(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
THE COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CLAIM FOR DAMAGES UNDER CAL. CIV. CODE §3345.
Defendant argues that Allen cannot recover under Cal. Civ. Code §3345 because there are no fines or penalties to be trebled in this case. This argument is without merit. Allen is seeking the statutory penalties against defendants XYZ Medical Center under Cal. Welf. & Inst. Code §15630(h), which provides for a fine of $1,000 for the failure to report the abuse of an elder or dependent adult, and a fine of up to $5,000 if the failure to report the abuse was willful. Allen is also seeking punitive damages against defendants Paul Smith and Generic Nursing, Inc. Punitive may be trebled pursuant to Cal. Civ. Code §3345. Therefore, there is a proper basis upon which treble damages may be awarded in this action, and the court should overrule defendant’s motion to strike Allen’s claim for treble damages.
IF THE COURT FINDS THAT ALLEN HAS NOT STATED SUFFICIENT FACTS TO SUPPORT HIS CAUSES OF ACTION, ALLEN REQUESTS LEAVE TO AMEND HIS COMPLAINT.
The Cal. Code of Civ. Proc. §472a(c) provides that: When a demurrer is sustained, the court may grant leave to amend the pleading upon any terns as may be just and shall fix the time within the amendment or amended pleading shall be filed.
Leave to amend should be granted where there is any reasonable possibility that the defect can be cured by amendment. Stevens v. Superior Court (1999) 75 Cal. App. 4th 594, 601, 89 Cal. Rptr. 2d 370.
Here, Allen requests leave to amend the complaint if Defendant’s demurrer is sustained.
For the reasons set forth above, Defendant’s demurrer and motion to strike should be overruled. Alternatively, Allen requests leave to amend if the court finds that he has not sufficiently alleged his causes of action.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.