Judge Christian R. Gullon, Case Number: 22PSCV01557, Date: 2023-09-26 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV01557, Date: 2023-09-26 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

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.

(1) DEFENDANT GARDENVIEW HEALTHCARE & WELLNESS CENTRE, LP, PREVIOUSLY DBA CLAREMONT GARDENS HEALTHCARE & WELLNESS CENTER, ERRONEOUSLY SUED AS COUNTRY VILLA CLAREMONT HEALTHCARE CENTER, INC.’S DEMURRER TO COMPLAINT is SUSTAINED in its entirety with leave to amend.

(2) DEFENDANT GARDENVIEW HEALTHCARE & WELLNESS CENTRE, LP, PREVIOUSLY DBA CLAREMONT GARDENS HEALTHCARE & WELLNESS CENTER, ERRONEOUSLY SUED AS COUNTRY VILLA CLAREMONT HEALTHCARE CENTER, INC.’S MOTION TO STRIKE COMPLAINT is MOOT.

On October 28, 2022, Plaintiff DMARIO FINCH (“Plaintiff”), Individually and as Successor in Interest to NOVELLA HOWARD (“decedent”), Deceased, filed suit against Defendants COUNTRY VILLA CLAREMONT HEALTHCARE CENTER, INC.; COUNTRY VILLA SERVICE CORP. for:

On March 13, 2023, Defendant filed the instant demurrer with a motion to strike.

A demurrer may be asserted, in pertinent part, on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Civ. Proc. Code §430.10 (e).) (Demurrer p. 3.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Id. at §430.30, subd. (a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.)

Defendant demurs to the 2^nd through 4^th COAs largely on the grounds of conclusory allegations. The court agrees.

“The purpose of the [EADACPA was] essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4^th 771, 787.) The EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers. (Delaney v. Baker (1999) 20 Cal.4^th 23, 32; Covenant Care, Inc., supra, 32 Cal.4th at p. 785.) Several factors must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act.

The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) 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).

“Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’” (Delaney, supra, 20 Cal.4th at p. 31-32, emphasis added and underline added). (The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.

Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be plead with particularity, in accordance with the pleading rules governing statutory claims. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4^th 396, 406-407 [quotation marks and citations omitted].) Thus, “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.” (Demurrer p. 7, citing Mittenhuber v. City of Redondo Beach (1983) 142 Cal. App. 3d 1, 5.)

- Novella Howard was admitted from Chino Valley Medical Center. Discharge recommendations from that facility called for strict measures to prevent skin breakdown, including position change at least every two to three hours, avoid positioning on the trochanter, keep the head of the bed at its lower elevation, elevate heels off the bed surface, and placing pressure reducing cushions in the wheelchair and on the bed

- Defendants failed to document any measures taken to prevent skin breakdown. Defendants’ failures include, but are not limited to, the failure to: implement screening for pressure sores, meticulously reposition decedent, document continence care, regularly assess nutritional markers, document wound checks, and maintain adequate moisture of skin to prevent skin breakdown

- Defendant they that the failure to provide proper treatment of existing injuries and to take measures to prevent other skin injuries would inevitably result in existing injuries becoming more severe and in the development of additional similar injuries.

- Said neglect was done directly by defendants, or through their agents and employees who were unfit to act as Novella Howard’s care custodians and care providers.

In sum, the crux of Plaintiff’s elder abuse COA is based upon Defendant’s purported failure to tend to prevent pressure ulcers and provide wound care. (Complaint ¶26.) However, these allegations, for all the reasons set forth by Defendant, are insufficient for an Elder Abuse COA. (See Demurrer pp. 6-8, generally.)

First, the allegations at best demonstrates substandard care, not recklessness, because Plaintiff has not alleged Defendant’s alleged conscious choice (i.e., intent) to disregard Plaintiff’s health. (Delaney, supra, 20 Cal.4th at p. 31-32.)

“‘Recklessness' ” is defined as a “ ‘subjective state of culpability greater than mere negligence,’ ” involving a “ ‘deliberate disregard’ ” of the “ ‘high degree of probability’ ” that an injury will occur. (Ibid.) Reckless conduct “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.]” (Id. at pp. 31-32.) An elder abuse COA, however, does not apply to “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. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89 [quotation marks and citation omitted].) Here, however, there are no allegations that Defendant withheld medical support or aid, nor are there allegations to infer intent, as Plaintiff’s opposition suggests.

The opposition relies upon two cases to support its position that the failure to tend to pressure sores is adequate to show neglect. (Opp. p. 5.) But both the cases are inapposite.[2]

The first case Plaintiff relies upon is Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, but the case is procedurally and factually distinguishable. First, as acknowledged by Plaintiff, the case involved a summary judgment motion, not a demurrer, whereas on a demurrer, the court cannot make factual or evidentiary findings. Second, as to the facts, in Intrieri, a patient (“defendant”) gained access to the Alzheimer’s unit of a nursing home and engaged in an altercation with the plaintiff (“victim”). While the decision was largely concerned whether there was a triable question of material fact as to the reckless conduct element of the elder abuse claim regarding an altercation between two patients (as records revealed that the nursing home personnel had noted that the defendant was hostile and disoriented yet allowed the defendant to freely roam and verbally assault other patients), the case briefly mentioned pressure sores. Specifically, the case noted the following:

Finally, we find that petitioners' evidence was sufficient to create a triable question of fact as to whether Guardian's conduct with respect to Mrs. Intrieri's pressure sores constituted a reckless failure to provide medical care for her physical health needs. Petitioners' evidence showed that Peter Intrieri observed pressure sores developing on Mrs. Intrieri after her readmission to Guardian following her hip surgery, that he complained to the physician assigned by Guardian to care for Mrs. Intrieri, and that nothing was done for her. A month later, the pressure sores had grown much worse, but Guardian made no changes to Mrs. Intrieri's care plan and Peter Intrieri hired an outside physician who developed a new care plan. When Guardian staff failed to follow the new care plan, Peter Intrieri confronted the staff but again, nothing was done. Mrs. Intrieri developed infected pressure sores on her right foot that eventually led to amputation of her right toe and then her right leg below the knee. It may be reasonably inferred from this chain of events that Guardian acted with reckless neglect in caring for Mrs. Intrieri.

Here, however, the facts are different because here Plaintiff does not allege that Defendant did nothing. Rather, the allegations largely pertain to the alleged failure to document and implement pressure ulcer precautions. (Complaint ¶9.) The lack of documentation is not alleged to indicate that there was a complete failure to take precautions. In fact, the allegations tacitly concede checks were provided, just not every two hours nor “meticulously” provided. (See Complaint ¶¶9, 20 [“Meticulously implement turning and repositioning of patient at least once every two hours”].)

Next, Plaintiff’s citation to Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426 (Country Villa) is also inapposite because the case did not involve the sufficiency of the pleadings but whether section 425.13(a) applies to punitive damage claims in actions where the gravamen of the claims is elder abuse.

Therefore, absent allegations regarding employees’ conscious disregard for decedent, the elder abuse COA fails on said grounds.[3]

Second, as noted by the court in Carter, a casual link between the purported recklessness and injury must be alleged. Here, however, decedent died from cardiopulmonary failure, and chronic kidney disease (see Complaint, Ex. A [death certificate]) not from pressure ulcers, dehydration, malnourishment, and lack of rehabilitation. (Complaint ¶26.) Plaintiff’s opposition does not squarely address causation.

Thus, absent allegations regarding causation, the elder abuse COA fails on said grounds.

Third, when an elder abuse claim is brought against a corporate defendant, the plaintiff must further show that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welf & Inst. Code, § 15657, subd. (c); Civ. Code, § 3294; see also see also CACI section 3102B.)

Here, however, Plaintiff has not identified any specific employee who engaged in any wrongful conduct, have failed to identify any specific employee as being unfit to carry out his/her duties and have failed to plead that the corporate defendant was aware of such unfitness and allowed the employee to perform his/her work. Rather, the complaint conclusively alleges that “[e]ach defendant ratified and authorized the wrongful conduct of the employee(s). As to any corporate defendant employer, such advance knowledge, conscious disregard, authorization and ratification was on the part of an officer, director or managing agent.” (Complaint ¶24a, b.)

In Opposition, Plaintiff advances two arguments. (Opp. p. 8.) First, Plaintiff, without authority nor analysis, states that the statute only applies to corporations, not other business entities. The court is unpersuaded by the terse argument. That said, Plaintiff’s next argument is meritorious: an attack on the prayer for relief is improper on demurrer. Opp. p. 9, quoting Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 882-883 [“[I]t has been held that a prayer for relief is not subject to demurrer and the fact that a plaintiff has requested exemplary damages to which he may not be entitled does not affect the sufficiency of his complaint.”].) The Reply does not address this argument nor case.

Therefore, the failure to plead ratification is not grounds to sustain the demurrer as it is more appropriate argument to be raised on a motion to strike.

In sum, as Plaintiff has not pled certain elements of an elder abuse COA (e.g., conscious disregard) the demurrer is sustained with leave to amend.

All patients have rights guaranteed to them by statute and regulation, including those provided by Health and Code sections.

Plaintiff predicates this COA based upon the allegation that “Defendants violated Novella Howard’ rights on numerous occasions and violated the requirements set forth in Health and Safety Code section 1599.1 that an adequate number of qualified personnel be employed to carry out all the functions of defendants’ facility and to maintain good personal hygiene standard.” (¶31.)

Here, as noted by Defendant, Plaintiff does not state any facts to support what rights were violated, despite this being a statutory claim (Health and Safety Code section 1430b), thus being subject to a heightened pleading standard.

“‘The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. [Citations.]” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 891, p. 350.) The wrongful death statute ‘limits the right of recovery to a class of persons who, because of their relation to the deceased, are presumed to be injured by his [or her] death [citation] and bars claims by persons who are not in the chain of intestate succession. [Citations.]’” [citation]. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) Causation is an essential element of a claim for wrongful death. As such, in order to plead a claim for wrongful death, there must be facts that support the allegation that Defendant’s wrongful conduct caused decedent’s death. (Jacoves v. United Merchandizing Corp. (1992) 9 Cal.App.4th 88, 105.)

Here, Defendant demurs on the grounds that the complaint fails to state sufficient facts to establish that Defendant caused or contributed to decedent’s death. The Complaint does not allege any facts concerning decedent’s death, other than the fact that she died on January 28, 2022; the cause of death is only learned from the death certificate. The singular fact that decedent died, without a factual indication regarding the cause of death, is insufficient for this cause of action.

Thus, the court sustains the demur with leave to amend with the regard to the wrongful death COA.

As the court has given leave, the motion to strike punitive damages related to the elder abuse COA and the motion to strike attorney fees related to the bill of rights COA are MOOT.

Based on the foregoing, the demurrer is SUSTAINED in its entirety with leave to amend and the motion to strike punitive damages and attorney fees is MOOT.

[1] At the outset, Defendant argues that the allegations are similar to those set forth in Carter, infra, for its seeming proposition that the allegations regarding pressure sores are inadequate for an elder abuse COA. (Reply p. 3.) That is not an entirely accurate reading of Carter. In Carter, there were two defendants: the hospital and the skilled nursing facility. While at the center, the decedent was “continually neglected” as exhibited by allegations that decedent was “bathed in bed, routinely not dried and instead he was placed in front of an open window with a fan blowing on him to ‘air-dry’ ... even during cold days. This practice of leaving [decedent] wet and cold for extended periods of time continued despite protests by [decedent’s] daughter and ultimately caused [decedent] to develop pneumonia. Additionally, when [decedent] was showered in a wheel chair, he was often left in unfamiliar surroundings, alone, wet and helpless. The center also did not provide [decedent] sufficient nutrition or hydration. Due to this neglect, [decedent] weakened and developed pneumonia, pressure ulcers on his lower back and buttocks and sepsis.” (Carter, infra, 198 Cal.App.4th at p. 402.) The appellate court held that said allegations were insufficient for an elder abuse COA as to the hospital because those allegations were “attributable exclusively to the Center. Allegations of misconduct directed against one defendant, however, do not state a cause of action against another defendant against whom the allegations of misconduct are not directed.” (Id. at p. 410, emphasis added and italics added.) Here, however, there is one defendant: the nursing facility (akin to the center in Carter). In any event, as the allegations regarding the pressure sores/ulcers are different—i.e., sufficiently egregious conduct alleged in Carter that led to the development of pressure ulcer(s) whereas no such egregious conduct is alleged here—Carter is not entirely factually analogous.

[2] The Reply does not address either case. The Reply largely reiterates points raised in the demurrer.

[3] As noted above, Carter establishes that when a plaintiff alleges recklessness (as Plaintiff does here), the plaintiff must also allege that decedent was denied services by defendant(s) “with conscious disregard of high probability of such injury.” (Carter, supra, 198 Cal.App.4th 396, 407.)