Cite as 01 C.D.O.S. 4308

COVENANT CARE, INC., et al., Petitioners,
 v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
LOURDES M. INCLAN et al., Real Parties in Interest.

No. B145406

(Super. Ct. No. LC041017)

DENNIS KANE et al., Petitioners,
 v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
LOURDES M. INCLAN et al., Real Parties in Interest.

No. B145399

In the Court of Appeal of the State of California
Second Appellate District
Division One

ORIGINAL PROCEEDINGS; petitions for writs of mandate, Richard B. Wolfe, Judge. Petition denied.

COUNSEL

 Beach, Procter, McCarthy & Slaughter, Thomas E. Beach and Christoph T. Nettesheim for Petitioners Dennis Kane, Kay Donald, Jay Westbrook and Lisa Pitchon-Getzels.

 Even, Crandall, Wade, Lowe & Gates, Randolph M. Even and Stephanie Charles for Petitioners Covenant Care, Inc., and Covenant Care California, Inc.

 Houck & Balisok, Russell S. Balisok, Steven Wilheim and Patricia L. Canner for Real Parties in Interest Lourdes M. Inclan and Juan C. Inclan.

 No appearance for Respondent.

Filed May 25, 2001

 Lourdes M. Inclan and Juan C. Inclan sued Covenant Care California, Inc. (and Covenant Care, Inc.) for damages arising from the allegedly negligent care, treatment, and death of their father, Juan A. Inclan, at a hospice facility owned and operated by Covenant Care. [FOOTNOTE 1] More than two years later, the Inclans sought leave to file an amended pleading in which they alleged willful misconduct, elder abuse, and other intentional torts, and in which they asked for punitive damages. Covenant Care objected, contending (among other things) that the claim for punitive damages was time barred. (Code of Civ. Proc., 425.13 [in an action for damages arising out of the professional negligence of a health care provider, the court shall not allow an amendment that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint is filed].) [FOOTNOTE 2] The trial court rejected Covenant Care's argument and accepted the Inclans' assertion that section 425.13 does not apply to the Elder Abuse Act (Welf. & Inst. Code, 15600). [FOOTNOTE 3] Covenant Care then filed a petition for a writ of mandate, and we issued an order to show cause.

 We decline Covenant Care' s invitation to conclude that those who sue on behalf of an elderly person injured by a recklessly neglectful custodian must comply with the procedural requirements of section 425.13 simply because the custodian happens also to be a health care provider. We deny Covenant Care's petition.

DISCUSSION

A.

 Section 425.13, enacted in 1987 as the Brown-Lockyer Civil Liability Reform Act (Stats. 1987, ch. 1498, 1-7, pp. 5777-5782), establishes a "pretrial hearing mechanism" designed "to protect health care providers from the onerous burden of defending against meritless punitive damage claims." (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 188-189; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 714.) [FOOTNOTE 4] It provides as follows:

B.

 Although section 425.13 on its face applies only to actions involving "negligence," the statute in fact applies whenever an injured party seeks punitive damages in an action "directly related to the professional services provided by a health care provider acting in its capacity as such . . . ." (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at pp. 191-192.) The identification of a cause of action as an "intentional tort" as opposed to "negligence" does not determine the outcome; the "allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided." (Id. at p. 192.) As the Supreme Court explained, a literal interpretation of "negligence" would lead to an anomalous result -- since there are few situations in which mere negligence can support a claim for punitive damages, section 425.13 would be rendered virtually meaningless by a construction that excluded intentional torts. (Id. at p. 191.)

 Based on the Central Pathology analysis, section 425.13 has been broadly applied to a variety of intentional torts.

C.

 The Inclans acknowledge the rules just discussed but contend their elder abuse claim is exempt from the procedural hurdles created by section 425.13. We agree.

1.

 Elder abuse is both a crime and a civil wrong. (Pen. Code, 368; 15600 et seq.) [FOOTNOTE 5] In the criminal context, elders are in need of "special protections" because they "may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf." (Pen. Code, 368, subd. (a).) In the civil context, the Legislature has recognized that elders "may be subjected to abuse, neglect, or abandonment" ; that elderly persons constitute "a significant and identifiable segment of the population" ; that most elders who are at the greatest risk of abuse, neglect, or abandonment by their families or caretakers suffer physical impairments and poor health that place them in a dependent and vulnerable position; that "infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits" ; and that it is therefore the intent of the Legislature in enacting the Elder Abuse Law "to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults." ( 15600, italics added; see also Delaney v. Baker (1999) 20 Cal.4th 23, 42 [through the application of "heightened civil remedies," these statutes protect elders "from being recklessly neglected at the hands of their custodians, which includes the nursing homes or other health care facilities in which they reside" ].) [FOOTNOTE 6]

 To these ends, a plaintiff who proves "by clear and convincing evidence" that a defendant is liable for physical abuse, neglect, or fiduciary abuse, and that the defendant has been guilty of "recklessness, oppression, fraud, or malice" in the commission of this abuse, may recover both attorneys' fees and costs. ( 15657, subd. (a)).) On the same conditions, a plaintiff who brings suit as the personal representative of a deceased elder is relieved of the limitation imposed by Code of Civil Procedure section 377.34, and may recover damages for the emotional distress suffered by the decedent prior to his death (but the emotional distress damages cannot exceed the $250,000 cap imposed by Civil Code section 3333.2). ( 15657, subd. (b); but see Perry v. Shaw, supra, 88 Cal.App.4th 658.) [FOOTNOTE 7]

2.

 In Delaney v. Baker, supra, 20 Cal.4th 23, the question before the Supreme Court was whether a health care provider charged with the "reckless neglect" of a deceased elder within the meaning of section 15657 could be liable for attorneys' fees and emotional distress damages. The question arose because of an apparent inconsistency between section 15657 and a related section in the Elder Abuse Law, section 15657.2, which provides: "Notwithstanding this article, 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 [the MICRA statute of limitations governing actions against health care providers], based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action." (Italics added.) According to the defendant in Delaney, the reference in section 15657.2 to a claim "based on . . . professional negligence" covers all conduct directly related to the rendition of professional services (not just negligence) -- and exempts health care providers from the heightened remedies of section 15657, notwithstanding a finding that the health care provider has recklessly neglected an elder. (Delaney v. Baker, supra, 20 Cal.4th at pp. 30-31.)

 The Supreme Court rejected the health care provider's broad reading of section 15657.2 and analyzed the problem this way:

3.

 In Central Pathology, the Supreme Court held (in 1992) that "arising out of professional negligence" as used in section 425.13, subdivision (a), includes intentional torts, not just negligence. (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 191.) In Delaney v. Baker, supra, 20 Cal.4th at page 40, the Supreme Court held (in 1999) that the Elder Abuse Act "presents a very different statutory scheme from section 425.13(a) discussed in Central Pathology." But the Supreme Court did not in either case have before it the question now before us -- whether those heightened remedies adopted to encourage civil enforcement of the elder abuse laws include the right to plead punitive damages free from the procedural hurdles imposed by section 425.13. Covenant Care says the question has been answered, and accurately, by Division Two of the Fourth District in Community Care & Rehabilitation Center v. Superior Court (2000) 79 Cal.App.4th 787. The trial court disagreed, finding that Community Care is inconsistent with Delaney. We agree with the trial court.

 In Community Care, a surviving spouse and children (the DeGroods) sued for wrongful death damages, alleging that the Community Care and Rehabilitation Center (CCRC) was negligent, that it was guilty of criminal elder abuse in violation of Penal Code section 368, and that it was liable on a variety of intentional tort theories. The original complaint sought punitive damages, which CCRC moved to strike on the ground that the DeGroods had failed to comply with section 425.13. The trial court agreed with the DeGroods that section 425.13 did not apply, but the Court of Appeal granted CCRC' s petition for a writ of mandate. We believe Community Care reached the wrong result.

 First, it is based in part on a wholly unsupported assertion that section 425.13 "is clearly conceptually related to the statutes enacted as part of [MICRA]." (Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 791, fn. 6.) We do not agree. MICRA was adopted in 1975 to address a medical malpractice crisis by controlling the costs of malpractice insurance. (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 112.) Section 425.13 was adopted in 1987 to "require greater certainty of the propriety of imposing punitive damages by requiring clear and convincing evidence of fraud, malice, or oppression," and to make it more difficult to assert an unsubstantiated claim for punitive damages against a health care provider. (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 189.) Since malpractice insurance does not cover punitive damages (Ins. Code, 533; Peterson v. Superior Court (1982) 31 Cal.3d 147, 157, fn. 4.; City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31) the only common thread is that both statutes protect health care providers.

 Second, Community Care paints with too broad a brush. It appears that the DeGroods alleged no more than medical malpractice, and that their ability to allege a claim of elder abuse arose from the wholly serendipitous fact that the decedent happened to die at the nursing home to which she was transferred following surgery. As described by the Court of Appeal, the DeGroods' elder abuse allegations were that CCRC failed to "timely assess decedent's medical condition and develop a care plan" ; failed to "carefully and properly examine, diagnose, evaluate, test, and properly react to, emergent conditions, including a severe infection" ; failed to properly "prescribe, administer, [and] regulate . . . medications" ; failed to "properly . . . treat decedent" ; and failed to provide "appropriate, prudent, and timely medical care and treatment for decedent." By describing these allegations as "elder abuse," the DeGroods gave meaning to the Central Pathology court's concerns about artful pleading as a ruse to annul the protection afforded by section 425.13. In an action involving professional negligence and nothing more, the DeGroods asserted that CCRC was guilty of elder abuse for the apparent purpose of side-stepping the procedural requirements of section 425.13, subdivision (a). (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 191.) At least insofar as we can tell from the court's opinion, it does not appear that the DeGroods had legitimate claims of elder abuse. (Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 792 ["[h]owever it may be framed, in sum and substance the DeGroods assert that CCRC was remiss in providing health care services" ].) Where the emphasis of an action is on elder abuse and the abuser is primarily a custodian and only incidentally a health care provider, the action is not one that arises out of professional negligence within the meaning of section 425.13.

 Third, Community Care " stress[ed] that . . . section 425.13 does not prohibit the recovery of punitive damages against a health care provider. It only establishes procedures designed to ensure that a claim for such damages is not made without foundation. Thus, applying . . . section 425.13 does not mean that the Elderly Abuse Act plaintiff will lose a valuable right; it merely means that punitive damages cannot be demanded in bad faith or as a tactical ploy designed to coerce a hasty settlement." (Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 796.)
Not so.
Where, as here, the motion for leave to add a claim for punitive damages is made more than two years after the complaint is filed, the motion must be denied. ( 425.13, subd. (a).) It does not follow, as Community Care suggests, that the application of section 435.13 to an elder abuse claim will "not mean [the plaintiffs] cannot, or will not, recover punitive damages . . . ." (Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 797.)

 Fourth, Community Care expresses a concern about artful pleading, and suggests it would be "anomalous for health care providers to be subjected to possibly meritless, strategic demands for punitive damages in cases brought by persons described in the Elder Abuse Act, simply by ' artfully pleading' the claim in terms of elder or dependent adult abuse or neglect rather than medical malpractice. Rather, the requirements of . . . section 425.13 should be followed whenever the gravamen of an action is professional malfeasance -- that is, malfeasance in the provision of health care services." (Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 797.)
We do not agree -- notwithstanding that the Supreme Court admittedly sees a difference between (i) pleading an intentional tort in an ordinary medical malpractice case in order to justify a prayer for punitive damages, and (ii) pleading elder abuse in a wrongful death action arising out of medical malpractice in order to justify a prayer for attorneys' fees and emotional distress damages. (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 191; Delaney v. Baker, supra, 20 Cal.4th at p. 41.) In our view, the distinction is one without a meaningful difference. In both situations, an artful pleader will include the allegations necessary to enhance the settlement value of the case. In both situations, conclusory allegations can be disposed of by standard motions to strike (Code Civ. Proc., 435, subd. (b), 436, subd. (a); Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20) or for summary judgment (Code Civ. Proc., 437c, subd. (a); Chern v. Bank of America (1976) 15 Cal.3d 866, 873). We do not think the apparent conflict between Central Pathology and the Elder Abuse Law ought to be resolved on this point. [FOOTNOTE 8]

 Fifth, we disagree with Community Care's suggestion that a construction exempting elder abuse cases from the requirements of section 425.13 "would have constitutional implications" because (in the Community Care court's view) "[n]o reason is readily apparent why such persons should receive more favorable treatment with respect to punitive damages than other injured persons bringing suit against health care providers. There is no reason to suppose that the elderly and dependent (or their representatives) are less likely to bring unsubstantiated claims for punitive damages than other plaintiffs." (Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 797.) The Legislature found to the contrary. As explained in section 15600, "infirm elderly persons . . . are a disadvantaged class, . . . and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits. . . ." As section 15600 also makes clear, it was " the intent of the Legislature in [enacting the Elder Abuse Law] to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults." ( 15600, subds. (h), (j), italics added; see also Delaney v. Baker, supra, 20 Cal.4th at p. 42.) We see no constitutional issues.

 For these reasons, we will not follow Community Care.

D.

 The better question, we think, is whether there is in fact a conflict between the Central Pathology court's interpretation of section 425.13 on the one hand (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at pp. 191-192) and, on the other, the Legislature's intent to provide enhanced civil remedies and other "incentives" to those willing to prosecute elder abuse actions ( 15600; Delaney v. Baker, supra, 20 Cal.4th 23). We view the conflict as more imagined than real.

 The Delaney court held that a cause of action alleging reckless, oppressive, fraudulent or malicious elder abuse is not a cause of action "based on . . . professional negligence" within the meaning of section 15657.2. (Delaney v. Baker, supra, 20 Cal.4th at p. 32.) But it does not follow that, because it alleges something more than negligence, such a cause of action is necessarily one alleging an intentional tort within the meaning of Central Pathology (Delaney v. Baker, supra, 20 Cal.4th at p. 37 [Central Pathology should not be given "a broader reading than was intended" ]), or that it is one necessarily arising out of a health care provider's failure to provide (or negligent provision of) medical services. (Cf. Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 792.) Instead, it is a cause of action arising out of a unique statutory scheme enacted to protect elderly persons from reckless neglect at the hands of their custodians. That their custodians may sometimes be the nursing homes or health care facilities where they reside is purely incidental. (See Delaney v. Baker, supra, 20 Cal.4th at p. 42.)

 Given the Legislature's express findings that infirm elderly persons and dependent adults belong to a disadvantaged class, that "few civil cases are brought in connection with this abuse" due in part to "the lack of incentives to prosecute these suits," and given the Legislature' s declaration of its intent "to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults" ( 15600, subds. (h), (j)), we are satisfied that the result we reach is consistent with the Legislature's intent. (Delaney v. Baker, supra, 20 Cal.4th at p. 31.) This is, after all, only a matter of pleading -- and there is nothing in this opinion that would make it easier for a plaintiff to prove an entitlement to punitive damages based on elder abuse.

DISPOSITION

 The petition is denied. The Inclans are entitled to their costs of these writ proceedings.

VOGEL (MIRIAM A.), J.

We concur: ORTEGA, Acting P.J., MALLANO, J. 

::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::

FN1. The Inclans also sued Grancare, Inc., and related entitles and individuals, but a stay order issued in the parent company' s bankruptcy precludes their involvement in these writ proceedings. (Shah v. Glendale Federal Bank (1996) 44 Cal.App.4th 1371, 1374-1379; Cathey v. Johns-Manville Sales Corp. (6th Cir. 1983) 711 F.2d 60, 61.)

FN2. All references to section 425.13 are to that section of the Code of Civil Procedure.

FN3. Undesignated section references (except section 425.13) are to the Welfare and Institutions Code.

FN4. Section 425.13 is not part of the Medical Injury Compensation Reform Act (MICRA). (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 187; see also Perry v. Shaw (2001) 88 Cal.App.4th 658, 666-667.)

FN5. Most of the statutes addressing elder abuse also address dependent adult abuse. (E.g., Pen. Code, 368; 15600.) Since the case now before us involves elder abuse, our discussion is limited to that subject.

FN6. Elder abuse can arise a number of ways -- physical abuse, neglect, abandonment, isolation, financial abuse, deprivation by a care custodian of necessary goods or services, or other treatment that results in physical harm, pain, or mental suffering. ( 15610.07, 15610.30, 15610.43, 15610.57, 15610.63.)

FN7. In its entirely, section 15657 provides: "Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or fiduciary abuse as defined in Section 15610.30, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, 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."

FN8. And although it is true, as the Fourth District suggests in Community Care, that punitive damages are not covered by insurance (Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th at p. 791, fn. 5), the fact is that almost all such claims are accompanied by allegations of negligence -- so that, at the pleading stage, an insured health care provider is not left without a claim for a defense. (Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1081-1087.)