Judge Daniel M. Crowley, Case Number: 23STCV05798, Date: 2023-09-21 Tentative Ruling

Defendant William Wirshing, M.D.’s, demurrer to Plaintiffs Glenn Wright’s, Nina Woolfolk’s, and all successors-in-interest to Le’Wayne Anthony Wright’s complaint is overruled as to the 2nd cause of action.

Defendant William Wirshing, M.D.’s, motion to strike is denied as to the 2nd cause of action for Violation of Elder Abuse and Dependent Adult Civil Protection Act, in its entirety, as to Wirshing, 18:16-27:9 (¶¶75-106), which includes claims for attorneys’ fees, 22:6, 26:22 (¶¶83, 104), and for punitive damages, 22:12, 26:28-27:9, (¶¶83, 106); Plaintiffs’ prayer for relief, “For punitive damages according to proof,” 38:8, Prayer ¶iv; and Plaintiffs’ prayer for relief, for “attorneys’ fees,” 38:14, Prayer ¶ix.

Defendant William Wirshing, M.D.’s motion to strike is granted with 20 days leave to amend as to the assertion in Plaintiffs’ 3rd cause of action for Professional Negligence/Medical Malpractice, that “Plaintiffs are entitled to recover from Defendants, and each of them, punitive damages according to proof at trial pursuant to Civil Code section 3294,” 37:7-8 (¶132); and the 4th Cause of Action, for Wrongful Death, asserting, “Defendants committed the acts stated herein maliciously and oppressively, with the wrongful intention of injuring Plaintiffs, thereby entitling Plaintiffs to punitive damages,” 37:27-28 (¶137).

The Court, sua sponte, strikes the 2nd and 3rd causes of action brought by Glenn and Nina in their individual capacities with 20 days leave to amend the 2nd and 3rd causes of action to indicate the causes of action are brought by Glenn and Nina as Decedent’s successors-in-interest.

Defendants Exodus Recovery, Inc.’s, Exodus Foundation dba Exodus Foundation for Recovery’s, and Luana Murphy’s demurrer to Plaintiffs Glenn Wright’s, Nina Woolfolk’s, and all successors-in-interest to Le’Wayne Anthony Wright’s complaint is overruled as to the 2nd cause of action and sustained as to the 1st cause of action with 20 days leave to amend.

Defendants Exodus Recovery, Inc.’s, Exodus Foundation dba Exodus Foundation for Recovery’s, and Luana Murphy’s motion to strike is denied as moot.

Defendants Pathways Medical Association’s and Todd Nathan, N.P.’s, demurrer to Plaintiffs Glenn Wright’s, Nina Woolfolk’s, and all successors-in-interest to Le’Wayne Anthony Wright’s complaint is overruled as to the 1st and 2nd causes of action.

Defendant William Wirshing, M.D. (“Wirshing”) (“Defendant”) demurs to Plaintiffs Glenn Wright’s (“Glen”), Nina Woolfolk’s (“Nina”), and all successors-in-interest to Le’Wayne Anthony Wright (“Le’Wayne Successors”) (collectively, “Plaintiffs”) complaint (“Complaint”). (Notice of Demurrer Wirshing, pg. 2.) Wirshing also moves to strike portions of the Complaint. (Notice of MTS Wirshing, pg. 2.)

Defendants Exodus Recovery, Inc. (“Exodus Inc.”), Exodus Foundation dba Exodus Foundation for Recovery (“Exodus Foundation”), and Luana Murphy (“Murphy”) (collectively “Exodus Defendants”) demur to Plaintiffs’ Complaint. (Notice of Demurrer Exodus, pg. 2; C.C.P. §430.10(e).) Exodus Defendants also move to strike portions of the Complaint. (Notice of MTS Exodus, pg. 2.)

Defendants Pathways Medical Association (“Pathways”) and Todd Nathan, N.P. (“Nathan”) (collectively, “Defendants”) demur to Plaintiffs’ Complaint on the grounds that the 1st and 2nd causes of action fail to state facts sufficient to constitute a cause of action against Pathways and Nathan. (Notice of Demurrer Pathways, pg. 2; C.C.P. §430.10(e).)

Wirshing’s 5/5/23 request for judicial notice of the following documents on file in Wright, et al. v. Exodus Recovery, Inc., et al., C.D. Cal. Case No. 2:22-CV-01693: (1) Plaintiffs’ Complaint, filed March 14, 2022, (W-RJN, Exh. 1); (2) Plaintiffs’ First Amended Complaint, filed June 6, 2022, (W-RJN, Exh. 2); (3) Order Granting Defendants’ Motion to Dismiss, filed December 21, 2022, (W-RJN, Exh. 3); (4) Plaintiffs’ federal Second Amended Complaint, filed January 11, 2023 (W-RJN, Exh. 4); (5) Plaintiffs’ Motion to Decline to Exercise Supplemental

Jurisdiction Over Plaintiffs’ State Law Claims, filed January 17, 2023, (W-RJN, Exh. 5); (6) Defendants’ Opposition to Motion asking District Court to Decline to Exercise Supplemental Jurisdiction Over Plaintiff’s State Law Claims, filed February 1, 2023 (W-RJN, Exh. 6); (7) Plaintiffs’ Reply to Defendants’ Opposition to Motion to Decline to Exercise Supplemental Jurisdiction Over Plaintiff’s State Law Claims, filed February 8, 2023 (W-RJN, Exh. 7); (8) Order to Re-file State Law Causes of Action in State Court, filed February 17, 2023 (W-RJN, Exh. 8); and (7) Stipulation Regarding Scheduling Motions to Dismiss re First Amended Complaint (W-RJN, Exh. 14) is granted.

Wirshing’s 5/5/23 request for judicial notice of the Complaint in the instant action is denied, as the Court does not need to take judicial notice of filings on the docket in the instant case.

Wirshing’s 5/5/23 request for judicial notice of meet and confer letters and emails is denied. (W-RJN, Exhs. 10-13.)

Exodus Inc.’s, Exodus Foundation’s, and Murphy’s 5/5/23 and 8/18/23 request for judicial notice of (1) Plaintiffs’ First Amended Complaint filed on June 6, 2022, in the C.D. Cal., Case No. 2:22-cv-01693-SPG-SK (E-RJN, Exh. A); and (2) Order Granting Defendants’ Motion to Dismiss as to the First Amended Complaint, C.D. Cal. Case No. 2:22-cv-01693-SPG-SK, entered December 21, 2022 (E-RJN, Exh. B), is granted.

Plaintiffs filed their operative Complaint on March 15, 2023, against Exodus Inc., Exodus Foundation, Pathways, Wirshing, Nathan, and Murphy (collectively, “Defendants”) alleging four causes of action against Defendants: (1) Unruh Civil Rights Act (Civ. Code §§51, et seq.) [against Exodus Inc., Exodus Foundation, and Pathways]; (2) violation of Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code §§15610.05, 15610.07, 15610.57) [against all Defendants]; (3) professional negligence (medical malpractice) [against all Defendants]; and (4) wrongful death [against all Defendants], arising from the death of Le’Wayne Anthony Wright (“Decedent”).

Plaintiffs allege Decedent was unmarried at the time of his death and died intestate. Decedent was twenty-six (26) years old at the time of his death. (Complaint ¶7.) Plaintiffs allege Glenn is Decedent’s father and successor-in-interest. (Complaint ¶8.) Plaintiffs allege Nina is Decedent’s mother and successor-in-interest. (Complaint ¶9.)

Plaintiffs allege Decedent was born on April 11, 1994, and had a history of bipolar disorder, depression, and ideation for suicide throughout his life. (Complaint ¶48.) Plaintiffs allege Decedent was severely hearing impaired and required the assistance of a hearing aid. (Complaint ¶48.) Plaintiffs allege at the time of the incident, Decedent’s hearing impairment had been deteriorating and was expected to eventually result in total hearing loss. (Complaint ¶48.) Plaintiffs allege at the time of the incident, even with the use of a hearing aid Decedent was not able to hear high frequency sounds and had particular difficulty hearing women’s voices. (Complaint ¶48.) Plaintiffs allege Decedent was not generally able to read the lips of strangers unless he simultaneously used a hearing aid. (Complaint ¶48.) Plaintiffs allege without the use of a hearing aid, Decedent was substantially deaf. (Complaint ¶48.) Plaintiffs allege because Decedent was severely hearing impaired, upon information and belief means reasonably calculated to communicate complex information to a deaf individual and/or use of a hearing aid were necessary to afford Decedent effective communication in a medical setting, particularly for interactive communications such as the discussion of symptoms, presentation of diagnosis and treatment options, and discharge planning. (Complaint ¶48.)

Plaintiffs allege without the aforementioned services in medical settings, Decedent was not afforded effective communication and was at high risk of miscommunication and further depression that could lead to misdiagnosis, improper or delayed medical treatment, and/or Decedent’s inability to fully participate in his mental health evaluation and treatment. (Complaint ¶49.) Plaintiffs allege before Decedent’s death he had attempted suicide once before and had been declared a 5150 risk at least twice prior. (Complaint ¶50.)

Plaintiffs allege on November 23, 2020, Decedent was admitted to Exodus Inc. Urgent Care Center located in East Los Angeles. (Complaint ¶51.) Plaintiffs allege Decedent was transported to Exodus Inc. after he was determined to be undergoing a mental health crisis and had expressed a plan to immediately throw himself to his death from the window of his fourth-floor apartment. (Complaint ¶51.) Plaintiffs allege although Exodus Inc. admitted Decedent with knowledge of his suicidal ideation and plan, recent suicide attempt, symptoms of ongoing mental instability, severe hearing impairment, and inability to attend to the basic activities of daily living without assistance, facility staff, including Nurse Nathan and Psychiatrist Wirshing, determined almost immediately to put Decedent out of the facility the following morning. (Complaint ¶51.)

Plaintiffs allege Decedent had no other viable option for immediate interventional treatment of his mental health crisis other than Exodus Inc., and during his stay Decedent depended on Defendants for several of his activities of daily living (“ADLs”) and basic needs, including but not limited to medication assistance and self-preservation. (Complaint ¶52.) Plaintiffs allege nevertheless, Defendants failed to provide even the minimum necessary services, evaluation, and treatment to Decedent. (Complaint ¶52.)

Plaintiffs allege the following morning, on November 24, 2020, Defendants ejected and/or discharged Decedent from the Exodus Urgent Care Center, knowing that Decedent had not been stabilized and remained a danger to himself. (Complaint ¶53.) Plaintiffs allege thereafter, Decedent immediately travelled to his apartment and jumped from his fourth-floor apartment window approximately 20-40 feet to the ground below. (Complaint ¶53.) Plaintiffs allege emergency services responded to the scene and transported Decedent to LAC+USC Medical Center where, on November 24, 2020, at 7:05 p.m., Decedent was pronounced dead. (Complaint ¶53.)

On May 5, 2023, Wirshing filed his demurrer. On July 27, 2023, Wirshing filed his motion to strike. On September 8, 2023, Plaintiffs filed their oppositions to Wirshing’s demurrer and motion to strike. On September 14, 2023, Wirshing filed his replies in support of his demurrer and motion to strike. Plaintiffs object to Wirshing’s motion to strike as untimely filed. (Opposition MTS Wirshing, pg. 3.) While Wirshing’s motion to strike was untimely filed, the Court in its discretion will consider the motion.

On May 5, 2023, Exodus Inc., Exodus Foundation, and Murphy filed their demurrer and motion to strike. On September 8, 2023, Plaintiffs filed their oppositions to Exodus Inc.’s, Exodus Foundation’s, and Murphy’s demurrer and motion to strike. On September 14, 2023, Exodus Inc., Exodus Foundation, and Murphy filed their replies in support of their demurrer and motion to strike.

On May 10, 2023, Pathways and Nathan filed their demurrer. On September 8, 2023, Plaintiffs filed their oppositions to Pathways’ and Nathan’s demurrer. On September 14, 2023, Pathways and Nathan filed their reply in support of their demurrer.

Wirshing demurs on the basis that Plaintiffs’ 2nd causes of action for Violation of Elder Abuse and Dependent Adult Civil Protection Act fails to state facts sufficient to constitute causes of action against him, and that while Plaintiffs Glenn and Nina are the parents of Decedent, and sue for him as successors to his interests, the only theory of liability they could assert on their own behalf is the cause of action for wrongful death. (Demurrer Wirshing, pg. 7; C.C.P. §§430.10 (b), (e).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Violation of Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code §§15610.05, 15610.07, 15610.57) (2nd COA)

“Abuse of an elder or a dependent adult” means “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code §15610.07(a).) In order to state a cause of action for neglect under the Elder Abuse Act, Plaintiffs must allege: (1) Decedent was an elder or dependent adult; (2) defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (3) defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (4) defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, (a) either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice); or (b) with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness); and (5) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)

Neglect has two definitions under the Welfare and Institutions Code: “(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise [or] (2) The negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code §§15610.57(a)(1)-(2).) Neglect further includes but is not limited to: “(2) Failure to provide medical care for physical and mental health needs. . .. (3) Failure to protect from health and safety hazards.” (Welf. & Inst. Code §§15610.57(b)(2)-(3).)

Plaintiffs allege Wirshing is and was licensed physician in the State of California (California License No. G50986) with his principal place of practice located at: 9808 Venice Blvd., Suite 700, Culver City, California 90232, as well as registered mailing address at: 6433 Topanga Canyon Blvd., #429, Woodland Hills, California 91303. (Complaint ¶14.) Plaintiffs allege Exodus Inc. is a business establishment. (Complaint ¶61.)

Plaintiffs allege at the time Decedent was admitted to Exodus Inc.’s facility in November 2020, Decedent was functionally deaf and unable to hear or read lips without the insertion of his hearing aids, which he did not have with him during his admission to Exodus Inc.’s facility. (Complaint ¶65.) Plaintiffs allege as detailed in ¶¶108-109(i), Defendants, and each of them would have known at every attempted assessment and interview of Decedent that he was severely hearing impaired and/or deaf and that additional measures would need to be taken to ensure that Decedent understood the questions being posed to him about his history and current symptoms. (Complaint ¶65.) Plaintiffs allege Decedent’s patient records are devoid of any indication that any such measures were taken with the possible exception of nurse Abongwa’s purported use of pantomime at the time of admission. (Complaint ¶65.) Plaintiffs allege Decedent’s patient records indicate that Exodus Inc.’s employees, Nathan and Wirshing, made notations indicating knowledge that Decedent’s was hearing impaired. (Complaint ¶65.) Plaintiffs allege due to Defendants’ failure to ensure that they could communicate accurately with Decedent, they failed to accurately assess and evaluate his mental state and could not have reasonably determined that Decedent’s mental condition had sufficiently stabilized such that it was safe to discharge him only 24-hours after his admission. (Complaint ¶65.)

Plaintiffs allege at the time Decedent was admitted to Exodus Inc.’s facility in November 2020, Decedent was suffering from severe mental disability. (Complaint ¶66.) Plaintiffs allege as detailed in ¶¶108-109(i), Defendants and each of them were aware that Decedent posed a danger to his own life at the time of admission because he was experiencing suicidal ideation and had a specific, and realistic plan by which he would kill himself, which was to throw himself from the window of his fourth-floor apartment, and that he had attempted approximately six or seven months prior. (Complaint ¶66.) Plaintiffs allege Defendants and each of them observed that Decedent began to exhibit psychotic behavior after the time of his admission. (Complaint ¶66.) Plaintiffs allege Defendants and each of them also were aware that Decedent was not able to conduct his ADLs, such as dressing, getting in and out of bed or a chair, walking, using the toilet, and eating by himself. (Complaint ¶66.) Plaintiffs allege this knowledge was sufficient to have authorized Defendants to institute a 72-hour involuntary hold. (Complaint ¶66.) Plaintiffs allege however, Defendants failed to do so. (Complaint ¶66.) Plaintiffs allege instead, very soon following Decedent’s admission, Defendants determined to discharge Decedent the following morning. (Complaint ¶66.) Plaintiffs allege Defendants maintained that determination throughout Decedent’s admission, regardless of indications that further assessment and treatment was necessary, and they in fact did discharge Decedent almost exactly twenty-four hours after his admission. (Complaint ¶66.)

Plaintiffs allege the standard for imposing an involuntary 72-hour hold upon an individual pursuant to the Lanterman Petris Short (“LPS”) Act for the purpose of assessment and crisis intervention is “probable cause” that “a person, as a result of a mental health disorder, is a danger to others, or to themselves, or gravely disabled….” (Wel. & Inst. Code, § 5150.) The term “gravely disabled” under the LPS Act includes “[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (Complaint ¶66.)

Plaintiffs allege Exodus Inc.’s promulgated policy “Involuntary Detention 72 Hour” in effect at the time of Decedent’s admission required the institution of such a hold where “[a]s a result of a mental health disorder, an individual is a danger to his/herself, a danger to others, or gravely disabled.” (Complaint ¶66.) Plaintiffs allege Defendants Nathan and Wirshing had agreed to comply with Exodus Inc.’s abovementioned policy by virtue of Pathways’ Professional services Agreement Sub-Contract with Exodus Inc. (Complaint ¶66.)

Plaintiffs allege as a direct result of Defendants’ wrongful acts and omissions, described herein, Decedent suffered physical pain, emotional suffering, distress, and anguish, and was compelled to commit suicide. (Complaint ¶70.) Plaintiffs allege Defendants’ wrongful acts and omissions were a substantial factor in causing Decedent’s injuries, which would have been prevented had Defendants acted reasonably and in accordance with their duties owed to the Decedent. (Complaint ¶70.)

Plaintiffs allege at the time of his admission to Exodus Inc.’s urgent care facility, Decedent was enrolled in a Medi-care/Medi-Cal plan offered to residents of the County of Los Angeles called L.A. Care Health Plan. (Complaint ¶76.) Plaintiffs allege by enrolling in said plan, Decedent was compelled to accept the urgent/crisis intervention psychiatric services offered only by facility approved by L.A. Care Health Plan. (Complaint ¶76.) Plaintiffs allege Defendant Exodus Inc., and through its Defendants Pathways, Wirshing, and Nathan stood in a unique position and relationship as the only provider of urgent/crisis intervention psychiatric services in contract with the County of Los Angeles, approved by L.A. Care Health Plan, and certified to provide services under the LPS Act. (Complaint ¶76.) Plaintiffs allege Defendants knew of their responsibility to act as a gatekeeper to Medi-Cal patients, such as Decedent, and to ensure that Decedent received all of the care he reasonably needed on an ongoing basis for as long Decedent remained enrolled in his HMO. (Complaint ¶76.) Plaintiffs allege Decedent gave up the right to seek urgent/crisis intervention psychiatric services care from any provider except, including physician specialists, as Defendants might elect to refer him. (Complaint ¶76.) Plaintiffs allege as an enrollee, Decedent gave up the right to withdraw from L.A. Care Health Plan and its delegated health care providers except during December. (Complaint ¶76.) Plaintiffs allege therefore, Decedent and Defendants Exodus Inc., Pathways, Wirshing, Nathan, and Murphy were in a substantial ongoing caretaking relationship, and Decedent and Defendants were committed to each other. (Complaint ¶76.) Plaintiffs allege Decedent was entirely dependent on Defendants Exodus Inc., Pathways, Wirshing, Nathan, and Murphy for access to all needed health care, including, the imposition of a 72-hour hold for assessment, treatment, and stabilization, and/or admitting Decedent to an inpatient hospital setting, and for their determination of what health care the Decedent would need, would be provided, and would be denied. (Complaint ¶76.) Plaintiffs allege regardless of their decision and of what information was shared by Defendants with Decedent, Decedent was unable to seek healthcare elsewhere. (Complaint ¶76.)

Plaintiffs allege Defendants and each of them were made aware by information received from the Los Angeles County Fire Department at the time of Decedent’s admission that he posed a danger to his own life at the time of admission because he was experiencing suicidal ideation and had a specific, and realistic plan by which he would kill himself, which was to throw himself from the window of his fourth-floor apartment, and that he had attempted approximately six or seven months prior. (Complaint ¶77.) Plaintiffs allege Defendants and each of them observed that Decedent began to exhibit psychotic behavior after the time of his admission. (Complaint ¶77.) Plaintiffs allege Defendants and each of them also were aware that Decedent was not able to conduct his ADLs such as dressing, getting in and out of bed or a chair, walking, using the toilet, and eating by himself. (Complaint ¶77.) Plaintiffs allege Defendants, and each of them, undertook to conduct face-to-face checks with Decedent every 10 minutes following his admission for the purpose of preventing him from harming himself due to his suicidal ideation. (Complaint ¶77.)

Plaintiffs allege among an individual’s basic daily needs—in addition to being able to provide for one’s own clothing, shelter, and food—is being able, at every moment, to avoid clear and obvious dangers that threaten immediate serious bodily injury or death. (Complaint ¶78.) Plaintiffs allege in the case of one laboring under the compulsion to kill oneself and who is experiencing suicidal ideation, that need must be supplied by someone else because the subject him or herself constitutes the danger that threatens their own serious bodily injury and/or death. (Complaint ¶78.) Plaintiffs allege this was the mental state experienced by Decedent when he was admitted by Defendants on November 23, 2020. (Complaint ¶78.)

Plaintiffs allege Decedent was admitted to Exodus Urgent Care Center on November 23, 2020. (Complaint ¶79.) Plaintiffs allege during his admission to Exodus Urgent Care Center, Defendants knew that Decedent had expressed the intention to commit suicide to several persons by a particular and achievable method and was depressed; that this suicidal ideation and depression had persisted after the point of admission; that Decedent was bipolar and had been prescribed antipsychotic and antidepressant medication but was not current with that; that Decedent had undergone a psychotic episode during admission wherein he experienced audible hallucinations telling him “murder, murder” and delusions; and that Decedent was a danger to himself; and that Decedent was thus extremely weak and vulnerable and dependent on Exodus Urgent Care Center’s care staff for his activities of daily living including the provisions of food, personal hygiene, transferring, medication management and treatment, personal physical safety and self-preservation. (Complaint ¶79.)

Plaintiffs allege at all times mentioned, Defendants Exodus, Pathways, Wirshing, Nathan, and Murphy accepted the responsibility to provide such caretaking and custodial services and by virtue of the nature, substance, and totality of their gatekeeping relationship with Decedent had custody of Decedent and controlled his access to necessary and lifesaving urgent/crisis intervention psychiatric services, as mentioned further above, and including by undertaking to institute face-to-face welfare checks upon the Decedent every 10 minutes for the purpose of ensuring his safety, that is, to prevent him from immediately ending his life. (Complaint ¶79.)

Plaintiffs allege on information and belief, at all pertinent times Defendants were the recipients of grant money awarded by the California Mental Health Services Oversight and Accountability Commission (“MHSOAC”) under SB-82 and received significant government economic resources ostensibly to development Crisis Transition Teams (“CTT”) for the purpose of augmenting mental health services provided at Exodus UCC facilities. (Complaint ¶80.) Plaintiffs allege at all pertinent times, Exodus Inc. represented to the public that CTT services included the assignment of a transition case manager to each departing patient to ensure the provision of additional mental health and social services and support for up to 60 days to “ensure stabilization, linkage to on-going services/supports and triage services within the consumers’ local communities.” (See www.exodusrecovery.com.) (Complaint ¶80.) Plaintiffs allege nevertheless, upon ejecting, excluding, and/or discharging Decedent from the Exodus UCC facility at issue here, Defendants did not connect Decedent with CTT services or take any steps to ensure stabilization. (Complaint ¶80.)

Plaintiffs allege at all times relevant herein, Decedent, by virtue of his admission at Exodus Urgent Care Center, was a “dependent adult” pursuant to Welfare & Institutions Code section 15610.23(b). (Complaint ¶81.) Plaintiffs allege Decedent, at all relevant times herein, had physical and/or mental limitations restricting his ability to carry out normal activities to protect him as defined in Welfare & Institutions Code §15610.23(a.) (Complaint ¶81.) Plaintiffs allege those limitations included, but were not limited to, the following: hearing impairment; bipolar disorder; persistent suicidal ideation; and symptoms of psychosis rendering Decedent unable to distinguish between reality and fantasy. (Complaint ¶81.)

Plaintiffs allege dependent abuse includes acts amounting to “abandonment” and “neglect.” (Welf. & Inst. Code §§15610.05, 15610.07, 15610.57). “‘Abandonment’ means the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.” (Welf. & Inst. Code §15610.05.) “‘Neglect’ means . . . [t]he negligent failure of any person having the care or custody of . . . a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code §15610.57(a)(1).) (Complaint ¶84.)

Plaintiffs allege at all times mentioned during the periods of Defendants’ care of the Decedent, Decedent was wholly dependent upon Defendants for medical, psychiatric, and psychological care, and as such lacked any decision-making authority. (Complaint ¶84.) Plaintiffs allege at all times mentioned during the periods of their care of the Decedent, Defendants accepted the responsibility to provide such caretaking and custodial services and had custody of Decedent. (Complaint ¶85.)

Plaintiffs allege at all times mentioned during the periods of their care of the Decedent, Defendants advertised their services, and represented their qualifications to Plaintiffs. (Complaint ¶86.) Plaintiffs allege Defendants represented among other things that they would provide trained and qualified personnel for the care, custody, and control of Decedent. (Complaint ¶86.)

Plaintiffs allege Defendants were under a duty to provide the required care, custody, and control in a reasonable and customary manner. (Complaint ¶87.) Plaintiffs allege Defendants also had a duty to provide sufficient personnel in order to properly communicate with, evaluate, supervise, and protect Decedent while he remained in Defendants’ care, custody, and control so as to prevent him from coming to serious harm. (Complaint ¶88.) Plaintiffs allege Defendants also had a duty to identify and evaluate Decedent risk factors given his suicidal thoughts, as it was the exact reason for which Decedent was admitted to Exodus Urgent Care Center. (Complaint ¶89.) Plaintiffs allege Defendants further had a duty to monitor a Decedent with multiple risk factors, including Decedent’s mental state and interest in committing suicide. (Complaint ¶90.) Plaintiffs allege Defendants had a duty to transfer Decedent to a higher level of care when warranted, without regard to financial considerations. (Complaint ¶91.) Plaintiffs allege Defendants had a duty to provide proper and comprehensive discharge planning. (Complaint ¶92.) Plaintiffs allege Despite their having knowledge of Defendants’ weak, vulnerable, and dependent condition, and his reliance on Defendants for the basic activities of everyday life, Defendants nonetheless failed to provide Decedent the minimum standard of care in his initial and subsequent evaluations, provision of psychiatric and medical care, and discharge assessment and planning as described herein above, thus amounting to neglect. (Complaint ¶93.)

Wirshing’s first argument that Glenn and Nina cannot sue him on their own behalf as individuals and can only sue as Decedent’s successors to his interests is unavailing. (C.C.P. §377.30.) A demurrer may only be brought as to an entire cause of action, not simply as to a portion of a cause of action, and a dismissal in the manner sought by Defendant would equate to a finding that Plaintiffs cannot bring this action as Decedent’s successors-in-interest. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained”], citing PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Accordingly, Wirshing’s demurrer to the 2nd cause of action is overruled on this basis.

Welfare and Institutions Code §15610.17 defines a “care custodian” as “an administrator or an employee of any of the following public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff: [including] (a) Twenty-four-hour health facilities, . . .” (Welf. & Inst. Code §15610.17(a).) Plaintiffs allege that Exodus Urgent Care Center was a twenty-four-hour health facility. (See Complaint ¶¶1-2.) Plaintiffs allege that Wirshing was a staff member of this facility and assumed control and care for Decedent’s ADLs upon his voluntary admission. (Complaint ¶¶2, 76-78.) Therefore, Plaintiffs sufficiently plead that Wirshing meets the definition of a care custodian under Welfare and Institutions Code §15610.17.

Regardless of a plaintiff meeting the statutory definition of a “dependent adult” and a defendant meeting the definition of a “care custodian” under Welfare and Institutions Code §15610.17, “[i]t must be determined, on a case-by-case basis, whether the specific responsibilities assumed by a defendant were sufficient to give rise to a substantial caretaking or custodial relationship.” (Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1131, quoting Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405.)

The Act provides the following provision regarding negligence of health care providers: “Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider’s alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.” (Welf. & Inst. Code §15657.2.) The California Supreme Court in Winn v. Pioneer Medical Group, Inc. regarded the inclusion of §15657.2 in the Act’s statutory scheme as demonstrating, “beyond doubt . . . that the Legislature enacted a scheme distinguishing between—and decidedly not lumping together—claims of professional negligence and [claims for] neglect” under the Act. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 159, citing Welf. & Inst. Code §15657.2.)

The Winn Court also cited to Covenant Care, Inc. v. Superior Court, in which the California Supreme Court determined that the Legislature intended the Act to sanction only egregious acts of misconduct distinct from professional negligence. (Id., citing Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785.) The Covenant Care, Inc. Court stated that “[a]s used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’ ([Delaney v. Baker (1999) 20 Cal.4th 23, 34].) Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care. (Id.) Notably, the other forms of abuse, as defined in the Act—physical abuse and fiduciary abuse (Welf. & Inst. Code §15657)—are forms of intentional wrongdoing also distinct from ‘professional negligence.’ (Delaney, supra, at p. 34.)” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)

In Delaney v. Baker, the California Supreme Court distinguished the type of neglect actionable under the Act compared to mere professional negligence: “[i]n order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. (Civ. Code §3294(c); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur (BAJI No. 12.77 [defining the ‘recklessness’ in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts §500.) Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ (Rest.2d Torts, § 500, com. (g), p. 590.)” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)

Plaintiffs’ Complaint demonstrates Exodus undertook a substantial custodial relationship with Decedent when he was transported to the facility for urgent medical care. Plaintiffs allege Exodus Urgent Care admitted Decedent in-patient to the facility, noted his physical and mental impairments, and undertook to conduct face-to-face checks with him every 10 minutes, providing encouragement as to completion of ADLs. (Complaint ¶¶79, 108(d)(i)-(xviii).) That Decedent lived on his own prior to his admission to Exodus Urgent Care is immaterial.

Here, Plaintiffs’ cause of action implicates Wirshing’s alleged reckless omission of his duty as a physician to provide Decedent with a medical-psychiatric assessment, treatment, and discharge plan when Exodus Urgent Care Center undertook a substantial custodial relationship with Decedent. Plaintiffs allege Decedent was transported by the fire department to Exodus Urgent Care Center and admitted because he was a danger to himself and unable to care for his basic needs, including dressing, getting in and out of bed or a chair, walking, using the toilet, provision of food, physical safety and self-preservation, and taking and managing medication and treatment. (Complaint ¶¶51, 66, 77, 78, 79, 108(d)(iii).) Exodus Urgent Care Center was aware that Decedent: (1) had voluntarily been admitted due to an uncontrollable desire to end his life by throwing himself out of a fourth floor window; (2) had a history of mental illness including bipolar disorder; (3) had a recent prior suicide attempt; (4) had extreme hearing loss to the point of deafness; (5) expressed psychotic behaviors and experienced audible hallucinations saying “murder, murder” to him while at the facility; (6) was unable to conduct his ADLs by himself; and (7) that he had a realistic and specific plan for carrying out his suicidal ideation. (Complaint ¶¶78, 79, 94, 98, 106.) Plaintiffs allege Wirshing was aware of these facts but determined that Decedent would be released the following morning, performed a perfunctory psychological evaluation which did not assess Decedent’s suicidal ideation or specific plan to commit suicide based on Decedent’s inability to hear and communicate with his care providers, and discharged Decedent, despite his voluntarily admission. (Complaint ¶¶108(d)(xii)-(xvii).) Plaintiffs allege Decedent was not stabilized at the time of his discharge, that Wirshing did not ensure that Decedent could understand their speech and questions given his deafness prior to discharging him, and that Decedent had no other viable option for treatment based on his medical plan. (Complaint ¶¶52-53, 108(d)(xvii).) Plaintiffs further allege that Wirshing undertook this course of action due to a lack of resources, inadequate staffing, and considerations of cost. (Complaint ¶2.) As such, Plaintiffs sufficiently allege Wirshing acted with a conscious and deliberate disregard to the high probability Decedent would carry out his specific suicidal compulsion upon discharge.

Accordingly, Wirshing’s demurrer to Plaintiffs’ 2nd cause of action is overruled.

Wirshing’s demurrer to Plaintiff’s Complaint is overruled as to the 2nd cause of action.

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. §436(a).)

Before filing a motion to strike, moving party’s counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading in an attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing a motion to strike. (C.C.P. §435.5.) A declaration must be filed with the motion to strike regarding the results of the meet and confer process. (C.C.P. §435.5(a)(3).) Wirshing failed to submit a declaration stating compliance with the motion to strike meet and confer requirement. However, the failure to sufficiently meet and confer is not a ground to grant or deny the motion to strike. (C.C.P. §435.5(a)(4).) Therefore, the Court will consider Wirshing’s motion.

Wirshing move to strike the following sections and prayers for relief from the Complaint on the basis they are not permitted by law: (1) the 2nd cause of action for Violation of Elder Abuse and Dependent Adult Civil Protection Act, in its entirety, as to Wirshing, 18:16-27:9 (¶¶75-106), which includes claims for attorneys’ fees, 22:6, 26:22 (¶¶83, 104), and for punitive damages, 22:12, 26:28-27:9, (¶¶83, 106); (2) the assertion in Plaintiffs’ 3rd cause of action for Professional Negligence/Medical Malpractice, that “Plaintiffs are entitled to recover from Defendants, and each of them, punitive damages according to proof at trial pursuant to Civil Code section 3294,” 37:7-8 (¶132); (3) the 4th Cause of Action, for Wrongful Death, asserting, “Defendants committed the acts stated herein maliciously and oppressively, with the wrongful intention of injuring Plaintiffs, thereby entitling Plaintiffs to punitive damages,” 37:27-28 (¶137); (4) Plaintiffs’ prayer for relief, “For punitive damages according to proof,” 38:8, Prayer ¶iv; and (5) Plaintiffs’ prayer for relief, for “attorneys’ fees,” 38:14, Prayer ¶ix. (MTS, pg. 2.)

The Court is aware, based on Wirshing’s demurrer, that Plaintiffs Glenn and Nina cannot state claims for the 2nd and 3rd causes of action in their individual capacities, and can only sue on Decedent’s behalf as his successors-in-interest. (C.C.P. §377.30.) Plaintiffs must specify in each cause of action whether it is brought by Plaintiffs in their individual capacities or in their capacities as successors-in-interest. Plaintiffs’ opposition to Wirshing’s demurrer argue leave to amend should be freely granted and they may easily amend their Complaint to include this information. (Opposition Demurrer Wirshing, pg. 14; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Accordingly, the Court strikes Plaintiffs’ Complaint the 2nd and 3rd causes of action brought by Glenn and Nina in their individual capacities with 20 days leave to amend the 2nd and 3rd causes of action to indicate the causes of action are brought by Glenn and Nina as Decedent’s successors-in-interest.

Violation of Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code §§15610.05, 15610.07, 15610.57) (2nd COA)

Wirshing repeats the argument presented in his demurrer that Plaintiffs fail to state a cause of action against him in their 2nd cause of action for violation of the Elder Abuse and Dependent Adult Civil Protection Act and the cause of action should therefore be stricken in its entirety. (MTS Wirshing, pg. 8.) For the same reasons the Court stated with regards to Wirshing’s demurrer, Plaintiffs sufficiently allege the cause of action against him and are therefore entitled to the claims for attorneys’ fees and punitive damages allowed by statute.

Accordingly, Wirshing’s motion to strike the 2nd cause of action in its entirety is denied.

Code of Civil Procedure §425.13(a) provides: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiffs have established that there is a substantial probability that the plaintiffs will prevail on the claim pursuant to Section 3294 of the Civil Code.”

In this case, plaintiffs’ Complaint identifies Defendants as a healthcare providers that provided medical, mental-psychiatric, services to Decedent. (Complaint ¶¶11-13, 15, 16).) Wirshing is described as a “licensed physician in the State of California.” (Complaint ¶14.) Plaintiffs’ 3rd cause of action is one for medical malpractice and is therefore subject to C.C.P. §425.13.

Plaintiffs’ prayer for punitive damages in their 3rd cause of action for professional negligence is in violation of C.C.P. §425.13(a) because they failed to file a motion to ask for permission before asserting a claim for punitive damages for the cause of action and failed to present such a motion with evidence to demonstrate facts that would at least raise triable issues of fact on punitive damages.

Wirshing’s motion to strike the assertion in Plaintiffs’ 3rd cause of action for Professional Negligence/Medical Malpractice, that “Plaintiffs are entitled to recover from Defendants, and each of them, punitive damages according to proof at trial pursuant to Civil Code section 3294,” 37:7-8 (¶132) is granted with 20 days leave to amend.

Punitive damages are not available in a wrongful death action. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 832, 836, disapproved on other grounds by Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 38.)

Plaintiffs’ 4th cause of action for wrongful death asserts, “Defendants committed the acts stated herein maliciously and oppressively, with the wrongful intention of injuring Plaintiffs, thereby entitling Plaintiffs to punitive damages,” 37:27-28 (¶137). Such relief is not available under this cause of action.

Accordingly, Wirshing’s motion to strike the assertion in Plaintiffs’ 4th cause of action that “Defendants committed the acts stated herein maliciously and oppressively, with the wrongful intention of injuring Plaintiffs, thereby entitling Plaintiffs to punitive damages,” 37:27-28 (¶137), is granted with 20 days leave to amend.

Wirshing’s motion to strike is denied as to the 2nd cause of action for Violation of Elder Abuse and Dependent Adult Civil Protection Act, in its entirety, as to Wirshing, 18:16-27:9 (¶¶75-106), which includes claims for attorneys’ fees, 22:6, 26:22 (¶¶83, 104), and for punitive damages, 22:12, 26:28-27:9, (¶¶83, 106); Plaintiffs’ prayer for relief, “For punitive damages according to proof,” 38:8, Prayer ¶iv; and Plaintiffs’ prayer for relief, for “attorneys’ fees,” 38:14, Prayer ¶ix.

Wirshing’s motion to strike is granted with 20 days leave to amend as to the assertion in Plaintiffs’ 3rd cause of action for Professional Negligence/Medical Malpractice, that “Plaintiffs are entitled to recover from Defendants, and each of them, punitive damages according to proof at trial pursuant to Civil Code section 3294,” 37:7-8 (¶132); and the 4th Cause of Action, for Wrongful Death, asserting, “Defendants committed the acts stated herein maliciously and oppressively, with the wrongful intention of injuring Plaintiffs, thereby entitling Plaintiffs to punitive damages,” 37:27-28 (¶137).

Exodus Defendants demur on the basis that Plaintiffs’ 1st and 2nd causes of action fail to state facts sufficient to constitute causes of action against Exodus Defendants. (Demurrer Exodus, pg. 3; C.C.P. §430.10(e).)

A cause of action under the Unruh Civil Rights Act must allege the following elements: (1) that defendant denied/aided or incited a denial of or discriminated or made a distinction that denied full and equal accommodations/ advantages/ facilities/ privileges/ services to plaintiff; (2) that a substantial motivating reason for defendant’s conduct was its perception of plaintiff’s sex/ race/ color/ religion/ ancestry/ national origin/ medical condition/ genetic information/ marital status/ sexual orientation/ citizenship/ primary language/ immigration status/ other actionable characteristic; (3) that plaintiff was harmed; and (4) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3060.)

Plaintiffs who claim violations of the ADA are not required to prove intentional discrimination to prove a claim for damages under the Unruh Act. (Munson v. Del Taco, Inc. (2009) 46 Cal. 4th 661, 664-665.) However, if a plaintiff has not identified a violation of the ADA, he or she must establish that the violation was intentional to prevail under the Unruh Act. (Id. at pgs. 667-670; see CACI 3060.)

Plaintiffs allege Exodus Urgent Care is a business establishment. (Complaint ¶61.) Plaintiffs allege Exodus Inc., Exodus Foundation, and Pathways own and operate Exodus Urgent Care Center. (Complaint ¶61.)

Plaintiffs allege Exodus Inc., Exodus Foundation, and Pathways violated the Unruh Act by denying, aiding, and/or inciting the denial of Decedent’s rights to full and equal use of the accommodations, advantages, facilities, privileges, or services offered at Exodus Urgent Care Center. (Complaint ¶64.) Plaintiffs then illustrate examples of Exodus Inc.’s, Exodus Foundation’s, and Pathways’ denial of Decedent’s rights, including Defendants’ failure to ensure that they could communicate accurately with Decedent as a person with severe hearing impairment and/or deafness, thereby failing to accurately assess and evaluate Decedent’s mental state and could not have reasonably determined that Decedent’s mental condition had sufficiently stabilized such that it was safe to discharge him only 24-hours after his admission. (Complaint ¶65; see Complaint ¶¶66-74.)

Exodus Defendants argue Plaintiffs have not pled a claim under the ADA, no ADA claims are asserted in the instant Complaint, and in the absence of a claim under the ADA, Plaintiffs must allege that Defendants engaged in intentional conduct against the Decedent to assert a valid cause of action under the Unruh Act. (Demurrer Exodus, pg. 12.)

Plaintiffs concede in their opposition that they have no cause of action under the ADA by not addressing Exodus Defendants’ argument on the issue. However, Plaintiffs allege Decedent was virtually deaf without his hearing aids, that he did not have his hearing aids upon admission, and Defendant Nathan’s notes confirmed that Decedent had “difficulty in communicating” due to his “not being able to hear well.” (Complaint ¶¶95, 108(d)(xii), 109(e)(ii), 109(f).) Plaintiffs allege Decedent required additional measures to ensure that his mental state could be accurately assessed and evaluated given these communications difficulties, but the only indication that any such required measures were taken was the purported use of pantomime by nurse Abongwa at the time of his admission, constituting denial of Decedent’s rights to accommodations. (Complaint ¶95.) Further, Plaintiffs sufficiently allege intentional conduct: (1) predetermining to discharge Decedent from the facility without being able to communicate with him; (2) following through with ejecting/discharging Decedent with knowledge that he had not been stabilized; (3) failing to make efforts to ensure their communications were understood by Decedent; (4) and engaging in this intentional course of conduct due to under-resourcing, inadequate staffing, and considerations of cost. (Complaint ¶¶2, 51, 53, 65.)

But, Plaintiffs fail to allege that a substantial motivating reason for Defendants’ conduct was its perception of Decedent’s sex/ race/ color/ religion/ ancestry/ national origin/ medical condition/ genetic information/ marital status/ sexual orientation/ citizenship/ primary language/ immigration status/ other actionable characteristic. (CACI 3060.)

Accordingly, Exodus Defendants’ demurrer to Plaintiffs’ 1st cause of action is sustained with 20 days leave to amend.

Violation of Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code §§15610.05, 15610.07, 15610.57) (2nd COA)

To state an claim for violation of the Elder Abuse and Dependent Adult Civil Protection Act, a plaintiff must allege facts showing that an officer, director, or managing agent of defendant was involved in the abuse, authorized the abuse, ratified the abuse, or hired the person who did the abuse with advance knowledge of the persons unfitness and hired him or her with a conscious disregard of the rights and safety of others. Welfare and Institutions Code section 15657(c) provides: “The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.” (Welf. & Inst. Code §15657(c).)

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of rights or safety of others or authorized or ratified the wrongful conduct of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

In Romo v. Ford Motor Company (2002) 99 Cal.App.4th 1115, the court held that in order to prove that a corporation acted with malice, a plaintiff must provide enough evidence to permit a “clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in willful and conscious disregard of the rights or safety of others.’” (Romo v. Ford Motor Company (2002) 99 Cal.App.4th 1115, 1141.) In order to satisfy the “managing agent requirement,” a plaintiff may provide “evidence showing the information in the possession of the corporation and the structure of the management decision making [sic] that permits an inference that the information in fact moved upward to a point where corporation policy was formulated.” (Id.) The Romo Court held that “inferences cannot be based on mere speculation.” (Id.)

Plaintiffs sufficiently allege Murphy is an officer, director, or managing agent of Exodus Inc. and Exodus Foundation and uses the businesses as her alter ego and operates the businesses in a manner which does not comply with the law, and which is calculated to increase her profit margins. (Complaint ¶¶2, 20-44.) Plaintiffs allege Murphy uses Wirshing as a straw man to avoid compliance with legal requirements and further reducing costs and is charged with the exclusive decisions to control the medical practice and hiring/firing decisions. (Complaint ¶¶21-23.) Plaintiffs allege Defendants ratified, authorized, and approved of the acts specified in the Complaint by engaged in after-the-fact efforts to conceal their wrongdoing by creating self-serving “late entry” notes and withholding Decedent’s medical records, which is specifically calculated to avoid liability for their actions. (Complaint ¶¶54-57.)

Accordingly, Exodus Defendants’ demurrer to Plaintiffs’ 2nd cause of action is overruled.

Exodus Defendants’ demurrer to Plaintiffs’ Complaint is overruled as to the 2nd cause of action and sustained with 20 days leave to amend as to the 1st cause of action.

In light of the Court’s ruling on the demurrer, Exodus Defendants’ motion to strike is denied as moot.

Pathways and Nathan demur on the basis that Plaintiffs’ 1st and 2nd causes of action fail to state facts sufficient to constitute causes of action against them. (Demurrer Pathways, pg. 3; C.C.P. §430.10(e).)

Pathways and Nathan demur to Plaintiffs’ 1st cause of action on the basis Plaintiffs fail to allege a request for an accommodation was made or denied. (Demurrer Pathways, pg. 4.) Such an argument is unavailing because “[i]t is axiomatic that an ‘entity’s duty to look into and provide a reasonable accommodation may be triggered when the need for accommodation is obvious,’ even if no request has been made.” (Bax v. Doctors Medical Center of Modesto, Inc. (9th Cir. 2022) 52 F.4th 858, 869, quoting Updike v. Multnomah County (9th Cir. 2017) 870 F.3d 939, 951, 954 n.6). “A contrary rule—i.e., one that would permit facilities to fail to provide accommodations to a person with a disability unless [he] specifically requests such aid, would be untenable and cannot be countenanced.” (Bax, 52 F.4th at pg. 869, citation omitted.) Here, Plaintiffs’ Complaint contains numerous allegations that Decedent was virtually deaf without his hearing aids, that he did not have his hearing aids upon admission, and Nathan’s notes confirmed that Decedent had “difficulty in communicating” due to his “not being able to hear well.” (Complaint ¶¶95, 108(d)(xii), 109(e)(ii), 109(f).) Plaintiffs allege Decedent required additional measures to ensure that his mental state could be accurately assessed and evaluated given these communications difficulties, but the only indication that any such required measures were taken was the purported use of pantomime by nurse Abongwa at the time of his admission. (Complaint ¶95.)

Accordingly, Pathways’ and Nathan’s demurrer to Plaintiffs’ 1st cause of action is overruled.

Violation of Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code §§15610.05, 15610.07, 15610.57) (2nd COA)

Pathways and Nathan’s demurrer to the 2nd cause of action is substantially similar to Wirshing’s demurrer that argues Plaintiffs fail to allege sufficient facts that Todd Nathan and Pathways were custodial caretakers, and the alleged suicide was caused by a lack of custodial care. Therefore, Pathways and Nathan’s demurrer overruled on the same basis.

Accordingly, Pathways’ and Nathan’s demurrer to Plaintiffs’ 2nd cause of action is overruled.

Pathways’ and Nathan’s demurrer to Plaintiffs’ Complaint is overruled as to the 1st and 2nd causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court