The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)
APPLICABLE LAW
C.C.P. § 430.10 sets forth the grounds for demurrer:
The party against whom a complaint … has been filed may object, by demurrer … to the pleading on any one or more of the following grounds…
(d) There is a defect or misjoinder of parties.
(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The Pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
C.C.P. §§ 435-436 permits the court to strike improper matters contained in the complaint. Section 435 and reads in part as follows:
(b)(1) Any party within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof…
Section 436 provides in part:
The court may, upon a motion made pursuant to Section 435…
(a) Strike out any irrelevant, false or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn …in conformity with the laws of this state, a court, or an order of the court.
PLAINTIFF HAS FAILED TO PROPERLY PLEAD A CLAIM UNDER THE DEPENDENT ADULT STATUTES
Plaintiff has failed to plead, with the required particularity, reckless and egregious abuse on the part of a XYZ Hospital employee, and has also failed to plead with particularity the kind of wrongful conduct on the part of an officer, director or managing agent that is necessary to state a cause of action against the Hospital under Welfare and Institutions Code § 15657.
THE DEPENDENT ADULT STATUTES ARE INTENTED TO APPLY TO ESPECIALLY EGREGIOUS ABUSE
The elder/dependent adult abuse statutes provide enhanced remedies for what the Supreme Court has described as gross mistreatment, especially egregious elder abuse, and egregious acts of misconduct:
The purpose of the [Act was] essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. (Delaney, supra, 20 Cal.4th at p. 33.) To this end, the Legislature added to the Act heightened civil remedies for egregious elder abuse. Covenant Care v. Superior Court (2004) 32 Cal. 4th 771, 779, 784, 787. (See Part 3 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.