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.)
Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendant’s Demurrer and Motion to Strike Portions of Plaintiff’s Third Amended Complaint
INTRODUCTION
Plaintiff John Allen (“Allen”), an incompetent adult, and Sacramento resident, by and through his conservator, Darrell Allen, requests that the Court issue an order overruling Defendant XYZ Medical Center’s (“Defendant”) demurrer and motion to strike portions of Allen’s third amended complaint. Allen has properly alleged causes of action for Defendant’s violation of the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”), intentional infliction of emotional distress, and violation of Cal. Welf & Inst. Code § 15656. Additionally, Allen may also seek treble damages as set forth in Cal. Civ. Code §3345 as a result of Defendant’s neglectful and abusive conduct. Alternatively, Allen requests that the court grant him leave to amend if the court finds that he has not properly alleged the causes of action contained in his complaint.
DISCUSSION
THE COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CAUSE OF ACTION FOR VIOLATION OF THE EADACPA.
Allen has alleged sufficient facts to state a cause of action for violation of the EADACPA.
Defendant argues that Allen has failed to allege with particularity the facts necessary to state a claim for Defendant’s violation of the EADACPA. Defendant cites Lopez v. Southern Rapid Transit Dist. (1985) 40 Cal. 3d 780, 795, 221 Cal. Rptr. 840, and Covenant Care v. Superior Court (2004) 32 Cal. 4th 771, 790, 11 Cal. Rptr. 3d 222, for the general rule that statutory causes of action must be alleged with particularity. For the reasons set forth below, defendant’s reliance on Lopez and Covenant Care is misplaced. (See Part 2 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.