Judge: Christian R. Gullon, Case: 24PSCV00458, Date: 2024-12-09 Tentative Ruling

Case Number: 24PSCV00458    Hearing Date: December 9, 2024    Dept: O

Tentative Ruling

(1)   DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT is SUSTAINED with leave to amend.

(2)   MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT is MOOT (as the MTS seeks to strike punitive damages on the grounds that there are no allegations that amount to the requisite level of recklessness or neglect but the court in the demurrer has given Plaintiff leave to amend on the respective claim(s).

Background

This is an elder abuse case.

On February 9, 2024, Plaintiffs RIGOBERTO DAVILA by and through his successor-in-interest (“Plaintiff” or “decedent”), Araceli Miranda; ARACELI MIRANDA, an individual; AMPARO ROMERO, an individual; MARIBEL ROMERO, an individual;  MARIA HURTADO, an individual;  ARMANDO DAVILA, an individual; LETICIA DAVILA, an individual;  JESSIE DAVILA, an individual;  EVELYN DAVILA, an individual;  JOEL DAVILA, an individual (collectively, “Plaintiffs”) filed suit against Defendant INLAND VALLEY PARTNERS, LLC dba INLAND VALLEY CARE AND REHABILITATION CENTER.

On July 9, 2024, Plaintiffs filed a first amended complaint (FAC) asserting the following causes of action (COAs) against Defendant:

1)     Statutory Elder Abuse/Neglect

2)     Negligence

3)     Violation of Patient’s Rights and

4)     Wrongful Death

On August 28, 2024, Defendant filed the instant demurrer and motion to strike.

On November 5, 2024, Plaintiffs filed their opposition.

Legal Standard

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.)

Discussion

Defendant demurs to the entirety of the FAC on the grounds that it is devoid of facts and certain COAs are time barred.

1.     First COA for Elder Abuse/Neglect (Elder Abuse And Dependent Adult Civil Protection Act (EADACPA) and Second COA for Willful Misconduct/Negligence

“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). 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 pleaded 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], emphasis added.) This is because recovery is based on a statutory cause of action. 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.” (Mittenhuber v. City of Redondo Beach (1983) 142 Cal. App. 3d 1, 5.)

Here, the pertinent allegation is found in paragraph 10, which provides in totality the following:

The FACILITY repeatedly failed to provide care, monitoring, and supervision of the ELDER. The FACILITY failed to create and execute interventions for the ELDER to avoid falls despite the FACILITY assessing the ELDER as a high fall risk.  The FACILITY failed to chart all of the ELDER’s falls and timely notify the physician and the ELDER’s family of the changes in condition and injuries.  Consequently, the ELDER fell repeatedly.  Moreover, on or about January 2, 2023, the ELDER was found on the ground at the FACILITY with his head on the ground with a bloody gash and contusion on the back of his head, bruise near his eye, abrasion to his right middle finger such that the ELDER required hospitalization.  The injuries the ELDER suffered were the result of physical abuse and neglect by the FACILITY. 

The foregoing, however, is a conclusion—in that Plaintiff fell—without pleading with particularity as to how Defendant acted with the requisite reckless neglect or how often Plaintiff fell. (The FAC does not state when Plaintiff was admitted to the facility.) Put differently, Plaintiffs are making a conclusion that because Plaintiff fell, then Defendant must have acted with recklessness (i.e., Defendant did not implement measures to keep Plaintiff secure knowing that the failure to do so will likely result in injury).

To the extent that Plaintiff relies upon Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339 and Sababin v. Superior Court (2006) 144 Cal.App.4th 81, those cases actually support Defendant’s position.

For example in Fenimore, the plaintiff, who had a host of diseases and was just transferred from another facility, fell within minutes of entering the new hospital. (Fenimore, supra, 245 Cal.App.4th at p. 1343.) Not only that, but the hospital “engaged in [a] fraudulent cover-up” by stating that nurses were changing the plaintiff’s adult diaper. (Id. at p. 1344.) “For the next four days after his fall, [the plaintiff] received no medical attention or further assessment.” (Ibid.) Moreover, the plaintiff’s medical charts were inconsistent and the family was not being informed of falls or pains. Then, the plaintiff fell again, which was not even addressed until four days after he was transferred for totally unrelated reasons and the hospital there realized he had a left hip fracture. (Ibid.) Here, however, there are no such facts. The facts are merely that Plaintiff fell; Plaintiffs do not allege the number of times or even how Plaintiff fell or how is falls were a result of the failure to provide care or supervision.

The facts also fall short of those alleged in Sababin. There, the plaintiff had Huntington’s Chorea, which is a condition characterized by loss of cognitive and mental functions. (Sababin, supra, 144 Cal.App.4th at p. 85.) People affected with the disorder are at increased risk for weight loss and infection. (Ibid.) When the plaintiff was admitted to the hospital, her weight fluctuated from 83 pounds to 75.4 pounds to then 105 pounds then 91 pounds. (Ibid.) As for the plaintiff’s skin problems, the plaintiff developed diarrhea and was transferred to the emergency room because her condition did not improve. (Ibid.) But the defendant had no documentation of those conditions nor had a physician been notified for a treatment order. (Ibid.) It was revealed that her cause of death was MRSA sepsis to an infected sacral skin ulcer. (Id. at p. 86.) The appellate court reversed the trial court’s ruling on the summary judgment motion asserting that “[a] trier of fact could find that when a care facility's employees ignore a care plan and fail to check the skin condition of a resident with [the disease], such conduct shows deliberate disregard of the high degree of probability that she will suffer injury.” (Id. at p. 90.) In doing so, the court explained that “if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” (Id. at p. 90, emphasis and underline added.) Here, as explained above, no pattern has been provided because no specifics about the purported falls have been provided. Even as to the 1/2/23 fall, that appears to have been documented.

Even if the foregoing was insufficient to sustain the demurrer as to the elder abuse COA, 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 and has otherwise 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 the FACILITY ratified the conduct. (¶18.)

Therefore, the court SUSTAINS the demurrer as to the 1^st COA for elder abuse/neglect.

2.     Wrongful Death/Medical Negligence

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 pecuniary loss suffered by the heirs. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

Defendant argues that “Plaintiff’s FAC sets forth no causal nexus between any alleged wrongful conduct that might be attributable to this Defendant and the Decedent’s death. The FAC fails to even allege Decedent’s cause of death.” (Demurrer p. 19.) The certificate of death indicates that Plaintiff died from acute renal failure due to chronic hypoxemic respiratory failure and aspiration pneumonia.[1] Plaintiff does not address causation.  

Therefore, the court sustains the demurrer as to the wrongful death/negligence COAs on the grounds of causation.[2] (For clarity, the court does not reach the issue of statute of limitations.)[3]

3.     Patient’s Bill of Rights[4]

To safeguard nursing care patients, who have been recognized as “one of the most vulnerable segments of our population” the Legislature enacted the Long-Term Care, Health, Safety, and Security Act of 1973 (Long-Term Care Act or Act; § 1417 et seq.). (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 380.) Section 1430, subdivision (b) (section 1430(b)), which Plaintiffs allege as one of the alleged violations, is part of the Long-Term Care Act. (Ibid.)

The parties disagree about the applicable statute of limitations. On the one hand, Defendant argues that the statute amounts to a penalty such that per CCP section 340, a one-year SOL applies. (Demurrer p. 14, citing to Melamed v. Cedars-Sinai Medical Center (2017) 8 Cal.App.5th 1271.) On the other hand, Plaintiff avers that the plain language of the statute provides for “civil damages.”

For purposes of this demurrer, the court need not address the SOL as the COA fails to plead any facts with strict particularity in support of a violation of any one of the 26 specific rights and fails to identify which of the 26 specific rights were allegedly violated by Defendants. (Demurrer pp. 18-19.)

Therefore, the court sustains the demurrer as to the COA for violation of the Patient’s Bill of Rights.

Conclusion

In sum, statutory causes of action must be pleaded with particularity and supported by specific facts. (See e.g., Carter, supra, 198 Cal.App.4th at p. 410; see also Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332 [every element of the claim must be alleged fully, factually, and specifically.) Accordingly, the demurrer as to the first cause of action for elder abuse/neglect is sustained with leave to amend as it amounts to nothing more than that Plaintiff fell more than once, and also fails to plead corporate ratification. The demurrer is likewise sustained as to the third cause of action for violation of resident rights for the failure to plead the COA with particularity. Lastly, the demurrer as to the wrongful death/negligence COAs are sustained with leave to amend for the failure to plead causation. This renders the MTS moot.

Based on the foregoing, the demurrer is sustained in its entirety with leave to amend and the MTS is moot.