Filed 8/24/26 Deaver v. Babujyan Health Care CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MARIA DEL SOCORRO GONZALEZ
DEAVER, Individually and as Successor in F090049
Interest, etc.,
(Super. Ct. No. 23CECG02642)
Plaintiff and Appellant,
v. OPINION
BABUJYAN HEALTH CARE, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. Lisa M.
Gamoian, Judge.
Law Office of Jeremy M. Dobbins and Jeremy M. Dobbins for Plaintiff and
Appellant.
Lewis Brisbois Bisgaard & Smith, Tracy D. Forbath, Daniel R. Velladao, and
Reuben B. Jacobson for Defendant and Respondent Babujyan Health Care, Inc.
Riley Safer Holmes & Cancila, Kathleen A. Stimeling, Jennifer Steeve, and
Joshua Roquemore for Defendant and Respondent Vanik & Arsen LLC.
-ooOoo-
Plaintiff and appellant Maria Del Socorro Gonzalez Deaver, acting as successor in
interest to her deceased husband’s estate, appeals from the judgment entered in favor of
defendants and respondents Babujyan Health Care, Inc., doing business as Beacon of
Hope Care Facility (Beacon of Hope), and Vanik & Arsen LLC, doing business as Grand
Villa Congregate Living Health Facility (Grand Villa).
In her third amended complaint, plaintiff alleged multiple causes of action against
Beacon of Hope and Grand Villa based on the treatment and care provided to decedent
James Deaver, Jr., including a violation of the Americans with Disabilities Act of 1990
(ADA) (42 U.S.C. § 12101 et seq.) (first cause of action), violation of the California
Disabled Persons Act (DPA) (Civ. Code, § 54) (second cause of action), violation of the
Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51) (third cause of action), violation of
the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) (Welf. &
Inst. Code, § 15600 et seq.) (fourth cause of action), loss of consortium (fifth cause of
action), and negligence per se (sixth cause of action).
The trial court ruled plaintiff failed to allege facts sufficient to state a cause of
action as to all six claims and sustained defendants’ demurrers to plaintiff’s third
amended complaint without leave to amend.
For the reasons set forth below, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We accept as true the material allegations of plaintiff’s complaint because this
case comes to us after entry of a judgment based on the sustaining of demurrers. (Alcorn
v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.)
2.
Background1
Plaintiff is the former wife and successor in interest to decedent, who died in
March 2022. In November 2015, decedent suffered a heart attack and an anoxic brain
injury rendering him a quadriplegic, physically disabled, and dependent on a ventilator,
tracheostomy tube, and feeding tube. Decedent was reliant on others for basic care from
November 2015 to March 2022.
Defendant Beacon of Hope is a corporation and skilled nursing care facility where
decedent resided from December 2017 to October 2021. During the time decedent
resided there, Beacon of Hope allegedly committed acts of neglect and abuse in caring
for him. This included the failure to provide adequate hygiene, staffing, speech therapy,
devices, updated information, mismanagement of a pain medication pump, and failure to
follow medical orders and a nursing care plan.
Specific examples of Beacon of Hope’s acts of neglect and abuse are as follows.
In approximately June 2020, plaintiff was told by a doctor that decedent was developing
a “bed sore” and that his hygiene was poorly managed by Beacon of Hope. Then, about
three different times in 2020, staff at Beacon of Hope injured decedent’s gallbladder by
pushing his feeding tube in too hard. When plaintiff asked staff about this error, they told
her decedent pulled out the tube.
Decedent needed an intrathecal baclofen pump2 for muscle spasms and rigidity.
The baclofen pump was implanted between his spinal cord and the surrounding
membranes and delivered pain medication. In approximately May 2020, the baclofen
pump stopped working. Staff was alerted that it needed a refill, however, the baclofen
pump was not refilled for two weeks, causing decedent pain. Decedent was prescribed a
1 While there were several different amended versions of the complaint, we only
set forth the material allegations relative to the third amended complaint, which is the
operative pleading in this case.
2 Hereafter referred to as baclofen pump or pain management pump.
3.
Dynavox device that allowed his eyes to spell words and speak for him. Beacon of Hope
could not find a speech therapist to assist him in using it, and, in approximately May or
June 2020, Beacon of Hope lost decedent’s Dynavox device.
After a hospital stay, decedent was transferred to defendant Grand Villa, another
skilled nursing care facility where decedent resided from approximately December 2021
until the time of his death. Grand Villa allegedly committed acts of neglect and abuse
during the approximately three months decedent resided there. Grand Villa also failed to
follow medical orders and a nursing care plan. Decedent was not turned or bathed
properly, provided speech therapy or his Dynavox device. Grand Villa mismanaged
decedent’s baclofen pump, causing decedent to suffer in pain without a refill.
During a doctor visit soon after his transfer to Grand Villa, the doctor noticed a
“horrible skin condition” on decedent’s body. The skin condition was later diagnosed as
dermatitis and scabies due to “prolonged non-bathing and lack of cleaning of the body.”
Decedent had a stage IV bedsore on his back, buttocks, and hips because Grand Villa was
not properly turning him. While decedent had “wound vacs” placed at the hospital, they
were discontinued when decedent returned to Grand Villa without a valid reason.
Defendants allowed decedent to have open sores and bleeding on his toes.
Defendants failed to follow medical orders and a nursing plan which included turning,
bathing, and checking decedent’s skin. They refused to hire a registered nurse to manage
decedent’s wounds, knowingly halting the healing process. Defendants should have
requested decedent to be transferred to a higher level of care.
In March 2022, decedent died at the hospital. An autopsy on April 3, 2022,
alerted plaintiff to negligence.
Plaintiff Files a Complaint
On June 30, 2023, plaintiff filed a complaint for damages and other relief against
defendants based on their allegedly improper treatment and care of decedent. Plaintiff
asserted multiple counts, including violations of the ADA, the DPA, the Unruh Act, the
4.
Elder Abuse Act, and a loss of consortium claim. Thereafter, plaintiff voluntarily filed a
first amended complaint. Plaintiff reasserted the first five causes of action and added a
claim for negligence per se.
Demurrers were filed on behalf of both defendants. Grand Villa filed a motion to
strike. The trial court sustained defendants’ demurrers and granted plaintiff leave to
amend.
The Second Amended Complaint
Plaintiff filed a second amended complaint reasserting causes of action based on
violations of the ADA, the DPA, the Unruh Act, the Elder Abuse Act, loss of consortium,
and negligence per se. Plaintiff expanded her allegations to include greater detail about
the deficiencies in decedent’s treatment and care at Beacon of Hope and Grand Villa and
added new allegations regarding “intentional” (boldface omitted) mismanagement to
support her elder abuse claim.
After both defendants filed demurrers and motions to strike, the trial court
sustained defendants’ demurrers to plaintiff’s second amended complaint with leave to
amend.
The Third Amended Complaint
After the filing deadline, plaintiff’s counsel requested an extension of time to file
the third amended complaint. The trial court originally denied the request, however, after
the case was reassigned, plaintiff filed another request to allow untimely filing. A new
judge granted plaintiff’s request. The third amended complaint was based on the same
six causes of action as the previous complaints.
In the first and second causes of action for violation of the ADA and DPA,
plaintiff alleged acts of intentional discrimination. The operative complaint alleged as
“places of public [a]ccommodation,” defendants were required to provide access to
reasonable accommodation. Both defendants discriminated against decedent by
purposefully denying him access to speech therapy and a Dynavox device, denying
5.
decedent of his only method of communication and access to the business itself. Out of
all the residents at Beacon of Hope, decedent was the only resident intentionally deprived
of being able to communicate. Grand Villa purposely hid the Dynavox device from
decedent, denying him access to communication. Defendants failed to accommodate
decedent by withholding speech therapy, nutrition, hygiene, and his Dynavox device.
As to the third cause of action for violation of the Unruh Act, plaintiff
incorporated the allegations in the first two causes of action. Plaintiff relied on the
allegations purporting to show defendants’ conduct violated the ADA, which plaintiff
alleged also constituted a violation of the Unruh Act.
The fourth cause of action for violation of the Elder Abuse Act added acts of
abuse and neglect. Specifically, the operative complaint alleged defendants mismanaged
decedent’s baclofen pump; “caused unintended use of a ventilator” (boldface omitted),
which made decedent acquire pneumonia; was noncompliant with doctor’s orders and
nursing care plan to assess decedent’s skin; and failed to bathe and turn decedent to avoid
pressure ulcers. Beacon of Hope left decedent to sit in his excrement and urine at least 15
times. As to Grand Villa, decedent was left to sit in his excrement and urine at least five
times.
The fifth cause of action for loss of consortium alleged that plaintiff suffered the
loss of love, companionship, comfort, care, assistance, protection, affection, society,
moral support, and the enjoyment of sexual relation.
The sixth cause of action for negligence per se alleged defendants were negligent
per se due to defendants’ violations of the ADA, DPA, and Unruh Act. Both the fifth and
sixth causes of action incorporated all prior allegations without adding any new
allegations.
In the prayer for relief, plaintiff sought general, special and punitive damages.
6.
Defendants’ Demurrer and the Trial Court’s Ruling
Defendants demurred and moved to strike the third amended complaint.
Defendants argued the allegations were insufficient to show they discriminated against
decedent because of his disability. Defendants also argued the facts failed to show
recklessness, oppression, fraud, malice or corporate ratification under the Elder Abuse
Act. Beacon of Hope further argued plaintiff’s negligence per se and loss of consortium
claims were barred by the statute of limitations, and they also failed because they are
dependent on plaintiff’s separate claims under the ADA, DPA, and Unruh Act.
Plaintiff’s opposition to the demurrers contended the facts alleged were sufficient
to demonstrate decedent was denied access to public accommodation because of his
disability and argued she alleged sufficient facts to support intentional discrimination.
Plaintiff also argued she pleaded reckless conduct with particularity to support a violation
of the Elder Abuse Act.
The trial court issued a tentative ruling sustaining defendants’ demurrers to all
causes of action without leave to amend. As to the first through third causes of action for
violations of the ADA, DPA, and Unruh Act the court explained that the third amended
complaint “alleges intentional acts on the part of defendants to deprive decedent of access
to the Dynavox [device] and speech therapy and failing to follow doctors’ orders in the
care of decedent, however … no allegations … suggest these acts were performed
because of decedent’s disability.” The court further found that plaintiff failed to allege
“new facts to support that the denial of services alleged was on the basis of decedent’s
disability.” The court reasoned that acts of intentional discrimination do not need to be
alleged to show a denial of treatment based on disability in violation of the ADA and
Unruh Act, however, plaintiff still “must sufficiently allege that the denial of services is
on the basis of disability ….” The court concluded that while the denial of care,
medications, speech therapy, and the Dynavox device “may support a claim for
7.
professional negligence, they are insufficient to state a claim for disability
discrimination.”
The trial court then addressed the fourth cause of action for elder abuse. The court
determined that “there are no allegations as to what conduct rendered the failure to
provide the described care as ‘reckless’ rather than mere negligence.” The court also
added that there were no allegations to support the finding the “corporate defendants
were aware of or ratified such conduct.” The court also found insufficient support for
plaintiff’s loss of consortium and negligence per se causes of action given the inadequacy
of the first four causes of action and prayer for damages. Finally, the court concluded the
“motions to strike punitive damages are moot in light of the court’s ruling on the
demurrer.”3
The trial court denied leave to amend as to all six causes of action because
plaintiff failed to demonstrate that there are additional facts that could be pled to support
them.
At the hearing on defendants’ demurrers, plaintiff argued there were sufficient
facts to show disability discrimination and argued intent need not be shown. Plaintiff
also maintained the facts regarding mismanagement of the baclofen pump amounted to
“torture” and a violation of the Elder Abuse Act. Grand Villa stated the court’s tentative
ruling appropriately “directs the question to whether … this occurred because of the
disability.” Plaintiff did not address how her allegations satisfied that element of
causation. The court stated: “[i]t appears … that plaintiff is attempting to package a
professional negligence claim into a discrimination … or an elder abuse claim.”
The trial court adopted its tentative ruling as its final ruling and provided no
further opportunity to amend. The court dismissed both actions with prejudice.
3 The trial court did not consider the statute of limitations defenses considering
“[t]he lack of sufficient [sic] of factual allegations outlined above.”
8.
DISCUSSION
I. Ruling on a Demurrer - The Standard of Review
A demurrer tests the sufficiency of the pleading under attack as a matter of law.
(First Aid Services of San Diego, Inc. v. California Employment Development Dept.
(2005) 133 Cal.App.4th 1470, 1476.) We independently review the trial court’s ruling on
a demurrer and determine de novo whether the facts as pleaded in the complaint state a
cause of action under any legal theory. (Medina v. Hillshore Partners (1995) 40
Cal.App.4th 477, 481.) “Reading the complaint as a whole and giving it a reasonable
interpretation, we treat all material facts properly pleaded as true. [Citation.] The
plaintiff has the burden of showing that the facts pleaded are sufficient to establish every
element of the cause of action and overcoming all of the legal grounds on which the trial
court sustained the demurrer, and if the defendant negates any essential element, we will
affirm the order sustaining the demurrer as to the cause of action.” (Martin v. Bridgeport
Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.)
We will affirm “[a] judgment of dismissal entered after the trial court has
sustained a demurrer without leave to amend … if any of the grounds stated in the
demurrer is well taken.” (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d
497, 504, fn. omitted, italics added; see Black v. Department of Mental Health (2000) 83
Cal.App.4th 739, 745 [a reviewing court will affirm an order sustaining a demurrer if it is
correct on any applicable theory].) However, a reviewing court will not assume the truth
of contentions, deductions or conclusions of fact or law, and will disregard allegations
that conflict with the law or to a fact of which judicial notice may be taken. (Cochran v.
Cochran (1997) 56 Cal.App.4th 1115, 1120.)
When a demurrer is sustained without leave to amend, as here, “we decide
whether there is a reasonable possibility that the defect can be cured by amendment: if it
can be, the trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The
9.
burden of proving such a reasonable possibility is on the plaintiff. (Ibid.) A plaintiff
making a showing of reasonable possibility of amendment can make the showing for the
first time on appeal. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th
39, 43.) To make such a showing, the plaintiff must specifically state the legal authority
and factual allegations that sufficiently state all required elements of the cause of action.
(Ibid.) “The right to amend is properly denied when it is obvious that [the] plaintiff is
seeking the legally impossible.” (Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 303.)
II. The Sufficiency of Plaintiff’s Allegations on the First, Second, and Third
Causes of Action for Violation of the ADA, DPA, and Unruh Act
Plaintiff contends the trial court should have overruled defendants’ demurrers on
the first, second, and third causes of action alleging violations of the ADA, DPA, and
Unruh Act. Plaintiff argues the court erred because neither a violation of the ADA, DPA
nor Unruh Act require intentional discrimination.
Defendants respond that their demurrers were properly sustained because the
element of causation was missing in the pleaded facts—i.e., there were no allegations in
the operative complaint that established decedent was denied access to devices or
business services because he was disabled. Defendants also contend that because
plaintiff failed to plead facts to support a valid ADA claim, and because there were no
facts showing intentional discrimination on the basis of disability, plaintiff’s DPA and
Unruh Act causes of action necessarily fail. Defendants have the better argument.
A. Americans with Disabilities Act
“Congress enacted the ADA in 1990 to remedy widespread discrimination against
disabled individuals.” (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 674; see 42
U.S.C. § 12182.) The general purpose of the ADA is “to provide clear, strong,
consistent, enforceable standards addressing discrimination against individuals with
disabilities.” (42 U.S.C.A. § 12101(b)(2).) Title III of the ADA prohibits discrimination
“on the basis of disability in the full and equal enjoyment of the goods, services,
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facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a place of
public accommodation.” (42 U.S.C. § 12182(a).)
Discrimination is defined as “a failure to make reasonable modifications in
policies, practices, or procedures, when such modifications are necessary to afford such
goods, services, facilities, privileges, advantages, or accommodations to individuals with
disabilities, unless the entity can demonstrate that making such modifications would
fundamentally alter the nature of such goods, services, facilities, privileges, advantages,
or accommodations.” (42 U.S.C. § 12182(b)(2)(A)(ii).) Discrimination includes “a
failure to take such steps as may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or otherwise treated differently than
other individuals because of the absence of auxiliary aids and services, unless the entity
can demonstrate that taking such steps would fundamentally alter the nature of the good,
service, facility, privilege, advantage, or accommodation being offered or would result in
an undue burden.” (Id., § 12182(b)(2)(A)(iii).) The Department of Justice regulations
require that “[a] public accommodation shall furnish appropriate auxiliary aids and
services where necessary to ensure effective communication with individuals with
disabilities.” (28 C.F.R. § 36.303(c).)
In order to set forth a prima facie case under title III of the ADA, a plaintiff must
prove that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a
private entity that owns, leases, or operates a place of public accommodation; and (3) the
plaintiff was denied full and equal treatment by the defendant because of his disability.
(Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730; Donald v. Cafe Royale,
Inc. (1990) 218 Cal.App.3d 168, 183; see 42 U.S.C. § 12182(a)–(b).) The “[p]laintiff
must additionally show that he was denied access under circumstances which give rise to
the inference that such denial was based solely on his disability.” (Org. for Advancement
11.
of Minorities v. Brick Oven Restaurant (S.D.Cal. 2005) 406 F.Supp.2d 1120, 1128–
1129.)
While aggrieved individuals may enforce the ADA (42 U.S.C. § 12188), monetary
damages are not recoverable under title III of the ADA, rather, only injunctive relief is
available. (Wander v. Kaus (9th Cir. 2002) 304 F.3d 856, 858.)
B. California Disabled Persons Act
Under the California DPA, “[i]ndividuals with disabilities or medical conditions
have the same right as the general public to the full and free use of the streets, highways,
sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and
physicians’ offices, public facilities, and other public places.” (Civ. Code, § 54, subd.
(a).) The DPA further provides, “[i]ndividuals with disabilities shall be entitled to full
and equal access, as other members of the general public, to accommodations … places
of public accommodation, amusement, or resort, and other places to which the general
public is invited ….” (Civ. Code, § 54.1, subd. (a)(1).) A violation under the ADA also
constitutes a violation of the DPA. (Civ. Code, §§ 54, subd. (c), 54.1, subd. (d) [a
violation of the ADA also constitutes a violation under this section]; accord, Jankey v.
Lee (2012) 55 Cal.4th 1038, 1044–1045.)
C. Unruh Civil Rights Act
California’s Unruh Civil Rights Act (Civ. Code, § 51) provides that “[a]ll persons
within the jurisdiction of this state are free and equal … no matter what their … disability
… are entitled to the full and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever.” (Civ. Code, § 51,
subd. (b).) The Unruh Act “ ‘substantially overlaps with and complements’ ” the DPA.
(Golden State Seafood, Inc. v. Schloss (2020) 53 Cal.App.5th 21, 35; see, e.g., Jankey v.
Lee, supra, 55 Cal.4th at p. 1044 [the Unruh Act and the DPA are two overlapping laws
that provide the primary sources of the state’s disability access protection].) Recovery
under the Unruh Act can be based on two different theories: (1) an ADA violation (Civ.
12.
Code, § 51, subd. (f)); or (2) denial of access to a business establishment due to
intentional discrimination (see Martinez v. San Diego County Credit Union (2020) 50
Cal.App.5th 1048, 1059). In the disability context, the Unruh Civil Rights Act “operates
virtually identically to the ADA.” (Molski v. M.J. Cable, Inc., supra, 481 F.3d at p. 731.)
D. Allegations of Intentional Conduct Do Not Need To Be Alleged To State a
Sufficient Claim Under the ADA, DPA, and Unruh Civil Rights Act
We first address plaintiff’s sole appellate contention as to the first three causes of
action. Plaintiff argues intentional misconduct need not be shown, rather, a plaintiff only
needs to show that he or she was “denied public accommodation due to [a] disability.”
Plaintiff argues the trial court erred when it “conflated” the causation requirement with an
intent element.
We agree that proof of intentional discrimination is not required to state a claim
under the ADA, DPA, or Unruh Act. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,
678 [proof of intentional discrimination is not required on behalf of a plaintiff who seeks
damages for civil rights discrimination claiming the denial of full and equal treatment
based on a disability in violation of the ADA and the Unruh Act]; Donald v. Cafe Royale,
Inc., supra, 218 Cal.App.3d at p. 180 [a showing of intent to discriminate is not required
under the DPA].)
The trial court recognized that while plaintiff alleged intentional acts by
defendants, the third amended complaint included no allegations to suggest these acts
were performed “because of decedent’s disability.” The court was not focused on
plaintiff’s failure to allege intentional acts. Rather, the court made clear the third
amended complaint failed to state a claim for the first three causes of action because the
crucial element of causation was missing. The court’s reasoning was sound. (See Molski
v. M.J. Cable, Inc., supra, 481 F.3d at p. 730; Org. for Advancement of Minorities v.
Brick Oven Restaurant, supra, 406 F.Supp.2d at p. 1128 [an ADA claim requires proof of
causation, i.e., the plaintiff “was denied full and equal treatment because of his
13.
disability”], accord, Mayberry v. Von Valtier (E.D.Mich. 1994) 843 F.Supp. 1160, 1166;
see also Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254,
264–265 [a cause of action under the DPA requires element of causation, i.e., a plaintiff
demonstrate that he or she was denied equal access].)
Plaintiff fails to argue or point us to any relevant law which shows how the
allegations in the third amended complaint satisfy the final causation element related to
an ADA claim that was the focus of the trial court’s order. While plaintiff recognizes
causation is an element to her ADA claim, she fails to expand on the claim, instead
focusing solely on intentional acts. Any claim regarding proof of causation addressing
the court’s order is thus forfeited. (Allen v. City of Sacramento (2015) 234 Cal.App.4th
41, 52 [“when legal argument with citation to authority is not furnished on a particular
point, we may treat the point as forfeited and pass it without consideration”]; see Siskiyou
Hospital, Inc. v. County of Siskiyou (2025) 109 Cal.App.5th 14, 39 [“it is well settled that
an appellate court is not bound to develop an appellant’s arguments for him or construct
theories or arguments that would undermine the judgment”]; Cal. Rules of Court, rule
8.204(a)(1)(B) [it is the responsibility of the moving party to “support each point by
argument and, if possible, by citation of authority”].)
For this reason alone, the trial court’s judgment should be affirmed. We
nonetheless choose to address the sufficiency of the allegations in the third amended
complaint to support the causes of action.
E. Plaintiff Fails To State a Claim Under the ADA
We turn to plaintiff’s ADA claim. Neither party disputes that decedent was
disabled within the meaning of the ADA and that Beacon of Hope and Grand Villa were
private entities that operate a place of public accommodation. (42 U.S.C. § 12181(7);
see, e.g., 42 U.S.C. § 12181(7)(A) [defining “public accommodations” as “private
entities” that “affect commerce”].) At issue here is the sufficiency of the allegations to
support the claim as to whether decedent was denied public accommodations, such as
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denial of a Dynavox device, speech therapy, and custodial care, including access to pain
medication and proper hygiene, by each defendant because he was disabled.
Turning to plaintiff’s allegations, she states decedent was denied the “good[s],
service[s], facilit[ies], privilege[s], advantage[s], or accommodation[s]” (42 U.S.C.A.
§ 12182(b)(2)(A)(iii)) at Beacon of Hope and Grand Villa because he was intentionally
denied a speech therapist and a Dynavox device for communication, while “[e]veryone
else” (boldface omitted) at the facility was given a way to communicate. Moreover,
plaintiff alleges that defendants failed to provide proper care, hygiene and pain
management for decedent, specifically noting he had a “severe skin condition” that went
untreated.
The allegations fail to show decedent was denied access to devices or services
under circumstances inferring such denial was based on his disability. (Molski v. M.J.
Cable, Inc., supra, 481 F.3d at p. 730.) There are no allegations stating that defendants
failed to provide proper care for decedent because he was disabled, or that other
individuals at the facility enjoyed speech therapy, auxiliary devices, and proper care,
hygiene, pain management, and medical treatment because they did not suffer from a
disability.
To the extent defendants failed to provide a speech therapist or the Dynavox
device so that decedent could communicate, plaintiff’s express allegations show the
denial of those services were not based on decedent’s disability. Rather, plaintiff alleges
that Beacon of Hope could not find a speech therapist to provide therapy to decedent.
Plaintiff further alleges Beacon of Hope lost the Dynavox device, and Grand Villa
“purposely hid” it. (Boldface omitted.) None of these facts allege that the lack of speech
therapy or failure to provide the Dynavox device was due to decedent’s disability, but
from other acts wholly unrelated.
Moreover, while plaintiff alleged speech therapy was a “guaranteed service”
(boldface omitted) at Beacon of Hope and Grand Villa, there are no specific facts alleged
15.
to support the conclusion that there was an absence of effective communication. (28
C.F.R. § 36.303(c)(1).) “ ‘[T]he auxiliary aid requirement is a flexible one.’ [Citation.]
So long as the public accommodation communicates effectively with customers, the
public accommodation can choose amongst various formats and methods of
communication.” (National Federation of the Blind v. Target Corp. (N.D.Cal. 2006) 452
F.Supp.2d 946, 956.) For example, the “requirement allows a public accommodation to
provide the information in any format, so long as it results in effective communication.”
(Ibid., italics added.) In the medical context, “the correct standard examines whether a
hospital’s failure to offer an appropriate auxiliary aid impaired a deaf patient’s ability to
exchange medically relevant information with hospital staff.” (Silva v. Baptist Health
South Florida, Inc. (11th Cir. 2017) 856 F.3d 824, 831.) Here, nothing was alleged that
demonstrated effective communication of medically relevant information was impaired.
The ADA does not provide a remedy for medical negligence alone. (Atayde v.
Napa State Hospital (E.D.Cal. 2017) 255 F.Supp.3d 978, 1003; see Simmons v. Navajo
County (9th Cir. 2010) 609 F.3d 1011, 1022 [“The ADA prohibits discrimination because
of disability, not inadequate treatment for disability”], overruled on other grounds by
Castro v. County of Los Angeles (9th Cir. 2016) 833 F.3d 1060.) Nonetheless, “ ‘courts
have distinguished between claims asserted under the ADA that allege that the medical
treatment that a plaintiff received or had access to was inadequate, versus claims alleging
that a plaintiff was discriminatorily precluded from access to medical treatment
altogether.’ ” (Atayde v. Napa State Hospital, at p. 1004.) In Hughes v. Colorado Dept.
of Corrections (D.Colo. 2009) 594 F.Supp.2d 1226, 1241, the plaintiff stated a
cognizable ADA claim by alleging the defendants “completely denied him access to
medical treatment for his mental disability.” The Hughes court found that the facts
alleged by the plaintiff inferred “discriminatory denial of access to medical care” that
were generally available and offered by the defendants to others. (Hughes, at p. 1241.)
16.
Here, there are no facts raising an inference that decedent was discriminatorily
precluded from access to defendants’ services, care, or treatment. Plaintiff’s allegations
amount to the failure to provide proper care. While plaintiff makes conclusory
allegations of purported discrimination, there is no reasonable indication that defendants’
conduct was undertaken to discriminate against decedent due to his disability. We ignore
a complaint’s “ ‘ “contentions, deductions or conclusions of fact or law.” ’ ” (Adelman v.
Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 352, 359.)
Plaintiff’s complaint failed to state facts sufficient to constitute a cause of action
under the ADA.
F. Plaintiff Fails To State a Claim Under the DPA and Unruh Act
Plaintiff contends she has stated a cause of action under the DPA and Unruh Act,
which rest on purported violations of the ADA. Plaintiff does not argue on appeal that
she alleged facts to state a cause of action for intentional discrimination, rather, she
claims that any violation of the ADA is per se a violation of the DPA and Unruh Act.
Defendants argue plaintiff’s DPA and Unruh Act claims fail because they rely on
a violation of the ADA, and plaintiff cannot state such a violation occurred because the
facts are insufficient to show the actions were caused by decedent’s disability.
Defendants further contend the demurrers were properly sustained because facts were
insufficient to show intentional discrimination and there are no facts showing decedent
was denied physical access to a public place. We agree.
The DPA and Unruh Act incorporate ADA violations and make them a basis for
relief under the ADA. (Civ. Code, §§ 54, subd. (c), 54.1, subd. (d); Wilson v. Murillo
(2008) 163 Cal.App.4th 1124, 1131 [“Like the [Unruh] Act, the Disabled Persons Act
incorporates the ADA”].) Because plaintiff failed to state a valid cause of action for
violation of the ADA, her claims under the DPA and Unruh Act cannot rest on
defendants’ alleged failure to comply with the ADA.
17.
1. Plaintiff Fails To State a Claim for Intentional Discrimination
There is no reasonable inference of intentional discrimination due to decedent’s
disability in the facts alleged in the third amended complaint. (See Koebke v. Bernardo
Heights Country Club (2005) 36 Cal.4th 824, 853 [to prove intentional discrimination,
there must be a showing more than disparate impact and “ ‘imply willful, affirmative
misconduct on the part of those who violate the [Unruh] Act’ ”].) Plaintiff argues that
she was not required to allege facts supporting intentional discrimination. Plaintiff’s
allegations were insufficient to state a cause of action, however, because, as set forth
above, the element of causation is missing.
2. Plaintiff Fails To Allege Decedent Was Denied Access to a Physical Place
Defendants further maintain plaintiff failed to state a claim under the DPA because
she did not allege they denied or interfered with decedent’s access to a physical location
or place.
The focus of the DPA is “physical access to public places ….” (Turner v.
Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1412; see Civ.
Code, § 54, subd. (a).) Plaintiff made no allegation that defendants denied decedent
access to their physical place of business. While plaintiff alleges decedent was denied
“access” of their facilities because he was denied access to certain devices or services, the
statute requires “full and equal access” to a physical location available to “other members
of the general public.” (Civ. Code, § 54.1, subd. (a); see Wilkins-Jones v. County of
Alameda (N.D.Cal. 2012) 859 F.Supp.2d 1039, 1054 [“ ‘[t]he DPA only guarantees
physical access to a facility’ ”].)
18.
III. The Sufficiency of Plaintiff’s Allegations on the Fourth Cause of Action for
Violation of the Elder Abuse and Dependent Adult Civil Protection Act4
Plaintiff contends the trial court erred in sustaining without leave to amend
defendants’ demurrer to the fourth cause of action based on acts of “abuse” and “neglect”
of decedent in violation of the Elder Abuse Act.5 (Welf. & Inst. Code, § 15600 et seq.)
According to plaintiff, she properly alleged a claim under the Elder Abuse Act based on
defendants’ “ ‘reckless’ ” failure to provide proper medical care and hygiene to decedent
for which she seeks remedies of punitive damages, attorney fees, and costs.
Defendants contend the allegations describe only negligent conduct. Moreover,
they argue that there were no facts alleging corporate conduct or ratification to recover
damages under the Elder Abuse Act.
A. The Elder Abuse Act
The Elder Abuse Act is codified in Welfare and Institutions Code section 15600 et
seq. The purpose of the act is “to protect a particularly vulnerable portion of the
population from gross mistreatment in the form of abuse and custodial neglect.”
(Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).)
“ ‘Abuse of an elder or dependent adult’ means any of the following: [¶]
(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with
4 The conduct set forth under the Elder Abuse and Dependent Adult Civil
Protection Act is generally referred to as “ ‘elder abuse,’ although the [Elder Abuse] Act
is designed to protect both elderly and nonelderly dependent adults.” (Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 529, fn. 10.)
5 There is a split of authority concerning whether the Elder Abuse Act provides
additional remedies for other causes of action or creates an independent cause of action.
(Compare Berkley v. Dowds, supra, 152 Cal.App.4th at p. 529 [the Elder Abuse Act
“does not create a cause of action as such, but provides for attorney fees, costs, and
punitive damages under certain conditions”] with Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 666 [the Elder Abuse Act creates an independent cause
of action].) We do not resolve the issue because even assuming the Elder Abuse Act
creates an independent cause of action, plaintiff’s allegations fail to state a claim against
defendants for abuse of an elder or dependent adult.
19.
resulting physical harm or pain or mental suffering[; or] [¶] (2) The deprivation by a
care custodian of goods or services that are necessary to avoid physical harm or mental
suffering[; or] [¶] (3) Financial abuse, as defined in [Welfare and Institutions Code]
Section 15610.030.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1)–(3); see id.,
§ 15610.27.) Neglect is defined under the Elder Abuse Act as “[t]he negligent failure of
any person having the care or custody of an elder or a dependent adult to exercise that
degree of care that a reasonable person in a like position would exercise.” (Id.,
§ 15610.57, subd. (a)(1).) “Neglect includes, but is not limited to, all of the following:
[¶] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or
shelter. [¶] (2) Failure to provide medical care for physical and mental health needs….
[¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent
malnutrition or dehydration.” (Id., § 15610.57, subd. (b).)
“In 1991, in order ‘to enable interested persons to engage attorneys to take up the
cause of abused elderly persons and dependent adults’ [citation], the Legislature added
Welfare and Institutions Code section 15657 to the Act. That section makes available, to
plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies
‘in addition to all other remedies otherwise provided by law’ [citation].” (Covenant
Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779 (Covenant Care).) These
heightened, additional civil remedies include damages for a decedent’s pain and
suffering, attorney fees and costs, and punitive damages to encourage reporting of abuse
and neglect. (Welf. & Inst. Code, § 15657; Covenant Care, at pp. 779–780.)
The heightened, additional civil remedies under the Elder Abuse Act are available
only if the requirements of Welfare and Institutions Code section 15657 are met. (Mack
v. Soung (2000) 80 Cal.App.4th 966, 972, disapproved of on another ground in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 163–164.) To recover these
additional statutory remedies, a plaintiff must plead and prove that the defendant is guilty
of something more than professional negligence. (Delaney, supra, 20 Cal.4th at pp. 31–
20.
32.) “Specifically, a plaintiff who proves ‘by clear and convincing evidence’ that a
defendant is liable for physical abuse, neglect, or financial abuse (as these terms are
defined in the Act), and that the defendant has been guilty of ‘recklessness, oppression,
fraud, or malice’ in the commission of such abuse, may recover attorney fees and costs.”
(Covenant Care, supra, 32 Cal.4th at p. 779, italics added; accord, Nevarrez v. San
Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 127–128;
Welf. & Inst. Code, § 15657.) To support the enhanced remedies under the Elder Abuse
Act, a plaintiff must allege conduct “ ‘essentially equivalent to conduct that would
support recovery of punitive damages.’ ”6 (Carter v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 405 (Carter).)
Recklessness does not refer to the substandard performance of medical services.
(See Covenant Care, supra, 32 Cal.4th at p. 783.) The court in Covenant Care confirmed
the high standard imposed by Welfare and Institutions Code section 15657, which shields
health care providers and facilities from liability under the statute “for acts of simple or
even gross negligence.” (Covenant Care, at p. 785.)
“ ‘Recklessness’ ” describes a “ ‘deliberate disregard’ of the ‘high degree of
probability’ that an injury will occur ….” (Delaney, supra, 20 Cal.4th at p. 31.)
“Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence,
unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious
choice of a course of action … with knowledge of the serious danger to others involved
in it.’ ” (Id. at pp. 31–32.) When an elder abuse claim is brought against a corporate
defendant, the plaintiff must further allege that an officer, director or managing agent
authorized or ratified the abuse or neglect. (Welf. & Inst. Code, § 15657, subd. (c); Civ.
Code, § 3294.)
6 A claim for punitive damages may be recovered “where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”
(Civ. Code, § 3294, subd. (a).)
21.
Adequate allegations of reckless neglect were shown through evidence adduced at
trial in Delaney, supra, 20 Cal.4th 23, where our high court found substantial evidence
supporting the jury’s finding that the defendant, a skilled nursing care facility, acted
recklessly in caring for the plaintiff’s mother after she fell and was unable to care for
herself. (Id. at pp. 27, 41.) During the approximately four months the plaintiff’s mother
resided at the facility, she had pressure ulcers and a stage IV bedsore; her tissue had been
eaten down to the bone. (Id. at p. 27.) The evidence showed that the plaintiff’s mother
was “frequently left lying in her own urine and feces for extended periods” due to “rapid
turnover of nursing staff, staffing shortages, and the inadequate training of employees.”
(Ibid.) The evidence also showed that the defendant did not timely transmit necessary
medical information to the plaintiff’s mother’s physician, in violation of medical
monitoring and recordkeeping regulations. (Ibid.) The neglect occurred despite the
plaintiff’s “persistent complaints” to staff, administration, and an ombudsman. (Ibid.)
The facility had previously been cited by the Department of Health Services, and, after
the death of the plaintiff’s mother, the facility was cited again for “inadequate care” that
created a “ ‘substantial probability that death or serious physical harm … would result’ to
nursing home residents ….” (Ibid.) The Supreme Court found: “[T]here is substantial
evidence that [the decedent] was subject to neglect in that [the defendant facility] failed,
over an extended period of time, to attend to her advanced bedsores, and otherwise
neglected her in such a way as to contribute to her pain and suffering and eventual death.
There is also substantial evidence … that the conduct was reckless, given [the defendant
facility’s] knowledge of [the decedent’s] deteriorating condition and [the daughter of the
decedent’s] repeated effort to intervene in her mother’s behalf.” (Id. at p. 41.)
The Second Appellate District further defined reckless conduct within the meaning
of the Elder Abuse Act. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81
(Sababin).) The Sababin court found that a reckless failure to provide medical care could
be inferred from a facility’s “significant pattern” of ignoring a patient care plan it knew
22.
required a certain type of daily skin care for a patient. (Id. at p. 90.) The withholding of
care occurs when a specific type of care is provided only at times, or when multiple types
of care are required and only some, but not others, is provided. (Ibid.) “In those cases,
the trier of fact must determine whether there is a significant pattern of withholding
portions or types of care. A significant pattern is one that involves repeated withholding
of care and leads to the conclusion that the pattern was the result of choice or deliberate
indifference.” (Ibid.)
Moreover, in Mack v. Soung, supra, 80 Cal.App.4th 966 the plaintiffs, the
decedent’s surviving children, brought an action against the decedent’s former physician
for violation of the Elder Abuse Act. (Mack, at p. 969.) The complaint alleged that
despite assurances by the facility to the plaintiffs that steps were being taken to prevent
their mother from getting bedsores, the decedent was left in a bedpan for 13 consecutive
hours, where she developed an untreatable bedsore. (Ibid.) The facility and doctor
concealed the existence of the bedsore, refused to permit the plaintiffs to inspect the
injury until much later, and affirmatively opposed the hospitalization of the decedent
during the next two months, informing the plaintiffs that care at the facility was
“ ‘appropriate.’ ” (Ibid.) As the decedent’s condition worsened the following month, the
physician “abandoned” the decedent as her physician and “refused to respond” to
repeated requests by the facility’s staff to allow the decedent to be transferred to the
hospital, and she soon after died. (Ibid.) The Mack court found the allegations alleged
sufficient facts to support an elder abuse claim: “We have no trouble concluding that a
doctor who conceals the existence of a serious bedsore on a … patient under his care,
opposes her hospitalization where circumstances indicate it is medically necessary, and
then abandons the patient in her dying hour of need commits neglect within the meaning
of the [Elder Abuse] Act.” (Id. at p. 973.)
23.
B. Plaintiff Fails To State a Claim Under the Elder Abuse Act
Plaintiff contends the allegations meet the requirements of Welfare and
Institutions Code section 15657 to support a cause of action for heightened remedies
under the Elder Abuse Act. We disagree.
In contrast to the facts in Delaney, Sababin, and Mack, plaintiff failed to allege
that defendants knew about decedent’s condition and thereafter failed to act. Rather,
plaintiff alleged that defendants failed to provide adequate medical care and thus,
decedent suffered injury. These allegations rise to the level of professional negligence,
not reckless neglect. (See, e.g., Carter, supra, 198 Cal.App.4th at p. 408; Simmons v.
Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 361 [a cause of action for
willful misconduct must be pled with specific facts to support the charge].)
We acknowledge allegations regarding the failure to provide an individual with
proper hygiene may be sufficiently egregious to constitute elder abuse (see Welf. & Inst.
Code, § 15610.57, subd. (b)(1), (2), (4) [neglect includes failure to assist with hygiene,
provide medical care or prevent dehydration].) However here, the allegations do not
demonstrate that either defendant consciously disregarded a probable risk of injury in
connection with failing to regularly bathe decedent or to discover the extent of his
hygiene or skin condition. (See Welf. & Inst. Code, § 15657.2 [elder abuse is distinct
from professional negligence of health care provider]; Delaney, supra, 20 Cal.4th at p. 35
[Elder Abuse Act applies “ ‘reckless[]’ ” conduct on behalf of a health care provider];
Sababin, supra, 144 Cal.App.4th at p. 88 [more than simple or gross negligence by health
care provider must be proven]; see also Carter, supra, 198 Cal.App.4th at p. 407.)
We further find there is no “significant pattern” that is sufficiently alleged by the
facts in the complaint. (Sababin, supra, 144 Cal.App.4th at p. 90.) The allegations
describe Beacon of Hope leaving decedent to sit in his excrement for “at least 15 times”
and plaintiff noticing excrement and urine on decedent’s body when he was under the
care of Grand Villa “at least 5 times.” (Boldface omitted.) The complaint alleged
24.
decedent’s skin condition was recognized by “Kaiser Dermatology physicians” who
noted the condition was a result of “lack of bathing” for “greater than a year.” (Boldface
omitted.) But without more specificity, in particular, that Beacon of Hope or Grand Villa
had knowledge of the information from Kaiser physicians and continued to provide
inadequate hygiene, the allegation that bathing was not regularly provided to decedent
does not state facts that if true would show a pattern of a conscious failure to avert likely
harm to decedent.7 In fact, the allegations show decedent was transferred to Kaiser to
examine his skin condition, which indicates a lack of reckless disregard and an
affirmative attempt to provide care.
The allegations were likewise inadequate as they failed to establish an “officer,
director or managing agent” of either Beacon of Hope or Grand Villa was aware of or
authorized any of the conduct in the complaint. (See Welf. & Inst. Code, § 15657, subd.
(c) [incorporating the standards set forth in Civ. Code, § 3294, which require that
wrongful conduct be ratified or authorized by an officer, director or managing agent for
the imposition of punitive damages against corporate defendant]; see also White v.
Ultramar, Inc. (1999) 21 Cal.4th 563, 566–567 [“the Legislature intended the term
‘managing agent’ to include only those corporate employees who exercise substantial
7 We note plaintiff alleges that decedent was not transferred to Grand Villa until
approximately December 21, 2021. On March 24, 2022, plaintiff alleges decedent died.
Plaintiff alleges decedent was not properly bathed for more than a year. Decedent was
only under the care of Grand Villa for about three months. Plaintiff’s allegations of
willful misconduct under the Elder Abuse Act by Beacon of Hope cannot form the basis
of liability against Grand Villa. (See Carter, supra, 198 Cal.App.4th at p. 410
[“[a]llegations of misconduct directed against one defendant, however, do not state a
cause of action against another defendant against whom the allegations of misconduct are
not directed”].)
25.
independent authority and judgment in their corporate decisionmaking so that their
decisions ultimately determine corporate policy”].)8
We find the facts of our case analogous to those in Carter, supra, 198 Cal.App.4th
396. There, the decedent was hospitalized three times. As to two of the hospitalizations,
there were either no allegations of harmful conduct or no allegations of causation. (Id. at
pp. 407–408.) Although it was alleged that the decedent suffered from pressure ulcers
which were falsely documented, there were no allegations as to how the defendant caused
the ulcers or any other of decedent’s injuries. (Id. at p. 408.) The third time decedent
was hospitalized, the plaintiffs alleged decedent died due to the defendant’s failure to
administer antibiotics needed to treat his pneumonia and did not have the proper size
endotracheal tube, despite “ ‘false records’ to the contrary.” (Ibid.) The Carter court
found that none of the allegations amounted to recklessness, rather, the plaintiffs merely
alleged a professional negligence claim. (Id. at pp. 408, 410.)
In line with the facts in Carter, there are no allegations here to demonstrate
defendants consciously neglected decedent’s needs. Although there may have been a
lack of hygiene and care that reflects defendants’ incompetency, as the trial court
rightfully found, there were no allegations that rise to the level of a deliberate disregard
or a conscious choice amounting to egregious conduct, as opposed to mere negligence.
Thus, “[i]n order to obtain the [Elder Abuse] Act’s heightened remedies, a plaintiff
must allege conduct essentially equivalent to conduct that would support recovery of
punitive damages.” (Covenant Care, supra, 32 Cal.4th at p. 789.) Plaintiff’s allegations
show negligence, either incompetent or inconsistent care, on behalf of decedent. The
8 For the first time in her reply, plaintiff acknowledges this flaw but argues that
she should be allowed further discovery to obtain the names of the corporate employee
who ratified the conduct. We need not address arguments raised for the first time in a
reply brief. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)
26.
allegations fail to show defendants acted recklessly. Therefore, the trial court properly
sustained the demurrers to the fourth cause of action.
IV. Plaintiff’s Remaining Claims
Plaintiff argues her remaining claims for loss of consortium and negligence per se
should “move forward” because she properly pled facts to state a claim for the first
through fourth causes of action. Defendants counter that because the demurrers to the
first through fourth causes of action were properly sustained by the trial court, we should
dismiss plaintiff’s remaining claims for loss of consortium and negligence per se.
Defendants further argue plaintiff’s remaining claims are barred by the statute of
limitations.
Plaintiff’s claims in the fifth and sixth causes of action are barred by the statute of
limitations. (See Code Civ. Proc., § 340.5 [the time for the commencement of a claim for
injury or death against a health care provider based upon such person’s alleged
professional negligence shall be one year after the plaintiff discovers the injury].)
Plaintiff alleged she was alerted to “actual negligence” on April 3, 2022. (Boldface
omitted.) Plaintiff’s initial complaint was filed on June 30, 2023. Pursuant to the one-
year statute of limitations, plaintiff’s complaint was untimely.
The trial court properly sustained defendants’ demurrer without leave to amend as
to plaintiff’s fifth and sixth causes of action.9
V. Conclusion
The third amended complaint failed to state a cause of action under any applicable
theory in all six causes of action. Plaintiff has not provided adequate legal authority or
factual allegations to satisfy her burden of showing that there is a reasonable possibility
9 As a final claim, plaintiff requests that we reverse the trial court’s order to
sustain her motion to strike punitive damages. The court denied those motions as moot.
In light of our conclusion that the demurrers were properly sustained without leave to
amend, we need not further address the issue.
27.
that the complaint can be amended to cure the defects. (See, e.g., Mohler v. County of
Santa Clara (2023) 92 Cal.App.5th 418, 428; see also City of Dinuba v. County of Tulare
(2007) 41 Cal.4th 859, 865 [where there is no reasonable possibility that the defect can be
cured by amendment, the demurrer is properly sustained without leave to amend].) We
therefore affirm the judgment.
DISPOSITION
The trial court’s judgment is affirmed. The parties shall bear their own costs.
(Cal. Rules of Court, rule 8.278(a)(5).)
DETJEN, Acting P. J.
WE CONCUR:
MEEHAN, J.
SNAUFFER, J.
28.