted and/or 18 indoctrinated others, including Rosemary’s caregivers, in an attempt to cover his tracks and try to 19 make Mark and other family members look bad before this Court.” /d., at § 55(j). They further 20 allege that Leahy violated the Court’s Elder Abuse Restraining Order by, among other things, 21 “discussing these ongoing legal proceedings directly with Rosemary and with Rosemary’s 22 caregivers in front of Rosemary.” /d., at § 55(1). 23 Even though the FAC acknowledges that Leahy violated this Court’s Elder Abuse 24 Restraining Order by discussing the ongoing legal proceedings with the Caregivers in Rosemary’s 25 presence, Plaintiffs baselessly accuse the Caregivers of conspiring with Leahy to “cast 26 Rosemary’s family in a false light before this Court.” /d., § 65-66. Plaintiffs further allege that 27 “Tflor reasons that are not entirely clear, these caregivers worked against Rosemary’s interests 28 instead of for Rosemary, as they were hired and required to do.” /d., J 66. 0601.045 5 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER On December 11, 2020, Plaintiff Sellars filed the original complaint against Leahy alleging two (2) causes of action for Elder Abuse and Financial Elder Abuse. Sternfeld Declaration, at § 3. The FAC was filed on January 23, 2023, by Plaintiffs, MARK SELLARS and REBECCA MORIN, asserting five (5) causes of action for Elder Abuse, Financial Elder Abuse, Legal Practice, Intentional Infliction of Emotional Distress, and Negligence against Defendants, Patrick Leahy, Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum, Susan Reynolds, and Help Unlimited. Jd., at § 3. Til. AUTHORITY FOR DEMURRER A demurrer tests the legal sufficiency of the complaint, and raises issues of law, not fact. 10 Beauchene v. Synanon Foundation, Inc., 88 Cal.App.3d 342, 344 (1979). A demurrer “may be 11 taken to the whole of the complaint... or to any of the causes of action stated therein.” Cal. Code 12 Civ. Proc., § 430.50(a). A demurrer lies when plaintiff's complaint fails to state facts sufficient to 13 constitute a cause of action, or if the complaint is uncertain, ambiguous or unintelligible. Cal. Code 14 Civ. Proc., § 430.10(e) and (f). The grounds for a demurrer must appear on the face of the pleading 15 or from judicially noticeable matters. Cal. Code Civ. Proc., § 430.30(a); Blank v. Kirwan, 39 Cal. 16 3d 311, 318 (1985). 17 A general demurrer tests whether a complaint states facts sufficient to constitute a cause of 18 action. Cal. Code Civ. Proc., § 430,10(e); Ankey v. Lockheed Missile and Space Co., 88 Cal. App. 19 3d 531, 537 (1979). Thus, the sole issue on a general demurrer is whether the facts pleaded, if true, 20 state a valid cause of action. Limandri v. Judkins, 52 Cal. App. 4th 326, 339 (1997). While a 21 demurrer deems true all material factual allegations, conclusions of law, deductions, allegations 22 contradicted by attached exhibits or judicially noticeable facts are not entitled to deference. Vance 23 v. Villa Park Mobilehome Estates, 36 Cal. App. 4th 702, 709 (1995). 24 The court may sustain a demurrer with or without leave to amend. However, if the pleader 25 cannot state a cause of action, the demurrer should be sustained without leave to amend. Blank v. 26 Kirwan, 39 Cal. 3d 311 at 318. PLAINTIFFS bear the burden of establishing the ability to amend 27 to set forth sufficient facts to constitute a cause of action. Jd. 28 Iv. ARGUMENT 0601.045 6 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER A THE FIRST CAUSE OF ACTION FOR ELDER ABUSE FAILS TO STATE FACTS UPON WHICH RELIEF MAY BE GRANTED. To state a claim for Elder Abuse, the plaintiff must allege and prove, by clear and convincing evidence, that the defendant: (1) subjected an elder to statutorily defined physical abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression, of fraud in the commission of the abuse. Davenport v. Litton Loan Servicing, L.P., 725 F. Supp. 2d 862, 879 (2010) (discussing California’s Elder Abuse Act, Welfare & Institutions Code section 15610, et seq.). “Neglect,” as defined in California Welfare & Institutions Code, section 15610.57(a)(1), includes the negligent failure of an elder custodian “to assist in personal hygiene, or in the 9 6 10 provision of food, clothing, or shelter, ‘to provide medical care for physical and mental health 9 6 11 needs, ‘to protect from health and safety hazards,” or “to prevent malnutrition or dehydration.” 12 Arace v. Medico Invs., LLC, 48 Cal. App. 5th 977, 982 (2020); Cal. Welf: & Inst. Code, § 13 15610.57 (b)(1)(4). Thus, the concept of “neglect” speaks to the failure to provide care rather 14 than the undertaking of services. Arace, supra, 48 Cal. App. 5th at 982. 15 Indeed, under the Elder Abuse Act, the term “neglect” “is not intended to apply to any 16 conceivable negligent conduct that might adversely impact an elder or dependent adult.” Winn v. 17 Pioneer Medical Group, Inc., 63 Cal. 4th 148, 160 (2016). Instead, “neglect” refers “‘to the 18 failure of those responsible for attending to the basic needs and comforts of elderly or dependent a2? 19 adults, regardless of their professional standing, to carry out their custodial obligation: 3. 20 Worsham v. O’Connor Hospital, 226 Cal. App. 4th 331, 336 (2014) (quoting Delaney v. Barker, 21 20 Cal. 4th 23, 82 (1999)). 22 Here, Plaintiffs’ allegations that the Caregivers “committed elder abuse against Rosemary 23 as they failed to protect her and worked with Mr. Leahy against Rosemary’s interests and received 24 compensation for such ‘caregiving’ services” falls far short of what is required to adequately plead 25 a cause of action for Elder Abuse. FAC at | 78. First, Plaintiffs fail to allege that the Caregivers 26 subjected Rosemary to any statutorily defined physical abuse, neglect, or financial abuse. Indeed, 27 the only conduct complained of is that Leahy violated this Court’s Elder Abuse Restraining Order 28 by discussing ongoing legal proceedings with the Caregivers in Rosemary’s presence. Such conduct 7 0601.045 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER hardly rises to the level of physical abuse, neglect, or financial abuse, particularly because Leahy — not the Caregivers — violated this Court’s orders. Second, there are no allegations in the FAC that the Caregivers acted with recklessness, malice, oppression, or fraud in the commission of the purported abuse. Other than simply reciting the statutory language of California Welfare & Institutions Code § 15657, there are no allegations speaking to recklessness, malice, oppression, or fraud whatsoever. In other words, other than conclusory allegations, there are no supporting or even ultimate facts showing that the Caregivers exhibited recklessness, malice, oppression, fraud, or any other type of ill will. Simmons v. Southern Pac. Transportation Co., 62 Cal. App. 3d 341, 368 (1976). The FAC must do more than simply 10 regurgitate the statutory elements. 11 Finally, there are no allegations whatsoever that the Caregivers negligently failed to attend 12 to Rosemary’s basic needs and comforts in accordance with their professional obligations. Instead, 13 Plaintiffs improperly rely on conclusory assertions that the Caregivers committed elder abuse by 14 “failing to protect Rosemary” and by allegedly working with Leahy against Rosemary’s interests. 15 These claims lack any specificity as to how the Caregivers allegedly failed to attend to Rosemary’s 16 basic needs and comforts; instead, Plaintiffs erroneously claim that the Caregivers are responsible 17 for Leahy’s conduct in violating the Court’s Elder Abuse Restraining Order by discussing the legal 18 proceedings with the Caregivers in Rosemary’s presence. 19 Accordingly, the first cause of action for Elder Abuse must fail as against the Caregivers 20 for failure to allege facts sufficient to constitute a cause of action. The Caregivers respectfully 21 request that the Court sustain their demurrer to this cause of action without leave to amend, as this 22 claim cannot be truthfully cured by amendment. 23 B THE SECOND CAUSE OF ACTION FOR FINANCIAL ELDER ABUSE 24 TO STATE FACTS UPON WHICH RELIEF MAY BE GRANTED. 25 To state a claim for Financial Elder Abuse, the plaintiff must “prove by a preponderance of 26 the evidence that a defendant is liable for financial abuse, as defined in [California Welfare & 27 Institutions Code] Section 15610.30, and where it is proven by clear and convincing evidence that 28 the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of 0601.045 8 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER the abuse.” Cal. Welf: & Inst. Code, § 15657.5(b). “Financial abuse” of an elder or dependent adult occurs when a person or entity does the following: “(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both; (2) Assists in taking, secreting, appropriating, or retaining real or personal property ofan elder or dependent adult for a wrongful use or with intent to defraud, or both; or (3) Takes secretes, appropriates, obtains, or retains or assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.” Cal. Welf. & Inst. Code, § 15610.30(a). California Welfare & Institutions Code section 15610.30(b) “imposes an additional 10 requirement beyond the existence of improper conduct, namely, that ‘the person or entity knew or 11 should have known that this conduct is likely to be harmful to the elder...adult.’ (Italics added). In 12 statutes and other legal contexts, the italicized phrase ordinarily conveys a requirement for actual 13 or constructive knowledge.” Paslay v. State Farm Gen. Ins. Co., 248 Cal. App. 4th 639, 657 (2016) 14 (quoting Castillo v. Tolls Bros., Inc., 197 Cal. App. 4th 1172, 1196 (2011)). The existence of 15 constructive knowledge is assessed by reference to an objective “reasonable person” measure, 16 “since there is no other way to measure it.” Paslay, supra, 248 Cal. App. 4th at 657 (quoting New 17 v. Consolidated Rock Products Co., 171 Cal. App. 3d 681, 690 (1985)). 18 Here, Plaintiffs’ allegations fall far short of what is required to plead a cause of action for 19 Financial Elder Abuse against the Caregivers because there are simply no allegations that they 20 subjected Rosemary to statutorily defined financial abuse. The conclusory allegations that the 21 Caregivers committed financial elder abuse by failing to protect Rosemary, by working with Leahy 22 against Rosemary’s best interests, and that by receiving compensation for their services are plainly 23 insufficient to show that the Caregivers took, secreted, appropriated, obtained, or retained 24 Rosemary’s real or personal property for a wrongful use or with the intent to defraud. FAC at § 87. 25 The fact that the Caregivers were compensated for their services while working for Rosemary is 26 hardly enough to show that they committed financial elder abuse against Rosemary. 27 Furthermore, and significantly, Plaintiffs fail to allege facts sufficient to show that the 28 Caregivers acted with recklessness, oppression, fraud, or malice in the commission of the purported 0601.045 9 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER abuse. Other than alleging intent without any factual predicates, the FAC asserts that Defendants’ conduct is malicious, oppressive, and/or fraudulent within the meaning of California Civil Code § 3294 and/or California Welfare & Institutions Code, § 15657.5(b). FAC at 89. There are no supporting or even ultimate facts showing that the Caregivers exhibited recklessness, malice, oppression, fraud, or any other type of ill will. Simmons, supra, 62 Cal. App. 3d at 368. Finally, the FAC fails to satisfy California Welfare & Institutions Code § 15610.30(b), which imposes a requirement that the defendant knew or should have known that the conduct complained of is likely to be harmful to the elder or dependent adult. There are no allegations whatsoever which tend to show that the Caregivers had constructive or actual knowledge that 10 their conduct was likely to be harmful to Rosemary. 11 In light of the foregoing, the Caregivers respectfully submit that the second cause of 12 action for Financial Elder Abuse in deficiently pled for failure to state facts sufficient to state a 13 cause of action. As such, the Caregivers request that the Court sustain their Demurrer to this 14 cause of action, without leave to amend. 15 Cc THE FOURTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION 16 OF EMOTIONAL DISTRESS FAILS BECAUSE PLAINTIFFS FAILED TO 17 ALLEGE OUTRAGEOUS CONDUCT OR INTENT. 18 To state a claim for intentional infliction of emotional distress, a plaintiff must allege and 19 prove the following elements: (1) outrageous conduct by the defendant; (2) an intention by 20 defendant to cause, or reckless disregard of the probability of causing, emotional distress; (3) severe 21 emotional distress; and (4) an actual and proximate causal link between the tortious conduct and 22 the emotional distress. Nally v. Grace Community Church, 47 Cal. 3d 278 (1988). It is not enough 23 that a defendant’s conduct be intentional and outrageous, but it must also be directed at the plaintiff. 24 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (1993). 25 Conduct is considered extreme and outrageous when it exceeds all bounds of decency 26 usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and 27 does cause, mental distress. Molko v. Holy Spirit Assn., 46 Cal. 3d 1092 (1988). Liability for 28 intentional infliction of emotional distress extends only to conduct so extreme and outrageous we S 0601.045 10 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Coleman v. Republic Indemnity Insurance, 132 Cal. App. 4th 403, 416 (2005) (citing Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 499 (1970)). Furthermore, liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Fisher v. San Pedro Penninsula Hosp., 214 Cal. App. 3d 590 (1989). Severe emotional distress is defined as “emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” Taylor v. Nabors Drilling USA, LP, 222 Cal. App. 4th 1228, 1246 (2014). Simple allegations of “discomfort, worry, anxiety, upset stomach, concern, and agitation” are insufficient to sustain a 10 claim for severe emotional distress. Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009). 11 Ordinarily, liability does not extend to mere insults, indignities, threats, annoyances, petty 12 oppressions, or other trivialities. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 617 13 (1989). Similarly, a defendant will not be held legally responsible for “mere profanity, obscenity, 14 or abuse, without circumstances of aggravation, or for insults, indignities or threats which are 15 considered to amount to nothing more than mere annoyances.” Yurick v. Superior Court, 209 Cal. 16 App. 3d 1116, 1128 (1989). A plaintiff's “hurt feelings” are insufficient to justify recovery for 17 intentional infliction of emotional distress. Yurick, supra, 209 Cal. App. 3d at 1128. 18 Here, the allegations in the FAC are insufficient to maintain the fourth cause of action for 19 Intentional Infliction of Emotional Distress. Specifically, the first and second elements of this cause 20 of action are not satisfied: (1) outrageous conduct, and (2) intent. In essence, the FAC alleges that 21 Leahy violated the Court’s Elder Abuse Restraining Order by discussing the ongoing legal 22 proceedings with the Caregivers in Rosemary’s presence. FAC at § 103. Such allegations hardly 23 come close to showing that the Caregivers engaged in outrageous conduct intended which was 24 intended to cause severe emotional distress. Notably, the Court’s Elder Abuse Restraining Order 25 governs Leahy — not the Caregivers — and provided that “Mr. Leahy was not to upset Rosemary by 26 speaking to her about the ongoing legal proceedings and that Mr. Leahy was not to speak to 27 Rosemary in any manner which disparaged Rosemary’s relatives.” FAC at 4 65 (emphases added). 28 The fact that Leahy may have violated the Court’s Elder Abuse Restraining Order by discussing 0601.045 11 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER the legal proceedings in Rosemary’s presence is insufficient to show that the Caregivers’ conduct was outrageous and intended to cause severe emotional distress. Furthermore, Plaintiffs impermissibly rely on baseless conclusory assertions instead of any supporting or even ultimate facts which show that the Caregivers are liable for Intentional Infliction of Emotional Distress. For example, Plaintiffs allege, without any factual support, that the Caregivers “intentionally engaged in conduct which caused severe emotional distress to Rosemary and to Mark and to the rest of Rosemary’s family,” and that the Caregivers “conspired with Mr. Leahy to portray Rosemary’s family in a false light.” /d., at § 103. These allegations, premised on Leahy’s violation of the Court’s Elder Abuse Restraining Order, are insufficient to show that the 10 Caregivers’ conduct was extreme and outrageous or intended to cause severe emotional distress. 11 At the most, the allegations constitute mere insults, indignities, annoyances, and petty oppressions 12 to which liability does not extend. Fisher, supra, 214 Cal. App. 3d at 617. 13 The FAC fails to allege facts sufficient to show the first two elements required to plead 14 intentional infliction of emotional distress: (1) outrageous conduct and (2) intent. This deficiency 15 alone renders this cause of action fatally flawed. Furthermore, because the FAC fails to allege facts 16 demonstrating outrageous conduct, of such a nature that exceeds all bounds tolerated in a civilized 17 community, the intentional infliction of emotional distress claims fails as a matter of law. For these 18 reasons, the Caregivers respectfully request that the Court sustain their Demurrer to this cause of 19 action, without leave to amend, as the deficiencies herein cannot be truthfully remedied by way of 20 amendment. 21 D. THE FIFTH CAUSE OF ACTION FOR NEGLIGENCE FAILS BECAUSE 22 THERE ARE NO ALLEGATIONS EVIDENCING BREACH OF DUTY OR 23 CAUSATION. 24 To state a claim for negligence, the plaintiff must demonstrate a duty on the part of the 25 defendant, breach of that duty, causation, and damages. Strong v. State of Cal., 201 Cal. App. 4th 26 1439, 1449 (2011). Whether a duty of care exists is a question of law for the court to decide. Strong, 27 supra, 201 Cal. App. 4th at 1449. The plaintiff must “plead specific facts” to show how the conduct 28 at issue caused or contributed to the injury. Christensen v. Superior Court, 54 Cal. 3d 868, 900-901 0601.045 12 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER (1991). Here, the allegations in the FAC fail to show that the Caregivers breached their duties of care to Rosemary, or that Rosemary was harmed as a proximate result of the alleged breaches. Instead, the FAC merely alleges that the Caregivers “had the duty to care for and protect Rosemary. When they were recorded engaging in conduct which was detrimental to Rosemary and adverse to her interests, they were immediately terminated.” FAC at § 113. There are no specific facts showing how the Caregivers purportedly breached their duties of care to Rosemary The fact that Leahy violated the Elder Abuse Restraining Order by discussing the ongoing legal proceedings with the Caregivers in Rosemary’s presence is not sufficient to demonstrate that the 10 Caregivers breached their duty of care to Rosemary. Furthermore, the FAC contains no facts 11 evidencing that the Caregivers’ conduct proximately caused harm to Rosemary. 12 For these reasons, the fifth cause of action for Negligence is deficiently pled as to the 13 Caregivers and their demurrer to this cause of action should be sustained, without leave to amend. 14 Vv. CONCLUSION 15 The FAC is deficiently pled as to the first, second, fourth, and fifth causes of action for 16 failure to allege facts sufficient to constitute a cause of action as against the Caregivers. As such, 17 the Caregivers respectfully request that the Court issue an Order sustaining the instant Demurrer 18 as to the aforementioned causes of action, without leave to amend. 19 DATED: June 20, 2023 CHAPMAN GLUCKSMAN A Professional Corporation 21 22 GREG K. SABO 23 DAVID A. NAPPER GABRIELLA STERNFELD 24 Attorneys for Defendants, SUSAN REYNOLDS and PATRICIA WOLLUM 25 26 27 28 0601.045 13 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER DECLARATION OF GABRIELLA L. STERNFELD I, GABRIELLA L. STERNFELD, declare as follows: 1 I am an attorney licensed to practice before all courts of the State of California. I am an attorney at the law firm Chapman Glucksman, APC, counsel of record for Defendants, SUSAN REYNOLDS and PATRICIA WOLLUM (the “Caregivers”). I have personal knowledge of the facts set forth below and if called upon as a witness, I could and would competently testify to the same. 2. On June 9, 2023, pursuant to California Code of Civil Procedure § 430.41, I caused to be transmitted to counsel for Plaintiffs, MARK SELLARS and REBECCA MORIN 10 (“Plaintiffs”), a detailed meet and confer correspondence noting the pleading deficiencies in the 11 First Amended Complaint. A true and correct copy of that correspondence is attached hereto as 12 Exhibit 1. Plaintiffs’ counsel did not respond to my meet and confer correspondence, 13 necessitating the instant Demurrer. 14 3 Attached hereto as Exhibit 2 is a true and correct copy of the original Complaint 15 filed by Plaintiff Sellars on December 11, 2020. 16 4 Attached hereto as Exhibit 3 is a true and correct copy of the FAC filed by 17 Plaintiffs on January 23, 2023. 18 I declare under penalty of perjury under the laws ofthe State of California that the foregoing 19 is true and correct. Executed this 21" day of June, 2023, in Los Angeles, California. 20 21 argon. Gabriella L. Sternfeld 22 23 24 25 26 27 28 0601.045 14 NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND. AUTHORITIES; DECLARATION OF GABRIELLA L. STERNFELD IN SUPPORT THEREOF; [PROPOSED] ORDER EXHIBIT 1 CHAPMAN GLUCKSMAN [A PROFESSIONAL CORPORATION TELEPHONE: WRITER (310) 207-7722 ATTORNEYS AT LAW GABRIELLA STERNFELD 11900 WEST OLYMPIC BOULEVARD FACSIMILE: SUITE 800 E-MAIL: (310) 207-6550 LOS ANGELES, CALIFORNIA 90064-0704 GSTERNFELD@CGDRLAW.COM WEBSITE: www.cgdrlaw.com June 9, 2023 Via E-Mail DT LAW PARTNERS LLP David J. Tappeiner 125 East Victoria, Suite 1 Santa Barbara, CA 93101 (805) 456-8323 David@dtlawpartners.com Re: Sellars, et al. v. Leahy, et al. Our Clients: Susan Reynolds and Patricia Wollum Our File No.: 0161.165 Dear Mr. Tappeiner, Please allow this correspondence to serve as a meet and confer effort regarding pleading deficiencies in your clients’ First Amended Complaint. This correspondence is made pursuant to California Code of Civil Procedure section 430.41(a) and 435.5. We are hopeful that the matters addressed herein can be resolved informally and without Court intervention and welcome the opportunity to meet and confer. We ask that you let us know by 5:00 p.m. on June 15, 2023, whether you will agree to resolve the deficiencies addressed above by dismissal or amendment. If you wish to discuss any of the foregoing over the phone, please let us know and we will make ourselves available for a conference call to further meet and confer. I Elder Abuse To state a claim for Elder Abuse, the plaintiff must allege and prove that a defendant: (1) subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression, or fraud in the commission of the abuse. Davenport v. Litton Loan Servicing, L.P., 725 F. Supp. 2d 862, 879 (2010) (discussing California’s Elder Abuse Act, Welfare & Institutions Code section 15610, et seq.). “Neglect,” as defined in California Welfare & Institutions Code, section 15610.57(a)(1), includes the negligent failure of an elder custodian “to assist in personal hygiene, or in the provision of food, clothing, or shelter, 99 66 to provide medical care for physical and mental health needs, ” «6 ‘to protect from health and safety hazards,” or “to prevent malnutrition or dehydration.” Arace v. Medico Invs., LLC, 48 Cal. App. 5th 977, 982 (2020); Cal. Welf: & Inst. Code, § 15610.57 (b)(1)(4). Thus, the concept of “neglect” speaks to the failure to provide care rather than the undertaking of services. Arace, supra, 48 Cal. App. 5th Los ANGELES - ORANGE COUNTY - Bay AREA CG David J. Tappeiner Sellars, et al. v. Leahy, et al. June 9, 2023 Page 2 at 982. Indeed, under the Elder Abuse Act, the term “neglect” “is not intended to apply to any conceivable negligent conduct that might adversely impact an elder or dependent adult.” Winn v. Pioneer Medical Group, Inc., 63 Cal. 4th 148, 160 (2016). Instead, “neglect” refers “‘to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations oo . Worsham v. O’Connor Hospital, 226 Cal. App. 4th 331, 336 (2014) (quoting Delaney v. Barker, 20 Cal. 4th 23, 82 (1999). Here, Plaintiffs’ allegation that Ms. Wollum and Ms. Reynolds “committed elder abuse against Rosemary as they failed to protect her and worked with Mr. Leahy against Rosemary’s interests and received compensation for such ‘caregiving’ services” falls far short of what is required to adequately plead a cause of action for Elder Abuse. FAC at {| 78. First, Plaintiffs fail to allege that Ms. Wollum and Ms. Reynolds subjected Rosemary to statutorily-defined physical abuse, neglect, or financial abuse. Second, Plaintiffs fail to allege that Ms. Wollum and Ms. Reynolds acted with recklessness, malice, oppression, or fraud in the commission of the abuse. Furthermore, Plaintiffs FAC fails to allege that Ms. Wollum and Ms. Reynolds negligently failed to attend to the basic needs and comforts of Rosemary in accordance with their professional obligations. Instead, Plaintiffs make conclusory assertions that Ms. Wollum and Ms. Reynolds committed elder abuse by failing to protect Rosemary and worked with Mr. Leahy against Rosemary’s interests. These assertions lack any specificity as to how Ms. Wollum and Ms. Reynolds allegedly negligently failed to attend to Rosemary’s basic needs and comforts. For these reasons, the first cause of action for Elder Abuse is subject to demurrer. IL. Financial Elder Abuse To state a claim for Financial Elder Abuse, the plaintiff must allege and prove that a defendant: (1) subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression, or fraud in the commission of the abuse. Davenport, supra, 725 F. Supp. 2d at 879 (discussing California’s Elder Abuse Act, Welfare & Institutions Code section 15610, et seg.). California Welfare & Institutions Code section 15610.30(b) “imposes an additional requirement beyond the existence of improper conduct, namely, that ‘the person or entity Anew or should have known that this conduct is likely to be harmful to the elder...adult.’ (Italics added). In statutes and other legal contexts, the italicized phrase ordinarily conveys a requirement for actual or constructive knowledge.” Paslay v. State Farm Gen. Ins. Co., 248 Cal. App. 4th 639, 657 (2016) (quoting Castillo v. Tolls Bros., Inc., 197 Cal. App. 4th 1172, 1196 (2011)). The existence of constructive knowledge is assessed by reference to an objective “reasonable person” measure, “since there is no other way to measure it.” Paslay, supra, 248 Cal. App. 4th at 657 (quoting New v. Consolidated Rock Products Co., 171 Cal. App. 3d 681, 690 (1985)). Los ANGELES - ORANGE COUNTY - BAY AREA CG David J. Tappeiner Sellars, et al. v. Leahy, et al. June 9, 2023 Page 3 Here, Plaintiffs’ allegations fall far short of what is required to plead a cause of action for Financial Elder Abuse because, as above, there are simply no allegations that Ms. Wollum or Ms. Reynolds subjected Rosemary to statutorily-defined financial abuse or that Ms. Wollum or Ms. Reynolds acted with recklessness, malice, oppression, or fraud in the commission of the abuse. Plaintiffs’ conclusory assertion that Ms. Wollum and Ms. Reynolds committed financial elder abuse because they “failed to protect [Rosemary] and worked with Mr. Leahy against Rosemary’s interests and received compensation for” their services. FAC at §. 87. The fact that Ms. Wollum and Ms. Reynolds received compensation for their services as caregivers is insufficient to properly plead that they committed financial elder abuse against Rosemary. Moreover, there are no allegations that Ms. Wollum or Ms. Reynolds knew or should have known that their alleged conduct was likely to be harmful to Rosemary. As such, Plaintiffs’ second cause of action for Financial Elder Abuse is subject to demurrer. Til. Intentional Infliction of Emotional Distress To state a claim for Intentional Infliction of Emotional Distress, the plaintiff must allege and prove the following elements: (1) outrageous conduct by the defendant, (2) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (3) severe emotional distress, and (4) an actual and proximate causal link between the tortious conduct and the emotional distress. Nally v. Grace Community Church, 47 Cal. 3d 278, 300 (1988). It is not enough that a defendant’s conduct be intentional and outrageous; it must also be direct at the plaintiff. Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1003 (1993). Conduct is considered extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 1122 (1988). Liability for intentional infliction of emotional distress extends only to conduct so extreme and outrageous as to be “regarded as atrocious, and utterly intolerable in a civilized community.” Coleman v. Republic Indemnity Insurance, 132 Cal. App. 4th 403, 416 (2005) (citing Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 499 (1970)). Ordinarily, liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 617 (1989). Similarly, a defendant will not be held legally responsible for “mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.” Yurick v. Superior Court, 209 Cal. App. 3d 1116, 1128 (1989). A plaintiff's “hurt feelings” are insufficient to justify recovery for intentional infliction of emotional distress. Yurick, supra, 209 Cal. App. 3d at 1128. Los ANGELES - ORANGE COUNTY - BAY AREA CG David J. Tappeiner Sellars, et al. v. Leahy, et al. June 9, 2023 Page 4 The allegations in Plaintiffs’ FAC are insufficient to maintain the fourth cause of action for Intentional Infliction of Emotional Distress. Specifically, the first and second elements of this cause of action are not satisfied by the FAC: (1) outrageous conduct, and (2) intent. In essence, the FAC alleges that Rosemary heard Ms. Wollum and Ms. Reynolds discussing legal proceedings with Mr. Leahy. FAC at § 103. None of the allegations against Ms. Wollum and Ms. Reynolds come close to showing that they engaged in outrageous conduct intended to cause Plaintiffs severe emotional distress. There is simply no allegation whatsoever that Ms. Wollum or Ms. Reynolds’ conduct was directed at Plaintiff with the intent of causing them emotional distress, and none can be asserted in good faith. The conduct complained of in the FAC does not rise to the level of extreme and outrageous behavior as to Ms. Wollum and Ms. Reynolds