Judge: Donald F. Gaffney, Case: "Kuharich v. DCCV, Inc.", Date: 2023-07-12 Tentative Ruling

TENTATIVE RULING: 

For the reasons set forth below, Defendants DCCV, Inc. dba Sunny Days Home Care 2 and Clara Han’s Demurrer to the first cause of action for Elder Abuse and Neglect is OVERRULED. Defendants’ related Motion to Strike Plaintiffs’ prayer for attorneys’ fees and punitive damages (Complaint, ¶ 74, and Prayer nos. 4. and 5) is DENIED.

The Court finds Defendants complied with their meet-and-confer obligations prior to filing the subject Demurrer and Motion to Strike.

A.   Demurrer

Defendants’ primary argument is that Plaintiffs failed to plead sufficient facts amounting to egregious abuse or neglect. Instead, Defendants contend the allegations merely sound in negligence. The Court disagrees.

Neglect is defined 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.” (Welf. & Inst. Code, § 15610.57, subd. (a).) It also includes the failure to protect an elder from health and safety hazards, as well as the failure to assist in personal hygiene, or to provide medical care for an elder’s physical and mental health needs. (Welf. & Inst. Code, § 15610.57, subd. (b).)

Plaintiffs have alleged Defendants violated various provision of the Health and Safety Code, as well as Title 22 of the California Code of Regulations. (Complaint, ¶¶ 66-67.) As in Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, the allegations Defendants violated a number of state regulations “may constitute ‘ “[t]he negligent failure of any person having the care or custody of an elder … to exercise that degree of care that a reasonable person in a like position would exercise.” ’ [Citations.]” (Fenimore, supra, 245 Cal.App.4th at p. 1348.) In addition, Plaintiffs have alleged Defendants regularly, and repeatedly, failed to turn and reposition Decedent, which resulted in numerous pressure ulcers that ultimately led to her death. (Complaint, ¶¶ 21-27, 30-33, 37.) “[R]ecklessness may be inferred when the neglect recurs in a significant pattern.” (Fenimore, supra, 245 Cal.App.4th at p. 1350.) “[V]iolations of standards of care set by health facility regulations may provide a basis for finding the requisite negligent failure.” (Id. at p. 1351.)

Contrary to the arguments raised in the Demurrer, Plaintiffs have pled more than specific facts as to how Decedent was the victim of elder abuse, and their allegations do not merely amount to negligence. Instead, as discussed, Plaintiffs have, at a minimum, alleged sufficient facts to support a finding of recklessness. (See Fenimore, supra, 245 Cal.App.4th at p. 1351 [holding the operative complaint stated at least one viable theory of elder abuse based on recklessness, such that “the court should not sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory”].)

Next, Defendants contend Plaintiffs failed to state sufficient facts showing involvement by an officer, director, or managing agent. Defendants make the related argument that the cause of action is insufficiently pled against Defendant Clara Han, as she did not have a substantial caretaking or custodial relationship with Decedent.

Whether a defendant has a substantial caretaking or custodial relationship must be determined on a case-by-case basis. (Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1131.) “An individual might assume the responsibility for attending to an elder’s basic needs in a variety of contexts and locations.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158.) “Ultimately, the focus of the statutory language is on the nature and substance of the relationship between an individual and an elder or a dependent adult. This focus supports the conclusion that the distinctive relationship contemplated by the Act entails more than casual or limited interactions.” (Ibid.)

The Complaint alleges Clara Han, the administrator, owner, operator, and manager of Sunny Days participated in, authorized, and/or directed the conduct of Sunny Days. (Complaint, ¶¶ 5, 28, 44, 47-54.)

For example, Plaintiffs allege Plaintiff Longwith expressed her concerns to Han regarding Decedent’s oxygen machine being turned off (Complaint, ¶ 28.) Longwith also “repeatedly expressed her concerns with [Decedent’s] care to [Han] but Defendants still failed to adequately care for [Decedent] and provide her with turning and repositioning necessary to prevent pressure ulcers.” (Complaint, ¶ 44.) In addition, Plaintiffs allege Han was responsible for establishing and implementing policies regarding the management and operation of the facility. (Complaint, ¶¶ 49-51.) Further, Plaintiffs allege Longwith had frequent conversations, text conversations, and phone calls with Han. (Complaint, ¶ 53.)

Contrary to Defendants’ position, a robust, or substantial, caretaking or custodial relationship is not limited to situations where the individual provides the actual care. It may apply where an administrator was involved in both the care of the resident, as well as in the implementation of the facility’s policies.

Given the foregoing allegations, the Court finds Plaintiffs have adequately pled sufficiently particular facts to support their elder abuse/neglect claims against Han.

Finally, Defendants argue they are not vicariously liable for their employees’ intentional torts that did not have a causal nexus to the employees’ work. The Court finds Defendants are improperly attempting to argue the merits of this cause of action. In any event, a caretaker who assisted Decedent with her daily living activities was personally involved with the Decedent, such that intentional torts committed by a caretaker may be a foreseeable hazard arising from the circumstances of the job. (See Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 108 [facility may be vicariously liable for a mental health worker who sexually assaulted patient].)

In their Reply, Defendants argue, for the first time, that Plaintiff Dawn Longwith does not have standing to bring the Elder Abuse and Neglect cause of action because she did not comply with section 377.32 of the Code of Civil Procedure. First, it was improper for Defendants to raise that issue for the first time in their Reply, as doing so deprived Plaintiffs of an opportunity to address the new argument. (Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 510; see Raceway Ford Cases (2016) 2 Cal.5th 161, 178 [“We generally do not consider arguments raised for the first time in a reply brief”].)

In any event, section 377.32 of the Code of Civil Procedure “ ‘does not require that the affidavit be filed as a condition precedent to commencing or continuing the action.’ [Citation.] Instead, at most, ‘failure to file the affidavit could possibly subject the action to a plea in abatement.’ [Citation.]” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614; accord, Maleti v. Wickers (2022) 82 Cal.App.5th 181, 228)

Thus, even if Plaintiff Longwith failed to comply with section 377.32 of the Code of Civil Procedure, such failure does not subject the Complaint to Defendants’ Demurrer.

B.   Motion to Strike

Defendants move to strike Plaintiffs’ prayer for punitive damages and attorneys’ fees, but the Motion to Strike is premised on the expectation Defendants’ Demurrer would be sustained. Since the Court overrules the Demurrer, Plaintiffs are entitled to request “reasonable attorney’s fees and costs.” (Welf. & Inst. Code, § 15657, subd. (a).)

Further, since Plaintiffs have adequately alleged Defendants’ conduct constituted recklessness, they are entitled to request the enhanced remedies under the Elder Abuse Act, including punitive damages. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 432-433.)

Plaintiffs to give notice.