Judge: Daniel M. Crowley, Case: 23STCV28540, Date: 2024-03-29 Tentative Ruling

Case Number: 23STCV28540    Hearing Date: March 29, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Cedars-Sinai Medical Center’s demurrer to Plaintiffs Mildred O. Watson by and through her successor-in-interest Lisa Watson’s and Lisa Watson’s complaint is overruled.

Defendant Cedars-Sinai Medical Center’s motion to strike is denied.

          Defendant Cedars-Sinai Medical Center (“Cedars”) (“Moving Defendant”) demurs to the 1st cause of action in Plaintiffs Mildred O. Watson by and through her successor-in-interest Lisa Watson’s (“Mildred”) and Lisa Watson’s (“Lisa”) (collectively, “Plaintiffs”) complaint (“Complaint”).  (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f); Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 165; Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, 407.)  Moving Defendant also moves to strike portions of Plaintiffs’ Complaint.  (Notice of MTS, pgs. 1-2.)

Meet and Confer

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer.  (C.C.P. §430.41.)

Moving Defendant’s counsel filed a declaration stating met and conferred with Plaintiffs’ counsel via telephone on December 12, 2023, and again on January 18 and 16, 2024, and the parties were unable to reach an agreement regarding the issues raised in the instant demurrer.  (See Decl. of Pruett ¶¶5-6.)  Moving Defendant’s counsel’s declaration is proper under C.C.P. §430.41(a).  Therefore, the Court will consider Moving Defendant’s demurrer.

          Background

          Plaintiffs filed the operative Complaint on November 21, 2023, against Moving Defendant and Non-moving Defendant Beverly Hills Rehabilitation Centre, LLC (“BHRC”) (collectively, “Defendants”) alleging four causes of action: (1) elder abuse; (2) negligence; (3) violation of residents rights; and (4) wrongful death.  Plaintiffs’ causes of action stem from Mildred’s death on March 28, 2023.  (See Complaint ¶1.)

          Moving Defendant filed the instant demurrer on March 1, 2024.  Plaintiffs filed their opposition on March 18, 2024.  Moving Defendant filed its reply on March 22, 2024.

A.   Demurrer

Summary of Demurrer

Moving Defendant demurs on the basis that Plaintiffs’ 1st cause of action for elder abuse fails to state facts sufficient to constitute a cause of action against Moving Defendant as the facts alleged pertain to the provision of medical services by a hospital not services by a custodial caretaker.  (C.C.P. §430.10(e); Winn, 63 Cal.4th at pg. 165; Demurrer, pg. 6; C.C.P. §430.10(e).)  Moving Defendant also demurs on the basis the 1st cause of action is uncertain and not stated with sufficient particularity against it because “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.”  (C.C.P. §430.10(f); Carter, 198 Cal.App.4th at pg. 407; Demurrer, pg. 6.)

Legal Standard

“[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.)

Failure to State a Claim

Elder Abuse (1st COA)

A cause of action for elder abuse that alleges physical abuse must allege the following elements: (1) defendant physically abused plaintiff; (2) plaintiff was 65 years of age or older or a dependent adult at the time of the conduct; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (CACI 3106.)

A cause of action for elder abuse that alleges neglect must allege the following elements: (1) defendant had a substantial caretaking or custodial relationship with plaintiff involving ongoing responsibility for her basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance; (2) plaintiff was 65 years of age or older or a dependent adult while she was in defendant’s care or custody; (3) defendant 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 providing medical care for physical and mental health needs; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (CACI 3103.)

Plaintiffs allege at all relevant times, Mildred was over the age of 65 years and resided in this state and had physical or mental limitations that restricted her ability to carry out normal activities or to protect her rights, including, but not limited to, physical or developmental disabilities, and who was admitted as an inpatient to a 24-hour health facility pursuant to 1250.3 of the Health and Safety Code, and thus, was a “elder adult” as that term is defined in the Welfare and Institutions Code § 15610.23.  (Complaint ¶15.)  Plaintiffs allege Defendants were to provide “care or services” to dependent adults and the elderly, including Mildred and were to be “care custodians” of Mildred and in a trust and fiduciary relationship with Mildred.  (Complaint ¶16.) 

Plaintiffs allege Defendants “neglected” Mildred as that term is defined in Welfare and Institutions Code §15610.57 in that the Defendants themselves, as well as their employees, failed to exercise the degree of care that reasonable persons in a like position would exercise by denying or withholding goods or services necessary to meet the basic needs of Mildred as is more fully alleged.  (Complaint ¶17.)  Plaintiffs allege as a result of the Defendants’ wrongdoing, Mildred suffered physical harm, pain and mental suffering.  (Complaint ¶18.)  Plaintiffs allege Defendants had advance knowledge of the unfitness of their employees and employed them with a conscious disregard of the rights or safety of others, “authorized or ratified the wrongful conduct,” and the Defendants’ conduct was “on the part of an officer, director, or managing agent of the corporation.” (Complaint ¶18; Civ. Code §3294(b).)

Plaintiffs allege while under the care and treatment of Defendants, Mildred developed multiple pressure injuries, sepsis, UTI and other injuries which caused her to endure extreme pain and suffering and an untimely demise.  (Complaint ¶19.)  Plaintiffs allege on or about April 25, 2022, Mildred was admitted to RCBH with clear skin.  (Complaint ¶20.)  Plaintiffs allege Mildred was transferred to Cedars on or about May 15, 2022, for high sodium and BUN level.  (Complaint ¶20.) 

Plaintiffs allege on or about December 21, 2022, Mildred was readmitted to BHRC with a Stage 2 sacral pressure injury, right mid foot with arterial ulcer and right medial heel arterial ulcer all in violation of 42 CFR 483.25 (c) and 22 California Code of Regulations 72315(f).  (Complaint ¶21.)  Plaintiffs allege on or about December 21, 2022, records indicate that Mildred’s sacrococcyx pressure injury was Stage 2, measuring 1.5 x 2 with skin loss.  (Complaint ¶22.)  Plaintiffs allege Mildred’s right lateral foot pressure injury was stage 3, measuring 1.5 x 2.2. (Complaint ¶22.)  Plaintiffs allege Mildred’s right medial heel arterial ulcer was measured at 1.5 x 2.3 with black skin ulcer all in violation of 42 CFR 483.25 (c) and 22 California Code of Regulations 72315(f).  (Complaint ¶22.) 

Plaintiffs allege Between January 8, 2023, through February 25, 2023, Mildred’s wounds were treated by Beverly Hills Wound Care while she was a resident of BHRC.  (Complaint ¶23.)  Plaintiffs allege on or about January 24, 2023, nursing notes indicate Mildred’s sacral pressure injury was Stage 4, measuring 4.3 x .5 x 3.2.  (Complaint ¶24.)  Plaintiffs allege Mildred also developed a new pressure injury on her right trochanter, measuring 0.5 x 0.5 x 0.1. ulcer all in violation of 42 CFR 483.25 (c) and 22 California Code of Regulations 72315(f).  (Complaint ¶24.) 

Plaintiffs allege Mildred was admitted to Cedars on February 25, 2023, in acute distress.  (Complaint ¶25.)  Plaintiffs allege it was noted that on admission Mildred was bacteremic from her sacral wound and had a UTI.  (Complaint ¶25.)  Plaintiffs allege on or about February 28, 2023, sharp excisional debridement of Mildred’s sacral pressure injury down to and including bone with removal of devitalized necrotic tissue was performed.  (Complaint ¶26.)  Plaintiffs allege Mildred’s pressure injury measured 8.4 x 9.5 x 1.5.  (Complaint ¶26.)

Plaintiffs allege on or about March 7, 2023, sharp excisional debridement of Mildred’s sacral pressure injury down to and including bone with removal of devitalized necrotic tissue was performed.  (Complaint ¶27.)  Plaintiffs allege Mildred’s pressure injury measured 8.4 x 9.2 x 1.4. ulcer all in violation of 42 CFR 483.25(c) and 22 California Code of Regulations 72315(f).  (Complaint ¶27.)  Plaintiffs allege on or about March 14, 2023, sharp excisional debridement of Mildred’s sacral pressure injury down to and including bone with removal of devitalized necrotic tissue was performed.  (Complaint ¶28.)  Plaintiffs allege Mildred’s pressure injury measured 10.4 x 8.3 x 1.7. ulcer all in violation of 42 CFR 483.25 (c) and 22 California Code of Regulations 72315(f).  (Complaint ¶28.) 

Plaintiffs allege on or about March 21, 2023, sharp excisional debridement of Mildred’s sacral pressure injury down to and including bone with removal of devitalized necrotic tissue was performed.  (Complaint ¶29.)  Plaintiffs allege Mildred’s pressure injury measured 10.2 x 8.9 x 1.7. ulcer all in violation of 42 CFR 483.25 (c) and 22 California Code of Regulations 72315(f).  (Complaint ¶29.)  Plaintiffs allege on or about March 28, 2023, sharp excisional debridement of Mildred’s sacral pressure injury down to and including bone with removal of devitalized necrotic tissue was performed.  (Complaint ¶30.)  Plaintiffs allege Mildred’s pressure injury measured 21.1 x. 8.9 x 1.7. ulcer all in violation of 42 CFR 483.25 (c) and 22 California Code of Regulations 72315(f).  (Complaint ¶30.) 

Plaintiffs allege Mildred succumbed to her injuries on March 28, 2023.  (Complaint ¶31.)  Plaintiffs allege an autopsy was performed on Mildred on April 3, 2023.  (Complaint ¶32.)  Plaintiffs allege the summary states that Mildred “likely died of sepsis with the enterically infected sacral decubitis ulcer as the likely source of the infections.  (Complaint ¶32.)

Plaintiffs allege Cedars neglected to provide medical care for Mildred’s physical and mental health needs by failing to take all the necessary steps to properly care for her emergent deep tissue pressure injuries.  (Complaint ¶33.)  Plaintiffs allege Cedars failed to adequately inform Mildred’s physician of the nature and extent of her pressure injuries and failed to adequately and completely carry out doctor’s orders for their treatment and failed to adequately and appropriately document Mildred’s plan of care.  (Complaint ¶34.)  Plaintiffs allege Cedars’ neglect of Mildred was reckless, oppressive, and malicious.  (Complaint ¶35.)  Plaintiffs allege the individuals who cared for Mildred knew that taking the necessary precautions to prevent her from incurring avoidable pressure injuries, was critical to her health, well-being, and prognosis.  (Complaint ¶35.)  Plaintiffs allege by failing to address Mildred’s patient care issues, Cedars knew that it was highly probable that she would suffer worsening pressure injuries and they knowingly disregarded that risk.  (Complaint ¶35.) 

Plaintiffs allege Mildred’s injuries would not have occurred had Cedars simply adhered to applicable rules, laws, and regulations, as well as the acceptable standards of practice governing the operation of a general acute care hospital.  (Complaint ¶36.)  Plaintiffs allege that as a direct result of the chronic understaffing at Cedars by its managing agents in both number and training, and in deliberate violation of Title 22 §§ 70214 (staff training) and 702117 (staffing ratios), Cedars staff failed to provide Mildred with proper care (repositioning and skin inspections) to prevent skin breakdown.  (Complaint ¶37.)  Plaintiffs allege Mildred suffered these injuries because the Cedars staff simply did not have adequate time or the knowledge base to provide her with the required care and to document and address his emergent conditions.  (Complaint ¶37.) 

Plaintiffs allege in addition to their direct liability for the abuse and neglect of Mildred, Cedars ratified the mistreatment of Mildred.  (Complaint ¶38.)  Plaintiffs allege knowing of Mildred’s pressure injuries, and knowing of her neglect, Cedars, through its managing agents, failed to terminate, discipline, reprimand, or otherwise repudiate the acts and omissions of any employee due to or based upon the care, treatment, monitoring or supervision, or lack thereof, rendered to Mildred at Cedars.  (Complaint ¶38.) 

Plaintiffs allege at all relevant times hereto Cedars was aware of the legally mandated minimum staffing ratios and requirements of general acute care hospitals as set forth in Title 22 C.C.R. §70217.  (Complaint ¶39.)  Plaintiffs allege Cedars was also aware that where they failed to meet this regulatory requirement, injuries such as those suffered by Mildred could, would, and did occur.  (Complaint ¶39.)  Plaintiffs allege notwithstanding this knowledge and requirement of law, Cedars failed to comply with this regulatory requirement proximately causing injury to Mildred.  (Complaint ¶39.)

Plaintiffs allege Cedars failed to report Mildred’s pressure injuries to the California Department of Public Health pursuant to Health and Safety Code §1279.1 in a transparent and intentional effort to fraudulently cover up their malfeasance and reckless neglect of Mildred.  (Complaint ¶40.)  Plaintiffs allege that at all times relevant hereto Cedars owed a duty to Mildred pursuant to Title 22 C.C.R. §70211 and promised to provide nursing service that was organized, staffed, equipped, and supplied to meet the needs of Mildred.  (Complaint ¶41.)  Plaintiffs allege Cedars did not comply with this requirement of law in their care of Mildred thereby causing injury to her.  (Complaint ¶41.) 

Plaintiffs allege Cedars owed a duty to Mildred to protect her right to be free from all forms of abuse pursuant to 42 C.F.R. §482.13(c)(3).  (Complaint ¶42.)  Plaintiffs allege Cedars did not comply with this requirement of law in their care of Mildred thereby causing injury to her.  (Complaint ¶42.)  Plaintiffs allege Cedars owed a duty to Mildred to provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each patient in accordance with a written plan of care pursuant to 22 C.C.R. §70709.  (Complaint ¶43.)  Plaintiffs allege Cedars did not comply with this requirement of law in their care of Mildred thereby causing injury to her.  (Complaint ¶43.)  Plaintiffs allege Cedars owed a duty to Mildred pursuant to 42 C.F.R. §482.28(b)(2) in that nutritional needs must be met in accordance with recognized dietary practices and in accordance with orders of the practitioner or practitioners responsible for the care of the patients. CEDARS did not comply with this requirement of law in their care of Mildred, thereby causing injury to her.  (Complaint ¶44.) 

Plaintiffs sufficiently allege a cause of action for elder abuse.  Plaintiffs allege Mildred is an elder.  (Complaint ¶15.)  Plaintiffs allege Cedars assumed the care or custody of Mildred.  (Complaint ¶16.)  Plaintiffs allege that one or more of Cedars’ employees failed to use the degree of care that a reasonable person in the same situation would have used by failing to protect Mildred from health and safety hazards and failing to provide medical care for her physical and mental health needs.  (Complaint ¶17.)  Plaintiffs allege Cedars’ employees’ conduct was a substantial factor in causing Mildred’s harm.  (Complaint ¶¶19-44.)  Plaintiffs allege that an officer, director, or managing agent of Cedars ratified or authorized the employees’ conduct.  (Complaint ¶¶7, 18, 19-44.)  Plaintiffs allege that Cedars’ employees acted with recklessness, malice, oppression, or fraud.  (Complaint ¶¶19-44.)  Further, Plaintiffs sufficiently allege their first cause of action with the requisite particularity.

Accordingly, Moving Defendant’s demurrer to Plaintiffs’ 1st cause of action is overruled.

Uncertainty

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.¿ (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)¿ 

Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint).¿ (See Fenton v. Groveland Community Services District (1982) 135 Cal.App.3d 797, 809.)¿ 

Plaintiffs’ pleading is not so bad that Moving Defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them.¿ (Khoury, 14 Cal.App.4th 612, 616.)

Accordingly, Moving Defendant’s demurrer on the basis of uncertainty is overruled.¿

          Conclusion

Moving Defendant’s demurrer to Plaintiff’s 1st cause of action is overruled.

Moving Party to give notice.

B.    Motion to Strike

Summary of Motion

Moving Defendant moves to strike the following portions from the Complaint as improper, false, and irrelevant language, and language not drawn in conformity with the laws of the State of California: (1) ¶¶14-64 in its entirety as to Cedars; (2) Prayer ¶3; (3) Prayer ¶4; and (4) Prayer ¶6.  (Notice MTS, pgs. 1-2.)

Legal Standard

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,” or any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  (C.C.P. §436.)

Punitive Damages

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression.  (Civ. Code §3294(a).)  “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights.  (Id.)  “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury.  (Id.)  Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff sufficiently alleges a cause of action for elder abuse, as stated in the demurrer.  Accordingly, Moving Defendant’s motion to strike Plaintiffs’ request for punitive damages is denied.

Attorneys’ Fees

An award of attorney’s fees is proper when authorized by contract, statute, or law.  (C.C.P. §§1032(b), 1033.5(a)(10).)

Plaintiffs have sufficently pled sufficient facts to support a cause of action for Elder Abuse and are therefore entitled to attorney’s fees and costs as provided for under the Elder Abuse Act pursuant to Welfare and Institutions Code §15657(a).

Accordingly, Moving Defendant’s motion to strike Plaintiffs’ request for attorneys’ fees is denied.

Conclusion

Moving Defendants’ motion to strike is denied.

Moving Party to give notice.

Dated:  March __, 2024