Judge Barbara M. Scheper, Case Number: 24STCV00619, Date: 2024-10-29 Tentative Ruling

Judge: Barbara M. Scheper, Case: 24STCV00619, Date: 2024-10-29 Tentative Ruling

Case Number: 24STCV00619 Hearing Date: October 29, 2024 Dept: 30

Dept. 30

Calendar No.

Martin, et. al. vs. Cedars-Sinai Medical Center, et. al., Case No. 24STCV00619

Tentative Ruling re: Defendant’s Demurrer to Second Amended Complaint; Motion to Strike

Cedar-Sinai Medical Center (Defendant) demurs to the second and third causes of action of Kirk Martin (Plaintiff) and Rosemary Martin’s (Plaintiffs) second amended complaint (SAC). Defendant’s demurrer is sustained without leave to amend as to the second cause of action and overruled as to the third cause of action. Defendant is ordered to answer within ten (10) days of today’s date.

A demurrer is sustained where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., 430.10, subd. (e).) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Yalung v. State (2023) 98 Cal.App.5th 71, 80.) In reviewing a complaint’s legal sufficiency, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Tit. Guaranty Co. (1998) 19 Cal.4th 26, 38.) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, a court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations pleaded or the difficulty a plaintiff may have in proving his allegations. (Ion Equipment Corporation v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.) Statutory causes of action, such as those brought under Welfare and Institutions Code section 15657, must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 (Covenant Care).)

Defendant demurs to Plaintiffs’ SAC on two grounds. First, Defendant argues that Plaintiffs’ second and third causes of action for dependent adult abuse and dependent adult neglect fail to state facts sufficient to constitute a cause of action because Defendant did not have a caretaking or custodial relationship with Plaintiff. Second, Defendant argues that Plaintiffs fail to plead neglect and abuse with the particularity required by Covenant Care.

Plaintiffs allege that Defendant is liable for physical abuse and neglect of a dependent adult pursuant to Welfare and Institutions Code section 15657. That section provides for greater damages if a plaintiff proves by clear and convincing evidence that a defendant is liable for physical abuse or neglect of a dependent adult and “has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.” (Welf. & Inst. Code, § 15657.) A dependent adult is “any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.” (Id., § 15610.23, subd. (b).) The parties do not dispute that Plaintiff qualified as a dependent adult under this definition.

Under section 15657, physical abuse includes “[u]nreasonable physical restraint, or prolonged or continual deprivation of food or water.” (Id., § 15610.63, subd. (d).) Neglect refers to “[t]he 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.” (Id., § 15610.57, subd. (a)(1).) Examples of neglect include: “(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. . . (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration.” (Id., § 15610.57, subd. (b)(1)–(4).)

Defendant provided services as a custodial caretaker.

Defendant argues that Plaintiffs have not pled facts showing a caretaking or custodial relationship between Defendant and Plaintiff, as required by Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155 (Winn). Plaintiffs’ third cause of action alleges neglect by Defendant, which can only be found if the defendant has “the care or custody of . . . a dependent adult.” (Ibid.; Welf. & Inst. Code, § 15610.57, subd. (a)(1).) This caretaking or custodial relationship exists “where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn, supra, at p. 158.) Such a relationship may be found “beyond the confines of a residential care facility,” but involves “more than casual or limited interactions.” (Ibid.) There must be a reliance on the defendant by the plaintiff distinct from a fully competent adult’s normal reliance on the advice and care of their medical providers. (Id. at p. 165.)

The Court in Winn emphasized that actions under section 15657 are distinct from those for ordinary professional negligence and neglect. (Winn, supra, 63 Cal.4th at p. 159.) Indeed, “any cause of action for injury or damage against a health care provider . . . based on [its] alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.” (Welf. & Inst. Code, § 15657.2.) Thus, plaintiffs alleging professional negligence may seek certain tort remedies, but not the heightened remedies available under section 15657. (Winn, supra, at p. 160.) Section 15657 is not intended to apply every time a doctor treats an elderly patient, as such application would radically transform medical malpractice liability. (Id. at p. 163.) Rather, “[i]t must be determined, on a case-by-case basis, whether the specific responsibilities assumed by a defendant were sufficient to give rise to a substantial caretaking or custodial relationship.” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405 (Oroville Hospital).)

In Oroville Hospital, the Court of Appeal found that the provision of in-home nursing for wound care did not give rise to a caretaking or custodial relationship. (Oroville Hospital, supra, 74 Cal.App.5th at p. 405.) The court reasoned that wound care is not the type of basic need an able-bodied adult would ordinarily be able to manage on their own, as required by Winn. (Ibid.) Similarly, in Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1123 (Kruthanooch), the Court of Appeal held that a defendant hospital did not have a robust caretaking or custodial relationship with the plaintiff. There, the plaintiff presented at the defendant emergency department with weakness and lightheadedness, essentially unable to walk. (Id. at p. 1128–1129.) While in the hospital, he received IV fluids and was transported to and from an MRI scan by hospital employees. (Id. at p. 1129.) The court noted that at the time he presented at defendant’s emergency room, plaintiff was not cognitively impaired and required no assistance with eating, drinking, toileting, or other basic needs. (Ibid.) Additionally, the plaintiff had only been at defendant’s facility for a few hours when he sustained his injury. (Ibid.) The court concluded that no custodial or caretaking relationship existed because “the relationship was of a limited duration and [defendant’s] attention to [plaintiff’s] basic needs was incidental to the circumscribed medical care it provided.” (Id. at p. 1128.)

Here, Plaintiffs allege the following. Defendant is a medical facility. (SAC ¶ 1.) Defendant admitted Plaintiff on January 14, 2023, for treatment of MSSA bacteremia, a lead infection, septic arthritis, septic pulmonary emboli, and spinal epidural abscess. (Id. ¶ 28, 34.) This required review and interpretation of medical history and records, physical examination, nursing care, radiological studies, administration of medication, ensuring adequate physical movement, providing proper nutrition, and supplying appropriate physician and nursing care. (Id. ¶ 28.) Plaintiff received sedative medication which imposed temporary physical and mental limitations. (Id. ¶ 75.) Defendant was responsible for meeting Plaintiff’s basic needs, including nutrition, hydration, hygiene, and medical care. (Id. ¶ 76.) Nurses would regularly visit Plaintiff to move his body. (Id. ¶ 35.) Defendant discharged Plaintiff on March 7, 2023, but he returned on March 22 with further ailments, including a pressure wound incurred during his first stay. (Id. ¶ 54.)

Plaintiff availed himself of Defendant to receive medical care for an extensive assortment of maladies. (SAC ¶ 28.) Like the wound care sought by the plaintiff in Oroville Hospital, this care for Plaintiff was not of the type that an able-bodied adult would normally be able to manage on their own, and did not immediately establish Defendant as a custodian or caretaker under Winn. Additionally, Plaintiff did not present to Defendant with cognitive impairments of the type deemed relevant in Kruthanooch. Plaintiff required additional assistance from personnel while treated by Defendant, but as in Kruthanooch, this assistance was incidental to medical care.

However, while the plaintiff in Kruthanooch only received care for a few days, here Plaintiff received care for over a month. During that time Plaintiff alleges that he relied on Defendant for the repositioning of his body and for hygiene. (SAC ¶ 66.) While Plaintiff might not have initially enlisted Defendant as a caretaker or custodian, Defendant took on this role through its provision of medical services over such a long period. Plaintiff’s reliance on Defendant for basic needs is well pled, considering his inability to move and the requisite risk of developing pressure sores. The Court finds that Plaintiff relied on Defendant in a way “distinct from a fully competent adult’s reliance on the advice and care of their medical providers,” as contemplated in Winn. Thus, Plaintiffs plead sufficient facts showing that Defendant had the care or custody of a dependent adult.

Plaintiffs have pled neglect with sufficient particularity.

Defendant asserts that Plaintiffs have not pled their third cause of action for dependent adult neglect with sufficient particularity. Plaintiffs must plead facts showing not only neglect as defined under section 15610.57, but also “recklessness, oppression, fraud, or malice.” (Welf. & Inst. Code, § 15657.) Recklessness is a “conscious choice of a course of action with knowledge of the serious danger to others involved in it” and a “deliberate disregard of the high probability that injury will occur.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31–32.) Such facts must be pled with particularity. (Covenant Care, supra, 32 Cal.4th at p. 790.) Thus, Plaintiffs must allege more than conclusory reckless conduct on the part of Defendant.

Here, Plaintiff alleges that he was under the care and treatment of Defendant. (SAC ¶ 28.) During his stay, Plaintiff alleges that he developed pressure sores because Defendant failed to properly train and instruct staff with respect to his treatment. (Id. ¶ 38.) Multiple doctors noted impaired skin characteristic of a potential pressure sore. (Id. ¶¶ 40, 43–44.) After a doctor finally noted Plaintiff’s pressure sore, Defendant did not immediately order preventative care. (Id. ¶ 49.) Such an injury is clearly identifiable and preventable. (Id. ¶ 58.) Plaintiff alleges that Defendant intentionally misrepresented his condition. (Id. ¶ 63.) Altogether, Plaintiff alleges a myriad of failures by Defendant that, given the obviousness of Plaintiff’s injury, could constitute reckless conduct on the part of Defendant. (Id. ¶ 66.) Plaintiff alleges that Defendant failed to protect him from health and safety hazards, failed to assist him when struggling, withheld necessary medical care, failed to monitor his care, and failed to provide sufficient staff. (Id. ¶ 79.) Plaintiff further alleges that Defendant intentionally diverted resources away from patients like himself. (Id. ¶ 106.) These allegations constitute potentially reckless conduct given the obvious nature of Plaintiff’s injury. Thus, Plaintiffs have pled facts with sufficient particularity to constitute reckless conduct on the part of Defendant with respect to their third cause of action for dependent adult neglect.

Plaintiffs have not pled abuse with sufficient particularity.

Defendant contends that Plaintiffs have not pled their second cause of action for dependent adult abuse with sufficient particularity. Plaintiffs must plead facts showing physical abuse, defined as “unreasonable physical restraint, or prolonged deprivation of food or water.” (Welf. & Inst. Code, § 15610.63, subd. (d).) Plaintiffs must also show that abuse to be reckless, oppressive, fraudulent, or malicious. (Id., § 15657.) These facts must be pled with particularity. (Covenant Care, supra, 32 Cal.4th at p. 790.)

Plaintiffs have made no such showing. They make no accusation of physical restraint, and Plaintiffs’ only allegation regarding deprivation of food is that Defendant provided ineffective nutritional counseling to its employees. (SAC ¶ 88.) This allegedly resulted in Plaintiff developing protein and calorie deficiencies. (Ibid.) Plaintiffs’ allegations do not constitute a prolonged deprivation of food on the part of Defendant. Indeed, much of Plaintiffs’ second cause of action incorporates allegations of neglect better suited for Plaintiffs’ third cause of action. Thus, Plaintiffs have not pled sufficient facts to constitute a cause of action for dependent adult abuse under section 15657.