(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)
Plaintiffs’ Memorandum of Points and Authorities in Opposition to Demurrer by All Defendants with Respect to the Brown Plaintiffs
INTRODUCTION
This is an action for elder abuse, fraud, wrongful death, unfair business practices and related causes of action against the corporate owners and managers of Universal Care’s Alzheimer’s and Dementia Care Division.
The Complaint states fifteen causes of action: Elder Abuse-Willful or Reckless Misconduct, Elder Abuse-Neglect, Treble Damages for Deceptive or Fraudulent Practices Against Elderly Persons, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligent Hiring, Screening, Retention, Fraud (Concealment), Unfair Business Practices, Disability Discrimination, and Breach of Contract. Plaintiffs seek compensatory damages, restitution, punitive damages, and treble damages.
As discussed below, plaintiffs concede that the Fourteenth and Fifteenth Causes of Action for Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing are subject to demurrer, and they ask leave to amend those causes of action. Plaintiffs also concede that David Brown, individually, has not stated a claim for Reckless or Intentional Infliction of Emotional Distress, and they ask leave to amend that cause of action. In all other respects, they argue that the demurrer should be overruled.
ARGUMENT
STANDARD GOVERNING DISPOSITION OF THIS DEMURRER.
The sole issue raised by a general demurrer is whether the facts as pled state a valid cause of action. (C.C.P. §430.10(e).) Even when, for argument’s sake, plaintiffs’ allegations seem unlikely or improbable, they must be accepted as true for demurrer purposes. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604) Moreover, the allegations must be liberally construed by the Court, even if some facts are not clearly or artfully stated; or are intermingled with extraneous or irrelevant matters. (Gressley v. Williams (1961) 193 Cal.App.2d 636) Conclusionary allegations will not be stricken where supported by other factual allegations. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.
C.C.P. §425.10 requires that a civil complaint contain a statement of the facts constituting the cause of action in ordinary and concise language. These facts are known as the ultimate facts, and only ultimate facts necessary to the statement of an actionable claim need be alleged in a complaint. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390. Moreover, in general, plaintiff may plead whatever version of facts, or whatever legal theory, would support recovery. If plaintiff is uncertain as to the facts or theory on which he can prevail, he may plead them in the alternative, or even inconsistently. Rader v. Stone (1986) 178 Cal.App.3d 10, 23. (See Part 2 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.