Judge: Helen Zukin, Case: 21STCV30727, Date: 2022-10-18 Tentative Ruling
Case Number: 21STCV30727 Hearing Date: October 18, 2022 Dept: 207
Background
This is an action for negligence, elder abuse, violation of
patient’s rights, and wrongful death brough by Plaintiffs Jeri Laird, deceased,
by and through her successor in interest Persephone Laird, as well as by
Plaintiff Persephone Laird in her individual capacity (collectively
“Plaintiffs”). Plaintiffs allege Jeri Laird was a resident of a nursing
facility owned and operated by Defendants Windsor Cheviot Hills, LLC and
Survivors Trust Under the Sampson Family Trust (collectively “Defendants”).
Plaintiffs allege Defendants failed to provide required services to Jeri Laird,
ultimately resulting in her death. Defendants bring this demurrer to
Plaintiffs’ causes of action for elder abuse, violation of patient’s rights,
and wrongful death, alleging each fails to state sufficient facts to constitute
a cause of action against Defendants and is uncertain under Code Civ. Proc. §
430.10(e)-(f).
Request for Judicial Notice
Defendants request the Court take judicial notice of prior
pleadings and filings in this action. Defendants’ request is unopposed and is
GRANTED.
Demurrer Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must
be apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the
pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v.
Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such,
the court assumes the truth of the complaint’s properly pleaded or implied
factual allegations. (Id.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
A special demurrer for uncertainty under Section 430.10(f) is disfavored
and will only be sustained where the pleading is so unintelligible a defendant
cannot reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even
if the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
Analysis
1. Meet and
Confer Requirement
Before filing a
demurrer, the demurring party is required to “meet and confer in person or by
telephone” with the party who filed the pleading demurred to for the purposes
of determining whether an agreement can be reached through a filing of an
amended pleading to resolve the objections to be raised in the demurrer.
(C.C.P. §§ 430.41.) Defendants have not shown this requirement is satisfied. In
a declaration submitted with their demurrer, Defendants assert correspondence
was sent to Plaintiff’s counsel, but does not state whether the parties engaged
in the in-person or telephonic meet and confer required by section 430.41.
(Fischler Decl. at ¶ 5.) Nonetheless the Court will consider the merits of
Defendants’ demurrer. (C.C.P. § 430.41(a)(4).)
2. Elder
Abuse and Neglect
To plead elder 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].)¿¿
“‘[N]eglect’ within the meaning of
Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct
from ‘professional negligence.’” (Covenant Care, supra, 32 Cal.4th at 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.) “Neglect includes the
failure to assist in personal hygiene, or in the provision of food, clothing,
or shelter; the failure to provide medical care for physical and mental health
needs; the failure to protect from health and safety hazards; and the failure
to prevent malnutrition or dehydration.” (Sababin v. Superior Court
(2006) 144 Cal.App.4th 81, 88.)
In order to distinguish elder
abuse from professional¿negligence, there must be a showing of recklessness, fraud,
malice, or oppression. (Id.) “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.)¿There must
be an allegation of authorization or ratification on the part of a managing agent
in order to recover damages for dependent adult abuse against corporate defendants.
(See Civ. Code, § 3294; Cal.¿Welf. & Inst. Code, § 15657(c).)
The Complaint alleges the following:
Jeri Laird’s (“Decedent”) was admitted to Defendants’ facility in October 2019
after suffering a stroke. (Complaint at ¶ 41.) Decedent had a history of
diabetes, hypertension, hyperlipidemia, hypothyroidism, dysarthria, aphasia,
and acute kidney failure, and was dependent on other for daily activities such
as personal hygiene, eating, drinking, and managing her medication. (Id.
at ¶¶ 42, 47.) In June 2020, employees at Defendants’ facility began to fail to
show up for work due to Covid-19. (Id. at ¶ 50.) Decedent contracted
Covid-19 around time, resulting in her hospitalization and subsequent death on
July 18, 2020. (Id. at ¶¶ 50-54.) Defendants failed to provide Decedent
“with the care and treatment she needed, failed to ensure adequate nutritional
and fluid intake, promote and maintain personal hygiene, and monitor and manage
her pain levels. Defendants failed to monitor, assess, and reassess Decedent
JERI's deteriorating condition and to report her changes of condition to her
physician and/or family to arrange for a higher level of care.” (Id. at ¶
66.)
Plaintiffs also claim Defendants
made “a conscious choice to understaff the nursing home, in both quantity and
quality of nursing personnel.” (Id. at ¶ 67.) Plaintiffs allege this was a deliberate choice made by
Defendants to maximize profits of the facility “at the expense of residents”
like Decedent. (Id.) The Complaint also claims this choice was made at
the corporate level in conscious disregard for the likelihood of physical harm
and injury to residents such as Decedent, who was harmed by this choice. (Id.
at ¶¶ 67, 72-74, 76-78.)
The Complaint also claims
Defendants breached their duties to Decedent by: “failing to implement policies
and procedures to ensure resident care needs are met; failing to provide
training on the policies and procedures to ensure resident care needs are met;
failing to ensure physician care is provided; failing to plan a budget whereby
staffing levels are adequate; failing to allocate sufficient resources to staff
Defendant FACILITY in both quantity and quality caregivers; and failing to
comply with state and federal laws and regulations pertaining to SNFs.” (Id.
at ¶ 61.)
Defendants argue these allegations
are insufficient to state a claim for elder abuse against them. The Court
agrees. The central allegation of elder abuse appears to stem from the claim
that Defendant’s facility was understaffed and/or not adequately staffed. But
the Complaint does not allege facts showing how these staffing issues caused or
contributed to Decedent’s death from Covid-19 or allege Decedent was otherwise
harmed by such conduct. Plaintiff does not identify any medical care which was
allegedly withheld from Decedent. Indeed, the Complaint alleges Decedent was
transferred to a hospital to receive care when she developed Covid-19. Nor does
the Complaint include any factual allegations as to any practices or procedures
which could have been undertaken to prevent Decedent from contracting Covid-19
which were not utilized or implemented because of these alleged staffing
issues. The same is true for the other allegations of abuse in the Complaint.
For example, Plaintiffs allege Defendants failed to promote and maintain
Decedent’s personal hygiene, but do not identify how Defendants failed to do so
or how such a failure harmed Decedent. As set forth above, elder abuse is a
statutory claim which must be pled with specificity. Plaintiffs’ assertion of
conclusory allegations that Defendants breached duties toward Decedent without
identifying facts establishing those breaches and resulting harm to Decedent
are insufficient. Accordingly, the Court SUSTAINS Defendants’ demurrer to the first
cause of action for elder abuse. As the Court finds this insufficiency could be
cured by further amendment, the Court will grant Plaintiffs leave to amend this
cause of action.
3. Violation
of Patient’s Rights
Plaintiffs’
second cause of action is for violation of patient’s rights under Health and
Safety Code § 1430. Section 1430(b)(1) provides “[a] current or former resident
or patient of a skilled nursing facility . . . may bring a civil action against
the licensee of a facility who violates any rights of the resident or patient
as set forth in Section 72527 or 73523 of Title 22 of the California Code of
Regulations, or any other right provided for by federal or state law or
regulation.” (Health & Safety Code, § 1430(b).) “The licensee shall be
liable for the acts of the licensee’s employees.” (Id.) Violation of
section 1430 is an allegation of statutory violations and thus must be pled
with particularity. (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 604.)
As with
the claim of elder abuse, Defendants allege Plaintiffs’ claim of violation of
section 1430 is not pled with sufficient factual specificity. In response
Plaintiffs point to paragraph 82 of the Complaint as satisfying its pleading
obligations. Paragraph 82 sets out a list of rights set forth in sections 72527
or 73523 of Title 22 of the California Code of Regulations, including the
rights “to be treated with consideration, respect, and full recognition of
dignity,” “to have individualized individual care needs identified based on assessment
of patient’s needs with input from patient and, if necessary, health
professionals involved in the care of the patient,” and “to have a record of
nurses’ notes that are clear and legible, dated and signed, among other
qualifications, including narratives or how a patient responds, eats, drinks,
looks, feels, and reacts.” (Complaint at ¶ 82.) In paragraph 83, Plaintiffs
allege “Defendants violated the above-referenced patient’s rights when they
failed to provide appropriate services to prevent serious injury to Decedent
JERI.” (Id. at ¶ 83.)
The
Court finds this is insufficient to plead a cause of action for violation of
patient’s rights under Health and Safety Code § 1430. As with the claim for
elder abuse discussed above, Plaintiffs’ claim under section 1430 must be pled
with particularity. The Complaint here merely provides a list of patient’s
rights and states in one conclusory sentence that Defendants violated each of
these rights without providing factual allegations as to how Defendants are
alleged to have violated these rights or how such violation resulted in harm to
Decedent. Accordingly, the Court SUSTAINS Defendants’ demurrer to this cause of
action with leave to amend.
4. Wrongful
Death
“The
elements of a cause of action for wrongful death are a tort, such as negligence,
and resulting death.” (Lopez v. City of Los Angeles (2011) 196
Cal.App.4th 675, 685.) Plaintiffs’ Complaint asserts a cause of action for
negligence. (Complaint at ¶¶ 85-88.) Defendants do not challenge the
sufficiency of Plaintiffs’ negligence claim. This negligence claim is
incorporated into the wrongful death cause of action. (Id. at ¶ 89.) Plaintiffs
allege Decedent’s resulting death as a result of the claimed negligence of
Defendants. (Id. at ¶ 91.)
The only
specific argument raised by Defendants with respect to the wrongful death claim
concerns Plaintiffs’ compliance with Code Civ. Proc. § 377.32. Section
377.32(a) requires a plaintiff asserting a wrongful death claim as the
decedent’s successor in interest to file an affidavit or declaration stating:
(1) The decedent’s
name.
(2) The date and place
of the decedent’s death.
(3) “No proceeding is
now pending in California for administration of the decedent’s estate.”
(4) If the decedent’s
estate was administered, a copy of the final order showing the distribution of
the decedent’s cause of action to the successor in interest.
(5) Either of the
following, as appropriate, with facts in support thereof:
(A) “The affiant or
declarant is the decedent’s successor in interest (as defined in Section 377.11
of the California Code of Civil Procedure) and succeeds to the decedent’s
interest in the action or proceeding.”
(B) “The affiant or
declarant is authorized to act on behalf of the decedent’s successor in
interest (as defined in Section 377.11 of the California Code of Civil
Procedure) with respect to the decedent’s interest in the action or
proceeding.”
(6) “No other person
has a superior right to commence the action or proceeding or to be substituted
for the decedent in the pending action or proceeding.”
(7) “The affiant or
declarant affirms or declares under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.”
(C.C.P. § 377.32(a).) A certified
copy of the decedent’s death certificate must also be attached to this
affidavit or declaration. (C.C.P § 377.32(c).)
Plaintiffs admit no such
declaration was filed with the Complaint. Plaintiffs instead rely on a
declaration from Plaintiff Persephone Laird which was filed on July 14, 2022,
the same day as Plaintiffs’ opposition to this demurrer. Defendants argue this
July 14 declaration is insufficient. The Court agrees with Defendants. The
declaration filed by Plaintiffs satisfies the requirements of section
377.32(a), however while it purports to attach a certified copy of the
decedent’s death certificate pursuant to section 377.32(c), no such certificate
is attached. Accordingly, the Court SUSTAINS Defendants’ demurrer to this cause
of action. As the failure to attach the required certified copy of Decedent’s
death certificate can be cured by further amendment, the Court grants
Plaintiffs leave to amend this claim.
Conclusion
Defendants’ demurrer to the first, second, and fourth causes
of action asserted in Plaintiffs’ Complaint is SUSTAINED with 30 days’ leave to
amend.