Judge: Frank M. Tavelman, Case: 23BBCV02033, Date: 2024-01-05 Tentative Ruling

Case Number: 23BBCV02033    Hearing Date: January 5, 2024    Dept: NCA

1LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

MP:     Pacifica of the Valley Corporation and Pacifica Hospital of the Valley (Defendants)

RP:     Marisol Sanchez, maria Jose Sanchez, & Guadalupe Selene Sanchez, as individuals and successors in interest to Jose Sanchez (Plaintiffs)

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS:

Marisol Sanchez, maria Jose Sanchez, & Guadalupe Selene Sanchez, as individuals and successors in interest to Jose Sanchez (collectively “Plaintiffs”) bring this action against Pacifica of the Valley Corporation, Pacifica Hospital of the Valley (collectively “Pacifica”), Woody Herman Jackson, M.D., Mehboob Ali Makhani, M.D., Edmond Melikterminas, M.D., and Farsheed Nikbakht, M.D. (collectively “Defendants”).  Plaintiffs allege that Defendants failed to assess and address the medical condition and needs of Jose Sanchez (“Decedent”) when he was admitted to Pacifica on July 21, 2022, resulting in his death. 

Pacifica now demurs to the first cause of action in Plaintiffs’ Complaint for elder abuse. Pacifica also moves to strike attorney’s fees and costs associated with that cause of action, as well as Plaintiffs’ request for punitive damages. Plaintiffs oppose and Pacifica replies.

ANALYSIS:

I.                    LEGAL STANDARDS

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. § 436 (b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Zarnibal Decl. Exh. A.)

Alleged Facts

On July 17, 2022, Decedent was admitted to Harbor UCLA Medical Center after being placed on a 72-hour Welfare & Institutions Code § 5150 hold. (Compl. ¶ 19.) On July 21, 2022, Decedent was transferred to Pacifica for continuing psychiatric observations as well as for COVID-19 positive viral infection, depression, and confusion. (Compl. ¶ 20.) Decedent was admitted to Pacifica’s medical psychiatric department. (Compl. ¶ 20.) Upon admission to Pacifica, Defendants ordered that Decedent be placed on a one-to-one psychiatric protocol due to his ongoing suicidal ideations. (Compl. ¶ 20.)

Decedent was determined to be a high fall risk during several nursing and doctor visits, requiring Defendants, nurses, and staff to take fall prevention precautions such as raising his hospital bed side rails, lowering and locking his bed to the lowest position, and providing him with slip resistant footwear. (Compl. ¶ 21.) During his last nursing visit at 7:26 p.m. on July 23, 2022, Decedent was not assessed to be a high fall risk after having been assessed a high fall risk earlier that day. (Compl. ¶ 24.) Plaintiffs allege Defendants knowingly disregarded this fall risk by ignoring past notations and assessments that Decedent was a fall risk and knowingly failed to take the proper fall precautions. (Compl. ¶ 24.)

Sometime in the early morning hours between 1:00 a.m. and 2:15 a.m. on July 24, 2022, Decedent was found on the floor after having fallen and hitting his head on the concrete floor. (Compl. ¶ 25.) Decedent was sent to get a brain CT scan and returned to his room where he was allowed to fall asleep after allegedly showing signs of concussion. (Compl. ¶ 25.) At 8:51 a.m., Decedent was found naked and sitting on his roommate’s bed, appearing confused and in distress. (Compl. ¶ 26.) Decedent began showing respiratory distress, gasping for air and turned unresponsive. (Compl. ¶ 26.) Decedent was pronounced dead at 9:57 a.m. (Compl. ¶ 26.) Plaintiffs allege that Decedent was not properly examined for or diagnosed with pneumonia or other respiratory related ailments. (Compl. ¶ 39.)

Demurrer

Pacifica demurs to the first cause of action of Elder Neglect, arguing the factual allegations in the Complaint do not amount to elder abuse. Pacifica argues these allegations fail to meet the heightened pleading requirements for statutory claims and fail to allege specific facts supporting Plaintiffs’ allegations that Pacifica acted with oppression, fraud, or malice.

To plead elder or dependent adult 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 v. Prime Healthcare Paradise Valley LLC¿(2011) 198 Cal.App.4th 396, 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. v. Superior Court¿(2004) 32 Cal.4th 771, 790).)¿¿ 

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. (See¿Covenant Care, Inc. supra, 32 Cal.4th¿at 783.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature.” (Carter supra, 198 Cal.App.4th at 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.)

Pacifica argues that the factual allegations of the Complaint lack the specificity required to state an elder abuse cause of action. Specifically, Pacifica argues that the Complaint contains no factual allegations as to any action of a Pacifica employee which constituted recklessness, malice, or oppression. Pacifica argues that the examples provided in Carter of such behavior are far from the factual allegations of the Complaint. In Carter the California Court of Appeals discussed situations in which care facilities had (1) failed to provide a man suffering from Parkinson’s disease sufficient food and water and necessary medication and left him unattended for long periods of time, (2) left a woman with a broken ankle lying unattended for long periods of time resulting pressure ulcers, and (3) an elderly man was abused beaten, and unlawfully restrained. (Id. at 406.) Pacifica argues that the conduct alleged in the Complaint does not approach these levels of egregious behavior such that a cause of action of elder abuse is appropriately stated.

The Complaint states that one of Pacifica’s nurses, Avie Janeo, failed to assess Decedent as a high fall risk on July 23, 2022. (Compl. ¶ 24.) After this failure to assess Decedent as being a high fall risk, Decedent suffered a fall and exhibited concussion symptoms. (Compl. ¶ 25.) Decedent was taken to get a CT scan after being found and was then taken back to his room where he was allowed to sleep. (Compl. ¶ 24.)

This Court finds this omission alone does not rise to the level of recklessness, malice, or oppression typically present in elder abuse causes of action. By itself, the Complaint alleges a singular failure of a Pacifica employee to document that Decedent was a high fall risk. The Complaint acknowledges that Decedent was routinely designated a high fall risk by Pacifica employees. In short, the Complaint alleges the need of Decedent as a fall risk were being routinely met by Pacifica and would have continued to be met but for the single omission by a Pacifica nurse. Further, the Complaint alleges that medical assistance in the form of a CT scan was immediately provided to Decedent after his fall was discovered. Plaintiffs also allege Decedent should not have been allowed to fall asleep afterwards.  Such allegations speak to a failure to appropriately render medical care, rather than its complete absence. While this omission may certainly constitute medical negligence, no facts exist which elevate it to the level of elder abuse.

Further, the Complaint is devoid of any allegations of systematic failure on Pacifica’s behalf which would constitute elder abuse. In Fenimore¿v. Regents of University of California, the California Court of Appeal determined that allegations that a hospital engaged in a pattern and practice of understaffing and undertraining its staff to cut costs, which foreseeably resulted in the abuse and neglect of its residents, were sufficient to state a cause of action under the Elder Abuse Act. The Fenimore court found that:

“Worsham's determination that understaffing constitutes no more than negligence may be true,¿absent¿further allegations showing recklessness. But the Fenimores have alleged more than a simple understaffing here. The FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility's elderly and dependent patients, as qualitatively different than simple negligence”]

(Fenimore¿v. Regents of University of California¿(2016) 245 Cal.App.4th 1339, 1350.)

The Fenimore court concluded “Recklessness may be inferred when the neglect recurs in a significant pattern.” (Id.) However, the opinion in Fenimore does not describe what sort of pattern or practice would suffice to infer recklessness. Here, Plaintiffs allege no pattern of understaffing or other systematic inadequacy on Pacifica’s behalf which constitutes reckless behavior. Plaintiff alleges a singular failure to note a high fall risk and a subsequent fall. Without more these allegations are insufficient to state an elder abuse cause of action.

Plaintiffs’ allegations regarding the failure to diagnose any pneumonia symptoms in Decedent are also not indicative of elder abuse. Plaintiffs allege that Defendants failed to diagnose and treat Decedent for his pneumonia which ultimately claimed his life. (Compl. ¶ 39.) These allegations alone speak to medical negligence which is distinguishable from elder abuse. It is clear from the Complaint that Decedent was diagnosed with Covid-19 prior to admission to Pacifica, and that the Defendants noted Decedent as not having any Covid-19 related symptoms or symptoms of poor respiratory function. (Compl. ¶ 22.) This allegation indicates that some medical care was rendered with respect to diagnosing respiratory illness and that no such complications were found.  The failure to diagnose pneumonia is more indicative of medical negligence than elder abuse.

Accordingly, Pacifica’s demurrer to the first cause of action for elder abuse is SUSTAINED with 20 days’ leave to amend.

Motion to Strike

Pacifica moves to strike prayer three of the elder abuse cause of action, which seeks attorney’s fees, costs, and pre-death pain and suffering under Welf. & Inst. Code § 15657. Pacifica also seeks to strike prayer three of the second cause of action for medical negligence, which seeks for punitive and exemplary damages.

The Court notes that Plaintiffs have already voluntarily dismissed the request for punitive damages in this case. As such, the motion to strike those damages is MOOT.

As the Court has sustained the demurrer to the elder abuse cause of action, the motion to strike attorney’s fees, costs, and pre-death pain and suffering damages is also MOOT.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Pacifica of the Valley Corporation and Pacifica Hospital of the Valley’s Demurrer and Motion to Strike came on regularly for hearing on January 5, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER TO THE FIRST CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.   

THE MOTION TO STRIKE PUNITIVE DAMAGES IS MOOT.

THE MOTION TO STRIKE ATTORNEY’S FEES, COSTS, AND PRE-DEATH PAIN AND SUFFERING DAMAGES IS MOOT.

ALL OTHER DATES TO REMAIN.

UNLESS ALL PARTIES WAIVE NOTICE, PACIFICA TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  January 5, 2024                                 _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles