Judge: Elaine W. Mandel, Case: 24SMCV05379, Date: 2025-05-13 Tentative Ruling

Case Number: 24SMCV05379    Hearing Date: May 13, 2025    Dept: P

Tentative Ruling

Evans v. Princeton Manor Healthcare Center, Case no. 24SMCV05379

Hearing date May 13, 2025

Defendant Princeton’s Demurrer to the First Amended Complaint

Plaintiff Evens, successor-in-interest to decedent Graham, sues defendants Princeton Manor Healthcare Center, Okere and Maker for elder abuse, medical malpractice, negligence and violations of Health & Safety Code §1430(b). Plaintiff’s decedent was a residential patient at Princeton, where plaintiff alleges she received poor care and improper medication, including Ativan and Lorazepam, without consent. Defendant Princeton demurs to all claims.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must set forth the essential facts of the case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

First Cause of Action: Elder Abuse and Neglect

Elder abuse claims are based upon the Elder and Dependent Adult Civil Protection Act. See Cal. Wel. & Inst. Code §15600, et seq. An elder abuse claim is a statutory cause of action and must be specifically pleaded. Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, 410. The facts constituting neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity.” Id.

Plaintiff must allege specific facts establishing defendant: (1) had responsibility for meeting the elder’s basic needs; (2) knew of conditions that made the elder unable to provide for basic needs; and (3) denied or withheld goods or services necessary to meet the elder’s basic needs, either with knowledge that injury was substantially certain to befall the elder or with conscious disregard of the high probability of such injury; (4) causation. Carter v. Prime Healthcare Paradise Valley, supra at 406-407.

Defendant argues plaintiff failed to plead a claim for elder abuse under general neglect. Plaintiff alleges decedent elder was unable to care for her own needs, which defendants knew. FAC para. 81. Plaintiff alleges moving defendant was responsible for decedent’s care as a skilled nursing facility (SNF). FAC para. 82. Plaintiff alleges defendant failed to provide suitable hygienic care and food, causing physical and mental harm to decedent. FAC paras. 84-85.

Defendant argues plaintiff cannot state a claim for elder abuse arising from defendant’s alleged providing Ativan and Lorazepam. Plaintiff alleges decedent was prescribed the medications through “Doctor’s Orders dated November through December 2023.” FAC paras. 26, 30. Plaintiff alleges decedent was her own responsible party and acted with capacity while living at home. FAC para. 29. Defendant argues these allegations demonstrate use of Ativan was not negligent and was consented to by decedent.

Plaintiff alleges defendant failed to obtain decedent’s informed consent before treating her. FAC paras. 26, 31, 35-36, 108. On demurrer, all allegations must be treated as true. Plaintiff alleged decedent did not consent to prescription or administration of Ativan/Lorazepram. Plaintiff alleges use of these drugs caused decedent to become catatonic and other effects. FAC paras. 31, 35. Plaintiff alleges defendant’s administration of the drugs despite that lack of consent violated its duty of care to decedent. FAC para. 57.

Defendant argues no facts are alleged showing ratification as required by Code Civ. Proc. §3294. Plaintiff alleges defendant, through director of nursing defendant Maker and administrator defendant Okere, knew of decedent’s lack of informed consent. FAC para. 65. Plaintiff alleges moving defendant allowed decedent’s nurse to administer the drugs 19 times despite knowing decedent had not consented. FAC para. 31. The positions of facility administrator and director of nursing are alleged to be responsible with oversight, management, budget and staffing responsibilities, staff training, and the creation of policies and procedures. FAC paras. 62-64.

A managing agent is an employee who exercises substantial authority and judgment in corporate decision-making, so their decisions determine corporate policy. White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-67. Okere and Maker are sufficiently alleged to be managing employees for purposes of ratification.

These facts are alleged with sufficient specificity to sustain a cause of action for elder abuse. Plaintiff alleged defendant’s responsibility and knowledge, satisfying the first two prongs. Plaintiff alleged defendant intentionally withheld information from decedent to administer the drugs, despite knowing of the potential harms, satisfying the third prong. Plaintiff alleged use of the drugs deprived decedent of her freedom/cognition and caused harmful side effects, satisfying prong four. Plaintiff alleged managing employees with significant input into policies and procedures ratified administration of the drugs without consent. OVERRULED.

Second Cause of Action: Medical Malpractice

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.

Plaintiff alleges defendant, and its employees, owed the duty to use the skill of a reasonable SNF and staff. FAC para. 117. Plaintiff alleges defendant breached that duty by failing to obtain informed consent and provide necessary care. FAC paras. 31, 84-85, 119. Plaintiff alleges the breach caused decedent’s health to deteriorate, caused her to become catatonic and impeded her right to be involved in her own care. FAC paras. 31, 35, 119-120. These allegations are sufficient to sustain a cause of action for medical malpractice. OVERRULED.

Third Cause of Action: Negligence

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. “Breach is the failure to meet the standard of care.” Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643. “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.” Id. at 645.

Defendant argues the third cause of action is duplicative of the second, as the applicable standard of care is the same for both. See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-998. A demurrer to duplicative causes of action, which add nothing to the complaint by way of fact or theory, should be sustained. Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128-1135.

Plaintiff’s claim for negligence arises from the same alleged facts and circumstances as the claim for medical malpractice. Plaintiff specifically alleges defendant had a duty to act as reasonable SNF and staff thereof. FAC para. 127. This is duplicative of allegations in the second cause of action. See FAC para. 117. The basis for both claims is the same. SUSTAINED without leave to amend, unless plaintiff can establish ways in which the claims differ.

Fourth Cause of Action: Violation of Cal. Health & Safety Code §1430(b)

Health and Safety Code §1430(b) allows a “former resident . . . of a skilled nursing facility . . . [to] bring a civil action against the licensee of a facility who violates any rights of the resident . . . as set forth in the Patients’ Bill of Rights in §72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” 22 Cal. Code of Regulations §72527 provides a non-exhaustive list of patient rights, and includes, inter alia: “(25) Other right as specified in Health and Safety Code §1599.1”

Defendant argues the fourth cause of action is duplicative of the second and third and arises from the same theories and allegations. This unavailing; though the underlying facts are the same, this cause of action arises from alleged violations of Health & Safety Code §1430(b).

Plaintiff alleges defendant is a SNF subject to the patients’ bill of rights. FAC para. 134. Plaintiff alleges moving defendant violated 22 C.C.R. §72527(a)(12), among others, by violating decedent’s right to informed consent. FAC para. 134(a). A single allegation that defendant breached the patients’ bill of rights is sufficient to state a claim under §1430(b). OVERRULED.

Defendant argues as to the whole FAC that plaintiff failed to comply with Code Civ. Proc. §364(a), which requires to sue for medical malpractice, plaintiff must provide 90 days’ notice of intent to file. The required written notice must notify defendant “of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.” Code Civ. Proc. §364(b-c). Courts have found failure to comply with §364 in medical malpractice actions not jurisdictional and not to afford a basis for striking the complaint. See Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 268.

Defendant’s demurrer is SUSTAINED without leave as to the third cause of action; OVERRULED on all other grounds. Defendant to answer within 15 days.