(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/personal injury case and its proceedings.)
THE MISINTERPRETATION OF THE COMPLAINT
Defendant argues that since there is insufficient pleading in Paragraphs 18-20 of the Complaint, the complaint must fail. This is the underpinning of the whole of the Demurrer and is wholly without merit. Defendant fails to cite Paragraph 17 of the Second Cause of Action which incorporates all of the facts plead in the first 16 Paragraphs. The argument is specious at best and justifies the court overruling the Demurrer without further consideration. The elements plead including the course of the care prior to death are provided in the earlier paragraphs.
Defendant bases the argument on Welfare and Institutions Code §§15657 and 15657.2 and ignore §15610 et seq. which define Elder Abuse itself. Plaintiff has met the pleading requirements of pleading Elder Abuse as defined by the code. Defendant is mixing an argument that the damages portion of the claim cannot be made on the facts pleaded, and further, defendant attempts to insert a requirement for pleading specificity as if there was a claim for punitive damages.
No such claim has been here made at this time as the interplay between C.C.P. §425.13 and the Elder Abuse statutes has not been litigated or established. Plaintiff fully expects to conduct the appropriate discovery and when sufficient data has been gathered move this court for leave to file an Amended Complaint setting forth claims for punitive damages against the appropriate defendants. (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.