Judge Christian R. Gullon, Case Number: 23PSCV00764, Date: 2023-12-13 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00764, Date: 2023-12-13 Tentative Ruling

(1) Defendant’s DEMURRER TO FAC is SUSTAINED without leave to amend because Plaintiff has failed to plead particular facts as to (i) ratification/authorization by a corporate director, officer, or managing agent and (ii) understaffing.

This is an alleged elder abuse case/dependent adult case. Plaintiff DANIEL E. HENDRIX, by and through Vanessa Toloza, his Guardian Ad Litem alleges the following against Defendants EMANATE HEALTH QUEEN OF THE VALLEY HOSPITAL (the “Hospital”); EMANATE HEALTH MEDICAL CENTER: On January 4, 2022, Plaintiff, who is morbidly obese and incontinent of bowel and bladder and required a minimum of two persons to turn him (FAC ¶15), presented to the Hospital for admission to fix his preexisting ventriculoperitoneal shunt. There were complications with the procedure, requiring Plaintiff’s one month stay at the Hospital. By the time of Plaintiff’s discharge, he developed a full thickness Stage III or IV sacrococcygeal pressure ulcer.

On November 3, 2023, Defendant filed its demurrer to the original complaint, which the court sustained with leave to amend on 12/13/23. (Plaintiff did not file an opposition to the demurrer.)

The issues presented are whether Plaintiff has alleged sufficient facts to demonstrate authorization or ratification by the facility for the claimed elder abuse and/or, in the alternative, whether the understaffing allegations are sufficient to demonstrate authorization/ratification.[1]

Previously, the court noted that Plaintiff’s reliance on Robert Curry, Administrator, and Kathy Van Allen, Director of Nursing, was insufficient assert ratification/authorization because there was no indication that they were managing agents.[3]

In its FAC, Plaintiff cites White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576-577 wherein the California Supreme Court provided a definition of what constitutes a “managing agent.” (FAC p. 21.)[4]

The Legislature intended that principal liability for punitive damages not depend on employees' managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. Conversely, supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees. In order to demonstrate that an employee is a true managing agent under section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation's business. (emphasis added and underline added.)

In turn, corporate policy is defined as “the general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167-168.)

Here, however, aside from their job titles, there are no allegations about Curry and Van Allen’s job duties. Even assuming that they directed the care and treatment to Plaintiff, even assuming they were personally involved in or authorized and ratified all decisions relating to Plaintiff’s care and treatment, including the misconduct identified in the FAC (i.e., not turning Plaintiff over every 2 hours), even assuming said decisions had significant consequences, and even assuming that they had day-to-day management duties at the Hospital, ultimately, there are no allegations that their responsibilities determined corporate-wide policies and procedures.

Thus, absent particular facts of the above,[5] neither the facility's administrator nor its Director of Nursing are managing agents per se.

2. Whether Understaffing at the Hospital Suffices as Direct or Circumstantial Evidence of Authorization or Ratification?

The issue is “whether one or more officers, directors or managing agents was aware that the facility was understaffed at the time that the plaintiff was a patient, whether such officer, director or managing agent was responsible for the understaffing either by having caused it or having failed to take steps to correct it, and whether such understaffing rose to a level of recklessness, oppression, fraud or malice required by Welfare & Institutions Code to establish a claim for elder abuse.” (Demurrer p. 6:12-18.)

On one or more dates pre-dating the Plaintiff’s admission on January 4, 2022, as a result of investigations of Complaints, State deficiencies regarding Quality of Care/Treatment, Facility Staffing, were identified by the California Department of Public Health (CDPH). That is, Plaintiff is informed and believes and thereon alleges that the Defendants failed to comply with the nurse-to-patient ratio in various hospital units (including the particular unit(s) the Plaintiff was in) which had the potential to put patients at risks for their health and safety needs. There were days when the facility was short staffed, and short of staff for licensed nurses. With regard to the staffing levels of the particular unit(s) the Plaintiff was in, and how understaffed the facility was during Plaintiff’s admission, such information is available from Defendants’ staffing sheets which indicate that the nurse-to-patient ratios were not complied with and show that Defendants failed to comply with the nurse-to-patient ratio. For example, the Defendants failed to provide nursing staff to meet Nurse-to-Patient ratios at 1:2 or fewer at all times in the intensive care units. Defendants have superior knowledge of facts relating to complaints filed against them. (See FAC pp. 23-24, emphasis added.)[6]

In sum, Plaintiff alleges that according to staffing sheets, Defendant failed to provide an adequate number of staff. To the extent that Defendant despite the sufficiency of this allegation, Defendant argues that “the understaffing must have been severe.” (Demurrer p. 7:14-16.)[7]

What occurs over a period of time is a critical factor in elder abuse cases. After all, according to CACI 3103, an element of elder abuse is that the defendant has a substantial caretaking or custodial relationship with the plaintiff, which is more than a casual or limited interactions. (See Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148, 158.)

Applied here, to allege damages arising from understaffing, then the Plaintiff must allege the duration of which there was understaffing. But Plaintiff does not provide these facts. Plaintiff, though alleging that the understaffing happened in the ICU, does not state how long he was in the ICU. Instead, Plaintiff alleges that on January 4, 2022, he was admitted to the Hospital to fix his preexisting ventriculoperitoneal shunt; he underwent an operation; he aspirated during the upper endoscopy, requiring a stay in the ICU; and he was hospitalized for a month. (See FAC p. 4.) Whether Plaintiff stayed at the ICU for the entirety of his stay is unclear.

Additionally, as noted by Defendant, Plaintiff does not allege the required ratio in the ICU. (Demurrer p. 7:16-18 [“For example, if the required nurse-to-patient ratio was required to be 1:2 in the intensive care unit, as alleged at paragraph 103, then the issue is what the ratio was. If it was 1:3, that would be a minimal deviation that would not constitute authorization or ratification of elder abuse.”].) The specific regulatory violations must be pled in the complaint. (See Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1348.)

Therefore, absent specific facts, Plaintiff has not shown that Defendant deliberately understaffed the hospital to serve as a basis for inference of authorization or ratification.[8]

Based on the foregoing, absent allegations of ratification and/or authorization by an officer, director, or managing agent and absent allegations of severe understaffing that could lead to the inference of ratification/authorization by said individuals, the demurrer is SUSTAINED.

First, Plaintiff failed to file an opposition to the first demurrer despite Defense Counsel attempting to meet and confer multiple times. (See 11/03/23 Demurrer p. 9 of 11 of PDF.) ‘

To the extent that Plaintiff has filed an opposition this time, it merely reiterates allegations and cites to pages of legal authorities without an analysis.

Thus, to have Defendant file a third demurrer raising identical arguments would be unfair and futile.

Second, leave to amend is granted wherein a Plaintiff shows that he can cure the defects with an amended complaint. Plaintiff before did not have the facts and now, as to both the ratification and understaffing issues, he admits to needing discovery to proceed. As noted by Defendants regarding discovery of the required facts, “Maybe he will and maybe he won't, but at this stage of the case he does not have such facts, and it is not enough to allege generally that there was such authorization or ratification and that he will learn of the facts at a later date …if the plaintiff does learn of a factual basis for his claim, then he can move to amend under Code of Civil Procedure section 4 73 to add a cause of action for elder abuse.” (Demurrer p. 9:5-9.) Therefore, at this juncture, leave to amend is denied.

Based on the foregoing, the demurrer is sustained WITHOUT leave to amend, meaning the motion to strike punitive damages (based off the elder abuse COA) is GRANTED WITHOUT LEAVE TO AMEND.

[1] As with before, although Defendant maintains that the care rendered to Plaintiff was not reckless, they focus on the requirement that Plaintiff plead sufficient facts as to authorization or ratification. (Demurrer p. 5:18-22.)

[2] Plaintiff argues that the "authorization/ ratification" requirement does not apply if the defendant is not a corporation. (Opp. p. 13.) But the FAC alleges that Emanate Health Medical Center is a corporation. To ameliorate any confusion, Defendant submits Emanate Health Medical Center is a corporation. (Reply p. 4, see Ex. A.)

[3] Plaintiff now provides more names of individuals of purportedly ratified or authorized the conduct of its staff, that is merely a list of 14 names without any facts tying any of these individuals to any conduct amounting to authorization or ratification. (Demurrer p. 6:4-10.) Plaintiff again merely conclusively states that these individuals (most of which are not even labeled as officers, directors or managing agents) had actual knowledge of the improper supervision of the Plaintiff.

[4] Neither the demurrer nor reply address this case.

[5] Pleading authorization or ratification with particularity is required for allegations of elder abuse. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

[6] While Defendants argue Plaintiff cite to happenings prior to Plaintiff’s admission, that may be true, but the allegations also address happenings at the time of Plaintiff’s admission. (Demurrer p. 7:4-7.) That said, what Defendants did before, shortly before, or immediately preceding Plaintiff’s admission can constitute as circumstantial evidence. (See Hartman v. Shell Oil Co., (1977) 68 Cal.App.3d 240 [circumstantial evidence of ratification sufficient].)

[7] Defendants also rely upon Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, but Worshom is inapposite for an important reason: Defendants are not disputing recklessness.

[8] In fact, as observed by Defendants in demurrer, Plaintiff admits at paragraph 104 that he does not have facts with which to plead an elder abuse cause of action, stating that such facts will be obtained during discovery. (Demurrer p. 8, quoting FAC 104 [“Discovery will show further how understaffed the facility was, the staffing levels of the particular unit(s) the Plaintiff was in, the dates when the facility was understaffed and when staff failed to perform wound care while the Decedent was a patient at the hospital as a result of understaffing, among others. These facts are presumptively within Defendants’ knowledge or are ascertainable by invoking discovery procedures.”].)