Personal Injury Law

Nursing Facility Sued By Sacramento Family For Abuse, Part 3 of 10

By Moseley Collins, Esq.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

Argument

Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction (1992) 7 Cal.App.4th 1375, 1379. The only issue for the Court to resolve on demurrer is whether the complaint, as it stands, unconnected with extraneous matter, states a cause of action. Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224. The judge's function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the Complaint were stipulated to be true, the defendant could not argue that the plaintiffs would not be entitled to a verdict under the Elder Abuse statutes. This is another way of expressing the standard for judging a demurrer. When properly viewed in this way, it is plain that defendants' demurrer is without merit. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The First Cause of Action Alleging Reckless Neglect of An Elder Is Properly Pleaded.

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seg. is a separate and distinct claim for medical negligence.

The elements of proof of a claim for neglect of an elder are now embodied in the books of approved jury instructions, including CACI 3103. Enhanced remedies are permitted under the Elder Abuse statutes upon a showing of reckless neglect, malice, oppression, or fraud.

Full post as published by Sacramento Injury Lawyer Blog on January 07, 2011 (boomark / email).