Marchesano v. Dekkers, 2006 Cal. App. Unpub. LEXIS 4356 (California Unpublished Opinions 2006)

Plaintiff filed suit for nursing home negligence alleging multiple causes of action. Defendant filed a demur which was granted as to “the causes of action for willful misconduct, elder abuse, and intentional infliction of emotional distress. The court struck the punitive damage allegations and prayer for non-economic damages, and denied a motion to add punitive damages pursuant to Calf. Code of Civil Procedure § 425.13.” Plaintiff filed a third amended complaint for negligence and wrongful death and renewed their motion to add punitive damages. After it was denied, Plaintiffs sought an interlocutory appeal, which was denied. Plaintiff’s then dismissed the action for wrongful death and the sole remaining claim was the survivor’s claim for negligence. The trial court granted Defendant’s motion for judgment on the pleadings after finding there were no economic damages and, therefore, no cause of action for negligence. Plaintiff then appealed, arguing that the trial court erred in sustaining the demur on willful misconduct. The court found that, arguendo, if a tort for willful misconduct is still viable, that sufficient facts were not alleged to state a cause of action; willful misconduct requires some intentional act embodying a degree of malice. The court rejected Plaintiff’s argument that Defendant’s failure to observe federal and state nursing home regulations was tantamount to willful misconduct. Plaintiffs also appealed the demur relating to elder abuse. The court found that a medical malpractice action could not be recast as an elder abuse case; the elder abuse cause of action and the medical malpractice cause of action are like a “toggle switch:” it is either one or the other. The court similarly held that Plaintiffs had not alleged facts sufficient to state a cause of action for intentional infliction of emotional distress or for punitive damages. Judgment on the pleadings was properly granted.