Preview
Sean R. Laird (SBN 214916)
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The Law Firm of Sean R. Laird
2 805 16th Street
Sacramento, CA 95814
5/21/2021
3 (916) 441-1636
4 (916) 760-9002
seanlairdlaw@gmail.com
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Attorneys for Plaintiffs
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8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
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PATSY NEWTON, individually; HAROLD Case No. 20CV01091
11 NEWTON; individually; SUZANNE BOLEN,
individually. PLAINTIFFS’ MEMORANDUM OF
12 POINTS AND AUTHORITIES IN
13 Plaintiffs, OPPOSITION TO DEFENDANT ENLOE
MEDICAL CENTER’S MOTION FOR
14 vs.
JUDGMENT ON THE PLEADINGS.
15 ENLOE MEDICAL CENTER; and DOES 1 -
DATE: June 4, 2021
16 50, inclusive,
TIME: 8:30 a.m.
DEPT: 1
17 Defendants,
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Hon. Tamara L. Mosbarger
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21 Complaint Filed: 5/29/2020
Trial Date: June 7, 2021
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S
MOTION FOR JUDGMENT ON THE PLEADINGS.
1 I. INTRODUCTION
2 Defendants attempt to bring an untimely and procedurally defective motion for Judgment
3 on the Pleadings on the eve of trial as to plaintiff Suzanne Bolen’s cause of action for negligent
4 infliction of emotional distress. In doing so, defendants ask this Court to draw inferences in their
5 favor and weigh the evidence to conclude that Suzanne Bolen was not “contemporaneously aware”
6 of the injury producing event - despite black and white allegations to the opposite. Given the
7 untimely and procedurally defective nature of the motion, which precludes time for the Court to
8 grant leave to amend, as well as the detailed allegations which the court must presume to be true,
9 drawing all inferences against defendant and in favor of plaintiff, defendant’s motion must fail.
10 II. ARGUMENT
A. Defendant’s Motion Is Procedurally Defective and Untimely and Should Be Summarily
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Denied For Those Reasons.
12 To avoid unnecessary delay and unreasonable consumption of scarce court resources the
13 law requires that a party bringing a motion for judgment on the pleadings specifically meet and
14 confer with opposing counsel regarding the pleading and determine whether an agreement can be
15 reached. See CCP §439. Additionally, it requires Defendant take specific steps to identify specific
16 allegations and specific legal support for its position. Id. Defendants did not make any effort to
17 meet and confer with plaintiff’s counsel on the motion at bar. Id; See also Declaration of Sean R.
18 Laird, (hereinafter “Laird Decl.”) ¶2.
19 The original complaint filed back in May of 2019 is the operative complaint for this trial.
20 See Laird Decl. ¶3. Plaintiff’s have not filed and do not anticipate filing an amended complaint
21 prior to the trial. Id. In addition, At no point has defendant or its counsel made any effort to meet
22 and confer regarding this motion, let alone adhere to the strict requirements of “identify all the
23 specific allegations” it believes are subject to judgement along with the accompanying “legal
24 support.” Id. CCP 439(a), requires, in part:
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(a) Before filing a motion for judgment on the pleadings pursuant to this chapter, the
26 moving party shall meet and confer in person or by telephone with the party who filed the
27 pleading that is subject to the motion for judgment on the pleadings for the purpose of
determining if an agreement can be reached that resolves the claims to be raised in the
28 motion for judgment on the pleadings. If an amended pleading is filed, the responding party
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S
MOTION FOR JUDGMENT ON THE PLEADINGS.
shall meet and confer again with the party who filed the amended pleading before filing a
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motion for judgment on the pleadings against the amended pleading.
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(1) As part of the meet and confer process, the moving party shall identify all of the
3 specific allegations that it believes are subject to judgment and identify with legal
4 support the basis of the claims. The party who filed the pleading shall provide legal
support for its position that the pleading is not subject to judgment, or, in the
5 alternative, how the pleading could be amended to cure any claims it is subject to
6 judgment.
7 (2) The parties shall meet and confer at least five days before the date a motion for
judgment on the pleadings is filed. If the parties are unable to meet and confer by that
8
time, the moving party shall be granted an automatic 30-day extension of time within
9 which to file a motion for judgment on the pleadings, by filing and serving, on or
before the date a motion for judgment on the pleadings must be filed, a declaration
10 stating under penalty of perjury that a good faith attempt to meet and confer was made
11 and explaining the reasons why the parties could not meet and confer. The 30-day
extension shall commence from the date the motion for judgment on the pleadings was
12 previously filed, and the moving party shall not be subject to default during the period
13 of the extension. Any further extensions shall be obtained by court order upon a
showing of good cause.
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(3) The moving party shall file and serve with the motion for judgment on the pleadings
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a declaration stating either of the following:
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(A) The means by which the moving party met and conferred with the party who
17 filed the pleading subject to the motion for judgment on the pleadings, and that the
18 parties did not reach an agreement resolving the claims raised by the motion for
judgment on the pleadings.
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20 (B) That the party who filed the pleading subject to the motion for judgment on the
pleadings failed to respond to the meet and confer request of the moving party or
21 otherwise failed to meet and confer in good faith.
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Here, defendants failed every aspect of the above requirements. The Court’s docket and
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defendants pleadings indicate they filed and served their motion on December 4, 2020, to be heard
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December 10, 2020, along with 27 other motions in limine. At no point (5) days before did
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defendant meet and confer with plaintiff’s counsel about this motion. See Laird Decl. ¶3.
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Moreover, the automatic extension of time to meet and confer, 30 days following the initial motion
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S
MOTION FOR JUDGMENT ON THE PLEADINGS.
1 date, has come and gong and defendant has still made no effort to meet and confer on this motion.
2 Id. See CCP 439(a)(2)
3 Moreover, initial filing was untimely and hearing the motion at this point is untimely and
4 prejudices plaintiff and potentially causes a completely unnecessary delay in this matter, for which
5 neither plaintiff nor their counsel is responsible. In filing its initial motion defendant failed to meet
6 and confer and failed to give the requisite 19 court-day notice. In addition, CCP Section 438(e)
7 precludes hearing a motion of this nature at this point:
8 (e) No motion may be made pursuant to this section if a pretrial conference order has been
entered pursuant to Section 575, or within 30 days of the date the action is initially set for
9 trial, whichever is later, unless the court otherwise permits.
10 Although the Court could “otherwise” permit defendant to bring their motion, the practical and
11 cumulative effect of their failure to proceed timely with this motion, properly meet and confer, and
12 to its delay to properly bring the hearing has the practical effect of potentially forcing the Court to
13 provide plaintiff time for leave to amend her complaint. We are here to try this case in less than
14 three days and in (1) court day. Defendant’s position is untenable and plaintiff objects to any
15 further delay.
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17 B. Plaintiff has Alleged Sufficient facts, when accepted as true, which form an overwhelm-
ing basis for recovery as a bystander in her Negligent Infliction of Emotional Distress
18 Claim.
19 The standard for granting a motion for judgment on the pleadings is essentially the same as
20 that applicable to a general demurrer, that is, under the state of the pleadings, together with matters
21 that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law (See
22 CCP § 438(d)). Judgment on the pleadings does not depend upon a resolution of questions of
23 witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied
24 where there are material factual issues that require evidentiary resolution. Schabarum v. California
25 Legislature (1998), 60 Cal. App. 4th 1205. Because a motion for judgment on the pleadings by the
26 defendant is equivalent to a demurrer, the court treats all properly pleaded facts in the operative
27 complaint as true. Kapsimallis v. Allstate Ins. Co. (2002), 104 Cal. App. 4th 667. (emphasis
28 added.)
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S
MOTION FOR JUDGMENT ON THE PLEADINGS.
1 Thus because defendants motion is equivalent to a demurer, the same standard applies. “A
2 demurrer tests the pleading alone, and not the evidence or the facts alleged. “A demurrer will be
3 sustained only where the pleading is defective on its face.” City of Atascadero v. Merrill Lynch,
4 Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459. The demurrer “provisionally admits
5 all material issuable facts properly pleaded, unless contrary to law or to facts of which a court may
6 take judicial notice,” id, “no matter how unlikely or improbable.” Kerivan v. Title Ins. & Trust
7 Co., 147 Cal. App. 3d 225, 229 (1983). The grounds for a demurrer must appear on the face of the
8 pleading under attack. CCP § 437. "A trial court abuses its discretion if it sustains a demurrer
9 without leave to amend when the Plaintiff shows a reasonable probability to cure any defect by
10 amendment." Laizar v. Hertz Corp., (1999) 69 Cal. App.4th 1494, 1500-01.
11 In bringing their motion defendants ask this Court to draw inferences in their favor and
12 thereafter weigh the evidence to conclude that Suzanne Bolen was not “contemporaneously aware”
13 of the injury producing event - despite black and white allegations to the opposite. As the law
14 indicates, this is not an exercise is weighing the evidence and inferences. The Court must accept
15 the pleadings as true. There are black and white allegations supporting plaintiff’s bystander theory
16 of liability:
42. Plaintiff SUZANNE BOLEN was a close family members of PATSY
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NEWTON, to wit, her daughter. Both were extremely close to each other. As
18 PATSY NEWTON's daughter, SUZANNE BOLEN was very much attuned to her
mother’s needs and to Defendants’ utter failure to attend to those needs.
19 43. After PATSY NEWTON was admitted to the facility on September 11,
20 2019, Plaintiffs SUZANNE BOLEN consistently visited her mother while she was at
the facility. As a result, SUZANNE BOLEN directly witnessed the maltreatment
21 and neglect of her mother by Defendants including, but not limited to, failing to take
22 the necessary precautions to prevent PATSY from suffering entirely avoidable and
unnecessary pain; failing to maintain PATSY NEWTON at her highest practicable
23 level of physical, emotional and psychosocial functioning by failing to institute
adequate preventative pressure sore measures and failing to prevent PATSY
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NEWTON from the development of a massive pressure sore; and failing simply turn
25 and reposition her mother; all of which amounted to basic custodial neglect that
caused her untold suffering and horrific injury. During her visits, SUZANNE
26 BOLEN saw her mother’s horrific physical condition, witnessed first-hand the
27 progressive worsening of her pain and condition and the debilitating effects the
combination of unnecessary the failure to address her pain and the failure to
28 turn and reposition her, and the development of her pressure sore were having
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S
MOTION FOR JUDGMENT ON THE PLEADINGS.
on her mind and body. As a result of seeing her mother in this condition,
1
SUZANNE BOLEN told nurses that her mother’s condition was worsening, and
2 that she wanted some interventions for her mom. In response, Defendants took
no action. SUZANNE BOLEN continued to witness her mother’s condition
3 worsen. As a child who was very close to her mother, SUZANNE BOLEN had
4 enough of an understanding of the maltreatment and neglect of her mother by
Defendants at the time it was occurring to have contemporary sensory
5 awareness that Defendants’ conduct was in fact maltreatment and neglect and
6 that it was causing her mother injury.
44. Each and every time SUZANNE BOLEN witnessed Defendants’
7 abysmal care of her mother, she suffered severe emotional distress. She watched
her mother deteriorate and and suffering horrific injury. She watched her
8
mother suffer from the painful wound on her backside. She saw her mother in
9 unspeakable pain and suffering. She witnessed the suffering her mother
endured from conditions that resulted from Defendants’ failure to provide care
10 for her mother. She spoke with DEFENDANT caregivers and directors and
11 expressed concern that her mother was not receiving the necessary treatment
for her conditions only to see Defendants take no action while at the same time
12 observing her mother’s condition worsen. This culminated in SUZANNE
13 BOLEN witnessing the development of a massive wound to her mother’s
backside, having to see her mother suffer through debridement treatments, and
14 watch as her hopes of rehabilitation and mobility were severely hampered by
the development of a life threatening wound. PATSY NEWTON was the center
15
of SUZANNE BOLEN’s world. For her to then see her mother mistreated in
16 the manner she was mistreated and to personally observe the impact of such
mistreatment on her mother, knowing it was causing her injury, caused her to
17 suffer severe, unremitting distress that continues to this day and undoubtedly
18 will continue for the rest of her life. To be specific, plaintiff alleges a direct
causal nexus between the fact that SUZANNE BOLEN witnessed Defendants
19 engage in numerous acts of substandard care toward her mother, PATSY
20 NEWTON, and the fact that SUZANNE BOLEN suffered severe emotional
distress.
21 45. As a result of witnessing first-hand the impact this atrocious
maltreatment and neglect had on PATSY NEWTON, knowing it was causing her
22
injury, SUZANNE BOLEN suffered and continue to suffer severe and substantial
23 emotional distress, beyond that which would be anticipated in a disinterested
witness.
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46. Given the very close relationship between PATSY NEWTON and her
25 child, SUZANNE BOLEN had enough of an understanding of the maltreatment
and neglect of her mother by Defendants at the time it was occurring to have
26 contemporary sensory awareness that Defendants’ conduct was in fact
27 maltreatment and neglect and that it was causing PATSY NEWTON injury and
to immediately suffer emotional distress therefrom. SUZANNE BOLEN
28 witnessed the suffering her mother endured from her conditions that resulted
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S
MOTION FOR JUDGMENT ON THE PLEADINGS.
from Defendants’ failure to provide care. Watching Defendants’ failures and
1
seeing first-hand the injuries they caused her mother proximately caused
2 SUZANNE BOLEN to suffer severe emotional distress.
3 While defendants attempt to say this case is tantamount to Bird, there the Court was considering
4 whether “Defendant was entitled to summary judgment” based on the evidence available. Here it
5 takes no expertise and no advance knowledge to perceive that someone is NEGLECTING your
6 loved one - that is - FAILING to provide care. Such is remarkably different than attempting to
7 provide care and doing it in a poor fashion or as defendants point out in their brief, “that the care
8 she was receiving was inadequate.” This is NOT a malpractice case, this is an elder neglect and
9 abuse case. It is entirely focused on the lack of care. This is why defendant’s distinctions and
10 analogies must fail and their motion should be denied.
11 III. CONCLUSION
12 For all the reasons stated above, plaintiff respectfully requests that defendant’s motion for
13 judgment on the pleadings be denied and that Suzanne Bolen be allowed to have her day in court.
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Dated: Friday, May 21, 2021 The Law Firm of Sean R. Laird
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16 Sean R. Laird
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18 Sean R. Laird
Attorney for Plaintiffs
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S
MOTION FOR JUDGMENT ON THE PLEADINGS.
Preview
Sean R. Laird (SBN 214916) 1 The Law Firm of Sean R. Laird 2 805 16th Street Sacramento, CA 95814 5/21/2021 3 (916) 441-1636 4 (916) 760-9002 seanlairdlaw@gmail.com 5 Attorneys for Plaintiffs 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD Case No. 20CV01091 11 NEWTON; individually; SUZANNE BOLEN, individually. PLAINTIFFS’ MEMORANDUM OF 12 POINTS AND AUTHORITIES IN 13 Plaintiffs, OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR 14 vs. JUDGMENT ON THE PLEADINGS. 15 ENLOE MEDICAL CENTER; and DOES 1 - DATE: June 4, 2021 16 50, inclusive, TIME: 8:30 a.m. DEPT: 1 17 Defendants, 18 Hon. Tamara L. Mosbarger 19 20 21 Complaint Filed: 5/29/2020 Trial Date: June 7, 2021 22 23 24 25 26 27 28 - 1! - PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR JUDGMENT ON THE PLEADINGS. 1 I. INTRODUCTION 2 Defendants attempt to bring an untimely and procedurally defective motion for Judgment 3 on the Pleadings on the eve of trial as to plaintiff Suzanne Bolen’s cause of action for negligent 4 infliction of emotional distress. In doing so, defendants ask this Court to draw inferences in their 5 favor and weigh the evidence to conclude that Suzanne Bolen was not “contemporaneously aware” 6 of the injury producing event - despite black and white allegations to the opposite. Given the 7 untimely and procedurally defective nature of the motion, which precludes time for the Court to 8 grant leave to amend, as well as the detailed allegations which the court must presume to be true, 9 drawing all inferences against defendant and in favor of plaintiff, defendant’s motion must fail. 10 II. ARGUMENT A. Defendant’s Motion Is Procedurally Defective and Untimely and Should Be Summarily 11 Denied For Those Reasons. 12 To avoid unnecessary delay and unreasonable consumption of scarce court resources the 13 law requires that a party bringing a motion for judgment on the pleadings specifically meet and 14 confer with opposing counsel regarding the pleading and determine whether an agreement can be 15 reached. See CCP §439. Additionally, it requires Defendant take specific steps to identify specific 16 allegations and specific legal support for its position. Id. Defendants did not make any effort to 17 meet and confer with plaintiff’s counsel on the motion at bar. Id; See also Declaration of Sean R. 18 Laird, (hereinafter “Laird Decl.”) ¶2. 19 The original complaint filed back in May of 2019 is the operative complaint for this trial. 20 See Laird Decl. ¶3. Plaintiff’s have not filed and do not anticipate filing an amended complaint 21 prior to the trial. Id. In addition, At no point has defendant or its counsel made any effort to meet 22 and confer regarding this motion, let alone adhere to the strict requirements of “identify all the 23 specific allegations” it believes are subject to judgement along with the accompanying “legal 24 support.” Id. CCP 439(a), requires, in part: 25 (a) Before filing a motion for judgment on the pleadings pursuant to this chapter, the 26 moving party shall meet and confer in person or by telephone with the party who filed the 27 pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the 28 motion for judgment on the pleadings. If an amended pleading is filed, the responding party - 2! - PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR JUDGMENT ON THE PLEADINGS. shall meet and confer again with the party who filed the amended pleading before filing a 1 motion for judgment on the pleadings against the amended pleading. 2 (1) As part of the meet and confer process, the moving party shall identify all of the 3 specific allegations that it believes are subject to judgment and identify with legal 4 support the basis of the claims. The party who filed the pleading shall provide legal support for its position that the pleading is not subject to judgment, or, in the 5 alternative, how the pleading could be amended to cure any claims it is subject to 6 judgment. 7 (2) The parties shall meet and confer at least five days before the date a motion for judgment on the pleadings is filed. If the parties are unable to meet and confer by that 8 time, the moving party shall be granted an automatic 30-day extension of time within 9 which to file a motion for judgment on the pleadings, by filing and serving, on or before the date a motion for judgment on the pleadings must be filed, a declaration 10 stating under penalty of perjury that a good faith attempt to meet and confer was made 11 and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion for judgment on the pleadings was 12 previously filed, and the moving party shall not be subject to default during the period 13 of the extension. Any further extensions shall be obtained by court order upon a showing of good cause. 14 (3) The moving party shall file and serve with the motion for judgment on the pleadings 15 a declaration stating either of the following: 16 (A) The means by which the moving party met and conferred with the party who 17 filed the pleading subject to the motion for judgment on the pleadings, and that the 18 parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. 19 20 (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or 21 otherwise failed to meet and confer in good faith. 22 Here, defendants failed every aspect of the above requirements. The Court’s docket and 23 defendants pleadings indicate they filed and served their motion on December 4, 2020, to be heard 24 December 10, 2020, along with 27 other motions in limine. At no point (5) days before did 25 defendant meet and confer with plaintiff’s counsel about this motion. See Laird Decl. ¶3. 26 Moreover, the automatic extension of time to meet and confer, 30 days following the initial motion 27 28 - 3! - PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR JUDGMENT ON THE PLEADINGS. 1 date, has come and gong and defendant has still made no effort to meet and confer on this motion. 2 Id. See CCP 439(a)(2) 3 Moreover, initial filing was untimely and hearing the motion at this point is untimely and 4 prejudices plaintiff and potentially causes a completely unnecessary delay in this matter, for which 5 neither plaintiff nor their counsel is responsible. In filing its initial motion defendant failed to meet 6 and confer and failed to give the requisite 19 court-day notice. In addition, CCP Section 438(e) 7 precludes hearing a motion of this nature at this point: 8 (e) No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for 9 trial, whichever is later, unless the court otherwise permits. 10 Although the Court could “otherwise” permit defendant to bring their motion, the practical and 11 cumulative effect of their failure to proceed timely with this motion, properly meet and confer, and 12 to its delay to properly bring the hearing has the practical effect of potentially forcing the Court to 13 provide plaintiff time for leave to amend her complaint. We are here to try this case in less than 14 three days and in (1) court day. Defendant’s position is untenable and plaintiff objects to any 15 further delay. 16 17 B. Plaintiff has Alleged Sufficient facts, when accepted as true, which form an overwhelm- ing basis for recovery as a bystander in her Negligent Infliction of Emotional Distress 18 Claim. 19 The standard for granting a motion for judgment on the pleadings is essentially the same as 20 that applicable to a general demurrer, that is, under the state of the pleadings, together with matters 21 that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law (See 22 CCP § 438(d)). Judgment on the pleadings does not depend upon a resolution of questions of 23 witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied 24 where there are material factual issues that require evidentiary resolution. Schabarum v. California 25 Legislature (1998), 60 Cal. App. 4th 1205. Because a motion for judgment on the pleadings by the 26 defendant is equivalent to a demurrer, the court treats all properly pleaded facts in the operative 27 complaint as true. Kapsimallis v. Allstate Ins. Co. (2002), 104 Cal. App. 4th 667. (emphasis 28 added.) - 4! - PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR JUDGMENT ON THE PLEADINGS. 1 Thus because defendants motion is equivalent to a demurer, the same standard applies. “A 2 demurrer tests the pleading alone, and not the evidence or the facts alleged. “A demurrer will be 3 sustained only where the pleading is defective on its face.” City of Atascadero v. Merrill Lynch, 4 Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459. The demurrer “provisionally admits 5 all material issuable facts properly pleaded, unless contrary to law or to facts of which a court may 6 take judicial notice,” id, “no matter how unlikely or improbable.” Kerivan v. Title Ins. & Trust 7 Co., 147 Cal. App. 3d 225, 229 (1983). The grounds for a demurrer must appear on the face of the 8 pleading under attack. CCP § 437. "A trial court abuses its discretion if it sustains a demurrer 9 without leave to amend when the Plaintiff shows a reasonable probability to cure any defect by 10 amendment." Laizar v. Hertz Corp., (1999) 69 Cal. App.4th 1494, 1500-01. 11 In bringing their motion defendants ask this Court to draw inferences in their favor and 12 thereafter weigh the evidence to conclude that Suzanne Bolen was not “contemporaneously aware” 13 of the injury producing event - despite black and white allegations to the opposite. As the law 14 indicates, this is not an exercise is weighing the evidence and inferences. The Court must accept 15 the pleadings as true. There are black and white allegations supporting plaintiff’s bystander theory 16 of liability: 42. Plaintiff SUZANNE BOLEN was a close family members of PATSY 17 NEWTON, to wit, her daughter. Both were extremely close to each other. As 18 PATSY NEWTON's daughter, SUZANNE BOLEN was very much attuned to her mother’s needs and to Defendants’ utter failure to attend to those needs. 19 43. After PATSY NEWTON was admitted to the facility on September 11, 20 2019, Plaintiffs SUZANNE BOLEN consistently visited her mother while she was at the facility. As a result, SUZANNE BOLEN directly witnessed the maltreatment 21 and neglect of her mother by Defendants including, but not limited to, failing to take 22 the necessary precautions to prevent PATSY from suffering entirely avoidable and unnecessary pain; failing to maintain PATSY NEWTON at her highest practicable 23 level of physical, emotional and psychosocial functioning by failing to institute adequate preventative pressure sore measures and failing to prevent PATSY 24 NEWTON from the development of a massive pressure sore; and failing simply turn 25 and reposition her mother; all of which amounted to basic custodial neglect that caused her untold suffering and horrific injury. During her visits, SUZANNE 26 BOLEN saw her mother’s horrific physical condition, witnessed first-hand the 27 progressive worsening of her pain and condition and the debilitating effects the combination of unnecessary the failure to address her pain and the failure to 28 turn and reposition her, and the development of her pressure sore were having - 5! - PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR JUDGMENT ON THE PLEADINGS. on her mind and body. As a result of seeing her mother in this condition, 1 SUZANNE BOLEN told nurses that her mother’s condition was worsening, and 2 that she wanted some interventions for her mom. In response, Defendants took no action. SUZANNE BOLEN continued to witness her mother’s condition 3 worsen. As a child who was very close to her mother, SUZANNE BOLEN had 4 enough of an understanding of the maltreatment and neglect of her mother by Defendants at the time it was occurring to have contemporary sensory 5 awareness that Defendants’ conduct was in fact maltreatment and neglect and 6 that it was causing her mother injury. 44. Each and every time SUZANNE BOLEN witnessed Defendants’ 7 abysmal care of her mother, she suffered severe emotional distress. She watched her mother deteriorate and and suffering horrific injury. She watched her 8 mother suffer from the painful wound on her backside. She saw her mother in 9 unspeakable pain and suffering. She witnessed the suffering her mother endured from conditions that resulted from Defendants’ failure to provide care 10 for her mother. She spoke with DEFENDANT caregivers and directors and 11 expressed concern that her mother was not receiving the necessary treatment for her conditions only to see Defendants take no action while at the same time 12 observing her mother’s condition worsen. This culminated in SUZANNE 13 BOLEN witnessing the development of a massive wound to her mother’s backside, having to see her mother suffer through debridement treatments, and 14 watch as her hopes of rehabilitation and mobility were severely hampered by the development of a life threatening wound. PATSY NEWTON was the center 15 of SUZANNE BOLEN’s world. For her to then see her mother mistreated in 16 the manner she was mistreated and to personally observe the impact of such mistreatment on her mother, knowing it was causing her injury, caused her to 17 suffer severe, unremitting distress that continues to this day and undoubtedly 18 will continue for the rest of her life. To be specific, plaintiff alleges a direct causal nexus between the fact that SUZANNE BOLEN witnessed Defendants 19 engage in numerous acts of substandard care toward her mother, PATSY 20 NEWTON, and the fact that SUZANNE BOLEN suffered severe emotional distress. 21 45. As a result of witnessing first-hand the impact this atrocious maltreatment and neglect had on PATSY NEWTON, knowing it was causing her 22 injury, SUZANNE BOLEN suffered and continue to suffer severe and substantial 23 emotional distress, beyond that which would be anticipated in a disinterested witness. 24 46. Given the very close relationship between PATSY NEWTON and her 25 child, SUZANNE BOLEN had enough of an understanding of the maltreatment and neglect of her mother by Defendants at the time it was occurring to have 26 contemporary sensory awareness that Defendants’ conduct was in fact 27 maltreatment and neglect and that it was causing PATSY NEWTON injury and to immediately suffer emotional distress therefrom. SUZANNE BOLEN 28 witnessed the suffering her mother endured from her conditions that resulted - 6! - PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR JUDGMENT ON THE PLEADINGS. from Defendants’ failure to provide care. Watching Defendants’ failures and 1 seeing first-hand the injuries they caused her mother proximately caused 2 SUZANNE BOLEN to suffer severe emotional distress. 3 While defendants attempt to say this case is tantamount to Bird, there the Court was considering 4 whether “Defendant was entitled to summary judgment” based on the evidence available. Here it 5 takes no expertise and no advance knowledge to perceive that someone is NEGLECTING your 6 loved one - that is - FAILING to provide care. Such is remarkably different than attempting to 7 provide care and doing it in a poor fashion or as defendants point out in their brief, “that the care 8 she was receiving was inadequate.” This is NOT a malpractice case, this is an elder neglect and 9 abuse case. It is entirely focused on the lack of care. This is why defendant’s distinctions and 10 analogies must fail and their motion should be denied. 11 III. CONCLUSION 12 For all the reasons stated above, plaintiff respectfully requests that defendant’s motion for 13 judgment on the pleadings be denied and that Suzanne Bolen be allowed to have her day in court. 14 Dated: Friday, May 21, 2021 The Law Firm of Sean R. Laird 15 _________ 16 Sean R. Laird 17 ________________________ 18 Sean R. Laird Attorney for Plaintiffs 19 20 21 22 23 24 25 26 27 28 - 7! - PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ENLOE MEDICAL CENTER’S MOTION FOR JUDGMENT ON THE PLEADINGS.