Judge Christian R. Gullon, Case Number: 21STCV18038, Date: 2024-02-28 Tentative Ruling

Judge: Christian R. Gullon, Case: 21STCV18038, Date: 2024-02-28 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Motion For Summary Judgment, Or In The Alternative, Summary Adjudication Of Issues By Defendant Knd Development 52, Llc Dba Kindred Hospital Baldwin Park is GRANTED as to Elder Abuse COA because there is no evidence of corporate ratification but DENIED as to the Professional Negligence COA because a triable issue of material act exists as to causation.

This is an elder abuse case. Plaintiff Lie-Yen Hu (“Plaintiff”) alleges the following against Defendants Kindred Hospital-Baldwin Park (“Defendant Kindred”) and Keck Hospital of USC (“Keck” or “USC”) (collectively, “Defendants”): Plaintiff is mentally incapacitated due to encephalopathy, unconsciousness, the effects of numerous medications, and other conditions.

Plaintiff was a resident of Defendant Kindred from on or about April 7, 2020 through on or about September 25, 2020. As for Defendant Kindred, despite knowing of Plaintiff’s needs, Kindred repeatedly failed to provide care.

On July 20, 2022, USC filed a demurrer to the SAC, which the court on 8/31/22 overruled.

On December 29, 2022, the court entered an order continuing trial and all related dates.

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

Court need only rule on objections material to adjudication of the motion. (See Code Civ. Proc., § 437c, subd. (2), subs. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)

Evidentiary Objections To The Declaration Of Marvin Pietruszka, M.D. In Support Of Plaintiff’s Opposition To The Motion For Summary Judgment, Or In The Alternative, Summary Adjudication Of Issues By Defendant Knd Development 52, LLC Dba Kindred Hospital Baldwin Park:

OVERRULED because Kindred failed to offer an analysis as to its objections. For example, it is unclear how Dr. Pietruszka’s declaration should be stricken in its entirety based upon a lack of foundation when he is a qualified expert (experience in primary medical care as well as in subspecialty consultation, acute care and long-term care). Or it is unclear how Dr. Pietruszka’s declaration fails to lay the foundation (Reply p. 6:2-3) when his declaration lists the materials he reviewed in forming his opinion. (See Pietruszka Decl., ¶4.)

Evidentiary Objections To The Exhibits Submitted By Plaintiff In Opposition To The Motion For Summary Judgment, Or In The Alternative, Summary Adjudication Of Issues By Defendant Knd Development 52, Llc Dba Kindred Hospital Baldwin Park:

OVERRULED because Defendant’s own evidence suffers from certain defects (See e.g., fn. 2, infra). And as the court exercises its discretion to overlook Defendant’s defects, it is only but fair to overlook some of Plaintiff’s defects such as Plaintiff’s failure to provide a table of contents in its evidence.

Kindred moves for an granting its MSJ, or in the alternative, summary adjudication as to the 1^st COA for Elder Abuse & Neglect and 2^nd COA for Negligence.

Case law is clear that, “‘neglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 (Covenant Care).) “As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’” (Id.) In order to distinguish Dependent Adult Abuse from Professional Negligence, there must be a showing of recklessness, fraud, malice, or oppression. (See Covenant Care, Inc., supra, 32 Cal.4th at 783.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (internal quotation marks omitted).) Recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Id.) The enhanced remedies for Elder Abuse are only available for “acts of egregious abuse against elder and dependent adults.” (Id.)

According to the Covenant Care court, the following are the four (4) elements to an elder abuse COA, which due to the statutory nature, must be pled with particularity: (1) the plaintiff must allege facts establishing that the defendant had responsibility for meeting the basic needs of the elder or dependent adult (e.g., nutrition, hydration, hygiene or medical care); (2) defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (3) the defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness; and (4) that the defendant’s neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Covenant Care, supra, 32 Cal.4th at p. 790). Lastly, there must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (See Civ. Code, § 3294; Cal. Welf. & Inst. Code, § 15657(c); see also CACI section 3102B.)

As the MSJ can be more readily adjudicated on the issue of whether Plaintiff has evidence of corporate ratification, the court will focus its analysis on that matter, which, for reasons to be discussed below, Plaintiff has produced no evidence.

Preliminary, Kindred does not support its motion with affirmative evidence to negate an essential element of Plaintiff’s case, but points to the absence of evidence in Plaintiff’s case. (Motion p. 5:25-28; see also Reply p. 1:4-5 [“Kindred Baldwin Park has met its burden of addressing the absence of evidence to support Plaintiff’s case as clearly presented in its moving papers.”].) Indeed, another way for a defendant to obtain summary judgment is to “show” that an essential element of plaintiff's claim cannot be established. Defendant does so by presenting evidence that plaintiff “does not possess and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

Unlike the federal rules of civil procedure, “summary judgment law in this state . . continues to require a defendant moving for summary judgment to present evidence, and not simply point out, that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at pp. 854-855, emphasis added; see also Gaggero v. Yura (2003) 108 Cal.4th 884, 891; Zoran Corp v. Chen (2010) 185 Cal.App.4th 799, 808.) Such evidence usually consists of admissions by plaintiff following sufficient discovery to the effect that plaintiff has discovered nothing to support an essential element of the COA. (Aguilar, supra, 25 Cal.4th at p. 855; see also Motion p. 6, citing Union Bank v. Superior Court (1995) 31 Cal.4th 573, 590.)

As explained by the Rutter Group,[1] a defendant may be able to “show” the absence of evidence on a crucial element of the plaintiff’s case via Plaintiff’s discovery admissions. For example, in a products liability case, the appellate court determined that Plaintiff’s inability to identify a defendant amounted to a showing of an absence of evidence. (See Sheffield v. Eli Lilly Co. (1983) 144 Cal.App.3d 583, 611 [“[D]espite changes in the statutory law . . . the fruits of discovery could be considered in support of or in opposition to a motion for summary judgment. We have, accordingly, considered the entire record in concluding that the plaintiffs have failed to show either that any particular defendant furnished the defective vaccine that allegedly caused their injuries; that all of the defendants were tortfeasors in that they manufactured a defective product, or a product that necessitated a warning because it was inherently dangerous. Their inability to identify the alleged tortfeasor is admitted.”], emphasis added.) Similarly, factually devoid discovery responses can sufficiently establish an absence of evidence. (See e.g., Union Bank, supra, 31 Cal.App.4th 590 [In a fraud case, the defendant's interrogatories asked the plaintiff to state “all facts” and to identify all witnesses and documents supporting the fraud claims. The plaintiff’s answer stated only that he “believed” that the defendant “knowingly and fraudulently” committed certain acts. Such factually devoid responses strongly supported an inference that P had no facts to support its fraud claim, satisfying D's burden of showing “one or more elements of the cause of action … cannot be established.”].)

Such a showing shifts the evidentiary burden to plaintiff/opposing party to raise a triable issue of fact as to that element of that COA. (Code of Civ. Proc., § 437c(p)(2).)

As the pleadings frame the issue(s) on an MSJ, the court turns to the relevant allegations of ratification in the SAC.

When plaintiff's family members expressed their concerns [of the alleged elder abuse] they would be assured that plaintiff was being properly cared for an that there was no cause for concern. Yet no one, including none of KINDRED’s charge nurses or managerial staff, made any notation or record regarding the concerns voiced by plaintiff's family members. In addition, despite assurances that plaintiff's family members' concerns would be addressed, they were not. Rather, the lack of care and treatment referenced above continued. Furthermore, nursing staff at KINDRED failed to inform and actively concealed from plaintiff's family members the true nature of plaintiff’s condition and the extent of plaintiff's injuries. This included the failure to inform plaintiff's family that plaintiff had developed severe skin breakdown. In addition, despite knowledge of the lack of care and treatment provided to plaintiff as evidenced by these injuries, and knowledge of related concerns expressed by plaintiff’s family members, there is no record that anyone associated with KINDRED – and certainly no officer, directors or managing agent – ever counseled, warned, retrained, or reprimanded any individual who failed to provide care to plaintiff. Having reviewed records from KINDRED, plaintiff believe [sic] persons who possessed such knowledge and failed to so inform plaintiff’s family or take any of the other actions referenced above included registered nurse Ryanne Connell. Instead, despite such knowledge, KINDRED’s officers, directors and/or managing agents as described above authorized and ratified the misconduct in question. (SAC ¶28, emphasis added.)

Effectively, Plaintiff alleges that a registered nurse, Ryanne Connell, did not inform management of the purported elder abuse; thus, there was corporate ratification. Not so.

For one, the allegation appears to tacitly concede no corporate ratification of the allegations concerning actions of the nursing staff, but a nurse is neither an officer, director, nor managing agent of Kindred.

That aside, Plaintiff has no clear and convincing evidence that an officer, director or managing agent of Kindred Baldwin Park authorized or ratified any wrongful conduct, or committed any oppressive, malicious or fraudulent act or omission constituting neglect or abuse of Plaintiff. (SS No. 54.)[2] For example, in response to special interrogatories regarding conversations Plaintiff had with individuals at Kindred, including complaints Plaintiff made to Kindred (Defendant’s Evidence, Ex. 2, p. 25 of 366 of PDF), Plaintiff largely responded with boilerplate objections like discovery was ongoing or that the questions were vague, unduly burdensome, subject to privileged attorney work product, overbroad, beyond the permissible scope of discovery, notably when discovery responses were provided well over six months after commencement of the lawsuit (filed May 2021, responses received January 2022) and the information was within Plaintiff’s knowledge.

In neither the opposition nor the response to SS No. 54 does Plaintiff address that the factually devoid discovery responses amount to a showing of the absence of evidence on the issue of ratification.

Instead, the response to SS. No. 54 regurgitates the allegations of purported elder abuse. (“Disputed. Following decedent’s September 25 admission to Sunset Manor Convalescent Hospital, nurses there charted bilateral heel sores at 3 x 3 cm and a right hand sore, all with “100% eschar,” indicating pressure ulceration of severity stage 4….”].

Additionally, the opposition argues that “despite notice of severe and chronic deficiencies in staffing, training and supervision; notice of the effect these deficiencies had on care; and notice of the consequent risks faced by patients including decedent, defendant’s management made a conscious decision to disregard the risk of choosing not supplement its staffing or train or supervise them” but cites to no evidence to support allegations of “notice.” (Opp. p. 14:9-12.)[3]

To the extent that Plaintiff relies upon the declaration of Dr. Marvin Pietruszka (Opp. p. 14), his declaration does not speak to ratification. (Nor could it as he, as a medical expert, is unqualified to offer a legal opinion.)

To the extent that Plaintiff may argue during the hearing that it can obtain said, that is untimely as Plaintiff did not take the depositions of any Kindred Baldwin Park hospital staff nor produced documents demonstrating ratification. (Reply p. 4:13-23.)

Therefore, as Plaintiff failed to meet its evidentiary burden, the court GRANTS the MSJ as to the 1^st COA for elder abuse.

The undisputed evidence that when Plaintiff was admitted to Kindred on 4/7/2020, she was diagnosed with (3) vessels diseases; bradycardia; recent cardiogenic shock with prolonged intra-aortic balloon pump support; acute hypoxemic respiratory failure, ventilator dependent; aspergillus, pulmonary; acute kidney injury on hemodialysis; dysphagia status post percutaneous endoscopic gastrostomy tube; peripheral arterial disease; anemia, hyperlipidemia; hypertension; diabetes type 2; and choledocholithiasis. (SS No 26.) She was also admitted with poor skin integrity and several pressure wounds on her body, including wounds on her right posterior thigh, left posterior thigh, left toes, right big toe and sacrococcygeal area. (SS No. 27.)

Based thereon, Kindred’s expert Dr. William P. Klein[5] opines that Plaintiff’s deteriorating wounds and infection were inevitable due to her declining physical health, including her diabetes, osteomyelitis, gangrene, peripheral arterial disease and respiratory failure. (Klein ¶32.)

Therefore, as the admissible evidence provides that Kindred did not cause Plaintiff’s injuries. The burden now shifts to Plaintiff.

According to Plaintiff’s response to SS No. 52 and in reliance upon the expert opinion of Dr. Pietruszka, Kindred did cause Plaintiff to suffer injuries. By late August, the medical chart(s) noted her sacral wound as reaching stage 4 and being 8 x 8 cm in size. To the extent that Kindred’s expert Dr. Klein observation that Plaintiff’s wounds were “unavoidable” nor “non-healing,” that is contradicted by the improvement Plaintiff experienced. (Pietruszka Decl., p. 3.) Additionally, Plaintiff she also sustained a loss of more than 20 lbs. and suffered severe malnutrition due to the failure to receive tube feeding.

Records from USC show she was “tolerating” such feedings as late as April 5 (Exhibit J to Ghecea Declaration), and no records at Kindred state that this changed. This meant that her body was not rejecting nutrition, and that her weight should remain stable (if not increase) in response to provision of tube feeding consistent with physician orders. As expected, she went from weighing 136 pounds at admission to weighing 137.8 pounds by April 19, and as late as May 24 remained at 135.5 pounds (Exhibit K to Ghecea Declaration). By June 28, however, her weight fell dramatically, declining to 115 pounds – a loss of more than 20 pounds in one month (Exhibit L to Ghecea Declaration). Her Albumin level fell from 3.7 on May 23 to 2.9 on June 2 and 2.6 on July 4 (Exhibit M to Ghecea Declaration); by August 4 it reached 2.4, and by September 23 it fell to a nadir of 2.3 (Exhibit M to Ghecea Declaration). Albumin is the primary indicator of a patient’s protein levels, and this decline was consistent with her severe decline in weight. There was no excuse for decedent losing so much weight at Kindred, aside from repeated and severe failures by staff to provide and monitor her receipt of regular tube feedings. Indeed, while decedent was supposed to be receiving “Novasource” feeding at a rate of “35 mL/hr” in late May, records suggest staff may only have been giving her “5 mL/hr” at this time (Exhibit V to Ghecea Declaration). Worse yet, daily tube feeding records show nurses failed to give her any tube feeding at all on nine days between May 28 and June 19 (at which point Kindred switched her to Diabetisource), and on five more days between June 19 and 28 (Exhibit V to Ghecea Declaration). Her resulting malnutrition and extremely low Albumin levels beginning on July 4 set the stage for the severe skin breakdown she suffered thereafter. (Pietruszka Decl., p. 4, emphasis and underline added.)

Effectively, Plaintiff’s medical expert’s opinion that Kindred’s care fell below a certain standard of care (e.g., failing to give Plaintiff adequate nutrition) such that it caused certain injuries (e.g., extreme weight loss), is sufficient to create a triable issue of material act as to the element of causation.

To the extent that Kindred in Reply states that Dr. Pietruszka’s opinion misstates the evidence, there is no evidence of that. “Dr. Pietruszka’s opinion . . .appears baseless at best, misleading at worst. Moreover, Dr. Pietruszka opined that Decedent’s weight “fell dramatically” during her admission to Kindred Baldwin Park, ignoring the documentation that indicated errors in the scale, the transition of Decedent to an oral pureed diet and that Decedent’s ideal body weight based on her Body Mass Index was 110 pounds.” (Reply p. 6:11-17.) Dr. Klein’s declaration does not mention the foregoing facts.

To the extent that Kindred takes issue with the accuracy of Dr. Pietruszka’s medical opinion, this court does not weigh the evidence, especially the veracity of an expert, as that is for the trier of fact.[6]

Therefore, as Dr. Pietruszka’s opinions are not based on speculation, not conclusive, nor based on assumptions of fact without evidentiary support, Plaintiff has met its evidentiary burden, meaning that summary judgment as to the negligence COA would be improper.

Based on the foregoing, the MSJ is GRANTED in part (i.e., as to the Elder Abuse COA) and DENIED in part (i.e., as to Negligence COA).

[1] F. Burden of Proof on Motion, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 10-F.

[2] Per well-established summary judgment practice and the California Rules of Court Rule 3.1350, a SS is to only discuss material facts and citation to evidence that discuss address said material facts. Here, Kindred cites to a litany of evidence, most of which is irrelevant. (See e.g., Kindred cites to Klein Declaration at Page 8, Lines 5-15, but that section goes to causation.) As the crux of Kindred’s argument concerns the vague or insufficient discovery responses, the court will examine the discovery responses. (E.g., Exhibit 1; at Page 2, Lines 10-13 referencing “Kindred Baldwin Park’s Special Interrogatories, Set One, Propounded on Plaintiff,” Exhibit 2; at Page 2, Lines 1417 referencing “Kindred Baldwin Park’s Request for Admissions, Set One, Propounded on Plaintiff,” Exhibit 3; at Page 2, Lines 18-21 referencing “Kindred Baldwin Park’s Request for the Production of Documents, Set One, Propounded on Plaintiff,” Exhibit 4; at Page 2, Lines 22-25 referencing “Plaintiff’s Response to Kindred Baldwin Park’s Form Interrogatories, Set One,” Exhibit 5; at Page 2, Lines 26-28 and at Page 3, Line 1, referencing “Plaintiff’s Response to Kindred Baldwin Park’s Special Interrogatories, Set One,” Exhibit 6; at Page 3, Lines 25 referencing “Plaintiff’s Response to Kindred Baldwin Park’s Request for Admissions, Set One,” Exhibit 7; at Page 3, Lines 6-10 referencing “Plaintiff’s Response to Kindred Baldwin Park’s Request for the Production of Documents, Set One,” Exhibit 8.) But Defendant’s exhibit citations do not appear accurate. (E.g., Kindred cites to Ex. 4 at p. 2 lines 22:25 for Plaintiff’s response, but lines 22:25 of page 2 merely define “writing” for purposes of the RFPs.)

[3] That said, Plaintiff is correct in that both authorization and ratification may be implied via circumstantial evidence. (See Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 249-250.) And though Plaintiff provided no legal analysis nor authority to support its proposition that certain circumstances like understaffing or failures to investigate certain shortcomings in care can sufficiently illustrate ratification, that is supported by certain authority. (See e.g., Pusateri v. E.F. Hutton & Co. (1986) 180 Cal.App.3d 247, 251-253 [ If an “accident” or injury occurs, the failure to investigate gives rise to the inference that the employer already knew of the cause or expected such injuries in the normal course of its business. Thus, the opportunity to learn of misconduct together with failure to investigate raises the inference of ratification].)

To the extent that Kindred contends otherwise (Reply p. 4:25-25) by citing to College Hospital v. Superior Court (1999) 8 Cal. 4th 704, 724-726, the case does not support such a proposition. College Hospital merely provides that the agent who does the ratifying must be acting as the organization’s representative, not in some other capacity (e.g., employee acting in his personal capacity for his own private benefit is insufficient to support punitive damages against employer).

[4] In asserting a professional negligence COA involving a defendant’s failure to adhere to an accepted standard of practice, such standard may only be established by qualified expert testimony. (Stephenson v. Kaiser Foundation Hospital (1962) 203 Cal.App.2d 631; see also Barton v. Owens (1977) 71 Cal.App.3d 484, 494.)

[5] The docket does not reveal that Plaintiff has objected to Dr. Klein’s evidence.

[6] See Reply p. 6: “However, Dr. Pietruszka omits the indisputable fact that once a wound is staged, it can progress but can never be “back-staged, reverse staged or down staged,” as set forth by the National Pressure Injury Advisory Panel (NPIAP). Mary Ellen Dziedzic, Fast Facts About Pressure Ulcer Care for Nurses: How to Prevent, Detect and Resolve Them in a Nutshell (2018).”