Judge: Deirdre Hill, Case: 21STCV39800, Date: 2022-08-23 Tentative Ruling

Case Number: 21STCV39800    Hearing Date: August 23, 2022    Dept: M

Hearing Date:                          August 23, 2022

Moving Parties:                      Defendants Sunbridge Hallmark Health Services, LLC dba Playa Del Rey Center, The Earlwood, LLC dba The Earlwood, and Genesis Healthcare, Inc.

Responding Party:                  None

(1)   Motion for Judgment on the Pleadings      

            The court considered the moving papers. No opposition has been filed.

RULING

The Motion for Judgment on the Pleadings is GRANTED.

BACKGROUND

            On October 28, 2021, Plaintiffs Gordana Mercer, by and through her Successor-in-Interest, David Rosini, and David Rosini (collectively “Plaintiffs”) filed a complaint against Defendants Sunbridge Hallmark Health Services, LLC dba Playa Del Rey Center, The Earlwood, LLC, Genesis Healthcare, Inc., and Does 1 through 25, inclusive (collectively “Defendants”) alleging causes of action for (1) Elder Abuse and Neglect (Welf. & Inst. Code § 15600, et seq.), (2) Violation of Resident Rights (Health & Safety Code § 1430(b), and (3) Wrongful Death.

On July 6, 2022, Defendants Sunbridge Hallmark Health Services, LLC dba Playa Del Rey Center, The Earlwood, LLC dba The Earlwood, and Genesis Healthcare, Inc.  filed a motion for judgment on the pleadings.

On August 8, 2022, Plaintiffs filed a notice of non-opposition to Defendants motion for judgment on the pleadings.

LEGAL AUTHORITY

Motion for Judgment on the Pleadings

A defendant can move for judgment on the pleadings if “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.  CCP § 438(c)(1)(B)(ii).  The motion may be made as to “[t]he entire complaint or cross-complaint or as to any of the causes of action stated therein.”  CCP § 438(c)(2)(A).  Such motion is proper so long as the Court has not issued a pretrial conference order pursuant to § 575, or within thirty (30) days of the date the action is initially set for trial.  CCP § 438(e).  If the moving party is the defendant, the motion for judgment on the pleadings may be made only after the defendant has already filed his or her answer to the complaint, and the time for the defendant to demur to the complaint has expired.  CCP § 438(f)(2). 

As such, a motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061; Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064. In considering a motion for judgment on the pleadings, courts consider whether the factual allegations, assumed true, are sufficient to constitute a cause of action. Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal.App.4th 446, 452-453.  “The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.”  Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.  Thus, it may be granted if, from the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. CCP § 438 (d); Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2010) ¶7:292.  But when ruling on a motion for judgment on the pleadings, the courts generally will liberally allow amendments.  Nelson v. Nevel (1984) 154 Cal.App.3d 132, 142. 

DISCUSSION

A.    First Cause Of Action for Elder Abuse and Neglect (Welf. & Inst. Code § 15600, et seq.

Case law is clear that, “‘neglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) “As 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.’” (Id.) In order to distinguish Dependent Adult Abuse from Professional Negligence, there must be a showing of recklessness, fraud, malice, or oppression. (Id.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (internal quotation marks omitted).) Recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Id.) The enhanced remedies for Elder Abuse are only available for “acts of egregious abuse against elder and dependent adults.” (Id.)

To plead elder abuse, the plaintiff must allege “facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations].” (Carter, supra, 198 Cal.App.4th at 406-07.) “The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Id. at 407.) “[T]he 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.” (Id. (quoting Covenant Care, Inc., supra, 32 Cal.4th at 790).) There must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (Civ. Code, § 3294; Cal. Welf. & Inst. Code, § 15657(c).)

Defendants argue that the First Cause of Action is not pled with sufficient facts. Defendants argue that Plaintiff failed to plead sufficient facts of recklessness, malice, oppression, or fraud. The Complaint offered no factual information which could support a claim that decedent was the victim of any egregious misconduct directed against Plaintiff by Defendants. Defendants also argue that Plaintiff failed to plead facts that demonstrate employer participation in abuse/neglect or employer authorization/ ratification in abuse/neglect.

Plaintiffs allege that Plaintiff Gordana Mercer was over the age of 65, suffered from advanced dementia, and was then dependent on the Genesis Defendant for all of her activities of daily living including personal hygiene, continence care, transferring and repositioning in bed, transferring in and out of bed and wheelchair, nutrition, hydration, and medication management and administration. (Complaint Decl. ¶ 42-44.) Defendants, and each of them, had a duty to arrange for or provide access to medical care, including but not limited to care and treatment to prevent the development of wounds, infection, pain, malnutrition, and dehydration; to ensure medical care that was needed was actually provided; and to accept and retain only those patients for whom it could provide adequate care, supervision, and assistance. (Id. ¶ 47.) Plaintiffs allege that Defendants committed elder neglect by:

Failing to assist in personal hygiene, or in the provision of food, clothing, or shelter. MS. MERCER was completely dependent on the GENESIS DEFENDANTS for personal hygiene. Maintaining personal hygiene prevents wound development and promotes wound healing as it reduces skin irritation and the risk of infection. The GENESIS DEFENDANTS failed to maintain MS. MERCER’s hygiene to prevent and promote wound healing. Additionally, the GENESIS DEFENDANTS failed to provide sufficient dietary services to ensure adequate intake of nutrition and fluids to promote healing. Providing appropriate dietary services increases calories and protein needed to prevent skin breakdown and promote wound healing. Failing to assist in these areas caused MS. MERCER’s wounds to develop and/or worsen and she needlessly suffered as a result. (Id. ¶ 49(a).)

Failure to provide medical care for physical and mental health needs. The GENESIS DEFENDANTS failed to provide adequate wound care and treatment including ongoing assistance with turning, positioning, and pressure relief; ongoing assistance with hygiene to keep the area clean and dry and free of urine and feces; dietary assessments, and food, fluid, and supplements to make sure the metabolic demands of healing a pressure wound are met; ongoing assessment and reassessment by a registered nurse to evaluate whether the wound healing protocol is effective and/or whether the wound is getting better, worse, or staying the same; and helping to arrange for needed medical equipment. The GENESIS DEFENDANTS failed to provide adequate care and treatment to prevent the development and progression of debilitating infections in both the diaper area and on the wound bed. Failing to provide medical care for MS. MERCER’s physical and mental health needs as described above caused MS. MERCER’s injuries and death. (Id. ¶ 49(b).)

Failure to protect from health and safety hazards. The GENESIS DEFENDANTS failed to protect MS. MERCER from health and safety hazards by employing inadequate and insufficient staff below legal minimum requirements. They failed to protect her from health and safety hazards by employing staff who were incapable, unwilling, or unable to develop, implement, and modify individual care plans to meet MS. MERCER’s needs. They employed staff who were incapable, unwilling, or unable to follow physician’s orders to meet MS. MERCER’s needs. They failed to protect her from health and safety hazards when they failed to notice and treat her deteriorating condition. They failed to protect her from health and safety hazards when they withheld wound care treatment. As a result, MS. MERCER endured needless pain and suffering from the effects of her mismanaged wounds. The GENESIS DEFENDANTS failed to provide adequate wound care and treatment including ongoing assistance with turning, positioning, and pressure relief; ongoing assistance with hygiene to keep the area clean and dry and free of urine and feces; dietary assessments, and food, fluid, and supplements to make sure the metabolic demands of healing a pressure wound are met; ongoing assessment and reassessment by a registered nurse to evaluate whether the wound healing protocol is effective and/or whether the wound is getting better, worse, or staying the same; and helping to arrange for needed medical equipment. Failing to provide medical care for MS. MERCER’s physical and mental health needs as described above caused MS. MERCER’s injuries and suffering. (Id. ¶ 49(c).)

Plaintiffs allege evidence of recklessness and conscious disregard for the safety and well-being by restating facts that show that Genesis Defendants breached their duties. (Id. ¶ 50-55.) Plaintiffs allege that Defendants knew or should have known MS. MERCER’s condition was breaking down long before her pressure sores reached a Stage IV because day after day, shift after shift, their staff was responsible for dressing her, bathing her, changing her diapers, and inspecting her skin, taking her vitals, assessing her pain scale, monitoring the effects of medication, administering medication, and monitoring for skin breakdown. They would have seen the wounds developing when providing these basic services. (Id. ¶ 56.)  Defendants knew, based on their background, training, and expertise in caring for the disabled and elderly, that pressure ulcers pose a serious threat to life. (Id. ¶ 57.)  PLAYA DEL REY CENTER and THE EARLWOOD staff failed to report the progression and development of MS. MERCER’s wounds to MR. ROSINI… (Id. ¶ 58.)  Plaintiffs allege that one of the reasons Defendants failed to meet MS. MERCER’s need for care and basic services, to avoid needless suffering, injury, and emotional distress, is that Defendants made a conscious choice to understaff their facilities, in both quantity and quality of nursing personnel. (Id. ¶ 59.)  Plaintiffs further allege that Defendants committed fraud in the commission of elder abuse in that Defendants knew the FACILITIES were not properly staffed, were not providing proper care, and would not provide proper care to MS. MERCER and were not in compliance with laws. (Id. ¶ 62-63.) Defendants ratified and authorized Defendants actions managing agents of each because Defendant knew or should have known of the lack of proper custodial care to its patients, as well as its understaffing, poor training, and the failure to implement care plans based on internal reporting and also the oversight, monitoring and reporting of the Department of Public Health. (Id. ¶ 64-66.) Any and all findings of the Department of Public Health regarding care failures at PLAYA DEL REY CENTER and THE EARLWOOD were reported up the corporate chain. Despite each Defendant’s conscious knowledge of these conditions, the managing agents of each Defendant did not take appropriate and adequate steps to prevent and correct them, and they did not inform MS. MERCER or her son of what they knew about these dangerous conditions. (Id. ¶ 64-66.) Defendants knowingly hired unfit employees. (Id. ¶ 67.) As a result, Defendants suffered damages. (Id. ¶ 68-71.)

The Court finds that Plaintiffs have failed to sufficiently plead elder abuse and neglect against Defendants.  Defendants’ purported failures to follow protocols to ensure that Plaintiff Mercer did not develop bedsores and infections, without any supporting facts fail to show that Defendants acted with conscious disregard for Decedent’s rights, health, and safety. Furthermore, allegations of a failure to maintain specific staff-to-patient ratios to address the needs of patients and ensure compliance with state and federal law, understaffing, and inadequate training of staff are generally indicative of negligent undertaking of medical services and not elder abuse.  (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 337-38.)  However, allegations of understaffing and undertraining may be sufficient to arise to recklessness when there is a showing of a knowing pattern of violations of staffing regulations.  (Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1349-50.) Here, there are no allegations of a pattern of violations, rather Plaintiffs allege conclusory allegations that list surface-level violations that do not rise to the level of recklessness, fraud, malice, or oppression.  Additionally, “[T]he 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.”  Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Plaintiffs have not pleaded with particularity facts for a claim for elder abuse and neglect.

B.     Second Cause of Action for Violation of Patient’s Rights

The Health & Safety Code § 1430 only create a remedy, not an entirely new cause of action. Health & Safety Code § 1430(c) states: “the remedies specified in this section shall be in addition to any other remedy provided by law.” Section 1430 provides no insight or guidance as to essential aspects of a cause of action, such as elements of the claim, proof requirements, and pleading standards. In addition, Section 1430(b) provides that “[t]he licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, . . .” This language has been definitively interpreted to mean that $500 is the maximum amount recoverable “per civil action rather than per violation.” (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 129, 137.)

This claim is improper because such a cause of action may lie only where the state department already took action, and it did not result in the complaining person’s satisfaction. (See Health & Safety Code § 1430.) An individual must file a request for inspection pursuant to Health & Safety Code § 1419 for the state department to take action. Plaintiffs fail to state any facts alleging that the state department had taken action and violations were not corrected. 

The Motion for Judgment on the Pleadings is GRANTED.