Personal Injury Lawyer Blog
(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 FACTS IN A COMPLAINT MUST BE ACCEPTED AS TRUE FOR PURPOSES OF RULING ON A DEMURRER
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 5 Cal.3d 584, 591. For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts property pleaded. Serrano v. Priest (1971) 5 Cal.3d 584, 591. No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.
THE PLAINTIFF HAS STATED FACTS SUFFICIENT TO PLEAD A CAUSE FOR ELDER ABUSE AGAINST DEFENDANT PAUL SMITH, M.D.
As the moving party succinctly points out in its Demurrer, a plaintiff must plead and prove by clear and convincing evidence reckless conduct in order to establish a claim for elder abuse and that the acts were ratified by an officer, director, or managing agent of a corporate defendant. As set forth herein, Plaintiffs have pled sufficient facts to present a prima facie case for elder abuse; however, Defendant is mistaken if it believes that Plaintiffs must also at this pleading stage prove the Elder Abuse claim against it. That is what discovery and trial are for. As to whether or not a jury will actually agree that the Defendant, Dr. Smith is guilty of Elder Abuse is not for this Court to determine at this time. (See Part 4 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.