Judge: Frank M. Tavelman, Case: BC673964, Date: 2022-09-02 Tentative Ruling

Case Number: BC673964    Hearing Date: September 2, 2022    Dept: A

MOTION FOR SUMMARY ADJUDICATION

ALLEGATIONS:

Roman Arustamyan, by and through his conservator and guardian ad litem Karine Arustamyan (“Roman”) and Karine Arustamyan (“Karine”) (together as “Plaintiffs”) filed suit against Glendale Adventist Medical Center (“Defendant”) on August 25, 2017. The Third Amended Complaint (“TAC”), filed on May 15, 2019, alleges three causes of action (1) Medical Malpractice; (2) Dependent Adult Neglect; and (3) Loss of Consortium.

Plaintiffs allege Roman was admitted to Glendale Adventist Medical Center on August 16, 2016 for the observation and treatment of an acute mental disorder. Plaintiffs allege that after Defendant performed a psychiatric evaluation of Roman, Defendant was responsible for providing care and treatment. Plaintiffs allege that Defendant was negligent because Roman inflicted self-harm by damaging his eyeball while under the care of Defendant.

HISTORY:

On June 17, 2022, the Court granted Defendant’s Ex Parte Application and specially set its Motion for Summary Adjudication to waive the statutorily mandated minimum notice requirements.

The Court received the Motion for Summary Adjudication filed by Defendant on July 5, 2022; the opposition filed by Plaintiffs on August 19, 2022; and the reply filed by Defendant on August 26, 2022.

RELIEF REQUESTED:

Defendant moves for summary adjudication as to the second cause of action of the TAC.

ANALYSIS:

I.          LEGAL STANDARD

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP § 437c(a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.)

II.        OBJECTIONS

A.    Defendant’s Objections to Plaintiffs’ Evidence

The Court overrules Objection Nos. 1-10 and 13. The Court sustains Objection Nos. 11 and 12 to paragraphs 8 and 9.

III.       MERITS

A.    Second Cause of Action (Dependent Adult Neglect)

Both parties agree on the following:  On August 25, 2016, Roman was a patient in the psychiatric ward at Defendant’s hospital.  Roman was under a one-to-one watch status, which meant that nursing staff was to always observe him. Andrew Iheaka (“Iheaka”), a certified nursing assistant, was assigned to watch Roman that night and claimed that he observed Roman at all times during the shower. Roman nonetheless gouged out and damaged his right eye before Iheaka was able to restrain him.

Defendant argues that Plaintiff cannot show evidence of neglect sufficient to support a dependent elder abuse claim. Defendant asserts that Iheaka was properly assigned to Roman and observed Roman at all times while he was showering. Defendant cites to the Iheaka deposition, where Iheaka testifies that Roman placed his hands on his face as if he were washing his face, that Iheaka then noticed that there was blood and water dripping down Roman’s arm and elbow, and that Iheaka stepped in after he noticed the blood and water to attempt to restrain Roman. (Decl. Levitt, Exh. B Iheaka Depo. 68:7-73:5.) Defendant argues there is no evidence showing Roman unattended, or that nursing staff neglected the one-to-one procedures; if Plaintiffs allege that Iheaka performed his job negligently, that claim falls under medical malpractice and not dependent elder abuse.

In opposition, Plaintiffs argue that a triable issue exists as to whether Iheaka was actually watching Roman during the night of his self-injury. In support, Plaintiffs cite to the Declarations of their Ophthalmologist, Ronald N. Gaster, M.D. (“Dr. Gaster”) and registered nurse, Denise K. Rounds, RN-BC (“Rounds”). Plaintiffs argue that Dr. Gaster and Rounds both opined that Roman would have needed at least 20 minutes to damage his eye to the extent that he did.  As such, Plaintiff urges such a discrepancy creates a triable issue as to whether Iheaka was actually watching Roman during those 20 minutes. (Decl. Gaster, ¶¶ 6-8.) The Court has sustained Defendant’s objection to Rounds’ testimony on the time needed to damage Roman’s eye and so will not consider Rounds’ testimony on this issue.

Plaintiffs asserts that Defendant committed reckless misconduct when no “handoff communication meeting” with Iheaka and the nursing staff member he was relieving occurred.  Iheaka assumed supervision of Roman ignorant to any details other than Roman was a patient one-to-one psychiatric ward patient. (Defendant’s Notice of Lodgment, Exh. B Iheaka Depo.)

In reply, Defendant first argues that Dr. Gaster’s opinion on the eye damage issue does not specify when or where the damage occurred, which leaves open the possibility that some of the eye damage may have occurred prior to the August 25th incident. Defendant also notes that Dr. Gaster did not review the Iheaka Deposition. Second, Defendant argues that a claim for dependent adult neglect requires more than one single act of alleged negligence or misconduct, citing to Sababin v Superior Court (2006) 144 Cal.App.4th 81, 90. Third, Defendant argues that the burden of proof for neglect under the Elder Abuse Act is “clear and convincing evidence,” whereas the declarations of Dr. Gaster and Rounds opine only “more likely than not to a reasonable degree of medical probability,” which is instead the standard for medical malpractice.

Under the Elder and Dependent Adult Civil Protection Act (EADACPA), Welf. & Inst. Code §15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict their ability to carry out normal activities, protect their rights, or whose physical or mental abilities have diminished because of age. (Welf. & Inst. Code § 15610.23(a).) The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering (See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666.) For heightened remedies under EADACPA, “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.) “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404-5, as modified (Aug. 24, 2011) (emphasis original) (internal citations omitted).)

“To obtain the remedies provided by the Act pursuant to section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ [citation] Recklessness refers ‘to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur.’ Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal. App. 4th 81, 88–89 (quoting from Delaney v. Baker (1999) 20 Cal. 4th 23).) When a care facility knows it must regularly provide care, it is liable for dependent abuse if “there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” (Id. at p. 90.)

The Court finds that Plaintiffs failed to satisfy their burden to show that a triable issue of material fact exists as to the dependent adult neglect cause of action. First, both Dr. Gaster and Rounds, Plaintiffs’ only experts, have testified to the standard of “more likely than not to a reasonable degree of medical probability,” which is lower than the “clear and convincing” standard required for a dependent adult neglect claim. Second, Plaintiffs failed to provide evidence showing that Defendant’s negligence or failure to provide medical care constituted a “significant pattern,” rather than a single failure. At most, Plaintiffs have raised a triable issue as to whether Iheaka received proper background information on Roman’s status before he took over the supervisory role, and as to whether Iheaka was watching Roman during the time Roman injured himself in the shower. Plaintiffs do not assert that any misconduct occurred at any other time, or that this instance was part of a pattern of behavior.

While Plaintiffs’ evidence may be sufficient to raise a triable issue on a professional negligence claim, it is not sufficient to do so on a dependent adult neglect claim.  The Court sustains the motion for summary adjudication as to the second cause of action.

IV.       CONCLUSION

The Court thus sustains the motion for summary adjudication as to the second cause of action.

---

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

Defendant Glendale Adventist Medical Center’s Motion for Summary Adjudication came on regularly for hearing on September 2, 2022, 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 MOTION FOR SUMMARY ADJUDICATION TO THE SECOND CAUSE OF ACTION  IS GRANTED.

IT IS SO ORDERED.

DATE:  September 2, 2022                               _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles