Judge Helen Zukin, Case Number: 22SMCV01099, Date: 2023-04-26 Tentative Ruling

Judge: Helen Zukin, Case: 22SMCV01099, Date: 2023-04-26 Tentative Ruling

Case Number: 22SMCV01099 Hearing Date: April 26, 2023 Dept: 207

Background

This is an action for elder abuse, violation of patient’s rights, negligence, and wrongful death brough by Plaintiffs Sanford Aaronson, by and through his successor in interest, Kelli Florman, and Tina Florman, by and through her guardian ad litem, Kelli Florman individually (collectively “Plaintiffs”). Plaintiffs’ operative First Amended Complaint (“FAC”) alleges Sanford Aaronson was a resident of a nursing facility owned and operated by Defendant Ocean Park Healthcare LLC dba Ocean Park Healthcare (“Defendant”). Plaintiffs allege Defendants failed to provide required services to Sanford Aaronson, ultimately resulting in his death. Defendant brings this demurrer to Plaintiffs’ causes of action for elder abuse and wrongful death, alleging each fails to state sufficient facts to constitute a cause of action against it under Code Civ. Proc. § 430.10(e). Defendant separately moves to strike Plaintiffs’ claims for attorney’s fees and punitive damages. Plaintiffs oppose Defendant’s motions.

Request for Judicial Notice

Defendant requests the Court take judicial notice of the Declaration of Kelli Florman regarding standing on behalf of Sanford Aaronson, previously filed in this action on July 8, 2022. Particularly, Defendant requests the Court take judicial notice of the death certificate for Mr. Aaronson which is attached to that declaration. The Court may take judicial notice of the records of any Court of record in the United States. (Salazar v. Upland Police Dept.¿(2004) 116 Cal.App.4th 934, 946.) Courts may also take judicial notice of official acts and public records but cannot take judicial notice of the truth of the matters stated therein. (In re Joseph H.¿(2015) 237 Cal.App.4th 517, 541.) Taking judicial notice of a document is not, therefore, the same as the court accepting the truth of the document’s contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal. App. 3d 1023, 1038.) The Court thus can take judicial notice of the existence of such documents but not the truth of their content. Subject to these limitations, Defendant’s request 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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

Motion to Strike Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are: the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Analysis

1. Meet and Confer Requirement

Defendant has not complied with the meet and confer requirements set forth under Code of Civil Procedure §§ 430.41 and 435.5, which required Defendant to meet and confer with Plaintiffs in person or by telephone no less than five days before Defendant’s responsive pleading was due. Defendant was served by substitute service under Code Civ. Proc. § 415.20(a). Such service “is deemed complete on the 10th day after the mailing.” (C.C.P. § 415.20(a).) The mailing in question was done on February 14, 2023, and was thus deemed complete on February 24. “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (C.C.P. § 430.40(a).) March 26, 2023 is 30 days from February 24. As March 26 was a Sunday, Defendant’s had until March 27 to file a responsive pleading. To comply with sections 430.41 and 435.5, Defendant was required to accomplish a telephonic or in-person meet and confer with Plaintiffs no later than March 22. Defendant made no effort to do so, and instead on March 22, emailed correspondence to Plaintiffs demanding Plaintiffs provide their availability for a telephonic meet and confer by the next day and stating if Plaintiffs failed to do so they would proceed with filing the demurrer. (Ex. B to Lebel Decl.) It appears no telephonic or in-person meet and confer ever occurred and thus Defendant thus failed to comply with the meet and confer requirements imposed by sections 430.31 and 435.5. Nonetheless, the Court will consider the merits of Defendant’s demurrer. (C.C.P. §§ 430.41(a)(4), 435.5(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 FAC alleges the following: Sanford Aaronson (“Decedent”) became a resident of Defendant’s facility on July 12, 2021, after he was found disoriented and confused on the side of a road by a police officer. (FAC at ¶19.) At the time he became a resident, he was showing signs of dementia and had difficulty with memory and cognition. (Id.) Defendant was aware Decedent had a history of wandering. (Id. at ¶21.) Plaintiffs allege Decedent required specific care planning to address his risk of wandering and falling, which Defendant failed to provide. (Id. at ¶¶20-24.) Decedent suffered a fall one day into his admission to Defendant’s facility. (Id. at ¶25.) At that time, Decedent did not have rails on his bed or alarms monitoring his movement in the facility. (Id.) Defendant told one Plaintiff that Decedent “requires 24/7 supervision,” which Defendant’s facility was not equipped to provide. (Id. at ¶26.) Following Decedent’s fall an x-ray was performed on Decedent which revealed he had fractured his right hip. (Id. at ¶28.) Decedent’s surgeon determined that surgery could not be performed on his hip as Decedent’s physical condition was too fragile as a result of his lung cancer. (Id. at ¶30.) On July 19, 2021, Decedent returned home on hospice care, and ultimately passed away on August 6, 2021. (Id. at ¶31.)

The FAC further alleges Defendant had a “Duty to provide adequate number of qualified personnel to carry out all functions of the facility and to meet patients’ needs as well as adequate training and competent supervision (Cal. Code of Regs., tit. 22, §§ 72329 and 72329.1; Health & Saf. Code, § 1599.1(a); 42 C.F.R. §§ 483.35, 483.95).” (FAC at ¶37.) It claims Defendant breached its duties by denying Decedent the care that he needed to avoid suffering such an injury. (Id. at ¶¶41-42.) Plaintiffs claim Defendant withheld needed care from Decedent. (Id. at ¶¶43, 47.) The FAC asserts Decedent’s fall was caused by understaffing of Defendant’s facility, which was itself a conscious decision made at the corporate level to increase the profitability of the facility. (Id. at ¶¶47-48, 53-54.) Plaintiffs allege Decedent knew it was putting its residents at risk of injury by choosing to understaff the facility. (Id. at ¶¶50, 55.) Plaintiffs also claim Defendant knowingly hired unfit employees who were incapable or unable to provide the care Decedent needed. (Id. at ¶56.)

Defendant argues these allegations, taken together, do not establish anything more than mere professional negligence was does not rise to the level of elder abuse. Defendant relies on Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331. In Worsham, the plaintiff alleged defendant was required to maintain specific staff-to-patient ratios but was instead chronically understaffed and the staff which were present were unfit to offer needed care. The plaintiff also claimed defendant was aware that she had a risk of falling and failed to have the proper staffing in place to prevent a fall. Plaintiff alleged this failure caused her to suffer a fall which resulted in a broken arm and hip. (Id. at 337-338.) The trial court sustained the defendant’s demurrer and the Sixth Appellate District of the Court of Appeal affirmed, finding “The allegations in the second amended complaint are not sufficient to render [defendant’s] conduct in failing to provide adequate staffing anything more than professional negligence.” (Id. at 338.)

Plaintiffs argue the Second Appellate District reached a different result in Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339. In Fenimore, the plaintiffs’ complaint alleged the decedent was admitted to a hospital which knew he was a fall risk yet left him unattended which resulted in a fall just minutes after he was admitted to the facility. The plaintiffs claimed defendants failed to assess his fall risk and implement an adequate care plan for him. The complaint also alleged the hospital had a pattern and practice of understaffing and undertraining its staff to cut costs, which was a conscious choice made despite knowing that doing so would result in injuries to patients such as the decent. (Id. at 1343-1345.) Finally, the complaint alleged the hospital “also violated several sections of the California Code of Regulations applicable to acute psychiatric hospitals. By way of example, these regulations required it to properly train its staff, have a written patient care plan, and have a sufficient number of staff on hand for the safety of patients.” (Id. at 1344.)

The trial court, relying on Worsham, sustained defendants’ demurrer to plaintiffs’ cause of action for elder abuse without leave to amend, holding the allegations did not qualify as the reckless withholding or denial of care necessary to support a cause of action for elder abuse. (Id. at 1345.) The Court of Appeal reversed:

The FAC supplied allegations that may show recklessness. It alleged the Hospital had a pattern and knowing practice of improperly understaffing to cut costs, and had the Hospital been staffed sufficiently, George would have been properly supervised and would not have suffered injury. On a demurrer, we must accept the allegations as true and express no opinion on whether the Fenimores can ultimately prove these allegations. We must assume the Fenimores can prove by clear and convincing evidence that the Hospital was understaffed at the time George fell, that this understaffing caused George to fall or otherwise harmed him, and that this understaffing was part of a pattern and practice. If they do so, we cannot say as a matter of law that the Hospital should escape liability for reckless neglect.

(Id. at 1349.) These allegations do not appear in Worsham but do appear in Plaintiffs’ FAC in this case as set forth above. Defendant’s reply does not mention Fenimore or offer any rebuttal thereto. The Court finds the FAC falls squarely within the Court’s holding in Fenimore as it plainly asserts Defendant had a pattern and practice of improperly understaffing to cut costs, which resulted in Decedent’s injury. Such facts, if proven by clear and convincing evidence, may be sufficient for a trier of fact to find Defendant acted with the requisite recklessness to support a cause of action for elder abuse.

Defendant also argues the FAC fails to show the involvement or ratification by Defendant’s directors, officers, or managing agents. The Court disagrees. The FAC alleges Arturo Crispino was acting as the designated administrator of the facility and Fatima Hashim was acting as the facility’s director of nursing. (FAC at ¶8.) Plaintiffs claim “The Administrator and the Director of Nursing were managing agents” of Defendant and had care or custody of Decedent. (Id.) They further assert that each of these two individuals, together with Defendant’s directors, officers, and other managing agents, “conceived of and implemented a plan to increase business profits at the expense of residents” by understaffing the facility and undertraining its staff. (Id. at ¶48.) Defendant argues these claims are not supported by sufficient facts, however as set forth above Plaintiffs are only required to pled ultimate facts, not evidentiary ones. Defendant’s arguments go to the merits of Plaintiffs’ claims regarding the involvement of Defendants’ officers and managing agents, not to the sufficiency of the pleadings.

For these reasons, the Court OVERRULES Defendant’s demurrer to Plaintiffs’ cause of action for elder abuse.

3. 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’ FAC asserts a cause of action for negligence. (FAC at ¶¶66-70.) Defendant does not challenge the sufficiency of Plaintiffs’ negligence claim. This negligence claim is incorporated into the wrongful death cause of action. (Id. at ¶71.)

Defendant argues the FAC fails to plead a causal connection between Decedent’s fall and his death. Defendant also points to Decedent’s death certificate, which lists his cause of death as lung cancer. Plaintiffs argue that while the Court may take judicial notice of the existence of the death certificate, it cannot take judicial notice of the truth of any matter asserted therein to conclusively establish the cause of Decedent’s death. The Court agrees the death certificate does not foreclose Plaintiffs from pleading a cause of action for wrongful death. (Bohrer v. County of San Diego (1980) 104 Cal.App.3d 155, 164.) However, this alone does not relieve Plaintiffs of the obligation of pleading a causal connection between the fall and Decedent’s death. The FAC only pleads in conclusory terms that “As a proximate result of the negligent conduct by Defendants, and breaches of the duty owed to Plaintiffs and decedent, and breaches of the standard of care owed, as alleged above, MR. AARONSON died on August 6, 2021.” (FAC at ¶74.) This is a conclusion which is not supported by factual allegations. It is unclear whether Plaintiffs are alleging that Decedent’s fall hastened his death from lung cancer, or they are claiming he did not actually die from lung cancer and instead died because of complications stemming from his fall.

The Court thus SUSTAINS Defendant’s demurrer to the cause of action for wrongful death but will grant Plaintiffs leave to amend to plead a causal connection between the fall and Decedent’s death.

4. Motion to Strike

Defendant also moves to strike Plaintiffs’ claims for attorney’s fees and punitive damages. Defendant acknowledges such remedies are available for causes of action for elder abuse pursuant to Welfare and Institutions Code § 15657, but claims those remedies are unavailable to Plaintiffs because they have failed to sufficiently plead a cause of action for elder abuse. As the Court has rejected this argument in connection with the demurrer, as set forth above, the same result necessarily follows with respect to the motion to strike. Defendant’s motion to strike is DENIED.

Conclusion

Defendant’s demurrer is OVERRULED as to Plaintiffs’ first cause of action for elder abuse and SUSTAINED with 30-days’ leave to amend as to Plaintiffs’ fourth cause of action for wrongful death. Defendant’s motion to strike is DENIED.