Alexander v. Sundance Rehabilitation Corp. CA1/2 filed
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Filed 4/14/11 Alexander v. Sundance Rehabilitation Corp. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO KATHY ALEXANDER, Plaintiff and Appellant, A127463 v. (Solano County Super. Ct. No. FCS031759) SUNDANCE REHABILITATION CORPORATION, Defendant and Respondent. Plaintiff Kathy Alexander appeals from a judgment of dismissal after the court sustained without leave to amend the demurrer of defendant SunDance Rehabilitation Corporation (SunDance) to her second amended complaint (SAC). She claimed liability under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.)1 (Elder Abuse Act or Act), intentional infliction of emotional distress, and criminal negligence against an elder or dependent adult (Pen. Code, § 368), and SunDance prevailed in arguing failure to state a cause of action (Code Civ. Proc., § 430.10, subd. (e)). We uphold the order and affirm the judgment. BACKGROUND The case concerns alleged injury to plaintiff while in a skilled nursing facility, Marysville Care Center (the care center), for rehabilitation after she had complications from knee replacement surgery. The SAC names nine defendants, using the collective name Marysville Care for four entity defendants responsible for the operation of the 1 All unspecified section references are to the Welfare and Institutions Code. 1 care center, and the collective name SunDance for four entities providing physical therapists and other workers. Separately named is physical therapist Jonathan Klingbeil, allegedly a SunDance employee. The record reflects that the Marysville Care defendants settled before the ruling we review, and that plaintiff had a separate action, for medical malpractice, pending in a different department of the superior court, against some of the same defendants, based on the same events. It does not affirmatively appear that this action remains pending against other defendants, but if so, the judgment is still appealable as rendering the action final as between plaintiff and SunDance. (Justus v. Atchison (1977) 19 Cal.3d 564, 568.) Demurrer review standards Following a demurrer sustained without leave to amend, [t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.] (Id. at p. 967.) A court generally confines itself to the pleading but, as appropriate, may extend its consideration to matters subject to judicial notice. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146.) Because we test for liability under the Act (§ 15600 et seq.), a statutory cause of action, we apply the general rule that statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 (Covenant Care.) [Where] recovery is based on a statutory cause of action, the plaintiff must set forth facts in his [or her] complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate. [Citations.] (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.) 2 Allegations The SAC is poorly drafted, and rife with bare conclusions and boilerplate about agency between the defendants. To impart a sense of what the trial court had to face in ruling, we retain some of the clutter in our summary. On July 19, 2006, plaintiff was taken by ambulance to the care center for recuperation and rehabilitation after complications arose from knee replacement surgery she underwent a month earlier. She also had unspecified other physical limitations that restricted her mobility and ability to carry out normal activities. She was admitted to the care center in order to learn to take five steps using a walker because she was unable to walk or stand on her own, and needed to learn the use of the walker to use the restroom in her home. Defendants knew or should have known this through the admissions process, reading unspecified records from an unidentified referring health care provider, and from obtaining information necessary to properly care for her. Plaintiff was placed in a bed for about 15 minutes after being admitted. Needing to urinate, she requested a bedpan from persons working at [the facility], including but not limited to Jonathan Klingbeil, RPT and DOES 1 through 100 and/or other Marysville Care and Sundance s managing agents, employees, agents or other representatives. Those same people refused her request and, instead, brought a shower chair near the bed and insisted that [she] get herself out of bed without assistance and, by herself, walk to the shower chair and get into it so that [they] could push her to the restroom. This insist[e]nce was not an attempt at physical therapy or care of any sort. It was abuse. Plaintiff told those people she could not stand up and bear weight on her leg or legs, as she was suffering from complications of a total right knee replacement[,] and she requested that if [they] required her to get into the chair that she be removed from the bed with help by [them] and others working at Marysville Care and transferred and placed into the shower chair. Klingbeil and the others was [sic] a very large and tall man with an overbearing demeanor and denied and refused [plaintiff s] request for his and/or others assistance to 3 get out of bed and get into the shower chair. They told her that he [sic] was not going to help her unless she got out of bed herself without his or others help and . . . got into the shower chair herself without his or others help. Klingbeil and the others said this again, even when [plaintiff ] told him [sic] that she shouldn t get up and stand up by herself without his or others help due to her condition as described hereinabove. Intimidated, confused or frightened, plaintiff slowly got out of bed and stood up, which caused her left leg to twist and sustain a trimalleor fracture and dislocation of her left ankle/foot. She told [Klingbeil and all] that she had fractured her foot/ankle/leg and needed to call an ambulance. Incredibly, [Klingbeil and all] responded abusively, fraudulently, recklessly, wilfully, oppressively, neglectfully, grossly recklessly, despicably and baselessly by telling [plaintiff] that her foot was not broken and that he, [Klingbeil and the others], was [sic] the only one who could determine if her foot was broken and that he had determined that it was not and that she could not call an ambulance! Klingbeil and the others continued to state that [plaintiff] could not call anyone on the phone and denied her use of the Marysville Care phone. Fortunately, [plaintiff] had her own cell phone on her bed . . . and was able to reach it and secretly called her sister. Her sister, after hearing what was going on ensured that an ambulance came to Marysville Care to remove [plaintiff] from harm s way and bring her to a hospital for emergency treatment for the new injuries, which required surgery and the insertion of metal hardware . . . . The pleading nowhere specifies that anyone beyond Klingbeil was present for the incident but repeatedly alleges, for example, that plaintiff was not being given physical therapy, nor any type of care. Rather she was being abused by defendant [Klingbeil] as ratified, approved, and/or authorized by defendant Sundance s managing agent and defendant Marysville s managing agent and DOES I th[r]ough 100 . . . . The pleading also includes pages of allegations that managing agents of the entity defendants approved, authorized, conspired to cover up, or failed to keep proper records, and failed to reprimand Klingbeil, all of which apparently followed the incident. 4 Ruling The court issued a detailed tentative ruling to sustain the demurrer without leave to amend. We quote it at length because plaintiff relies in part on the decision for various claims of court error. Notwithstanding this Court s prior ruling detailing [pleading defects], Plaintiff again fails to adequately allege specific and particular facts establishing that Sundance can be held liable for the actions of Physical Therapist Klingbeil. The only specific allegations of misconduct arise out of the actions of Klingbeil. Despite conclusory allegations that some unidentified managing agent somehow ratified the actions of [Klingbeil], these allegations lack the specificity and particularity required for statutory causes of action, especially one that accuses a party of something as serious as elder abuse. [Citations.] All that is alleged is a legal conclusion that an unidentified managing agent may have somehow known about, authorized, or ratified the physical therapist s actions or did nothing in the face of known propensity by the physical therapist to act improperly. There are no allegations about the identity of a managing agent or that agent s authority to bind Sundance. There are no allegations that this unidentified managing agent saw what was going on, no allegations that Plaintiff attempted to report the physical therapist to a higher authority, and no other facts even remotely suggesting that the corporate defendants can be held liable for the actions of the physical therapist. Moreover, notwithstanding Plaintiff s hyperbolic statements that the physical therapist s actions were reckless, grossly reckless, willful, oppressive, and despicable, Plaintiff s allegations merely establish, at best, a claim of general negligence. There is no indication that the physical therapist intentionally disregarded knowledge that injury would likely occur as a result of making a patient move herself to a shower chair instead of using a bedpan. There are no allegations that doctor s orders prohibited the patient from momentarily standing up to get in[to] a chair or require the patient to be bedridden. Notwithstanding the claim that Plaintiff had told the physical therapist of her inability to stand or move on her own, there are no facts suggesting that the physical therapist should have given those statement from an uncooperative Plaintiff much credence. There are no 5 allegations suggesting that the physical therapist knew of any risk that Plaintiff would fracture her foot, ankle, or leg in attempting to stand up. To the contrary, Plaintiff admits that she had gone to Marysville in order to learn to use a walker. There are no allegations that it is a common and knowable occurrence that a patient recovering from knee surgery will break a foot or ankle if attempting to stand for a very short span of time necessary to move from a bed to a chair. In order to establish elder abuse, a complaint must demonstrate more than mere inadvertence, negligence, incompetence, unskillfulness, or a failure to take precautions. [Citations.] Having determined that Klingbeil s alleged conduct does not exceed mere inadvertence, negligence or failure to take adequate precautions, it cannot be concluded that the physical therapist s actions were so extreme or outrageous as to be intolerable in a civilized society. [Citations.] Likewise, the conduct does not amount to a reckless, gross or culpable departure from the ordinary standard of due care necessary to establish criminal negligence [under] Penal Code section 368. [Citations.] Plaintiff s counsel urged at the demurrer hearing that the SAC could be amended to allege that the events occurred just 15 minutes after plaintiff s admission to the care center. Counsel added: [T]here are specific orders from the treating doctor when she got sent over there, she is to be weight-bearing. Why that wasn t mentioned, that is an important fact . . . . The court adopted its tentative decision, remarking that the issue of the 15 minutes would not change the outcome;2 nor had the essential problem changed since the initial pleading, despite two chances to amend. Answering debate about the legal standard, the court stated: [T]he parties got into this egregiousness. The standard that s mentioned in one case. The standard isn t egregiousness, but it [sic] recklessness, [o]ppression, fraud, malice and the commission of abuse. [I]n the court s view, what we have here 2 Plaintiff s counsel urged that this could be stated in a third amended complaint (TAC), yet our record does not show that plaintiff proffered a TAC. Also, the SAC, as it appears in our record, already did include allegations that the events occurred 15 minutes after plaintiff s admission to the facility. 6 after the third attempt is . . . that the physical therapist required [plaintiff] to stand up unassisted while transferring from her bed to a chair[;] she broke her ankle during the transfer, was not immediately allowed to use the phone. These and the other allegations do fall short. DISCUSSION I. Dependent Adult Abuse Plaintiff invokes the Elder Abuse Act s protection not as an elder (§ 15610.27), but as a [d]ependent adult . . . between the ages of 18 and 64 years, who . . . has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights (§ 15610.23), and we therefore refer to her cause of action as one for dependent adult abuse. The heart of plaintiff s claim is section 15657, which authorizes civil remedies [w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse [or] neglect . . . and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse . . . . In testing the sufficiency of the allegations, we turn to two pertinent cases in which our Supreme Court has examined the Act at length. Covenant Care, supra, notes the genesis of the heightened civil remedies sought by plaintiff: 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 . . . 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]. 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. [Citations.] (Covenant Care, supra, 32 Cal.4th at p. 779.) In this action against SunDance, damages and costs could be awarded for an employee s wrongful conduct, but only if the employer, with advance knowledge of the 7 employee s unfitness, acted in conscious disregard in employing them, or authorized or ratified the wrongful conduct. For a corporate employer, this requires that any advance notice, conscious disregard, authorization, or ratification be on the part of an officer, director, or managing agent of the corporation. (§ 15657, subd. (c), incorporating by reference the limitations of Civ. Code, § 3294, subd. (b).) This no doubt accounts for all of the managing agent boilerplate in plaintiff s SAC. Delaney v. Baker (1999) 20 Cal.4th 23 (Delaney) was a suit against a nursing home health care provider where the court examined the relationship between actions for reckless neglect under the Act and ordinary actions for professional negligence under the statutes collectively known as the Medical Injury Compensation Reform Act of 1975 (MICRA). It examined them in light of section 15657.2, which exempts from the Act s scope any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider s alleged professional negligence . . . . Finding a clear legislative demarcation between the two types of action, Delaney explained: In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature. [Citations.] Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur. [Citations.] 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. [Citation.] (Fn. omitted.) (Delaney, supra, 20 Cal.4th at pp. 3132.) Plaintiff raises two points of alleged court error in its demurrer ruling: (1) the court applied an egregiousness standard for misconduct when, in fact, section 15657 only 8 speaks of recklessness, oppression, fraud, or malice; and (2) the court made factual decisions and required her to show she would prevail on the merits, ignoring that a demurrer assumes the truth of facts pleaded. These are odd arguments, given that the court expressly stated that egregiousness was not the legal test, and given that plaintiff does not identify a single factual conclusion made in the ruling. Moreover, these efforts to show reasoning errors are beside the point. Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lundgren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We test the pleading independently (Smiley v. Citibank, supra, at p. 146), regardless of reasons stated below (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111), and even if a dispositive issue was not reached below (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578). We therefore redirect plaintiff s arguments toward our proper review role. On the question of egregious abuse, the term is not used in the statutory language but originated in the legislative history and was adopted by the Supreme Court, initially in Delaney, as a shorthand description of the misconduct covered by the Act, as opposed to ordinary professional negligence. The sponsor of the legislation . . . was quoted in a Senate committee analysis appearing shortly before the bill s enactment as argu[ing] strenuously that the high standard imposed by the bill clear and convincing evidence of (i) liability and (ii) recklessness, malice, oppression or fraud adequately protects providers of care from acts of simple negligence, or even gross negligence. [Senate Bill No.] 679 only pertains to acts of egregious abuse. . . . [Citation.] (Italics added.) (Delaney, supra, 20 Cal.4th at p. 32.) The court, after finding divergent purposes of the Act and MICRA, observed: The difficulty in distinguishing between neglect and professional negligence lies in the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care. . . . [¶] Section 15657 provides the way out of this ambiguity: if the neglect is reckless[], or done with oppression, fraud or malice, then the action falls within the 9 scope of section 15657 and as such cannot be considered simply based on . . . professional negligence within the meaning of section 15657.2. The use of such language in section 15657, and the explicit exclusion of professional negligence in section 15657.2, make clear the Elder Abuse Act s goal was to provide heightened remedies for, as stated in the legislative history, acts of egregious abuse against elder and dependent adults [citation], while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence. That only these egregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened clear and convincing evidence standard. (Id. at pp. 34-35.) In Covenant Care, a case resolving conflicting decisions on procedural requisites for recovering punitive damages under the Act, the Supreme Court continued to find the term egregious a convenient shorthand expression (Covenant Care, supra, 32 Cal.4th at pp. 776 [those who egregiously abuse ], 779 [ especially egregious elder abuse ], 782 [ intentional, egregious elder abuse and egregious elder abuse ], 783 [ egregious acts ], quoting Delaney], 784 [ egregious acts of misconduct and egregious elder abuse ], 787 [ remedies for egregious elder abuse ] and 788 [conduct subject to punitive damages entails by its nature egregious conduct ]), but again without holding or considering that such a description is a definitional element for liability. Thus we agree with plaintiff that egregious is not a statutory element. She asks that we take judicial notice of the legislative history for Senate Bill 679 of the 1991-1992 Regular Session, the bill that ultimately wrought the amendments examined in Delaney. We decline the request. Most or all of these same materials were considered in Delaney (Delaney, supra, 20 Cal.4th at pp. 36-37), and stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) prevents us from second-guessing our high court s guiding characterization of the type of conduct covered by the Act. Plaintiff also offers the materials to show that, despite discussion in Delaney and Covenant Care of egregious misconduct, the term did not make it into the bill as an element to be proved, 10 but we already agree with plaintiff on that point. There is accordingly no need to take judicial notice. The key question then, is: Does the SAC adequately and specifically plead that SunDance was guilty of recklessness, oppression, fraud, or malice? (§ 15657.) We first eliminate fraud. A plaintiff s burden in pleading fraud against a corporate employer is to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645), none of which is pleaded. Malice means 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).) Oppression, similarly, means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person s rights. (Id., subd. (c)(2).) These states of mind involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature. [Citations.] (Delaney, supra, 20 Cal.4th at p. 31.) The SAC offers conclusory allegations of malice and oppression, but no facts supporting such wrongdoing. Stripped of conclusions and hyperbole, it alleges that plaintiff went to the care center, following complications from knee surgery, to learn to use a walker. About 15 minutes after being admitted, she was in a bed when she asked to use a bedpan. A physical therapist directed her instead to stand and move to a shower chair by the bed. She protested that she could not stand or walk on her own yet complied, injuring her ankle and foot. She asked to use a care facility phone to call an ambulance but was refused that request. We infer that she was helped back into bed, for it was there that she ultimately found her cell phone and called her sister, who in turn called 911. Such conduct may support negligence, or even gross negligence (Delaney, supra, 20 Cal.4th at p. 32), but does not rise to wilfull or despicable conduct, or conscious disregard of plaintiff s rights. 11 Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur. [Citations.] 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. [Citation.] (Delaney, supra, 20 Cal.4th at pp. 31-32, fn. omitted.) The pleaded facts may well support inadvertence, incompetence, unskillfulness or failure to take precautions, but not the higher standard needed for a cause of action under the Act. Thus, plaintiff failed to state a cause of action with the required particularity. (Covenant Care, supra, 32 Cal.4th at p. 790.) As for the ability to amend the SAC to cure deficiencies, plaintiff s counsel below offered to allege (1) that the incident occurred 15 minutes after plaintiff s admission to the care center, and (2) that an order from a treating doctor who sent her to the center indicated, she is to be weight-bearing. We have already taken the 15 minutes into account, since the allegation is in our copy of the SAC (fn. 2, ante). It was offered below on the theory that, if only 15 minutes had elapsed, it was perhaps difficult to infer that plaintiff was already receiving physical therapy, yet the same fact works strongly against plaintiff in trying to establish liability for the therapist s corporate employer, SunDance. Liability for SunDance exists only if some officer, director, or managing agent of SunDance knew of, and authorized or ratified the therapist s decision to have plaintiff stand unassisted to move from the bed to the chair. (§ 15657, subd. (c); Civ. Code, § 3294, subd. (b).) Despite all of the SAC boilerplate about a managing agent, there is no actual allegation that anyone else at all was in the room, much less that one could infer that such a person had the requisite corporate authority from SunDance. Adding an allegation that a treating doctor gave orders that plaintiff was to be weight-bearing also weakens the case as to SunDance. If we accept an inference that SunDance should have been aware of such an order, it showed that the treating physician deemed her able to stand, despite what plaintiff allegedly told Klingbeil beforehand. 12 On appeal, plaintiff offers, by way of a further request for judicial notice, that she could allege that SunDance was reckless in hiring Klingbeil in that the Physical Therapy Board of the California Department of Consumer Affairs had placed him on four years probation, starting in June 2005, with orders that he disclose the disciplinary action to his employer. Plaintiff offers two documents: an administrative decision and the board s adoption of that decision. While there is authority for us to take judicial notice of such a state administrative board s decision (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749-1750; Evid. Code, § 452, subd. (c)), we cannot do so here because plaintiff fails to provide certification or authentication for the documents (People v. Medina (1990) 51 Cal.3d 870, 890). Even if the documents were properly certified, they would still not support reckless hiring. The disciplinary action stems from a series of three incidents of driving under the influence (DUI) (Veh. Code, § 23152, subd. (b)) the earliest in 1996, another in 2000, and a final one in May 2002. The statute under which the discipline was imposed defines as unprofessional conduct the use of alcoholic beverages to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely. . . . (Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1411, quoting and italicizing Bus. & Prof. Code, § 2239, subd. (a).) Discipline has been upheld against constitutional challenge even where DUI arrests or convictions bear no direct nexus to the practice of medicine, so long as the conduct bears a rational potential for adverse impact. (Watson, supra, at pp. 1415-1416, 1418-1424.) The DUI s here occurred after hours, evidently unrelated to Klingbeil s work, and the 2005 decision notes that Klingbeil had completed an 18-month DUI program and, on his own, remained thereafter in an AA program. The decision imposes a condition that Klingbeil be evaluated to see if he has a propensity to abuse alcohol and whether he requires a course of treatment to ensure safe practice as a physical therapist, but finds that it would not be contrary to the public interest for [him] to continue practicing physical therapy on probation, and stays license revocation, granting probation. The existence of such 13 disciplinary action cannot alone support the recklessness in hiring required for liability under the Act. II. Intentional Infliction of Emotional Distress Plaintiff s second cause of action is for intentional infliction of emotional distress. The necessary elements are: (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. [Citation.] The [c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citations.] (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! [Citation.] (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.) The allegations do not show outrageous conduct as required for intentional infliction of emotional distress. Plaintiff offers no briefing on this cause of action, and no suggestion of how she might amend her pleading to cure the deficiencies. III. Criminal Dependent Abuse Plaintiff s third cause of action is for criminal dependent abuse (Pen. Code, § 368), but is of mysterious purpose. She cites no authority that the statute creates a private right of action.3 Perhaps she had in mind that a tort plaintiff may use a successful criminal Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, 3 14 prosecution as a basis for tort liability for example, by pleading negligence per se (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 966-969, 972973, 978) or by suing as the victim of a felony (e.g., id., at pp. 967-968, 978 [holding that the MICRA statute of limitations does not apply for a cause of action alleging a conviction of Pen. Code, § 368]). However, no successful prosecution is alleged. Also, plaintiff again offers no briefing on this cause of action or suggestion how she could cure any defects by amendment. We do not discern a valid cause of action.4 DISPOSITION We uphold the order sustaining the demurrer without leave to amend and, accordingly, affirm the judgment. _________________________ Kline, P.J. We concur: _________________________ Haerle, J. _________________________ Richman, J. or by imprisonment in the state prison for two, three, or four years. (Pen. Code, § 368, subd. (b)(1).) 4 The tentative decision, in a final paragraph not previously quoted, seems to indicate that the trial court, too, rejected the idea that Penal Code section 368 supports a private right of action. It states that the court had previously rejected a demurrer on that basis but only because it had not been clear whether plaintiff could even allege facts to bring the case within the criminal statute. 15
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