Tentative Ruling: Rita Abbott vs Elvira Moreno et al

Case Number

24CV06496

Case Type

Hearing Date / Time

Fri, 04/03/2026 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike; Motions to Compel; Motion for Trial Preference

Tentative Ruling

(1) For the reasons set forth herein, the motion of defendants 805 Angels, LLC, and Lydia Tully Coe to compel plaintiff’s further responses to set one form interrogatories is denied.

(2) For the reasons set forth herein, the motion of defendants 805 Angels, LLC, and Lydia Tully Coe to compel plaintiff’s further responses to set one request for admissions is denied.

(3) For the reasons stated herein, the demurrer of defendants 805 Angels, LLC, Lydia Tully Coe, Martin Coe, Emily Storz, and Elvira Moreno to plaintiff’s [first] amended complaint is overruled.

(4) For the reasons stated herein, the motion of defendants 805 Angels, LLC, Lydia Tully Coe, Martin Coe, Emily Storz, and Elvira Moreno to strike request for punitive damages is denied.

(5) For the reasons stated herein, plaintiff’s motion for preference is denied.

(6) Defendants 805 Angels, LLC, Lydia Tully Coe, Martin Coe, Emily Storz, and Elvira Moreno shall, on or before April 17, 2026, file and serve an answer to plaintiff’s first amended complaint. 

Background:

The first amended complaint (FAC) filed in this action by plaintiff Rita Abbott is the operative pleading. As alleged in the FAC:

Defendants Lydia Tully-Coe (L Coe) and Martin Coe (M Coe) (collectively, the Coes) are the owners, directors, and managing operators of defendant 805 Angels, LLC, dba Visiting Angels of Santa Barbara (Visiting Angels). (FAC, ¶¶ 4-5.) Defendant Emily Storz is its operations manager. (FAC, ¶ 6.) Defendant Elvira Moreno was employed by Visiting Angels and the Coes to provide in-home assistance for elderly adults in Santa Barbara, California. (FAC, ¶ 3.) On October 4, 2023, Visiting Angels, the Coes, and Storz commenced providing in-home assistance for plaintiff, who is 65 years of age or older, and assigned various assistants to attend to plaintiff’s needs. (FAC, ¶¶ 1 & 9.)

Plaintiff and her daughter, Susan Abbott (S Abbott), explicitly and repeatedly informed defendants that plaintiff was to have hands on assistance and be escorted to the bathroom, that plaintiff was to never be left alone when walking to bathroom, and that plaintiff was not to be allowed to get up on her own. (FAC, ¶ 10.) A walker was supplied and directed to be used at all times. (Ibid.) In addition, signage explicitly stating those requirements was placed at multiple spots in plaintiff’s home, and all assistants from Visiting Angels, the Coes, and Storz knew of the mandatory limitations on plaintiff’s movement which were required due to plaintiff’s significant disabilities and limitations. (Ibid. & exhibit A [exemplar of signage].)

On March 3, 2024, the Visiting Angels, the Coes, and Storz assigned defendant Elvira Moreno to attend to plaintiff’s needs. (FAC, ¶ 11.) Around 7:15 p.m. that day, while at her home with defendant Moreno as her attendant, plaintiff asked Moreno to get plaintiff’s bed ready for plaintiff to lay down. (Ibid.) Plaintiff was standing next to Moreno at the bedside when plaintiff said she had to use the bathroom. (Ibid.) Despite Moreno having full knowledge of plaintiff’s physical limitations and the explicitly mandated instructions to never allow plaintiff to get up or walk by herself, Moreno allowed plaintiff to rise unsupported and take steps alone. (Ibid.) As a direct result of Moreno disregarding the explicit mandates for plaintiff’s care, plaintiff’s right foot got stuck behind her left leg and plaintiff fell, and sustained severe injuries including an obvious fracture of her right femur. (Ibid.)

Moreno did not call for emergency services as also required by mandates associated with plaintiff’s care, and instead contacted her supervisor who called S Abbott. (FAC, ¶ 13.) S Abbott called Moreno at the house and had to insist that Moreno call 911 to get medical assistance for plaintiff. (Ibid.) Five minutes later, fireman and an ambulance arrived and took plaintiff to the hospital. (Ibid.)

On November 5, 2025, plaintiff filed their FAC against Moreno, Visiting Angels, the Coes (individually and dba Visiting Angels of Santa Barbara), Storz, defendant Carpas Care LLC, dba Visiting Angels of Santa Barbara, and defendant Laura Tunberg, alleging three causes of action: (1) negligence; (2) negligent hiring, supervision, training, or retention of unfit employee (against Visiting Angels only); and (3) elder abuse.

On November 18, Visiting Angels and L Coe filed a motion for an order (the FI Motion) compelling plaintiff to provide further responses to set one form interrogatories (the FI), and separately filed a motion for an order (the RFA Motion) compelling plaintiff to provide further responses to set one request for admissions (the RFA). Plaintiff has separately filed oppositions to the FI Motion and the RFA Motion.

On December 5, Visiting Angels, the Coes, Storz, and Moreno (collectively, the Visiting Angels Defendants) filed a motion labeled as a demurrer to a second amended complaint, and separately filed a motion to strike from the second amended complaint, plaintiff’s request for punitive damages. Plaintiff has separately filed oppositions to the demurrer and motion to strike.

On March 6, 2026, plaintiff filed a motion for an order granting plaintiff preference, and setting this matter for trial not more than 120 days from the date of that order. Plaintiff’s motion for preference is made under Code of Civil Procedure section 36, on the grounds that plaintiff is over the age of 70 and that plaintiff’s health is such that preference is necessary to prevent prejudice to plaintiff’s interest in this litigation. Visiting Angels and L Coe have filed an opposition to plaintiff’s motion for preference.

Analysis:

(1)       The FI Motion and RFA Motion

The FI Motion and RFA Motion are each supported by separate declarations of Visiting Angels and L Coe’s counsel, Carter R. Taylor (attorney Taylor). As the supporting Taylor declarations are identical or nearly identical, the court will refer to those declarations collectively.

Attorney Taylor’s declaration and the exhibits to that declaration, show that the Visiting Angel Defendants served the FI and RFA on plaintiff on July 8, 2025, and that plaintiff served verified written responses to the FI and RFA on September 16. (Taylor Decs., ¶¶ 2-4 & exhibits A-D.) Attorney Taylor states that on September 29, they sent a meet and confer letter to plaintiff’s counsel outlining purported deficiencies in plaintiff’s responses to the FI and RFA. (Taylor Decs., ¶ 4 & exhibit E.)

Attorney Taylor further states that on October 9, plaintiff served supplemental responses to the FI and RFA. (Taylor Decs., ¶ 5 & exhibits F-G.) On October 14, attorney Taylor sent a second meet and confer letter to plaintiff’s counsel outlining the same purported deficiencies in both the original and supplemental responses of plaintiff to the FI and RFA. (Taylor Decs., ¶ 5 & exhibit H.) Plaintiff’s counsel responded to that correspondence on October 15, but the parties were unable to reach an agreement. (Taylor Decs., ¶¶ 5-6 & exhibit I.)

Plaintiff’s opposition to the RFA Motion is supported by a declaration of plaintiff’s counsel, Michael P. Ring (attorney Ring), who states, among other things, that plaintiff is currently 89 years of age; that plaintiff’s responses to a set one request for production of documents included medical records indicating the current neurological conditions of plaintiff and which state that plaintiff is no longer competent to make decisions about her safety and security; and that on March 2, 2026, plaintiff served second supplemental responses to the RFA. (Ring Dec. [RFA Motion], ¶¶ 2-5.)

In support of plaintiff’s opposition to the FI Motion, attorney Ring also states that plaintiff served a second supplemental response to the FI on March 2, 2026, among other things. (Ring Dec. [FI Motion], ¶ 2.)

The RFA Motion:

Subject to exceptions which are not relevant here, “any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.” (Cal. Rules of Court, rule 3.1345(a), (b).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, rule. 3.1345(c).) For each request at issue, the separate statement must include all of the material described in California Rules of Court, rule 3.1345(c)(1) through (6).)

“A motion concerning... admission requests must identify the ... requests by set and number.” (Cal. Rules of Court, rule 3.1345(d).) Though the notice of the RFA Motion does not identify the admission requests by number, the memorandum submitted in support of that motion identifies RFA nos. 1, 2, 3, 7, 8, 9, 11, 13, 16, 19, 21, 22, 23, 24, and 25. (Memorandum at p. 2, l. 24 & p. 3, l. 8.) The separate statement submitted in support of the RFA Motion includes the text of RFA nos. 1, 2, 3, 7, 8, 9, 11, 19, 21, 22, 23, 24, and 25; the text of each response to those requests; the supplemental response of plaintiff to those requests where appropriate; and a statement of the reasons to compel a further response to those RFA. For these reasons, the separate statement complies with California Rules of Court, rule 3.1345, as to RFA nos. 1, 2, 3, 7, 8, 9, 11, 19, 21, 22, 23, 24, and 25.

The separate statement does not include the text of RFA nos. 13 or 16; the text of plaintiff’s responses or supplemental responses to those requests; or any statement of the factual and legal reasons for compelling further responses to those requests, among other matters. For these reasons, the separate statement fails to comply with California Rules of Court, rule 3.1345, as to RFA nos. 13 and 16, and is procedurally deficient.

Notwithstanding whether the court is “well within its discretion to deny” the RFA Motion on the grounds that the motion fails to comply with the requirements for a proper separate statement (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893), information appearing in the supporting separate statement shows that plaintiff’s responses to RFA nos. 1, 2, 3, and 11 include only objections on the grounds that those requests are “vague”, “ambiguous”, “overbroad”, and “compound”. (Sep. Stmt. at pp. 2-3 & 5-6.) Information appearing in the separate statement also shows that plaintiff did not serve a supplemental response to RFA nos. 1, 2, 3 or 11. (Ibid.)

The separate statement also shows that the responses of plaintiff to RFA nos. 7, 8, 9, 19, 21, 22, 23, 24, and 25 state “Unknown”. (Sep. Stmt. at pp. 4-8.) Plaintiff did not supplement their responses to RFA nos. 7, 8, 9, 19, 21, 22, 23, 24, or 25. (Ibid.)

Each response to requests for admission must “answer the substance of the requested admission, or set forth an objection to the particular request.” (Code Civ. Proc., § 2033.210, subd. (b).)

“Each answer shall:

“(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

“(2) Deny so much of the matter involved in the request as is untrue.

“(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.” (Code Civ. Proc., § 2033.220, subd. (b)(1)-(3).)

“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” (Code Civ. Proc., § 2033.220, subd. (c).) “If only a part of a request for admission is objectionable, the remainder of the request shall be answered.” (Code Civ. Proc., § 2033.230, subd. (a).)

To the extent the “Unknown” responses of plaintiff to RFA nos. 7, 8, 9, 19, 21, 22, 23, 24, or 25 effectively constitute a denial of those requests based on a lack of information or belief, those responses fail to fully comply with the requirements of Code of Civil Procedure section 2033.220, subdivision (c). (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 782, fn. 22.) Furthermore, the inclusion of only objections in plaintiff’s responses to RFA nos. 1, 2, 3, and 11, without any substantive answer, suggests that plaintiff’s responses are not “as complete and straightforward as the information reasonably available to [plaintiff] permits.” (Code Civ. Proc., § 2033.220, subd. (a); Katayama v. Continental Investment Group (2024) 105 Cal.App.5th 898, 908–910 [discussing the appropriate analysis where objections are made to admission requests].) It is also unclear from plaintiff’s responses, whether plaintiff is unable to admit all or only part of each request.

Generally, the party responding to an admission request bears the burden to justify any objection to that request. (Lieb v. Superior Court In and For Orange County (1962) 199 Cal.App.2d 364, 368–369 [general discussion].) Though the information and evidence submitted by plaintiff in support of their opposition to the RFA Motion indicates that plaintiff has a neurological disorder and cognitive decline which prevents plaintiff from recalling relevant events, that opposition advances no reasoned argument explaining why plaintiff’s condition justifies any objection to the RFA at issue, or furnishes an excuse from compliance with code requirements governing discovery.

Court records also reflect that on November 22, 2024, the court entered an order appointing S Abbott as the guardian ad litem of plaintiff, with authorization to waive or disclaim any of plaintiff’s substantive rights. (Nov. 22, 2024, Order Appointing GAL, ¶¶ 6-7.) Though it can be inferred from the FAC and information presented in plaintiff’s opposition to the RFA Motion, that S Abbott was not present when the incident at issue in these proceedings occurred, the appointment of a guardian ad litem does not operate as a “broad exemption from discovery obligations....” (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1500 (Regency Health).)

Furthermore, “when the real party in interest is represented by a guardian ad litem, the guardian ad litem—as a substitute for the real party—is included within the term ‘party.’ This construction would continue the status quo, with guardians continuing to represent their wards in all matters necessary to the litigation, with applications for appointment of guardians ad litem continuing to be handled routinely in the established fashion, and with the opposing parties (usually, but not always, defendants) continuing to obtain discovery in the normal manner.” (Regency Health, supra, 64 Cal.App.4th at pp. 1500–1501.) Considering that plaintiff is represented by S Abbott in these proceedings, and that defendants may continue to obtain discovery in the normal manner, the opposition also fails to explain, with reasoned argument, why plaintiff is exempt from complying with code requirements governing discovery.

Though the responses of plaintiff to the RFA at issue fail to comply with code requirements for all reasons discussed above, plaintiff has, as noted above, served second supplemental responses to the RFA. (See also Opp. at p. 2, ll. 5-8.) In reply, the Visiting Angels Defendants contend that those second supplemental responses fail to cure the prior deficiencies as to each RFA at issue.

Where a responding party provides discovery requested in a motion to compel and the moving party proceeds with the motion, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) The court may take the motion off-calendar, deny the motion as moot or unnecessary, or narrow its scope to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a) [sanctions may be imposed “even though … the requested discovery was provided … after the motion was filed”].)

The caption of the RFA Motion states a request for monetary sanctions against plaintiff or her counsel. “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.) The notice of the RFA Motion does not identify the person or attorney against whom any monetary sanctions are sought. The supporting memorandum and Taylor declaration also fail to set forth any facts supporting the amount of any monetary sanctions requested by the Visiting Angels Defendants. For these reasons, to the extent the RFA Motion includes a request for an award of sanctions, that request is procedurally deficient.

Under the circumstances present here and for all reasons discussed above, the court will deny the RFA Motion as moot, without prejudice to any motion to compel plaintiff’s further responses to the RFA at issue that may be filed by defendants in the future, if appropriate. The court expects the parties to fully meet and confer in good faith to informally resolve any remaining disputes.

The FI Motion:

The separate statement and memorandum filed by defendants in support of the FI Motion identify FI nos. 2.7, 4.1, 4.2, and 17.1. Plaintiff’s opposition to the FI Motion also shows, without dispute, that plaintiff served second supplemental responses to the FI. (See also Opp. at p. 2, ll. 8-11.)

Though the FI Motion also includes an ostensible request for an award of monetary sanctions, the notice of that motion fails to identify the person or attorney against whom any monetary sanctions are sought by plaintiff, and the supporting memorandum fails to set forth facts supporting the amount of monetary sanctions requested by plaintiff. For the same reasons further discussed above, to the extent the FI Motion includes a request for an award of sanctions, that request is also procedurally deficient.

The same analysis and reasoning apply. For the same reasons discussed above, the court will deny the FI Motion as moot, without prejudice to any motion to compel plaintiff’s further responses to the FI that may be filed by defendants in the future, if appropriate, provided the parties fully meet and confer in good faith to informally resolve any remaining disputes.

(2)       Demurrer

As a threshold matter, though the demurrer appears to be directed to a second amended complaint, the court has no record showing that plaintiff has filed a second amended complaint in this action. In addition, the demurrer, including its supporting memorandum, cites allegations which appear in the FAC. (See Demurrer at pp. 6-7.) Plaintiff’s opposition also references the FAC and not any second amended complaint. For these reasons, the court understands the demurrer to raise a challenge to the FAC on the grounds stated in that demurrer, and not a second amended complaint.

In their opposition to the demurrer, plaintiff asserts that the existence of procedural deficiencies justifies an order overruling the demurrer. Those procedural deficiencies include purportedly incorrect facts regarding the parties’ meet and confer communications, and a failure to include a table of contents or authorities with the opening memorandum.

California Rules of Court, rule 3.1113 provides that, subject to exception not relevant here, “no opening or responding memorandum may exceed 15 pages.” (Cal. Rules of Court, rule 3.1113(d).) The opening memorandum is 11 pages, and includes a statement of facts, law, evidence, and arguments relied on by the Visiting Angels Defendants. (Memorandum at pp. 4-14; Cal. Rules of Court, rule 3.1113(b).)

The California Rules of Court also require a memorandum that exceeds 10 pages include a table of contents and a table of authorities. (Cal. Rules of Court, rule 3.1113(f).) Though the demurrer does not contain a table of contents or authorities, plaintiff’s opposition to that demurrer fails to explain whether or why plaintiff was prejudiced by the absence of a table of contents or table of authorities. The record of the parties’ meet and confer correspondence also shows that the parties engaged in a meet and confer process and “were at an impasse that could not be resolved through meet and confer....” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1284.)

Under the circumstances present here, and absent any showing of prejudice to plaintiff, the court will exercise its discretion to consider the demurrer notwithstanding any failure to include a table of contents or table of authorities, or the inclusion of any erroneous information in regard to the parties’ meet and confer correspondence. (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

In the demurrer, the Visiting Angels Defendants assert that the allegations of the FAC are conclusory; do not rise to the level of egregious conduct required to plead a cause of action for elder abuse; fail to plead any facts showing recklessness; and do not equate to neglect. For these reasons, the Visiting Angels Defendants argue, the FAC fails to allege facts sufficient to constitute a cause of action for violation of Welfare and Institutions Code section 15600 et seq. (the Elder Abuse and Dependent Adult Civil Protection Act or “Act”).

In their opposition to the demurrer, plaintiff contends that the conduct alleged in the FAC “falls squarely within” the definition of “neglect” contained in the Act. (Opp. at p. 8, ll. 10-11.)

For the reasons discussed herein, the court will overrule the demurrer on the grounds stated.

The Act “affords certain protections to elders and dependent adults.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (Winn).) “’Elder’ means any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.) The demurrer does not dispute that the FAC expressly alleges that plaintiff is a person “residing in this state, 65 years of age or older.” (FAC, ¶ 1.)

Pursuant to the Act, “ ‘[a]buse of an elder or a dependent adult’ ” includes “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering[]” and “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1), (2).)

The term “neglect” under the Act means either a “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[]” or a “negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1), (2).) Neglect also includes the “[f]ailure to protect from health and safety hazards.” (Welf. & Inst. Code, § 15610.57, subd. (b)(3).)

“[T]he statutory definition of neglect set forth in the first sentence of Welfare and Institutions Code section 15610.57 is substantially the same as the ordinary definition of neglect.” (In re Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 521.) “In short, neglect as a form of abuse under the ... Act refers ‘to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’ [Citation.]” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404 (Carter).)

“[T]he concept of neglect—though broad enough to encompass settings beyond residential care facilities—is not intended to apply to any conceivable negligent conduct that might adversely impact an elder or dependent adult. Instead, neglect requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.” (Winn, supra, 63 Cal.4th at p. 160.) Furthermore, “[a]n individual might assume the responsibility for attending to an elder’s basic needs in a variety of contexts and locations, including beyond the confines of a residential care facility. Certain in-home health care relationships, for example, may satisfy the caretaking or custodial relationship requirement set forth under the Act.” (Id. at p. 158.)

The demurrer advances no reasoned argument showing why the allegations of the FAC described above are not sufficient to show the existence of a caretaking relationship between the Visiting Angels Defendants and plaintiff as required by the Act.

In addition, for present purposes, the court gives the FAC a reasonable and liberal construction, and accepts the truth of its well pleaded facts including those “that reasonably can be inferred from those expressly pleaded...” (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558; Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1143.) The allegations of the FAC described above show, expressly and by inference, that the Visiting Angel Defendants assumed responsibility for attending to plaintiff’s basic toilet and bathroom needs, of the type that “an able-bodied and fully competent adult would ordinarily be capable of handling on his or her own.” (Winn, supra, 63 Cal.4th at p. 161.) For these reasons, the allegations of the FAC are sufficient to show “the type of caretaking or custodial relationship that the Act requires: one where a party has accepted responsibility for attending to the basic needs of an elder or dependent adult.” (Ibid.)

Noted above, neglect under the Act “includes ... the failure to protect from health and safety hazards....” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88.) The allegations of the FAC described above also show that the Visiting Angels Defendants were expressly informed by plaintiff and S Abbott, and by signs placed in plaintiff’s home, that plaintiff required assistance, whether by assistance from an escort or by a walker, when using the toilet, and that that plaintiff should not be allowed to get up or walk on her own due to plaintiff’s physical condition. (FAC, ¶ 10.) The demurrer fails to explain why those allegations, if proven, are insufficient to show that the Visiting Angels Defendants “knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs....” (Carter, supra, 198 Cal.App.4th at p. 406.)

The FAC also expressly alleges that Moreno allowed plaintiff to get up and walk (i.e., take steps), unsupported by either Moreno or the supplied walker, which caused plaintiff to fall and sustain injury. (FAC, ¶ 12.) Those allegations are also sufficient, for pleading purposes, to show or suggest a failure to protect plaintiff from a known safety hazard, and to provide the services necessary to allow plaintiff to meet their basic needs. (Delaney v. Baker (1999) 20 Cal.4th 23, 34 (Delaney); Carter, supra, 198 Cal.App.4th at p. 407.) Because a failure to exercise the degree of care that a reasonable person would exercise under similar circumstances can be inferred from the express allegations of the FAC, the FAC alleges facts sufficient to state a predicate claim of neglect under the Act, and to establish, at the pleading stage, a right of recovery for elder abuse. (Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 99 (Samantha B.).)

As to the contention that the FAC fails to allege facts sufficient to show egregious or reckless conduct, Welfare and Institutions Code section 15657 provides in relevant part: “If it is proven by clear and convincing evidence, or by a preponderance of the evidence pursuant to Section 15657.02, that a defendant is liable for ... neglect as defined in Section 15610.57..., and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

“(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

“(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

“(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.” (Welf. & Inst. Code, § 15657, subds. (a)-(c).)

For the reasons noted above, “[s]ection 15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff who can prove ‘by clear and convincing evidence that a defendant is liable for ... neglect as defined in Section 15610.57,’ and who can demonstrate that the defendant acted with ‘recklessness, oppression, fraud, or malice in the commission of [this] abuse.’ ” (Winn, supra, 63 Cal.4th at p. 152.)

For the reasons discussed below, the allegations of the FAC are also sufficient to show reckless conduct.

A right to recover enhanced remedies under the Act arises where the conduct constituting neglect was undertaken “either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations]. The plaintiff must also allege ... that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Carter, supra, 198 Cal.App.4th at p. 407; accord, Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1134; see also Winn, supra, 63 Cal.4th at p. 152 [plaintiff must demonstrate that defendant acted with recklessness, oppression, fraud, or malice].)

“ ‘Recklessness’ means the deliberate disregard of the high degree of probability that an injury will occur. [Citation.]” (Samantha B., supra, 77 Cal.App.5th at p. 99.) Unlike negligence, it “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.’ [Citation.]” (Delaney, supra, 20 Cal.4th at pp. 31–32, fn. omitted.) The allegations of the FAC described above show the Visiting Angels Defendants’ knowledge of a known safety hazard in regard to plaintiff’s inability to rise or walk to the bathroom unassisted, and, by inference, knowledge that the injury alleged in the FAC was substantially certain to occur if plaintiff was not assisted or escorted when rising or walking, and a failure to protect plaintiff from that hazard, sufficient to support a claim of neglect under the Act. (Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, 982 [general discussion].)

The FAC also alleges, expressly and by inference, that Moreno was next to plaintiff when plaintiff stated that she had to use the bathroom, and when Moreno allowed plaintiff to rise and take steps unassisted by either Moreno or the supplied walker. Considering those allegations and the FAC as a whole, the FAC is sufficient at this stage of the proceedings, to show that Moreno made a conscious or deliberate choice to allow plaintiff to rise and walk without assistance, thereby exposing plaintiff to a known safety hazard, including the injury alleged in the FAC. For these and all further reasons discussed above, the FAC alleges facts sufficient to show or suggest reckless conduct under the Act. (Samantha B., supra, 77 Cal.App.5th at pp. 99–100 [discussing conduct sufficient to show recklessness].) The court does not consider on demurrer, whether plaintiff can prove those allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)

The Visiting Angels Defendants also contend in the demurrer, that the FAC fails to allege facts sufficient to give rise to employer liability under the Act. Noted above, the FAC alleges that the Coes are the owners, directors, and managing operators of the Visiting Angels, that defendant Storz is the manager of operations, and that Moreno was employed by Visiting Angels to provide in-home assistance to plaintiff. The demurrer does not dispute that the FAC is sufficient to allege conduct within the scope of Moreno’s employment with the Visiting Angels. For pleading purposes, those allegations, read as a whole, are sufficient to give rise to employer liability under the Act. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208–209 [discussing the “doctrine of respondeat superior”].)

The demurrer further contends that the FAC fails to show that the standards set forth in subdivision (b) of Civil Code section 3294 have been satisfied, as required by subdivision (c) of Welfare and Institutions Code section 15657. For this reason, the demurrer argues, damages or attorney’s fees may not be imposed against Moreno’s employer. Notwithstanding whether, generally, “a demurrer cannot rightfully be sustained ... to a particular type of damage or remedy[]” plaintiff seeks to impose against Moreno’s employer (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047), the Visiting Angel Defendants’ argument in this regard is also without merit for the reasons discussed below.

Subdivision (b) of Civil Code section 3294 states: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.: (Civ. Code, § 3294, subd. (b).)

“Accordingly, upon a suitable demonstration of employer misconduct, a vicariously liable employer may be subject to an award of punitive damages when an employee was negligent.” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261.)

Noted above, the FAC alleges facts showing that the Coes are the directors of Visiting Angels; that the Coes and Storz are managing agents of Visiting Angels; and that Visiting Angels, the Coes, and Storz assigned Moreno to attend to plaintiff’s needs. For all reasons discussed above, the demurrer concedes the truth of those facts.

The FAC also asserts a second cause of action for negligent hiring, supervision, training, and retention of Moreno, who is alleged to be an unfit employee. (FAC, ¶¶ 19-25.) The allegations giving rise to the second cause of action include that Visiting Angels, the Coes, and Storz knew or should have known that Moreno was not qualified or able to properly and safely act with respect to elderly adults for whom those defendants provide in-home assistance; that Moreno lacked sufficient knowledge and training concerning the handling of injuries and proper procedures for seeing medical assistance; that Visiting Angels, the Coes, and Storz knew that a risk to plaintiff would exist because of Moreno unless Moreno was adequately trained and supervised; that notwithstanding their advance knowledge of Moreno’s unfitness, Visiting Angels, the Coes, and Storz hired, retained, failed to adequately train or supervise Moreno when caring for plaintiff; and that as a result, plaintiff was left incapacitated and suffering in pain on the floor, unable to care for herself or call for medical assistance. (FAC, ¶¶ 20-23.)

The demurrer does not raise a challenge the second cause of action, and includes no reasoned argument showing why the FAC does not state facts sufficient to constitute a cause of action for the negligent hiring, supervision, training or retention of Moreno.

A trier of fact could reasonably infer from the allegations described above, that Moreno acted with the consent of Visiting Angels, the Coes, and Storz, and that those defendants had advance knowledge of Moreno’s unfitness and employed Moreno with a conscious disregard of plaintiff’s safety. It can also be inferred from the allegations described above, that Visiting Angels, the Coes, and Storz ratified Moreno’s conduct including by failing to supervise Moreno or contact emergency services after Moreno called their supervisor; and that Moreno’s conduct was undertaken with the knowledge or approval of an officer, director, or managing agent of Visiting Angels. For these reasons, the FAC is also sufficient to show, expressly and by inference, that the Visiting Angels, the Coes, and Storz authorized the acts and conduct of Moreno at issue in these proceedings. (O’Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 806; Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 614; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 895.)

The allegations described above, also provide “notice to ... defendants of [plaintiff’s] precise claims against them and adequately pleaded a cause of action for punitive damages.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 7.) To the extent the FAC is in some respects uncertain as to the facts giving rise to liability for elder abuse as against Visiting Angels, the Coes, or Storz, those “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) For these and all further reasons discussed above, the court will overrule the demurrer on the grounds stated.

Plaintiff’s request for judicial notice:

In support of their opposition to the demurrer, plaintiff requests that the court take judicial notice of what appears to be pages of a website located at “visitingangels.com/Santabarbara/faq”, a copy of which is attached to the declaration of plaintiff’s counsel submitted in support of plaintiff’s opposition to the demurrer. (Pl. RJN, Section II, ¶ 1; Ring Dec., ¶ 1, exhibit 1.) It appears from the arguments advanced in the opposition that plaintiff seeks to rely on the contents of the website to show whether defendants are licensed health care providers. (Opp. at p. 2.)

The court “may not take judicial notice of the truth of the contents of a website.” (LG Chem, Ltd. v. Superior Court of San Diego County (2022) 80 Cal.App.5th 348, 362.) Furthermore, the matters of which plaintiff requests judicial notice are extrinsic matters outside the pleading. (See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500 [also noting that the court is precluded from weighing disputed facts on demurrer].) For these reasons, the court will deny plaintiff’s request for judicial notice.

(3)       Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

“(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 or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

To the extent the motion to strike is directed to any claim or allegation for enhanced remedies under the Act, including attorney’s fees authorized under Welfare and Institutions Code section 15657, the court will, for the same reasons discussed above, deny the motion as to those claims or allegations.

The motion to strike also asserts that the FAC fails to plead, with particularity, any facts showing malice, oppression, or fraud, or compliance with Code of Civil Procedure section 425.13, subdivision (a). For these reasons, defendants argue, plaintiff’s claim for punitive damages is procedurally improper and without merit.

Code of Civil Procedure section 425.13 provides: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” (Code Civ. Proc., § 425.13, subd. (a).) For purposes of subdivision (a) of section 425.13, “ ‘health care provider’ means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.” (Code Civ. Proc., § 425.13, subd. (b).)

Wholly absent from the motion to strike is any reasoned argument showing why the FAC alleges a cause of action for damages arising out of the professional negligence of a health care provider, as that term is defined in Code of Civil Procedure section 425.13. Furthermore, a reasonable interpretation of the FAC shows that the conduct at issue in these proceedings was not undertaken by a health care provider for the purpose of delivering medical or professional services to plaintiff. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 353-354 [tortious actions undertaken for a purpose other than the rendering of medical professional services does not constitute professional negligence].)

Further, “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) Relevant here, the term “malice” refers to “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) The facts and circumstances constituting the claim for punitive damages must be set forth “with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation [for the claim].” (Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944.)

“[E]lder abuse triggering the Act’s heightened remedy provisions entails by its nature egregious conduct.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 788.) “In order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Id. at p. 789.)

The same reasoning and analysis apply. Because the FAC alleges facts which, at pleading stage, are sufficient to support a claim of neglect and to show an entitlement to heightened remedies under the Act for all reasons discussed above, those allegations are also sufficient to support a claim for punitive damages. For these reasons, the court will deny the motion to strike on the grounds stated.

(4)       Motion for Preference

“At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.” (Code Civ. Proc., § 36, subd. (c)(2).) “A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:

“(1) The party has a substantial interest in the action as a whole.

“(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36, subd. (a)(1), (2).)

“In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc., § 36, subd. (d).)

“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (Code Civ. Proc., § 36, subd. (f).)

“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 (Fox).) “Mere inconvenience to the court or to other litigants is irrelevant. [Citation.] Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

A declaration submitted in support of a motion for preference under Code of Civil Procedure section 36, subdivision (a), “may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc., § 36.5; see also Fox, supra, 21 Cal.App.5th at p. 534 [physician’s declaration not required for a motion for mandatory trial preference].)

In support of the motion for preference, attorney Ring states that plaintiff, who is 89 years of age, does not have the ability to walk on her own; is in constant pain and discomfort; has difficulty performing basic life functions; and has a significant neurological condition or disorder that is expected to remain permanent. (Ring Dec., ¶¶ 3-4.) Plaintiff also requires around the clock care, and due to plaintiff’s physical limitations, leaving home requires considerable and taxing effort. (Ring Dec., ¶ 5.) According to attorney Ring, plaintiff’s mental state has deteriorated to the point where she becomes confused and forgetful. (Ibid.) Plaintiff’s health continues to deteriorate, and her ability to carry on basic day-to-day activities will continue to decline affecting her ability to participate in these proceedings. (Ibid.)

Attached to the Ring declaration is a letter dated September 8, 2025, and ostensibly signed by Philip R. Delio, M.D. (Ring Dec., exhibit 1.) Dr. Delio states that plaintiff is their patient and has a “significant neurological condition of such magnitude that that she is no longer competent to make important decisions about her safety and security.’ (Ibid.) Dr. Delio further states that plaintiff’s neurological disorder is expected to remain permanent, and that “persons acting upon [plaintiff’s] behalf must assume those responsibilities.” (Ibid.)

Though the undisputed record shows that plaintiff is over 70 years of age and has a substantial interest in these proceedings, the motion fails to explain why plaintiff’s health justifies preference to prevent any prejudice to that interest.

For example, the motion for preference does not show or raise a substantial medical doubt of plaintiff’s survival beyond six months, that plaintiff suffers from a terminal illness, or why plaintiff may not survive any delay. (See Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1199 [general discussion].) It is also unclear when plaintiff began suffering a neurological condition in relation to this litigation, or whether that condition has worsened. In addition, though the available evidence and information shows that plaintiff’s condition is permanent, the motion does not show why plaintiff’s disorder is expected to further deteriorate. (Fox, supra, 21 Cal.App.5th at p. 535 [noting that though party could participate in trial, party had “good reason for concern that will not be the case for much longer....”].)

Noted above, plaintiff is represented in this action by S Abbott, who has been appointed guardian ad litem for plaintiff. “The guardian ad litem’s purpose is to protect the rights of the incompetent person. [Citation.] He or she has the right to control the litigation on behalf of the incompetent person. [Citation.] ‘Among his powers are the right to compromise or settle the action [citation], to control the procedural steps incident to the conduct of the litigation [citation], and, with the approval of the court, to make stipulations or concessions that are binding on the [incompetent], provided they are not prejudicial to the latter’s interests [citation].’ [Citation.]” (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453–1454.) Considering the appointment of S Abbot as plaintiff’s guardian ad litem, and that the exercise of S Abbott’s powers may not prejudice plaintiff’s interests, the motion for preference fails to explain why a preference is necessary to prevent prejudice.

Under the totality of the circumstances present here, and considering that plaintiff’s rights and interests in these proceedings appear to be protected by the appointment of a guardian ad litem, the motion fails to show why a preference is necessary to prevent prejudicing plaintiff’s interest in the litigation. For these and all further reasons discussed above, the court will deny the motion for preference.

Notwithstanding the court’s denial of the motion for preference, the court is inclined to consider plaintiff’s age, illness, and condition in setting a trial date.