Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is an elder abuse case.  Plaintiff Ken Listoe is 91 years old.  Defendants WG Hacienda SH LP dba Atria Hacienda and Atria Management Company LLC (“Moving Defendants”) operate an assisted living facility located in Palm Desert.  (Compl. ¶¶ 2-3.)  Co-defendant AG Rancho Mirage LLC operates a skilled nursing facility.  (Id. ¶ 4.) 

Plaintiff alleges he was a resident at Moving Defendants’ facility, that he sustained several falls which ultimately resulted in a hip fracture, that he developed a buttock and heel pressure injury at the co-defendant skilled nursing home, and that when he returned to Moving Defendants’ facility, the injuries worsened.  (Id. ¶¶ 13-43.)  Plaintiff further alleges that Moving Defendants were fully aware that he was at high risk for falls and development of pressure injuries but they failed to provide him adequate care as the “direct result of the insufficiency of staff in number, competence and training.”  (Id. ¶ 52.)  

The operative complaint alleges three claims for (1) elder abuse (pursuant to Welfare and Institutions Code §§15600, et. seq.), (2) negligence, and (3) violation of resident’s rights (pursuant to Health and Safety Code §1430(b)).   

This hearing is on Moving Defendants’ demurrer.  Moving Defendants argue that Plaintiff cannot plead elder abuse because (1) Plaintiff has not specifically pled recklessness, oppression, fraud or malice; instead, his claims are only for professional negligence, and (2) Plaintiff has not sufficiently pleaded facts demonstrating that Moving Defendants authorized and/or ratified the alleged misconduct.    

MEET AND CONFER¿ 

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41(a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)¿ Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)¿ Moving Defendants submit the declaration of Ryan Cox which fails to attest counsel met and conferred by telephone or in person more than five days before Moving Defendants filed their demurrer.  Notwithstanding, the Court cannot sustain or overrule a demurrer based on an insufficient meet and confer.  (Code Civ. Proc. § 430.41(a)(4).)¿ 

LEGAL STANDARD 

A demurrer to a complaint may be general or special.  A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e); Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)  The term uncertain includes the issue of whether the pleading is “ambiguous and unintelligible.”  (Id.)  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

ANALYSIS 

 

Moving Defendants argue that Plaintiff has not sufficiently alleged the recklessness, oppression, fraud or malice required to state an elder abuse claim.  The Court agrees.   

To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care¿or custody of the elder.  (Welf. & Inst. Code, § 15657.2;¿Delaney v. Baker¿(1999) 20 Cal.4th 23, 32;¿Sababin v. Superior Court¿(2006) 144 Cal.App.4th 81, 88.)  The plaintiff must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect.¿(Welf. & Inst. Code, § 15657.)¿ 

Oppression, fraud and malice “involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.” (Delaney, 20 Cal.4th at 31.)  Recklessness involves “‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur” and “rises to the level of a ‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’ ” (Id.¿at 31–32.)  In short, “[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.” (Covenant Care, Inc. v. Superior Court¿(2004) 32 Cal.4th 771, 789.)¿  

Here, Plaintiff alleges he sustained several falls, that one of his falls resulted in a hip fracture, and that he had pressure injuries which developed outside the facility and worsened during his re-admission.  At their core, these allegations give rise to a finding of negligence, not recklessness, oppression, fraud or malice.   

While Plaintiff also broadly alleges there was neglect due to understaffing or inadequate training so that the facility was more profitable, these are conclusory accusations which have been pled with none of the requisite specificity or factual support required as a matter of law.  Although chronic or severe understaffing can, in¿extreme circumstances, rise the to the level of recklessness, (Fenimore¿v. Regents of the University of California (2016) 245 Cal.App.4th 1339), Plaintiff has not alleged any specific facts demonstrating that Moving Defendants’ facility was chronically or severely understaffed.  Conclusory allegations that a facility is chronically understaffed, without more, is insufficient to give rise to the recklessness necessary to support a claim for elder abuse.  (Worsham¿v. O’Connor Hosp. (2014) 226 Cal.App.4th 331, 338; Cochrun v. Costa Victoria Healthcare, LLC (2018) 25 Cal.5th 1034, 1048.)   

Moving Defendants next argue that Plaintiff has not sufficiently pleaded facts demonstrating that Moving Defendants authorized and/or ratified the alleged misconduct.  The Court agrees. 

To prove an elder abuse claim against a corporate employer such as Moving Defendants, Plaintiff must prove by clear and convincing evidence that an officer, director, or managing agent was involved in the abuse by directly engaging in the abuse, authorizing or ratifying the abuse, or hiring the person who committed the abuse with advance knowledge of the person’s unfitness and with conscious disregard of the rights and safety of others.  (Welf. & Inst. Code §15657(c); Civil Code §3294.)    

In Cruz v. Homebase (2000) 83 Cal.App.4th 160, the Court of Appeal explained that officers, directors, and managing agents is the group of persons “whose intentions guide corporate conduct.”  Managing agents are employees who exercise substantial authority over decisions that ultimately determine corporate policy.  Corporate policy, in turn, reflects the general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations.  A managing agent is one with substantial authority over decisions that set these general principles and rules.  (Id. at 167.)  

Here, the Complaint only vaguely alleges that corporate officers, directors, and managing agents of Moving Defendants authorized and/or ratified all acts and occurrences as alleged in the Complaint.  Plaintiff references only unnamed corporate officers and does not say how they exercised substantial control over the corporate decision-making of the Moving Defendants.   

For example, the Complaint alleges that: “Defendant ATRIA, by and through its corporate officers, directors, and managing agents, and others presently unknown to Plaintiff and according to proof at the time of trial, ratified the conduct of their co-defendants in that they were aware of the understaffing of ATRIA, in both number and training, the relationship between understaffing and sub-standard provision of care to residents of ATRIA, including LISTOE, the unfitness of licensed and unlicensed nursing personnel employed at ATRIA, the rash and truth of lawsuits against its facilities, including ATRIA, and ATRIA's customary practice of not adequately responding to correct deficiencies issued by the State of California's Department of Social Services. That notwithstanding this knowledge, these officers, directors, and/or managing agents meaningfully disregarded the issues even though they knew the understaffing could, would, and did lead to unnecessary injuries to the residents of ATRIA, including LISTOE.”  (Compl. ¶ 8.) 

This allegation fails to name any corporate officer, fails to explain how they exercised substantial authority over decisions that ultimately determine corporate policy, fails to set forth with any specificity who ratified what conduct, fails to name which employees or nursing personnel were unfit to render nursing care, fails to set forth how these purported employees were unfit, fails to allege how any officer had knowledge of the employees’ unfitness, fails to explain what is meant by “the rash and truth of lawsuits against its facilities”, fails to set forth what deficiencies were issued by the State of California Department of Social Services, fails to explain how Moving Defendants had a custom and practice of not adequately correcting deficiencies found by governmental entities, fails to set forth what “knowledge” was disregarded by corporate officers, and fails to set forth any basis for them having knowledge of being chronically understaffed.  

Plaintiff argues that Moving Defendants ratified the conduct because they knew of the misconduct but failed to investigate.  But Plaintiff does not identify the officer or managing agent who purportedly knew of the misconduct and failed to investigate.  Plaintiff cites to Pusateri v. E.R. Hutton Co. (1986) 180 Cal.App.3d 247, 251-253, but there the alleged misconduct was approved by the employee’s manager (David Nee), an identified corporate officer.   

Plaintiff also argues that Moving Defendants’ pattern and practice of understaffing facilities with undertrained and unqualified caregivers proves corporate ratification.  But the allegations of understaffing and inadequate training are not supported by any specific facts.  Certainly, there are no specific allegations that would suggest understaffing and inadequate training was a custom and practice at Moving Defendants’ facilities.  Plaintiff cites to Schanafelt v. Seaboard Finance Company (1951) 108 Cal.App.2d 420, 423-424, but there the employee admitted his misconduct (in falsely imprisoning the plaintiff while repossessing her furniture) was “customary practice” and was expressly authorized by his employer (he was on the phone with his superiors during the incident).  There are no similar allegations in this case.  

Plaintiff then argues that Moving Defendants’ policy or practice of understaffing means they are personally guilty of oppression, fraud or malice.  Plaintiff argues that where malice, fraud or oppression is “the product of policies or practices established by the corporate management, such misconduct is said to be the act of the corporation.”  But again, Plaintiff has alleged no specific facts to show there was a policy or practice of understaffing or undertraining, much less that such a policy was established by corporate management.  Plaintiff cites to Ferraro v. Pacific Finance Corporation (1970) 8 Cal.App.3d 339, 353, but there the defendant’s operations manager who directly handled the transaction at issue stated it was the company’s policy that whenever some person rightfully or otherwise claims ownership of a car, the car should be seized by stealth or force and the company would ask questions later.  There are no similar allegations here.   

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS Defendant’s demurrer with 20 days’ leave to amend. 

 

IT IS SO ORDERED. 

 

DATED: August 9, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court