Judge Christian R. Gullon, Case Number: 22STCV24253, Date: 2023-07-12 Tentative Ruling

Judge: Christian R. Gullon, Case: 22STCV24253, Date: 2023-07-12 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) DEMURRER TO SECOND AMENDED COMPLAINT BY DEFENDANT AURORA CHARTER OAK - LOS ANGELES, LLC is OVERRULED, notably because the allegations regarding understaffing sufficiently allege recklessness to withstand the demurrer.

(2) MOTION TO STRIKE PORTIONS OF PLAINTIFFS' SECOND AMENDED COMPLAINT BY DEFENDANT AURORA CHARTER OAK—LOS ANGELES, LLC (ERRONEOUSLY NAMED AND SUED AS AURORA CHARTER OAK HOSPITAL) is DENIED.

This is a wrongful death case. Plaintiffs OSCAR DENA, an individual; MARICELA DENA, an individual; OSCAR MATTHEW DENA, an individual; THOMAS DENA, an individual; and CHRISTINA SENDEJAS, an individual, allege the following against Defendants AURORA CHARTER OAK – LOS ANGELES, LLC, a California limited liability company; AURORA CHARTER OAK HOSPITAL (“Defendant”): On June 5, 2021, Decedent Richard Peter Dena (“decedent” or “Richard”) was involuntarily admitted to Defendant’s Hospital after he made suicidal statements. Plaintiffs allege, inter alia, that Defendant acted with reckless neglect because, despite their awareness of Richard’s suicidal ideations, they left his jacket on decedent’s person, placed decedent in a room with a vent that can be easily removed, and placed him in a room with easy access to the pipe that can withstand his body weight the decedent was able remove a vent from the ceiling in the bathroom of his room and used his jacket to hang himself on the pipe behind the vent.

On January 17, 2023, Plaintiffs filed a first amended complaint (“FAC”) : 1. SURVIVOR ACTION 2. WRONGFUL DEATH – WELFARE & INSTITUTIONS CODE, § 15600 ET SEQ. (Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”).

On January 18, 2023, Defendant filed a Demurrer with a motion to strike, which the court (on February 27, 2023) sustained with leave to amend.

On January 20, 2023, Plaintiffs dismissed Oscar Matthew Dena, Thomas Dena, and Christina Sendejas, leaving Maricela Dena as the sole Plaintiff.

On March 30, 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 and is uncertain (“uncertain” includes ambiguous and unintelligible). (Cal. Civ. Proc. Code §430.10 (e), (f).) (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. CCP §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.

The instant demurrer is made on largely similar grounds as the previous demurrer, notably that:

(i) Plaintiffs’ Second Amended Complaint is time-barred on its face; (ii) the dependent adult abuse claim fails to state a cause of action; and (iii) the SAC improperly seeks punitive damages. (Demurrer p. 2:10-12.)[1] Upon comparison of the SAC to the FAC, the court finds that Plaintiff has cured enough defects to withstand the demurrer.[2] The court’s analysis will focus on the two categories of allegations: (i) leaving decedent’s clothes on him in a room with a removable vent and (ii) understaffing.[3]

1. Whether Defendant Was Reckless When it Allowed Decedent, Who Was Suicidal, to Keep His Jacket and Placed Decedent in a Room With a Vent?

As previously noted, a dependent adult claim (a statutory claim) must be pled with particularity and specificity. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 [quotation marks and citations omitted], emphasis added.) “[A] plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than mere negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31.) “‘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, emphasis adde.)

Plaintiff explains that the SAC alleges that “(1) Richard was able to remove a vent from the ceiling of the bathroom of his room because Defendants chose to put him in such room with such vent that can be easily removed, (2) Richard was able to access the pipe behind the said vent that can withstand his body weight, because Defendants chose to put him in such room with such easy access to such pipe, and (3) Richard was able to use his jacket to hang himself because Defendants chose to leave his jacket on his person.” (Opp. p. 9:14-19, italics original and emphasis added.) But Plaintiff has not alleged any particular and specific facts that Defendants chose (i.e., made the intentional, conscious decision) to leave decedent’s jacket on him and put him in a room with a vent knowing that he could and would commit suicide with those specific instruments of self-harm. Rather, what is pled is that at most Defendant was grossly negligent, but gross negligence does not suffice for violations of the dependent adult act.[4] Had, for example, Plaintiff alleged that decedent upon his admission said he would take his life with his clothing and Defendant allowed decedent to keep his jacket, then that may have amounted to recklessness because Defendant was put on notice of the serious danger of leaving certain instruments readily accessible to decedent. Or, had Defendant left decedent with access to drugs and alcohol knowing that “[d]uring [his] assessment, Richard . . . indicated . . . tried to kill himself but could not find any fentanyl to take with alcohol . . . [and] confessed that he tried to kill himself the night before with 25 Aleve pills and a bottle of Jack Daniels” (SAC ¶16), then that may too amount to recklessness because Defendant was on notice of the serious danger of having drugs and alcohol readily accessible to decedent.

To the extent that Plaintiff relies upon Intrieri v. Superior Court (2004) 117 Cal.App.4th 72 (Opp. p. 10), the is distinguishable procedurally and factually.[5] First, the case involved a summary judgment motion, not a demurrer, whereby the court on a demurrer 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”). The appellate court determined that there was a triable question of material fact as to the reckless conduct element of the elder abuse cause of action because medical records revealed that the nursing home personnel had noted that the defendant “appeared upset, depressed, disoriented, and hostile in the weeks leading up to the altercation” and that “12 days before the altercation occurred, [she] was observed to yell, ‘I want to go home. I will kill someone to get home,’ and to bang her hands and fists on the counter.” (Id. at p. 84.) In fact, evidence revealed that “on the day the altercation, the defendant was found shouting at an Alzheimer's patient through the doors to the Alzheimer's unit” but “[d]espite these incidents and the observations of [the nursing home’s] personnel concerning [the defendant’s] confused and hostile mental state,” the defendant “was allowed to enter the Alzheimer's unit at will and to verbally attack the Alzheimer's patients without any intervention by [the nursing home] personnel, for a period of time long enough for [victim] and other patients to respond by leaving their beds and entering the hallway.” (Id. at pp. 85-86, emphasis added.) To the contrary, here, there are no facts that Defendant was aware of the way decedent may take his lie (i.e., personnel observed decedent removing the vent) nor that Defendant failed to intervene when decedent took his life. Therefore, Plaintiff’s reliance on Intrieri is misplaced.

Therefore, Plaintiff’s allegations read more as though Defendant failed to protect Richard, which sounds in negligence, not recklessness.[6]

2. Whether Allegations of Intentional Understaffing Suffice for Reckless Conduct?

To the extent that Plaintiff alleges intentionality, it pertains to the understaffing. (SAC ¶24 [“The severe understaffing was intentional on the part of all Defendants.”].) Specifically, Plaintiff alleges the following regarding supervision:

Richard should have been placed on one-on-one monitoring instead of a Q15 minute safety check, given his high C-SSR score of 17. At the time of Richard’s admission and during his time at Defendants’ facility, however, Defendants were so severely understaffed that Defendants could not order one-on-one monitoring . . . The severe understaffing issue was based on Defendants’ desire to maximize profit . . . Defendants, due to their severe understaffing, could not even competently conduct a Q15 minute safety check on Richard. As a matter of fact, Defendants did not conduct any safety check even though they ordered Richard to be checked for safety every 15 minutes. The nursing record is completely devoid of any logs showing that they in fact conducted Q15 minute safety checks. As a result of this, Richard’s interactions with Defendants’ staff were limited to only four (4) occasions for the entire duration of 8 or 9 hours he spent at Defendants’ facility.

Effectively, the SAC alleges that Richard was not checked upon because of intentional understaffing.

In its Reply, Defendant cites to Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 338 for its proposition that “any failure to provide adequate supervision would constitute professional negligence but not elder abuse.” (Reply p. 10.) In that case, the elder suffered a fall while recovering from hip surgery at a hospital’s rehabilitative care unit. The plaintiff alleged the decedent fell because the hospital knew the elder was a fall risk he hospital was “chronically understaffed.” The appellate court held that the allegations of failure to provide adequate staffing constituted nothing more than “negligence in the undertaking of medical services, not a ‘fundamental “[f]ailure to provide medical care for physical and mental health needs.” However, as observed by the appellate court in Feinimore v. Regents of the University of California, (2016) 245 Cal.App.4th 1339 (cited by Plaintiff in opposition),[7] “Worhsham’s determination that understaffing constitutes no more than negligence may be true, absent further allegations showing recklessness.” (Feinimore, supra, 245 Cal.App.4th at p. 1350, emphasis added.)

Here, similar to the Fenimores, Plaintiff has alleged more than a simple understaffing. The SAC identifies the following: The understaffing issue was due to their desire to maximize profit. (SAC ¶23.) It was an intentional, customary, and on-going practice, ratified by all of Defendants’ officers, directors, and/or managing agents and permitted by their own rules. (SAC ¶24.) It was also in violation of several sections of California Code of Regulations and other relevant laws. (SAC ¶24.) The SAC further alleges that Richard did not receive the proper care due to Defendants’ insufficient staffing. (SAC ¶¶ 22, 25-26.) Defendants’ insufficient staffing led to Richard being placed on a Q15 minute safety check instead of one-on-one monitoring. (SAC ¶22). Yet Defendants could not even properly conduct the Q15 minute safety check because they were so understaffed. (SAC ¶25). This was evidenced by the fact that the nursing records do not show any Q15 minute safety check was conducted and the fact that they interacted with Richard only four (4) times during 8 or 9 hours. (SAC ¶25).

Thus, the SAC adequately alleges that Defendant allegedly violated various regulations and suggests a knowing pattern of violating said regulations, which constitutes recklessness. (Ibid.) Echoing the court in Feinimore, “a jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering [Defendant’s] patients, as qualitatively different than simple negligence.” (Ibid.)

Therefore, as Plaintiff has provided allegations that the understaffing was intentional so much so that Defendant could not conduct the Q15 minute safety checks, despite knowledge of Decedent’s suicidal tendencies whereby he required repeated and numerous safety checks, Plaintiff has adequately pled reckless such that the court OVERRULES the demurrer.

In sum, Plaintiff has pled sufficient facts (pertaining to the understaffing) that the allegations no longer sound medical negligence, such that Defendant’s statute of limitations argument is moot. With that, though Cal. Civ. Proc. Code § 425.13 prohibits claims for punitive damages absent a court order allowing the same against a healthcare provider, the statute does not apply with respect to statutory claims of abuse (or neglect) of a dependent adult. (See Covenant Care, Inc., supra, 32 Cal.4th 771; see also Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426.)

Therefore, as Plaintiff has adequately pled the cause of action for claims based on EADACPA, Plaintiff may include prayers for punitive damages and attorney fees.

Based on the foregoing, the demurrer is overruled and the motion to strike is denied.

[1] Though not stated in the notice of the motion, the demurrer briefly argues that the complaint is uncertain. (Demurrer p.16:1-2.) The objection of uncertainty does not go to the failure to allege sufficient facts. (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) Rather, the objection of uncertainty, goes to the “doubt as to what the pleader means by the facts alleged.” (Ibid.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872,

882.) Here, Defendant’s ability to file a demurrer inherently indicates that there are sufficient facts to put Defendant on notice of the issues. Moreover, as the court finds that sufficient facts are pled, that precludes a finding of uncertainty of the pleadings.

[2] Much of the law won’t be repeated as it was articulated in the tentative to the first demurrer. The court observes that the SAC omits repeated references to “standard of care” which was a large basis for the court sustaining the demurrer as the FAC’s references to breach of a duty inherently acknowledges that negligence is at issue.

[3] Plaintiff similarly makes the same categorization. (See Opp. p. 6 [Section A “Intentional Understaffing; Failure to Provide Medical Care for Physical and Mental Health Needs”]; p. 8 [Section B: “Decisions to Allow Richard Keep His Jacket and Place Him in a Room with an Easily Removable Vent and a Pipe That Can Withstand His Weight; Failure to Protect from Health and Safety Hazards”].)

[4] (See Delaney v. Baker (1999) 20 Cal.4th 23, 32 [The EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 787; see also Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529; Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1240 [Not even gross negligence, an extreme departure from the ordinary standards of conduct, is actionable under The Elder Abuse Act.])

[5] Also, Plaintiff cites to Intrieri without providing an analysis between the case and the instant facts. Defendant does not address the case in its Reply.

[6] The special relationship between psychiatrist or hospital and mental health patient creates a duty to take reasonable steps to prevent a foreseeable suicide. (Meirer v. Ross Gen. Hosp. (1968) 69 Cal.App.2d 420, 424 [“If those charged with the care and treatment of a mentally disturbed patient know of facts from which they could reasonably conclude that the patient would be likely to harm himself in the absence of preclusive measures, then they must use reasonable care under the circumstances to prevent such harm. [Citation]. Given this duty and the fact that defendants placed decedent, following an attempted suicide, in a second-floor room with a fully openable window, the jury could find from the fact of decedent's suicidal plunge through this window that defendants more probably than not breached the duty of care owed to decedent. Even in the absence of expert testimony which describes the probability that the death or injury resulted from negligence, the jury may competently decide that defendant more probably than not breached his duty of care . . . .”.], emphasis added.)

[7] Defendant’s reply does not address the case.