Judge David A. Hoffer, Case 30-21-01226335 2022-07-25 Tentative Ruling

Judge: David A. Hoffer, Case: 30-21-01226335, Date: 2022-07-25 Tentative Ruling

I. Demurrer

The general demurrer by defendant Anaheim Healthcare Center, LLC (“defendant/AHC”) to the complaint by plaintiffs Susie Huff, individually and as successor-in-interest to decedent Susan Faustino and Jennifer Hemphill (together "plaintiffs”) is SUSTAINED as discussed below.

This matter arises out of the death of plaintiffs’ 75 year old mother, decedent Susan Faustino (“decedent”) on 4/23/2020 from COVID-19. At the time, decedent had been a long time nursing home resident at AHC. (Complaint ¶¶ 6-7, 13, 20) She suffered from dementia and was wholly dependent upon AHC for all activities of daily living and medical care. (Id. at ¶21)

Plaintiffs allege that by letter dated 1/27/2020 the California Dept. of Public Health warned long-term care facilities that COVID 19 was in California and stressed the importance of implementing infection control policies, staff use of personal protective equipment, and following procedures for rapid identification and isolation of persons with potential COVID-19. (Id. at ¶¶15-16) On 3/11/2020, the World Health Organization declared COVID 19 a global pandemic. (Id. at ¶18)

In April 2020, plaintiffs and decedent were told some AHC employees had tested positive for COVID-19, but decedent was not tested at that time. (Id. at ¶19) On 4/21/2020 decedent was transferred to a hospital where she tested positive for COVID-19 and died two days later. The plaintiffs were unable to visit their mother when she died. (Id. at ¶20).

Plaintiffs allege 13 causes of action against AHC arising out of the failure to implement appropriate safety measures and delay in providing nursing care to protect AHC residents and employees from exposure to COVID-19. (Id. at ¶23) AHC demurs to five of the thirteen causes of action addressed below and moves to strike portions of the complaint seeking punitive damages and attorney fees.

A) Preliminary Issue: Procedural Objection – Defendants did not waive their right to demur following the court’s denial of the petition to arbitrate.

CCP §1281.7 provides that a petition to compel arbitration under CCP §1281.2 may be filed in lieu of filing an answer to the complaint, and that the petitioning defendant shall have 15 days after any denial of the petition to “plead” to the complaint. Plaintiffs argue defendant waived its right to demur to the complaint because §1281.7 required AHC to file an answer after this court denied the petition to compel arbitration.

Plaintiffs cite no caselaw to support this interpretation of the statute. They cite only to The Rutter Group discussion which mirrors the language of the statute. If the legislature intended to limit a petitioning party to respond to the complaint by answer only (and not by demurrer) after a petition to compel arbitration was denied, it could have said so, but it did not.

As plaintiffs cite to no authority to support their interpretation of CCP §1281.7 and CCP §422.10 defines “Allowable Pleadings” to include demurrers, plaintiffs’ waiver argument is rejected.

B) Merits

1^st c/a for Elder Abuse

Elder abuse is defined in Welf. & Inst. Code §15610.07 as physical abuse, neglect, abandonment, isolation, abduction or other treatment resulting in physical harm, pain or mental suffering or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Neglect is defined in §15610.57(a) (1) as “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”. While neglect includes, among other failures, failing to provide medical care for physical and mental health needs and failing to protect from health and safety hazards, [Id. at subd. (b)(2), (3)], Elder Abuse excludes liability for professional negligence; it does not apply to simple or even gross negligence by health care providers (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88).

Enhanced remedies provided by the Elder Abuse Act are available only for “‘acts of egregious abuse’. “[I]n order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405) The complaint in this case falls short of that requirement.

The Elder Abuse cause of action is pled in the complaint at ¶¶26-34 using conclusory language only. The particular facts constituting egregious conduct sufficient to support punitive damages are missing.

What is alleged is that the defendants failed to implement safety measures and delayed in providing appropriate nursing care to protect residents and staff from COVID19 (¶23) -- but delay is not neglect. Neglect requires a complete failure to provide care. (Carter, supra,198 Cal.App.4th at p. 404-405) There are no facts alleged regarding what was not done specifically with respect to plaintiffs’ decedent. The pleaded facts do not rise to the level of egregious abuse of decedent.

As the complaint fails to plead the necessary facts to support an Elder Abuse cause of action, the demurrer to the 1^st cause of action is SUSTAINED with 30 days leave to amend.

2^nd c/a for Willful Misconduct

To elevate a claim from negligence to willful misconduct, the complaint must plead (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable as opposed to a possible result from the danger, and (3) conscious failure to avoid the peril. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528). The act or omission must be specifically described to raise it to the level of willful misconduct. (Ibid.)

“[N]o amount of descriptive adjectives[,adverbs] or epithets may turn a negligence action into an action for intentional or willful misconduct.” (Carter, supra,198 Cal.App.4th at p. 413)

Similar to the Elder Abuse cause of action, the complaint uses only conclusory language to support the willful misconduct claim.

The second cause of action alleges that the “defendants knew or should have known that their failure to comply with the standard of care, where the healthcare providers lacked the appropriate safety equipment/appropriate safety precautions, and did not employ reasonable custodial policies for isolating COVID positive residents” posed peril to the decedent or a high probability of serious injury, (¶¶36-37) and that defendants knowingly disregarded the perils (¶38)

It is further alleged that the defendants made certain financial and budgetary decisions at the highest corporate levels regarding the profitability of their operation to enhance the profitability of their operation. (¶39), although what those decisions were, who made them and how they affected profitability and the decedent’s care are absent.

There are no facts establishing actual or constructive knowledge by AHC that injury to plaintiffs’ decedent was probable as opposed to possible. While the allegations set forth in the complaint may be sufficient to plead negligence, they are lacking the specificity required to elevate the negligence allegations to willful misconduct.

The demurrer to the second cause of action is SUSTAINED with 30 days leave to amend.

5^th c/a for negligent infliction of emotional distress (“NIED”)

NIED claims have been permitted in two types of situations, referred to as “bystander” and “direct victim” cases. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127.) Bystander claims are limited to plaintiffs who are (1) closely related to the injury victim; (2) present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim and (3) as a result suffers emotional distress beyond that which would be anticipated by a disinterested witness. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073) A plaintiff who was not present at the event causing the injury cannot pursue a bystander cause of action. (Ess, supra, 97 Cal.App.4th at p. 127)

The NIED cause of action is brought by all plaintiffs. Because the surviving plaintiffs were unable to visit their mother when she died (Complaint ¶20), they were not present at the injury producing event at the time it occurred. Accordingly, they are not bystanders and cannot state their own NIED claim.

In direct victim cases, recovery is allowed for serious emotional distress sought as a result of a breach of duty owed directly to the plaintiff where serious emotional distress is unaccompanied by physical injury. (Burgess, supra, 2 Cal.4th at p. 1073)

The complaint attempts to assert a direct victim NIED claim on behalf of the decedent by alleging “decedent witnessed defendant’s acts” and she experienced “extreme emotional distress”. (Complaint ¶¶56-57).

AHC asserts that decedent’s NIED claim fails because recovery of damages for pain or suffering is unavailable under CCP §377.34. This contention has merit. (See Berkley, supra, 152 Cal.App.4th at p. 530).

Because serious emotional distress (i.e., pain/suffering) is an essential element of the NIED cause of action (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 618), but it is not a recoverable item of damages in a survival cause of action, the NIED claim cannot proceed. “A wrong without damages is not actionable.” (Ibid.) “

Plaintiffs argue that CCP §377.34(f) does not preclude recovery of damages for pain and suffering in connection with Elder Abuse claims, but that argument is unavailing. Just because pain and suffering may be recoverable with respect to an Elder Abuse claim does not make it recoverable with respect to the totally separate and distinct NIED cause of action.

The demurrer to the 5^th cause of action is SUSTAINED with 30 days leave to amend.

6^th c/a for UCL

Standing

Defendant contends that plaintiffs do not have standing to bring the UCL claim because their damages consist solely of physical and emotional injury and that economic loss is required, (Dem. 8:18-20) citing Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310. As plaintiffs in fact have pled economic loss attributable to the money they spent for the high quality nursing care promised but not delivered by AHC to decedent (Complaint ¶67), this argument fails.

Sufficiency of the UCL Allegations

Bus & Prov Code §17200 “…establishes three varieties of unfair competition- acts or practices which are unlawful, or unfair or fraudulent.” (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841,856). The scope of the law is broad, and because it is framed in the disjunctive, a business practice need only meet one of the three criteria to be considered unfair competition. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1381).

Defendants contend the complaint does not allege sufficient facts to support any of the three prongs. Their contention has merit.

The complaint asserts UCL violations against defendant by (1) violating the Elder Abuse law (Wel. & Inst. Code §15600); (2) Promising a high quality of nursing home care which was not provided, such that the business practices were unethical, immoral, unscrupulous, oppressive and injurious to residents and employees; (3) harming residents and staff by carelessly and dangerously exposing them to COVID19, and (4) providing grossly deficient nursing care, placing profits over safety of the elderly. (¶63)

“Unlawful” Prong

“A violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610) A defendant cannot be held liable for unlawful business practices where there is no violation of another law. (Id., citing Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 938).

Because the complaint fails to allege sufficient facts to support an Elder Abuse claim, it also fails to allege a violation of the UCL under the unlawful prong as there are no other laws which defendant is alleged to have violated for the purposes of the sixth cause of action.

“Unfair” Prong

The fourth district Court of Appeal laid out its “unfair” test in Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594 stating:

“[A] plaintiff alleging an unfair business practice must show the ‘defendant’s conduct is tethered to an underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law or violates the policy or spirit of an antitrust law”. (Id. at p. 613)

Because the Elder Abuse claim fails, and there are no other constitutional, statutory or regulatory provisions or antitrust laws which plaintiffs claim were violated, the unfair prong is also unsupported by the allegations in the complaint.

The “Fraud” prong

“A fraudulent business practice is one in which members of the public are likely to be deceived.” (Inner quotations omitted). (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1254). A fraudulent business practice under the UCL is distinct from common law fraud. (Id. at p. 1255).

Although, when pleading a UCL cause of action under the fraud prong, the plaintiffs must show actual reliance. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1384) “[R]eliance is proved by showing that the defendant’s misrepresentation or nondisclosure was “an immediate cause” of the plaintiff’s injury-producing conduct”. The plaintiff may establish immediate cause by showing that in the absence of defendant’s misrepresentation the plaintiff in all reasonable probability would not have engaged in the injury producing conduct.” (Ibid). This requirement of causation is necessary when the plaintiff relies upon the fraud prong of the UCL. (Id. at p., 1385)

The complaint alleges only in conclusory language that decedent and plaintiff relied on defendant’s representations regarding the nursing facility and quality of care and treatment to be provided to elderly residents and as a proximate result sustained harm. (Complaint ¶¶64-65) There are no facts pled supporting the conclusory claims of reliance and causation. In particular, the complaint does not allege when the statements regarding the quality of care were made and how they were an immediate cause of plaintiff’s injury in light of her long term residency at ACH.

The demurrer to the 6^th cause of action is SUSTAINED with 30 days leave to amend.

7^th c/a for fraud/misrepresentation

Every element of fraud must be pled with specificity. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331) This includes facts showing how, when, where, to whom and by what means representations were made. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184) When fraud is alleged against a corporation, the complaint must also allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

As ACH contends, the complaint here lacks this required specificity.

Plaintiff argues that Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838 requires less specificity in pleading where the defendant must necessarily possess full information concerning the facts of the controversy. That case does not help plaintiffs because the complaint there contained far more specificity than the complaint here.

The demurrer to the 6^th cause of action is SUSTAINED with 30 days leave to amend.

II. AHC’s Motion to Strike is MOOT IN PART AND GRANTED IN PART.

In light of the court’s ruling on the demurrer, items 1, 2, 3, 4, and 6 are moot.

Item 5 – to strike the request for punitive damages related to the Negligence Per Se cause of action is granted. The language of the 5^th cause of action pleads only the language of Civil Code §3294 without the requisite facts to support punitive damages.

Moving party is ordered to give notice of this ruling.