Judge: Curtis A. Kin, Case: 22STCV05757, Date: 2022-09-15 Tentative Ruling

Case Number: 22STCV05757    Hearing Date: September 15, 2022    Dept: 72

DEMURRER AND MOTION TO STRIKE

Date:         9/15/22 (9:30 AM)                 

Case         Mildred Irene Ball v. MEK Escondido, LLC et al. (22STCV05757) 

TENTATIVE RULING:

Defendants MEK Escondido, LLC and Healthcare Management Services, LLC’s Demurrer to Complaint is OVERRULED.

Defendants MEK Escondido, LLC and Healthcare Management Services, LLC’s Motion to Strike Portions of Complaint is DENIED.

With respect to the first cause of action for elder abuse, to state a cause of action based on neglect, plaintiff must plead: (1) defendants had a substantial custodial relationship with plaintiff, involving ongoing responsibility for plaintiff’s basic needs; (2) plaintiff was 65 years of age or older; (3) defendants failed to use the degree of care that a reasonable person in the same situation would have used in providing for plaintiff’s basic needs, including protecting plaintiff from health and safety hazards; (4) plaintiff was harmed; and (5) defendants’ conduct was a substantial factor in causing plaintiff’s harm. (CACI 3103.)

To obtain enhanced remedies for an elder abuse cause of action based on neglect, “[t]he plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that defendant . . . knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and . . . 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 [citations omitted]; see also CACI 3104.)

Here, plaintiff Mildred Irene Ball, by and through her successor in interest Kathryn Kratochvil,

alleges that defendants had care and custody of plaintiff (Compl. ¶¶ 23, 27) and that they were responsible daily for her basic needs (Compl. ¶¶ 27, 28). Plaintiff also alleges that she was harmed by defendants’ neglect. (Compl. ¶¶ 24, 28.) Defendants allegedly neglected plaintiff by failing to protect her from health hazards by preventing her from falling out of her wheelchair. (Compl. ¶¶ 28, 30.) Specifically, defendants allegedly failed to properly evaluate plaintiff’s risk factors for falling, failed to revise the interventions put in place to prevent plaintiff from falling when the interventions were not working, and failed to transfer plaintiff to an acute care facility when she required an elevated level of care. (Compl. ¶ 28.) Plaintiff sufficiently alleges how defendants “failed to use the degree of care that a reasonable person in the same situation would have used in providing for plaintiff’s basic needs, including protecting plaintiff from health and safety hazards.” (CACI 3103.)

With respect to whether plaintiff adequately states her entitlement to enhanced remedies, plaintiff alleges that defendants knew plaintiff was susceptible to falling based on information from assessments, clinical charts, and plaintiff’s family. (Compl. ¶ 27.) Defendants also allegedly knew that plaintiff required a higher level of care than the skilled nursing facility could or would provide but admitted and retained plaintiff in pursuit of profits. (Compl. ¶ 35.)

Defendants were also allegedly aware of the dangers that understaffing of the facility posed to plaintiff but nevertheless staffed the facility with an insufficient number of care providers, many of whom were inadequately trained in providing care to elders, in violation of regulations. (Compl. ¶¶ 33, 43, 46-48.) Because of the insufficient staffing knowingly implemented by defendants to cut costs, the facility did not provide the staff necessary to prevent plaintiff from falling out of her wheelchair. (Compl. ¶¶ 47, 53.) The allegations concerning staffing are sufficient to constitute reckless neglect. (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349, 1351.)

Defendants cite Worsham v. O’Connor Hospital (2014) 226 Cal. App. 4th 331 in support of its contention that an elder abuse cause of action cannot be based on an allegation of understaffing, underbudgeting, and inadequately trained staff at the facility. However, Worsham is inapposite because, unlike in Worsham, plaintiff here does not allege that understaffing of the facility was the sole cause of plaintiff’s injuries and death,. (See Worsham, 226 Cal.App.4th at 334.) Rather, plaintiff also alleges that defendants knew that she required a higher level of care that the facility could or would provide but retained her and refused to transfer her to an acute care facility at the expense of her health. (Compl. ¶¶ 28, 35.)

When the Complaint is read as a whole, plaintiff sufficiently alleges that despite defendants’ knowledge of plaintiff’s risk of falling and the dangers of understaffing, defendants failed to implement measures and staffing to prevent plaintiff’s fall. Defendants’ alleged failure to prevent the subject incident may constitute withholding of care in conscious regard of plaintiff’s health for pleading purposes. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [“A significant pattern [of withholding portions or types of care] is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference”].) Whether defendants’ conduct ultimately rises to the level of recklessness must be determined at summary judgment or trial.

The demurrer is OVERRULED.

With respect to the motion to strike, because the elder abuse cause of action is sufficiently stated, plaintiff may proceed with her claim for attorney fees and punitive damages. (Welf. & Inst. Code § 15657(a), (c); Civ. Code § 2394(b).)

Accordingly, the motion to strike is DENIED.