Judge: Carolyn M. Caietti, Case: 37-2022-00018306-CU-PO-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00018306-CU-PO-CTL TEGELER VS BROOKDALE SENIOR LIVING COMMUNITIES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Mary Ellen Heilgeist's Demurrer to Plaintiffs' First Amended Complaint is OVERRULED.

Defendant Mary Ellen Heilgeist's Motion to Strike Portions of Plaintiffs' First Amended Complaint is DENIED.

Defendants Brookdale Senior Living Communities, Inc, Brookdale Living Communities of California-San Marcos dba Brookdale San Marcos and BLC-Brookdale Place of San Marcos, L.P.'s Demurrer to Plaintiffs' First Amended Complaint is OVERRULED.

Defendants Brookdale Senior Living Communities, Inc, Brookdale Living Communities of California-San Marcos dba Brookdale San Marcos and BLC-Brookdale Place of San Marcos, L.P.'s Motion to Strike Portions of Plaintiffs' First Amended Complaint is DENIED.

Defendant Sarah McSpadden's Demurrer to Plaintiffs' First Amended Complaint is OVERRULED.

Defendant Sarah McSpadden's Motion to Strike Portions of Plaintiffs' First Amended Complaint is DENIED.

Background Plaintiffs' First Amended Complaint (FAC) alleges that on March 20, 2019, Ernest Tegeler became a resident of Defendants Brookdale San Marcos, an assisted living facility. While at Brookdale, Tegeler became increasingly dependent on Brookdale for activities of daily living, required greater care and precautions and had a high risk of skin breakdown. In December 2020, Brookdale staff noted a wound on Tegeler's left buttock, but despite Brookdale's obligation to coordinate his care and treatment, refused to assist with supervising Tegeler's self-administrating treatment. (FAC, at ¶ 25.) By January 13, 2021, he was admitted to Scripps, suffering from a stage III sacral ulcer on his left buttock and an additional ulcer on his right heel presenting a deep tissue injury. (FAC, at ¶ 26.) He was transferred to a skilled nursing facility.

After treatment by skilled nursing, Tegeler was transferred back to Brookdale on March 5, 2021. It was agreed that in order to facilitate his return to assisted living, Defendant The Elizabeth Hospice would be brought in for wound care, to monitor and prevent skin breakdown and assist with treatment of any pressure ulcers. (FAC, at ¶ 27.) Plaintiffs allege both Brookdale and The Elizabeth Hospice (TEH) failed to monitor and assess Tegeler's condition, failed to document changes in condition and to collaborate Calendar No.: Event ID:  TENTATIVE RULINGS

3085348  33 CASE NUMBER: CASE TITLE:  TEGELER VS BROOKDALE SENIOR LIVING COMMUNITIES INC  37-2022-00018306-CU-PO-CTL his care, reappraisals and treatment with each other.

On March 27, 2021, and April 10, 2021, Harden communicated to TEH that Brookdale refused to provide wound care because they did not have orders from TEH. (FAC, at ¶¶ 33-34.) By April 10, 2021, TEH and Brookdale had cared for Tegeler for 35 days without wound care orders or a care plan being established. (FAC, at ¶ 35.) The wounds worsened. TEH forgot about the wounds despite Harden's repeated requests that dressings be removed and assessments performed. (Id., at ¶ 36.) On May 15, 2021, at Michele Harden's, Tegeler's daughter, request, a podiatrist was called in to look at Tegeler's feet, but did not do a visual inspection of the pressure ulcers. TEH did not follow up with the podiatrist. (FAC, at ¶ 38.) On May 18, 2021, Tegeler was emergently transferred to Scripps. Notes by TEH stated Tegeler had small black discoloration in his left toes for a 'couple weeks' and that the lesions had significantly worsened over the last 2-3 days. (Id., at ¶ 39.) Plaintiffs maintain Tegeler suffered from the untreated sacral pressure ulcer, foot ulcers, infection and gangrene and Defendants failed to treat his worsening medical condition. (Id., at ¶ 46.) Tegeler died on May 24, 2021.

The FAC asserts causes of action for: (i) negligence; (ii) willful misconduct; (iii) elder abuse/reckless neglect; (iv) wrongful death.

Preliminary Matters Plaintiffs' unopposed requests for judicial notice of the Department of Public Health's website and California Board of Registered Nursing's website is granted and notice will be taken to the extent permitted. (ROA 174.) Plaintiffs' unopposed requests for judicial notice of the Court's Minute Order dated April 14, 2023 is granted and notice will be taken to the extent permitted. (ROA 177, 180.) Demurrers A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Heilgeist's Demurrer Heilgeist worked as the Executive Director and a 'care custodian' at Brookdale. (FAC, at ¶ 9.) The FAC's first cause of action states sufficient facts to constitute negligence against Heilgeist, who, as plead, owed a duty of care to Tegeler based on her role as administrator of Brookdale, breached her duties owed when she failed to ensure his basic needs were met, collaborate and coordinate his care, resulting in physical injury and his death. (E.g., FAC, at ¶¶ 9, 15, 48, 56, 57, 64, 77-81.) The FAC's second cause of action states sufficient facts to constitute willful misconduct. In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also: (i) actual or constructive knowledge of the peril to be apprehended, (ii) actual or constructive knowledge that injury is probable, as opposed to a Calendar No.: Event ID:  TENTATIVE RULINGS

3085348  33 CASE NUMBER: CASE TITLE:  TEGELER VS BROOKDALE SENIOR LIVING COMMUNITIES INC  37-2022-00018306-CU-PO-CTL possible, result of the danger; and (iii) conscious failure to act to avoid the peril. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140.) Willful misconduct is not the mere absence of care; rather, it involves a more positive intent to actually harm another or to do an act with a positive, active and absolute disregard of its consequences. (Ibid.) Here, the FAC sufficiently alleges the first two elements. Heilgeist ensured the supervision and care of Tegeler, was on notice of his care requirements, agreed to provide care and knew he was at great risk if she failed to carry out her duties. (FAC, at ¶¶ 9, 24-25, 42-51, 57, 64-69.) The FAC also alleges the third conscious failure element and that Heilgeist failed to provide care, supervision and services that were required to be delivered by staff sufficient in numbers, qualifications and competency to meet his needs.

(FAC, at ¶ 65.) Even after Tegeler's daughter requested her father receive care, Heilgeist did not provide it. (Id., at ¶ 35.) More specifically, Defendants knew of but failed to assess, evaluate Tegeler's progressing stage three sacral ulcer, stage three heel ulcer, multiple other increasing pressure ulcers, necrotic toes, infection and worsened physical condition. (Id., at ¶ 66.) As alleged, Defendants failed to maintain complete and accurate medical records to 'cover-up' the wrongdoing. (Id., at ¶ 69.) The FAC's third cause of action states sufficient facts to constitute Elder Abuse/Reckless Neglect. The Elder Abuse and Dependent Adult Civil Protection Act makes available heightened remedies to plaintiffs who successfully sue for elder abuse. 'Abuse of an elder' includes '[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.' (Welf. & Inst. Code (WIC), § 15610.07(a)(1).) WIC section 15610.57 defines 'neglect' in part as '[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. (WIC, § 15610.57(a)(1).) 'Neglect' includes the '[f]ailure to provide medical care for physical and mental health needs.' (Id., at subd. (b)(2).) To obtain the remedies provided by the Act pursuant to WIC section 15657, a plaintiff must demonstrate 'by clear and convincing evidence that a defendant is liable for neglect as defined in Section 15610.57 and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse...' (WIC, § 15657.) '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.' Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.' (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88-89, quoting Delaney v. Baker (1999) 20 Cal.4th 23, 31, see also, Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 405.) Here, first, the FAC sufficiently alleges Heilgeist had a custodial relationship with Tegeler. (WIC, § 15610.57(a)(1).) The Elder Abuse Act 'does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.' (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) The Court emphasized that most of the examples 'seem to contemplate ... the existence of a robust caretaking or custodial relationship-that is, a relationship 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, at pp. 157–158.) Here, as alleged, Tegeler resided at Brookdale's Residential Care Facility for the Elderly, an RCFE facility, and was responsible for Tegeler's care, custody, safety and well-being. (FAC, at ¶ 15.) Heilgeist was charged with Brookdale's management and operation. (FAC, at ¶¶ 11, 74-75.) Paragraph 74 explains in full the ways Tegeler was dependent on Brookdale/Heilgeist and is distinguishable from the plaintiff in Winn. For purposes of demurrer, sufficient facts are alleged.

Second, the FAC sufficiently states facts of recklessness. (E.g., FAC, at ¶¶ 43, 45, 47, 48, 59, 60, 66-68, 81-83.) As alleged, Heilgeist failed to provide medical care. (WIC, § 15610.57(b)(2).) Minimally, for 35 days, Tegeler was without wound care orders or a care plan being established and without Brookdale Calendar No.: Event ID:  TENTATIVE RULINGS

3085348  33 CASE NUMBER: CASE TITLE:  TEGELER VS BROOKDALE SENIOR LIVING COMMUNITIES INC  37-2022-00018306-CU-PO-CTL and Elizabeth collaborating and communicating regarding his care. (E.g., FAC, at ¶ 77.) Plaintiff also alleges Heilgeist had a duty, as administrator of the residential care for elder facility to ensure his care and coordinate with the hospice provider; had knowledge that injury to Tegeler was probable and failure to do so would subject him to harm. (Id., at ¶¶ 77-78.) Moreover, the FAC also alleges the failure to provide Tegeler with a pressure relieving mattress as ordered as well as failures regarding monitoring, ensuring adequate staffing levels, recording, reacting to emergent conditions and informing Tegeler's family. (Id., at ¶ 79.) Even after Harden communicated the need for Brookdale and TEH to coordinate wound care, they did not. (Id., at ¶¶ 33, 35, 77; see also, Carter, supra, 198 Cal.App.4th at pp. 409-10 [Acts that 'arguably are sufficiently egregious to constitute elder abuse' include 'not treating the pressure ulcers...resulting in sepsis.'].) In liberally construing these allegations, a claim is alleged that Heilgeist egregiously withheld medical care.

The fourth cause of action contains allegations as to all elements of a wrongful act or negligence; thus, it also states sufficient facts to constitute wrongful death. (See, Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) Heilgeist has not met her burden the SAC is uncertain. The allegations are not ambiguous or unintelligible. (See, Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [''A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.'].) For these reasons, Heilgeist's demurrer is OVERRULED.

Brookdale's Demurrer The second cause of action alleges sufficient facts to constitute willful misconduct and is not uncertain.

(Doe, supra, 8 Cal.App.5th at p. 1140.) The FAC alleges Brookdale had actual or constructive knowledge of the peril to be apprehended and that injury was probable. (FAC, at ¶¶ 15, 44, 56-57, 64, 65, 67, 79.) Further, the FAC alleges a conscious failure to act to avoid the peril. Brookdale failed to collaborate on Tegeler's care and treatment, to implement proper wound care and infection precautions and protocol, supervise and monitor Tegeler, maintain complete and accurate records, adequately staff its facility and to inform Tegeler's family of his failing health. Further, the Court previously determined this cause of action was not uncertain. (RFJN Ex. 1.) For these reasons, Brookdale's demurrer is OVERRULED.

McSpadden's Demurrer The third cause of action sufficiently states facts to constitute Elder Abuse.

The FAC sufficiently alleges McSpadden had the care and custody of Tegeler. (WIC, § 15610.57(a)(1); Winn, supra, 63 Cal.4th at p. 152, 157-58.) Here, as alleged, the nature of Tegeler's relationship with McSpadden was one where Tegeler needed McSpadden to meet his basic needs. As administrator of TEH (RFJN 1-2), McSpadden was charged with providing medical care and supervising the care provided to Tegeler. (FAC, at ¶¶ 11, 74-75.) Again, the facts are distinguishable from Winn. For purposes of demurrer, sufficient facts are alleged.

The FAC also sufficiently alleges recklessness. There are allegations McSpadden failed to provide medical care and failed to attend to Tegeler's basic needs and comforts. (See, Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 & Carter, supra 198 Cal.App.4th at p. 408.) As alleged, McSpadden was responsible for Ernest's care and custody from March through May 2021 and consistently left him to suffer in pain as a result of conscious improper staffing. (FAC, at ¶¶ 15, 31, 45, 64-68, 75-79, 81-82.) Critically, for 35 days, McSpadden failed to coordinate his care and to carry out her duties as administrator. (Id., at ¶¶ 35, 43, 76-77.) Further, the FAC alleges McSpadden made a conscious decision not to transfer Ernest to an acute care facility to properly assess and treat his Calendar No.: Event ID:  TENTATIVE RULINGS

3085348  33 CASE NUMBER: CASE TITLE:  TEGELER VS BROOKDALE SENIOR LIVING COMMUNITIES INC  37-2022-00018306-CU-PO-CTL wounds when his circumstances grew worse, leading to his death. (Id., at ¶¶ 47, 75, 79.) For purposes of demurrer, sufficient facts are alleged.

For these reasons, McSpadden's demurrer is OVERRULED.

Motions to Strike A motion to strike a complaint in whole or in part is governed by C.C.P. sections 435 through 437. C.C.P.

section 436, provides that '[t]he court may, upon a motion ... (a) [s]trike out any irrelevant, false or improper matter...(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.' The grounds for a motion to strike must appear on the face of the challenged pleading or matter subject to judicial notice. (C.C.P., § 437(a).) In ruling on a motion to strike, courts must assume the truth of the complaint's allegations and liberally construe the allegations with a view to substantial justice. (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 91 & C.C.P., § 452.) Heilgeist and Brookdale's Motions Heilgeist and Brookdale filed substantially similar motions and seek to strike the prayer for punitive damages, treble damages and attorney fees in the second and third causes of action and corresponding allegations.

As to punitive damages, Heilgeist and Brookdale refer to their demurrers, but as discussed above sufficient facts are alleged to support these causes of action. Further, the FAC states facts to support malice and oppression. (Civ. Code, § 3294; Carter, supra, 198 Cal.App.4th at p. 405 ['In short, 'in order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.''].) As discussed above, the FAC states facts Heilgeist and Brookdale knew their failure to fulfill their duties to provide care for Tegeler would result in serious personal injury and/or death; that they failed to provide care in addition to adequate staffing levels and to properly supervise and monitor Tegeler's care. Further, they knew Tegeler was diabetic, with neuropathy, easily subject to skin breakdown and suffering from multiple wounds. (FAC, at ¶¶ 19-20, 22.) Minimally, no care was provided for at least 35 days despite requests from Tegeler's daughter to provide and coordinate the care.

Sufficient facts are also alleged to satisfy Civil Code section 3294(b), which states, as applicable, that an employer is not liable for punitive damages unless the employer 'authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.' Here, in addition the allegations discussed above, Plaintiffs allege the 'willful and reckless breaches of care and conscious disregard as alleged herein against Defendants were actually committed by and/or ratified by managing and directing agents of Defendants and its RCFE' including its administrator. (E.g., FAC, at ¶ 83.) Heilgeist and Brookdale also seek to strike other allegations regarding Plaintiffs' claim for punitive damages (FAC, at ¶¶ 72, 85-87, 92) on the grounds they are conclusory. But as discussed above, in liberally construing the FAC, sufficient facts support these allegations and they are not conclusory when considered with the other facts alleged.

As to attorney fees, Heilgeist and Brookdale argue Plaintiffs make their request under WIC section 15657.5, but this is incorrect. The prayer plainly states attorney fees and costs are sought under WIC section 15657, which allows for attorney fees and costs if the requisite neglect is proven. (FAC, at p. 27:23.) Heilgeist and Brookdale also seek to strike Plaintiffs' prayer for treble damages under Civil Code section 3345, which applies 'only in actions brought by, on behalf of, or for the benefit of those individuals specified [including senior citizens, disable persons and veterans]...to redress unfair or deceptive acts or Calendar No.: Event ID:  TENTATIVE RULINGS

3085348  33 CASE NUMBER: CASE TITLE:  TEGELER VS BROOKDALE SENIOR LIVING COMMUNITIES INC  37-2022-00018306-CU-PO-CTL practices or unfair methods of competition.' Heilgeist argues Plaintiffs' request for treble damages is improper because it is not based on deceptive acts or practices, citing Hood v. Hartford Life and Acc. Ins.

Co. (E.D. Cal. 2008) 567 F.Supp.2d 1221), a federal case not binding on this court. Even if the Court considers Hood, as raised by Plaintiffs in opposition, it states, '[n]othing in the statement of purpose expressly limits Section 3345 to the CLRA and UCA' and the text alone is inconclusive as to the scope of the statute. (Hood, at p. 1228.) Defendants do not reply to this argument.

For these reasons, the motion is DENIED.

McSpadden's Motion McSpadden seeks to strike the prayer for costs, attorney fees and punitive damages for Plaintiffs' cause of action under WIC section 15600. These remedies are available under the third cause of action. (WIC, § 15657.) She argues the third cause of action fails to allege sufficient facts constituting Elder Abuse.

For the reasons stated above, sufficient facts are pled and the also support the prayer for punitive damages under Civil Code section 3294.

McSpadden further argues that Plaintiffs did not comply with C.C.P. section 425.13(a), which requires plaintiffs in an action arising from the professional negligence of a licensed health care provider to obtain a court order before including a claim for punitive damages in a complaint. However, the California Supreme Court in Covenant Care, supra, held that procedural requirements under C.C.P. section 425.13(a) did not apply to punitive damage claims in actions alleging elder abuse subject to heightened civil remedies under the Elder Abuse Act and finding 'nothing in the text, legislative history, or purposes of either section 425.13(a) or the Elder Abuse Act to suggest the Legislature intended to afford health care providers that act as elder custodians, and that egregiously abuse the elders in their custody, the special protections against exemplary damages they enjoy when accused of negligence in providing health care.' (Covenant Care, supra, 32 Cal.4th at p. 776; see also, Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426.) For these reasons, the motion is DENIED.

Concluding Orders All moving defendants are ordered to file and serve an answer to the FAC by June 28, 2024.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant Heilgeist is ordered to serve written notice of the Court's final ruling on all appearing parties by June 11, 2024.

Plaintiffs are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion briefing.

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