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 92 years old.  (First Amended Complaint (“FAC”) ¶ 10.)  Defendants WG Hacienda SH LP dba Atria Hacienda and Atria Management Company LLC (“Moving Defendants”) operate an assisted living facility located in Palm Desert.  (FAC ¶¶ 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. ¶¶ 15-70.)  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 result of understaffing and inadequate training.  (Id. ¶ 107.)  

The operative first amended 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 refers to 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 disagrees.   

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 Defendants failed to follow the decedent’s care plan, neglected to provide essential care—including regular repositioning and skin inspections, and failed to implement appropriate care plans to address his medical needs including his repeated falls.  Courts have found similar allegations sufficient to withstand a demurrer.   

Sababin v. Superior Court¿(2006) 144 Cal.App.4th 81, is instructive.  There, the California Court of Appeals determined the¿failure¿to¿follow¿a¿care¿plan, as Defendants did with the Decedent, was sufficiently egregious to constitute recklessness under an elder abuse claim. (Id.¿at p. 90.)¿The facility ignored a medical care plan requiring the facility to check the patient’s skin on a daily basis and failed to notify a physician when skin lesions developed.  (Id.¿at pp. 83-87, 90.)  The¿Sababin¿court determined a significant pattern of failure to provide care, much like Plaintiff’s allegations here, was sufficient to constitute recklessness, even if some care was sporadically given. (Id.¿at 90.)  Plaintiff need not allege no care was provided.  He can allege that only sporadic care and attention was given, but that Decedent required more care than was provided to prevent falls and to check on pressure injuries.   

Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, is also on point.  There, the appellate court reversed the trial court’s ruling granting summary judgment for the defendant nursing home.  The Intrieri court concluded that triable issues of fact remained as to whether the nursing home’s conduct with respect to plaintiff’s pressure sores constituted a reckless failure to provide medical care for her physical health needs.  The plaintiff’s evidence showed that pressure sores developed after the plaintiff’s readmission to the nursing home following her hip surgery, that the plaintiff’s son complained to the doctor assigned by the nursing facility to care for the plaintiff, and that nothing was done for her.  A month later, the pressure sores had grown much worse, but the nursing home made no changes to the plaintiff’s care plan and the plaintiff’s son hired an outside physician who developed a new care plan.  When the defendant’s staff failed to follow the new care plan, the plaintiff’s son confronted the staff but again, nothing was done.  The plaintiff developed infected pressure sores on her right foot that eventually led to amputation of her right toe and then her right leg below the knee.  On these facts, the court in Intrieri concluded it may be reasonably inferred from this chain of events that the nursing home acted with recklessness in caring for the plaintiff. 

So it is here.  Plaintiff alleges that despite repeated falls, Defendants did not update the decedent’s fall prevention plan to prevent further falls.  Plaintiff also alleges that Defendants failed to follow a skin integrity care plan to prevent further skin breakdowns.  Under the plan, Defendants’ staff was required to monitor decedent’s skin at least two times daily for redness or breakdown and report to a physician for further treatment orders in the event of any new and/or further skin breakdown issues.  Additionally, the care plan required Defendants’ employees to reposition Decedent at least every two-hours to prevent skin breakdown.  According to the Complaint, Defendants’ staff did neither.   

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

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, paragraph 115 of the Complaint alleges “Despite Senior Executive Director Sabrina Tucker—who held full responsibility for ensuring all Atria staff adhered to company policies, procedures, and state regulations—being fully aware of LISTOE’s pressure injuries and falls, which resulted from the staff’s failure to follow his care plans, no corrective actions were taken. Atria did not terminate, discipline, reprimand, or repudiate any employee involved in the substandard care, treatment, monitoring, or supervision of LISTOE.”  Ms. Tucker is a managing agent by virtue of her having responsibility over compliance with corporate policies.  And she ratified abuse by failing to take corrective action in disciplining staff members for failing to follow Listoe’s care plans, which Sababin holds may constitute elder abuse.   

CONCLUSION 

For the foregoing reasons, the Court OVERRULES Defendants’ demurrer. 

 

IT IS SO ORDERED. 

 

DATED: November 5, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court