Judge: Christian R. Gullon, Case: 22STCV21045, Date: 2023-06-21 Tentative Ruling

Case Number: 22STCV21045    Hearing Date: June 21, 2023    Dept: O

Tentative Ruling

(1)   Defendant, WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS’s DEMURRER is SUSTAINED with leave to amend.

(2)   Defendant, WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS’s MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT is MOOT.

(3)   DEFENDANT VITAS HEALTHCARE’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT is OVERRULED (i.e., as to the 3^rd cause of action for Elder Abuse and 4^th cause of action for Willful Misconduct) and SUSTAINED (i.e., as to the 5^th cause of action for negligent mishandling of a corpse, with leave to amend which is TBD at the hearing.[1]

(4)   DEFENDANT VITAS HEALTHCARE’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ SECOND AMENDED COMPLAINT is DENIED.

Background

This case arises from the death of James Elmer Brost (“decedent”) and the alleged mishandling of his corpse. Plaintiffs PHYLLIS BROST, as an individual and successor in interest of decedent and ANGELIQUE BARNUM[2] allege the following against Defendants VITAS HEALTHCARE, a California Corporation (“Defendant Vitas” or “Vitas”); WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS (“Defendant ACS” or “ACS”); MICHAEL BOBADILLA (“Defendant Bobadilla” or “Bobadilla”), PARADISE TRANSPORTATION AND FUNERAL SERVICES (“Defendant Paradise”); JUAN REATIGA (“Defendant Reatiga”) (collectively, “Defendants”): On November 13, 2020, decedent was admitted to Sunrise of Claremont (“Sunrise”) following a prior hospital stay and surgery for a fractured back. Vitas was the hospice assigned to decedent and Vitas would administer his medications, such as insulin. On November 26, 2020, Vitas notified Sunrise that “new orders” were to discontinue his hospice care and Sunrise would have to take over by 4:00 PM the same day. The following day, decedent died due to Vitas’ alleged failure in administering decedent’s insulin and giving decedent Xanax, even though decedent was allergic.

On February 6, 2023, the court sustained the demurrer of Vitas with leave to amend and continued the hearing on Defendant ACS’s demurrer for the failure to meet and confer.

On March 6, 2023, Plaintiffs filed their second amended complaint (“SAC”) for:

1. Negligence/Wrongful Death 2. Negligence/Survival 3. Statutory Violation Of California’s Civil Elder Abuse/Neglect Protection Act (Wel. & Inst. Code § 15600, Et. Seq) - Survival 4. Willful Misconduct 5. Negligent Mishandling And Wrongful Retention Of A Corpse 6. Intentional Mishandling And Retention Of A Corpse.

On April 5, 2023, Defendant ACS filed the instant demurrer with a motion to strike.

On April 6, 2023, Defendant Vitas filed its demurrer with a motion to strike.

On May 1, 2023, Plaintiffs filed their Opposition to Defendant ACS’s demurrer and motion to strike.

On May 9, 2023, ACS filed its Reply.

On June 14, 2023, Vitas filed its Reply.

I.      Demurrer

Legal Standard

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. (Code of Civ. Proc. § 430.10.). Accordingly, 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. (Code of Civ. Proc. § 430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.)

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay.  Day v. Sharp, (1975) 50 Cal.App.3d 904, 914

I.      Defendant ACS

Discussion

At the outset, the court provides more context as to allegations pertinent to the moving Defendant ACS.

According to the SAC, after decedent passed away, Vitas called the wrong funeral home. (SAC ¶32.) Specifically, rather than contacting Todd Chapel Memorial, Vitas called ACS, who then contacted Defendant Paradise to pick up the body and transport the corpse to Defendant ACS’s facility. (SAC ¶33.) Thereafter, Defendant Bobadilla arrived at Sunrise, “falsely representing that he was transporting [decedent’s] corpse on behalf of Todd Memorial Chapel (SAC ¶33.) However, Defendant Bobadilla was not trained to handle the body as evidenced by the following facts:

Bobadilla started to ram the gurney into the back of the van with [decedent’s] corpse going in headfirst . . . The gurney was violently rammed into the back of the van approximately 6 or 7 times, each time the body shook and nearly fell off the gurney. This was all done in front of the [decedent’s] son, daughter [], and grandson []. After some time, [decedent’s daughter] left in tears after seeing her deceased dad being handled like a shopping cart. Although [decedent’s son] was also distraught and in tears, he continued to supervise Bobadilla. [decedent’s son] suggested the gurney was too high. Bobadilla attempted to lower the gurney, upon release of a lever, the gurney suddenly dropped about 20 to 30 degrees. It caused [decedent’s] body to slide forward into his son and nearly to the ground. [decedent’s son] immediately caught his dad’s lifeless body as it was falling off the gurney. At this point, [decedent’s grandson] told Bobadilla to move over. Both [decedent’s son] and [decedent’s grandson] lifted the gurney into the van. [Decedent’s] family members were in incredible distress and emotionally torn after seeing the mishandling of their loved one’s corpse.

(SAC ¶¶34, 36.)

Defendant ACS demurs to the 5^th cause of action for the Negligent Mishandling and Wrongful Retention Of A Corpse and the 6^th cause of action for Intentional Mishandling And Retention Of A Corpse on the grounds that both fail to state sufficient facts and are uncertain. (Code of Civ. Proc. § 430.10, subds. (e), (f).)

The court will address each cause of action ad seriatim.

A.     5^th Cause of Action for Negligent Mishandling and Wrongful Retention of a Corpse (Negligent Infliction of Emotional Distress (“NIED”))

Negligent mishandling of human remains is a tort of negligence. The name is merely “convenient terminology descriptive of the context in which the negligent conduct occurred.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.)

The crux of Defendant ACS’s demur to this cause of action is that (1) negligent mishandling of a corpse is not a cause of action and (2) even it was a cause of action, there is no relationship between ACS and Defendant Bobadilla to invoke the doctrine of respondent superior/vicarious liability.

The court disagrees with Defendant ACS on both grounds.

First, Christensen did not state that negligent mishandling of a corpse is not a cause of action. Rather, the case stated that it is not an independent tort, suggesting that the label is merely convenient terminology descriptive of the context in which the negligent conduct occurred. (Ibid.) Plus, Christensen cited Quesada v. Oak Hill Improvement Co. (1989) 213 Cal.App.3d 596 wherein the appellate court determined that family members of a deceased may pursue a cause of action against for the negligent handling of the corpse and reversed the trial court’s ruling. (Quesada, supra, 213 Cal.App.3d at 599.) Thus, absent recent authority that unequivocally states negligent mishandling of a corpse is not a valid cause of action, the court determines it is and declines to sustain the demurrer on said grounds.

Second, as for Defendant ACS’s argument that ACS was not in employer/employee relationship with Bobadilla because he was hired by Defendant Paradise Transportation (Demurrer p. 8:22-28) that contradicts the SAC. According to the SAC, Defendant Bobadilla “was an employee of the [ACS], or sub-contractor acting under the direction and control thereof in the removal/transportation of the Decedent.” (SAC ¶8, italics demurrer.) And on a demurrer, a “court's function is limited to testing the legal sufficiency of the complaint” such that “a demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 634.) Thus, as the SAC alleges that there was an employee/employer relationship between ACS and Bobadilla, the court next turns to the issue of whether the SAC alleges that ACS is vicariously liable for Defendant Bobadilla’s actions.

Under the doctrine of respondent superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment. (CACI 3700.) An employer may owe a duty of care in hiring and supervising its employees so as to avoid exposing third persons to an unreasonable risk of harm: “An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1210-1211.) The basic elements of a cause of action for negligence are: (1) the existence of a legal duty to use due care; (2) breach of that duty; and (3) the breach as a proximate cause of the plaintiff’s injury. (Ibid.; see also CACI 400.) Foreseeability of the harm is key. The employer is not liable merely because its employee is incompetent, vicious or careless. A duty of care to third persons arises only when a risk of harm to such persons by the employee was reasonably foreseeable, i.e., only “when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Federico, supra, 59 Cal.App.4th at p. 1214; see also Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1055 [“cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way”].) Accordingly, the elements to establish a claim for vicarious liability can be summed up as follows: (1) employer hired the employee, (2) employee was or became unfit or incompetent, (3) employer knew or should have known that the employee was/became unfit or incompetent, (4) as a result of said unfitness or incompetence, a harm occurred, and (5) it was the employer’s hiring or retention of that unfit or incompetent employee that was a substantial factor in causing said harm.

Here, however, there is no mention of Defendant ACS knew of or should have known of Bobadilla’s lack of fitness for the job.[3] Therefore, as Plaintiffs have failed to plead an essential element of vicarious liability, the court SUSTAINS the demurrer as to the 5^th cause of action for the negligent mishandling of a corpse with leave to amend.

B.     6^th Cause of Action for Intentional Mishandling And Retention Of A Corpse (Intentional Infliction of Emotional Distress (“IIED”))

The elements of the tort of IIED are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct....” (Catsouras v. Dep’t of California Highway Patrol (2010) 181 Cal.App.4th 586, 874-875.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.)  “Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, citing Rest.2d Torts, § 46, com. d.) Said differently, the test for judging outrageous conduct is less an analytical, bright-line test but rather one that appears “more intuitive.” (KOVR-TV, Inc., supra, 31 Cal.App.4th at p. 1028.) Furthermore, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware.” (Catsouras, supra, 181 Cal.App.4th 856 at p. 875).

Defendant ACS demurs on the grounds that (i) the SAC fails to plead that Defendant ACS engaged in extreme and outrageous conduct, (ii) that Defendant ACS acted with the requisite intent, and (iii) that the SAC fails to plead severe emotional distress.

First, to the extent that Defendant ACS argues that the mishandling of remains is not extreme and outrageous, case law disagrees. As articulated by the Quesada court, “[a]s a society we want those who are entrusted with the bodies of our dead to exercise the greatest of care. Imposing liability within the limits described will promote that goal. Further, those who come in contact with the bereaved should show the greatest solicitude; it is beyond a simple business relationship—they have assumed a position of special trust toward the family. [Citation.] Few among us who have felt the sting of death cannot appreciate the grief of those bereaved by the loss. It is neither unreasonable nor unfair to expect the same appreciation by those who prepare our dead.” (Quesada, supra, 213 Cal.App.3d at p. 610.) In sum, the nature of services involved with handling a corpse invokes such intense emotion such that mishandling of a deceased’s body constitutes as egregious conduct. As applied here, the facts suggest extreme and outrageous conduct. The family members, who were already grieving thee loss of a father, grandfather, and husband, not only had to witness to deceased’s body being “handled like a shopping cart” (SAC ¶35) for what appears to be minutes, but then had to catch the body of the decedent to do the job themselves.

Next, as for the allegation that ACS held the body hostage until a payment of $400 was made, Defendant ACS’s contention that a payment was required for the customary transportation fee to Todd Chapel. (Demurrer p. 13.) But even if the charge was customary, that is a factual determination improper which is improper on a demurrer. Therefore, as Plaintiffs have plead that ACS demanded payment until they relinquished the body, that too rises to extreme and outrageous conduct considering the entirety of the facts.

Notwithstanding the foregoing, Plaintiffs have not pled severe emotional distress. Both the SAC and opposition merely state that some family members were “distraught and in tears.” But they do no the specifics of the “nature or extent of any mental suffering.” (Demurrer p. 14, citing Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)

Therefore, the court SUSTAINS the IIED cause of action with leave to amend because Plaintiffs have inadequately pled emotional distress and have not sufficiently pled vicarious liability.

Conclusion

Based on the foregoing, the demurrer is sustained with leave to amend, rendering the motion to strike punitive damages moot.

II. Defendant Vitas

At the outset, the court notes that Vitas’ demurrer raises similar arguments as to their first demurrer. For efficiency, the court will refer the parties to the February 6, 2023 ruling where required.

1.     Defendant Vitas’ Demurrer

Defendant Vitas demurs to the 3^rd cause of action for Elder Abuse, 4^th Cause of Action for Willful Misconduct, and 5^th Cause of Action for Negligent Mishandling and Wrongful Retention of a Corpse on the grounds that they are uncertain and fail to state sufficient facts to constitute a cause of action under C.C.P. Section 430.10(e)(1).

1.     Elder Abuse

Defendant Vitas argues that it was (1) not the caretaker nor custodian of decedent, (2) Plaintiffs do not allege reckless, oppressive, fraudulent, or malicious conduct, and (3) Plaintiffs have not alleged corporate ratification.

As to Vitas’ arguments regarding lack of custodial care and that the allegations sound in medical negligence, the court provided an extensive analysis in the first tentative as to why Vitas had a custodial relationship with decedent such that it does not bear repeating again.

As for Vitas’ argument about corporate authorization and ratification, the court previously sustained the demurrer as to the elder abuse cause of action because there must be an allegation of authorization or ratification on the part of a managing agent to recover damages for dependent adult abuse against corporate defendants, but Plaintiffs conclusively pled such ratification. (See Civ. Code, § 3294; Cal. Welf. & Inst. Code, § 15657(c), see also CACI section 3102B.) 

Now, in its SAC, Plaintiffs plead new facts as to ratification. Specifically, they allege that Defendant Vitas did not want to continue caring for Decedent because they mistakenly believed that Medicare would no longer pay for their services, and this would reduce their profits. (SAC ¶61). Consequently, “Dr. Peter Tao, and a manager, Christopher Pacpare, both employed by VITAS, had issued an order to reduce the 24-hour care to routine care; however, these orders were not given to the family in advance nor to SUNRISE. Neither Dr. Tao, nor Mr. Pacpare met with the Plaintiffs or JAMES SR that day to determine a plan of care based on JAMES SR and the Plaintiffs wishes.” (SAC ¶63, emphasis added.) Furthermore, it is alleged that the nurse from VITAS that was last with JAMES SR had allegedly informed SUNRISE that she would return tomorrow with medication for JAMES SR, prior to her discharge at 4:00 PM on November 26, 2020, and “this was signed off by Christopher Pacpare for VITAS, notating that only personal protection supplies left behind.” (SAC ¶64.) Based thereon, Plaintiffs allege that Vitas’ decision to convert the care from 24-hour hospice care to partial daily care, a decision solely for its financial benefit, resulted in decedent’s loss of life. (SAC ¶¶60, 62.) Accordingly, Plaintiffs that the employee who committed the acts was an officer, director or managing agent of Defendant (Christopher Pacpare). To the extent that these allegations are insufficient to allege ratification, neither Vitas’ demurrer nor reply address these allegations, though raised in opposition. (Opp. p. 16.)

Therefore, as Plaintiffs have now pled sufficient facts for ratification, the demurrer to the 3^rd cause of action is OVERRULED.

4^th Cause of Action for Willful Misconduct

Previously, the court sustained the demurrer with leave to amend because Plaintiffs did not explain how the purported failures (i.e., not administering insulin or calling 911 when decedent had a low heart rate) rise to the level of willful misconduct such that the choice not to take certain precautions or actions was a conscious. Now, Plaintiffs allege a new fact that read in conjunction with previously alleged facts are sufficient for purposes of willful misconduct. (Opp. p. 18: “The allegations in paragraph 76 in the SAC are additional allegations to clarify how the actions equate to aggravated negligence.”].)

Plaintiffs allege that upon discovery of his death, Vitas stated to the Sunrise employee he knew he would not make it “because of how low his heart rate was” such that “[i]f Vitas would have called 911 and/or notified Sunrise of how low the heart rate was, decedent would have gotten the immediate life-saving medical care he required, including the lifesaving dose of insulin.” (SAC ¶¶30, 31.) What is more, when Vitas was notified about the Decedent’s blood sugar levels, “Joe with Vitas, went to Sunrise without the Decedent’s insulin. (SAC ¶76, emphasis added.). With that allegation, though Plaintiffs’ previous citation to Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879 is now applicable. There, the appellate court plaintiff’s conduct amounted to willful misconduct when the plaintiff brought defendant to a cliff side when she knew he was intoxicated, and by waiting several hours to call for emergency help or otherwise summon. Similarly, Plaintiffs have alleged that Vitas knew that decedent could die without insulin and without medical aid but did not take those life-saving measures.

To the extent that this allegation is insufficient to establish willful misconduct, Vitas has not addressed the new allegation in both its demurrer and reply, though raised in opposition.

Therefore, the court OVERRULES the demurrer as to the willful misconduct cause of action.

A.      5^th Cause of Action for Negligent Handling of a Corpse

In the court’s previous ruling, the court noted that the Defendant Bobadilla’s alleged lying (i.e., supervening cause) was likely not anticipated (i.e., not foreseeable) and that the harm (mishandling of the body) is likely not within the range of probability as viewed by a reasonable person such that Vitas should be relieved from liability for Plaintiffs’ emotional injuries.

Defendant Vitas cites to Quesada v. Oak Hill Improvement Co. (1989) 213 Cal.App.3d 596 to resolve the issue of foreseeability because the case similarly involved the handling of a corpse. (See also Demurrer p. 15.) In Quesada, the county coroner delivered the wrong body to the funeral home, preventing the decedent’s proper internment. Specifically, the allegations and record indicated that the family went to the funeral home “expecting to see the body of [decedent]. Instead, the body of a stranger was shown to them. When [plaintiffs] and others informed [the funeral home] that the body was not that of the deceased, [the funeral home] refused to believe them and ‘ridiculed and mocked’ the appellants . . . When the County was contacted, it, too, refused to believe [plaintiffs]. Five days later the County admitted the mix-up to the widow.” (Id. at p. 600.) In fact, the toe tag specifically identified the body as the remains of someone other than the decedent, but the funeral home still conducted or continued to conduct the burial ceremony with the stranger's body and buried the stranger in [decedent’s] stead. (Ibid.) In holding that the family member’s emotional distress was foreseeable, the court reasoned because the funeral home proceeded with the rites, “thoughtless of the consequences” despite the information that “should have given respondents pause for concern.” (Id. at p. 606.)[4]

Here, unlike Quesada, there are no facts (i.e., information) suggesting foreseeability of harm by calling the wrong mortuary service. In fact, unlike Quesada wherein the funeral home proceeded to bury the wrong body despite the protestation from family (i.e., knowledge or awareness of the error), here, there is no allegation that Vitas knowingly called the wrong mortuary service provider, or, in the alternative, that it became aware of the mix-up but continued to allow for the wrong provider to handle the decedent’s body. However, Quesada was on appeal from a summary judgment motion, not a demurrer, making reliance on the case slightly misplaced as the court cannot make factual determinations on a demurrer.

That said, and as previously addressed, the general rule is that imputed liability for the negligence of another will not be recognized. (Demurrer p. 8, citing Christensen, supra, Cal.3d at p. 893.) That applies here where Plaintiffs have failed to allege a partnership between the Corpse Defendant and Vitas.

Therefore, as most of the allegations and opposing arguments are directed to the Corpse Defendants, which suggests the lack of liability of Vitas on this issue, the court SUSTAINS the demurrer as to the 5^th cause of action. Leave to amend is TBD at the hearing.

Conclusion

Based on the foregoing, Vitas’ demurrer is OVERRULED in part (as to the 3^rd cause of action for Elder Abuse and 4^th cause of action for Willful Misconduct) and SUSTAINED in part (as to the 5^th cause of action for negligent mishandling of a body, with leave to amend TBD.)