Judge: James L. Crandall, Case: 21-1199173, Date: 2022-10-20 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendants’ Silverado Senior Living Management and Silverado Newport Mesa, LLC Motion for Summary Judgment, or in the Alternative, Adjudication, filed on 6-8-22 under ROA 149 is DENIED.

Plaintiff’s Objections Nos. 1 through 3 to the Declaration of Karen Josephson, M.D. are SUSTAINED. The court refers the objections as Nos. 1-3 even though the Plaintiff failed to number them consecutively in compliance with the California Rules of Court, rule 3.1354(b).

Defendants’ Objections Nos. 1 and 2 to the Declaration of Cristina Flores, RN, BSN, Ph.D. are SUSTAINED and No. 3 is OVERRULED. The court refers the objections as Nos. 1-3 even though the Defendants failed to number them consecutively in compliance with the California Rules of Court, rule 3.1354(b).

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that 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 that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.”

Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition to the motion.”

Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in original.) “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id., at pp. 854-855; Footnotes 23 and 24 omitted; Italics in Aguilar.)

Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)

The allegations of the complaint delimit the scope of the issues on a motion for summary judgment. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1499.)

To obtain summary judgment, a defendant must negate all of the theories of liability tendered by the complaint. (See Aguilar, 25 Cal.4th at 850-851; Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1115.)

Defendants Silverado Senior Living Management and Silverado Newport Mesa, LLC move for summary judgment or summary adjudication as to the causes of action for (1) elder abuse/neglect, (2) negligence, (3) financial elder abuse, and (4) wrongful death.

1. First cause of action—Elder Abuse

Defendants contend that the first cause of action for elder abuse is without merit because the care, treatment, and supervision rendered to Alma Vanasse by Silverado Senior Living Newport Mesa, Silverado Senior Living Management, Inc. dba Silverado Senior Living Newport Mesa and Silverado Newport Mesa, LLC, and their employees, complied with the standard of care in the community and because Silverado and facility employees did not neglect Alma Vanasse, were not reckless in their care and treatment of Ms. Vanasse, were not fraudulent or malicious in their care and treatment of Alma Vanasse, no act or omission by Silverado or the facility employees in the course and scope of the care and treatment they provided to Ms. Vanasse could be characterized as elder abuse.

The elements of a cause of action for Elder Abuse based upon neglect are: (i) Defendant had a substantial caretaking or custodial relationship with plaintiff/decedent, involving ongoing responsibility for plaintiff’s basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance; (ii) That plaintiff/decedent was 65 years of age or older while in defendant's care or custody; (iii) That defendant failed to use the degree of care that a reasonable person in the same situation would have used in providing for plaintiff/decedent’s basic needs; (iv) That plaintiff/decedent was harmed; and (v) Defendant's conduct was a substantial factor in causing plaintiff/decedent's harm. (Welf & Inst. Code §§ 15610, et seq.; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; CACI 3103.)

Elder abuse is defined in Welf. & Inst. Code §15610.07 as physical abuse, neglect, abandonment, isolation, abduction or other treatment resulting in physical harm, pain or mental suffering or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Neglect is defined in Wel. & Inst. Code §15610.57(a) (1) as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.”

Welf. & Inst. Code, § 15610.57 provides: “(b) Neglect includes, but is not limited to, all of the following: ¶ (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. ¶ (2) Failure to provide medical care for physical and mental health needs. A person shall not be deemed neglected or abused for the sole reason that the person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment. ¶ (3) Failure to protect from health and safety hazards. ¶ (4) Failure to prevent malnutrition or dehydration. ¶ (5) Substantial inability or failure of an elder or dependent adult to manage their own finances.”

As stated in Benun v. Superior Court (2004) 123 Cal.App.4th 113, 123-124: “The Elder Abuse Act's goal was to provide heightened remedies for “acts of egregious abuse” against elder and dependent adults, while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence (citation omitted). ¶ Thus, Delaney makes clear that a cause of action for custodial elder abuse against a health care provider is a separate and distinct cause of action from one for professional negligence against a health care provider. It follows that egregious acts of elder abuse are not governed by laws applicable to negligence.”

“The plaintiff must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect. (Welf. & Inst. Code, § 15657.)

Oppression, fraud and malice “involve ‘intentional,’ ‘willful,’ or ‘conscious' wrongdoing of a ‘despicable’ or ‘injurious' nature.” (Delaney, at p. 31, 82 Cal.Rptr.2d 610, 971 P.2d 986.)

Recklessness involves “ ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur” and “rises to the level of a ‘conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.’ ” (Id. at pp. 31–32, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Thus, the enhanced remedies are available only for “‘acts of egregious abuse’ against elder and dependent adults.” (Id. at p. 35, 82 Cal.Rptr.2d 610, 971 P.2d 986; see also Covenant Care, supra, 32 Cal.4th at p. 786, 11 Cal.Rptr.3d 222, 86 P.3d 290 [“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs”].)

In short, “[i]n order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, at p. 789, 11 Cal.Rptr.3d 222, 86 P.3d 290.)” (Id. at p. 405)

Defendants set forth material undisputed facts 1 through 104. The factual statements are sufficient to meet Defendants’ initial burden.

Plaintiffs object to the declaration of Karen Josephson, M.D.’s opinions regarding whether decedent was neglected, whether the employees were reckless, fraudulent, malicious, and whether any act or omission by the facility or Silverado employees in the course of the care and treatment they provided to Ms. Vanasse could be characterized as elder abuse.

As stated above, the Court sustains the objections are they appear to be improper legal opinions by an expert when the standard is a reasonable person standard. Nonetheless, the facts submitted in support of those opinions are sufficient to meet the initial burden.

In support of their Opposition, Plaintiff provides the following facts and opinions of expert, Cristina Flores, BSN, RN, Ph.D:

1. Prior to Ms. Vanasse’s admission to Silverado, a Physician’s Report for RCFE was completed by Dr. Yang, who indicated that Ms. Vanasse demonstrated “sundowning behavior”. “Sundowning” is defined as a condition in which persons with cognitive impairment experience recurring confusion, disorientation, and increasing levels of agitation that typically coincide with the onset of late afternoon and evening. The standard of care required Silverado to meet the safety, activities, and supervision needs related to Ms. Vanasse’s sundowning behavior. She in fact displayed behavior consistent with sundowning throughout her admission at Silverado to include increased agitation, restlessness, wandering, and exit seeking behavior during the late afternoon hours. Notably, Ms. Vanasse sustained the fatal fall event at a time of the day when she would have been exhibit sundowning behavior. Silverado breached the standard of care by failing to plan for Ms. Vanasse’s sundowning behaviors and failing to implement an appropriate program activity or resident diversion. For instance, there is no documentation in Ms. Vanasse’s resident file, particularly her service plan, indicating that Silverado anticipated her sundowning behavior and planned her daily schedule to accommodate beneficial late day and early evening activity. Silverado failed to assess her mood to determine an appropriate activity offered such as the need for large motor skills programs (e.g., dancing, outdoor walks, exercise, physical games); repetitive activities (e.g., folding, wiping, sweeping); role language skills (e.g., sing a-longs, familiar poetry recitation); or, calming/soothing activities (e.g., shoulder massage, soft music, family photo album review, pet visits, snack with hydration). Silverado also failed to ensure Ms. Vanasse avoided activities with cognitive demand during the sundowning hours. If an RCFE admits or retains a resident with sundowning behavior, Title 22 California Code of Regulations (C.C.R.)§ 87705(c)(7) required Silverado to provide sufficient staff to care for and supervise Ms. Vanasse’s behavior. In sum, Silverado repudiated its responsibility entirely to assess for Ms. Vanasse’s individual needs as it related to her sundowning behaviors, which jeopardized her health and safety. (Flores Decl., ¶8, Exhibit “1”).

2. On 9/9/20, Alma Vanasse was admitted to Silverado. She was described as being disoriented to person, place, time or situation even in familiar surroundings and requires supervision and oversight for safety. Silverado’s service plan however failed to provide any specific guidelines for the supervision and oversight intervention, to include, who would supervise her, when she would be supervised or how often. Silverado’s lack of specificity was a breach in the standard of care. The evaluation also incorrectly stated that Ms. Vanasse did not have a current or history of wandering. Ms. Vanasse displayed exit-seeking behaviors. On 9/10/20, she was noted as trying to open doors and stated that she has to get to her car. She was placed on a behavior mapping program that required Silverado’s staff to observe Ms. Vanasse every one-half hour for the first 72 hours of her admission and identify her behavior and location within the facility. Silverado’s staff only sporadically monitored her behavior. For instance, her behavior was never monitored on the 11-7 shift and between 7:30 p.m. and 10:30 p.m. The Behavior Mapping Program was designed to identify patterns in her behavior and implement interventions accordingly. Silverado’s failure to complete behavior mapping for Ms. Vanasse was a breach in the standard of care and resulted in an inadequate and incomplete service plan. A service plan provides the staff with a guide for an individual’s care, identifying a problem or need, the goal related thereto, and the interventions designed to achieve that goal. (Flores Decl., ¶10, Exhibit “1”).

3. On 9/12/20, Ms. Vanasse was found on the floor at approximately 4:00 p.m. in the dining room. She was found sitting on her buttocks. She required a two person assist to transfer from the sitting position to standing. Both her knees were noted to be sore, and she was noted with an abrasion with visible blood to her right knee. Ms. Vanasse’s physician was not notified until 9/18/20, an unreasonable delay resulting in the deprivation of physician-driven medical care to address Ms. Vanasse’s fall risk. Ms. Vanasse’s service plan was updated with an additional intervention to prevent her from falling: “monitor and assist as needed for safety.” Again, Silverado’s service plan failed to provide any specific guidelines for the supervision and oversight intervention, to include, who would supervise her, during what times of day she would be supervised, and how often or frequently she would be supervised throughout the day. Silverado’s failure to develop an individualized plan of care to meet Ms. Vanasse’s safety needs breached the standard of care. (Flores Decl., ¶11, Exhibit “1”).

4. On 9/14/20, Ms. Vanasse was observed walking around the neighborhood trying to open the doors to leave the facility. Later that day, she was noted to be banging on welcome area doors and wanting to leave. She was described as not easy to redirect so PRN medication was given. The standard of care required Silverado to develop and implement a behavioral management plan to address Ms. Vanasse’s exit-seeking behavior. Silverado breached the standard of care by failing to develop a behavioral management plan and implement it as part of Ms. Vanasse’s service plan. (Flores Decl., ¶12, Exhibit “1”).

5. Behavior Mapping performed by Silverado’s staff for a period of 4 days from 10/6 to 10/9 indicates that Ms. Vanasse displayed exit seeking behavior as follows: on 10/6/20 between the hours of 1:00 p.m. and 2:30 p.m., on 10/7/20 between the hours of 1:30 p.m. and 4:30 p.m., and from 6:30 p.m. until 8:00 p.m., and on 10/8/20 between the hours of 1:00 p.m. and 5:30 p.m., and on 10/9/20 from 3:00 p.m. until 4:30 p.m. This behavior coupled with the time of the day is consistent with sun-downing behavior. The Behavior Mapping form was not reviewed or analyzed by anyone as evidenced by the blank signature line on the form. Thus, Silverado failed to identify patterns seen with Ms.

Vanasse’s behavior and failed to develop and initiate the necessary corresponding interventions. Silverado failed to develop/implement a behavioral plan of care to manage her sun-downing behavior which manifested as attempting to leave the facility; this is a breach in the standard of care. Silverado also breached the standard of care by failing to notify Ms. Vanasse’s responsible party/daughter, Laura Crosson, about her behavior, in violation of Title 22 C.C.R. § 87463(b). (Flores Decl., ¶13, Exhibit “1”).

6. On 10/8/20, Breanna Pritchard performed a “Health and Service Evaluation” for Ms. Vanasse. Pritchard noted that Ms. Vanasse has a current history of wandering within the residence or facility and may wander outside but does not jeopardize health or safety of self or others. She indicated that Ms. Vanasse may have a behavior management plan in place but failed to develop a plan. Ms. Vanasse was noted with a current history of occasional poor judgment and that she “needs protection and supervision” due to “unsafe and inappropriate decisions.” She was also assessed by Pritchard as a “Moderate to High Risk” for falls. The intervention to address her fall risk was “cues for safety”. The intervention was not specific as to what cues for safety would be provided, under what circumstances the cues should be provided, who would provide the cues, how often the cues should be provided, during what times of the days the cues would be provided, etc. Silverado’s lack of specificity and particularity related to Ms. Vanasse’s individual safety needs breached the standard of care. Silverado’s failure to determine the amount of supervision necessary for Ms. Vanasse, who tended to wander and was confused and forgetful, violated Title 22 C.C.R. § 87461. Given the degree of Ms. Vanasse’s fall risk, Silverado’s fall plan of care did not meet the standard of care and violated C.C.R. § 87464(f)(1) which states that at basic care at a minimum should include care and supervision as defined by § 87101(c)(3) and Health & Safety Code § 1569.2(c). (Flores Decl., ¶15, Exhibit “1”).

7. A review of the “Progress Notes” contained in Ms. Vanasse’s resident file indicates that there was no assessment by Silverado’s nursing staff of her physical, cognitive or functional status between 9/25/20 and 12/13/20. Silverado’s lack of assessments breached the standard of care considering Ms. Vanasse’s exit-seeking behavior and Silverado’s decision to initiate and administer several medications during this time to address her behavior, medication which had the potential for adverse side-effects such as increased fall risk (e.g., Xanax). (Flores Decl., ¶16, Exhibit “1”).

8. Silverado’s Privilege Log indicates that Ms. Vanasse had bruising to her torso on 12/25/20. Silverado failed to document this significant injury in Ms. Vanasse’s resident file and failed to notify her physician or responsibility party in breach of the standard of care and in violation of § 87463(b). Bruising to the torso should be investigated to rule out possible physical abuse, as bruising to the trunk of an elderly person should be viewed as having a high index of suspicion for elder abuse. Silverado breached the standard of care by failing to take any action after discovery the bruising to Ms. Vanasse’s torso. (Flores Decl., ¶18, Exhibit “1”)

9. Silverado’s Privilege Log indicates that Ms. Vanasse was found on the floor on 1/5/21. Silverado breached the standard of care by failing to document the facts/circumstances of the incident in Ms. Vanasse’s progress notes. There is no indication in her resident file that this significant change of condition was endorsed to the subsequent shifts. Silverado also failed to notify Ms. Vanasse’s physician or responsible party, a breach in the standard of care. (Flores Decl., ¶20, Exhibit “1”).

10. On 1/7/21, Ms. Vanasse’s Service Plan was updated to reduce her risk of falling with monitoring devices to include tab alarm, pressure alarm, and 1 to 1 monitoring. Her Service Plan still required Silverado’s staff to monitor and assist as needed for safety. The Service Plan also noted that Ms. Vanasse demonstrated “exit seeking” behavior and that she would maintain safety with wandering. The Service Plan indicated that her exit seeking behavior would be “identified” and “prevented with re-direction”. The Service Plan also instructed the staff to identify Ms. Vanasse’s behavioral needs and implement a treatment plan to prevent injury. The Service Plan also required the staff to “encourage frequent periods of rest” due to her increase in weakness due to her COVID infection. Ms. Vanasse’s service plan was amended to require “hands on assistance from staff member(s)” with mobility/ambulation and “escorts” and an “assistive device”. Ms. Vanasse’s resident file does not contain any evidence showing that these interventions were implemented as required by her service plan, which is a breach in the standard of care. (Flores Decl., ¶21, Exhibit “1”).

11. On 1/8/21, Ms. Vanasse was noted with increased weakness. She had a medium amount of yellowish emesis. She was noted with a 6 cm x 6 cm bruise on the top of her head. She was also noted with another bruise, a 2 cm x 2 cm purplish discoloration on her right arm by her elbow area. The note then indicates that she was found on the floor three days earlier on 1/5/21. These facts suggest that Ms. Vanasse sustained a fall with a head-strike on 1/5/21. Silverado breached the standard of care by failing to inform Ms. Vanasse’s physician or responsible party about the fall and related head trauma. Silverado breached the standard of care by failing to amend, revise, or modify Ms. Vanasse’s service plan on 1/5/21 with the "found on floor” incident. (Flores Decl., ¶22, Exhibit “1”).

12. On 1/13/21, Ms. Vanasse was noted with a decline in her ability to ambulate. She required “hands on assistance by staff members”. As a result of her decline, Ms. Vanasse’s Health Service Evaluation indicated that she required escorts and an assistive device for mobility/ambulation. The evaluation notes a decrease in Ms. Vanasse’s mobility, balance, and gait. Further indicating Ms. Vanasse’s functional decline, was the finding that she required occasional hands-on assistance with transfers and changes in position. The ambulatory aides for Ms. Vanasse were noted to be “bed rest” and “nurse assist”. Silverado noted an increase in her fall risk due to her functional decline. It was also noted that she had a history of falling within the last three months. The interventions developed by Silverado to address Ms. Vanasse’s fall risk included “cues for safety” and a “landing pad”. Ms. Vanasse’s Service Plan was revised the next day on 1/14/21 by Pritchard, who inexplicably eliminated the interventions intended to reduce her risk of falling, i.e., the monitoring devices to include tab alarm, pressure alarm, and 1 to 1 monitoring. The Service Plan noted that Ms. Vanasse suffered from decreased balance and gait. Ms. Vanasse’s fall risk had increased substantially given her physical decline. In conscious disregard for Ms. Vanasse’s safety, rather than adding interventions to prevent Ms. Vanasse from falling, Defendants eliminated fall precautions, which increased her risk of sustaining fall-related injuries. (Flores Decl., ¶24-25, Exhibit “1”).

13. Silverado breached the standard of care by failing to supervise or assist Ms. Vanasse while she ambulated unassisted outside of the facility on 3/9/21. California Health & Safety Code § 1569.312 required Silverado to monitor the activities of Ms. Vanasse to ensure her general health, safety, and well-being. Section 1569.312 also required Silverado to be aware of Ms. Vanasse’s general whereabouts. Silverado violated these statutes in the care of Ms. Vanasse during the afternoon of 3/9/21. She was discovered by another resident, down on the concrete, on the side of the building. Ms. Vanasse’s Service Plan also required staff to “encourage frequent periods of rest” due to her increase in weakness due to her COVID infection. Ms. Vanasse’s service plan was amended to require “hands on assistance from staff member(s)” with mobility/ambulation and “escorts” and an “assistive device”. Silverado breached the standard of care by failing to provide any of these interventions while Ms. Vanasse wandered around in the outdoor areas unassisted on 3/9/21. Silverado’s staff failed to follow their own care plan for Ms. Vanasse, which shows a disregard for her health and safety. (Flores Decl., ¶30, Exhibit “1”)

14. Silverado’s staff also mismanaged Ms. Vanasse’s head injury on 3/9/21. The standard of care required Silverado to immediately call 911 when she was found outside on the concrete with blood coming out of her ear and nose and vomit on the ground next to her. These are hallmark findings consistent with a significant head injury. Silverado is not a licensed healthcare provider. Ms. Vanasse required immediate medical attention for her fall-related head injury. The standard of care required Silverado to call 911 immediately even if the resident is receiving hospice services pursuant to Title 22 C.C.R. § 87469(c)(3). Silverado also breached the standard of care by moving Ms. Vanasse from the ground and taking her inside to her bedroom after she sustained an obvious head injury. When a person sustains a significant head injury, the individual should not be moved unless absolutely necessary. Silverado breached the standard of care by failing to immediately summon emergency assistance and by getting Ms. Vanasse up, putting her in a wheelchair and taking her inside. (Flores Decl., ¶33, Exhibit “1”).

15. Ms. Vanasse experienced at least three documented falls while at Silverado, and likely several other falls which were not documented as evidenced by various instances of unexplained bruising during December 2020 and January 2021. After each fall, Silverado failed to complete a “Fall Intervention Check List” and “Post-Fall Root Cause Analysis” in violation of its “Fall Prevention Guideline” Policy & Procedure (“P&P”), which indicates that falls are the leading cause of fatal and non-fatal injuries for people 65 and older. Silverado’s failure to conduct post-fall analysis after each of Ms. Vanasse’s falls is a significant breach in the standard of care because this is the process used to review contributing factors to the falls and ways to eliminate those factors to prevent recurrent falls. Silverado’s policy and procedures instructs the facility to implement various fall prevention techniques to include fitness programs, exercise programs, Vitamin D, PT evaluation, reduction of polypharmacy, reduction of psychoactive drugs, good nutrition, and environmental safety. Silverado did not implement any of these measures to prevent Ms. Vanasse from falling, despite the fact she suffered multiple falls during her residency at Silverado. (Flores Decl., ¶34, Exhibit “1”).

16. The acts and omissions of Silverado and its staff demonstrates a conscious disregard for the strong likelihood of physical harm and injury to Ms. Vanasse, given the staff’s failure to follow the facility’s own policies and procedures, the failure to implement her plan of care regarding fall prevention, the failure to develop an individualized fall plan of care to meet her safety needs, and the failure to notify Ms. Vanasse’s physician and responsible party of significant changes in her physical condition during the time that she was under Silverado’s care. (Flores Decl., ¶36, Exhibit “1”)

Plaintiff cites to Sababin v. Superior Court (2006) 144 Cal.App.4th 81. There, deceased patient's successors in interest sued rehabilitation center for dependent adult abuse. The Trial Court granted summary adjudication for rehabilitation center. Successors in interest filed petition for writ of mandate. The Court of Appeal held that triable issues existed as to whether rehabilitation center's employees were guilty of reckless, oppressive or malicious neglect under Elder Abuse and Dependent Adult Civil Protection Act. The Court held the following: “According to the Department's April 28, 2003 survey, Renteria's December 19, 2002, care plan “indicated that staff would monitor skin daily for redness or breakdown and report to the physician for a treatment order.”8 It was noted that on admission to East Valley, Renteria “had lacerations on her toes and feet with poor skin condition on both buttocks” and that a nurse stated that “the buttocks area was dark and red and felt squishy.” Also, her heel was bruised and had areas of redness. Despite the foregoing, Covina did not have any documentation of Renteria's skin condition. When Covina's treatment nurse was interviewed, she stated that she had not done a skin condition report for Renteria and was not aware of Renteria's reddened buttocks. A review of Covina's records indicated that there was no evidence of Renteria's *90 right foot condition or reddened buttocks. Renteria's medical chart revealed that no one at Covina notified a physician of the need for a treatment order. ¶ In determining whether there are any triable issues, we are required to consider the reasonably deducible inferences from the evidence. (Code Civ. Proc., § 437c, subd. (c).) From the Department's survey, it is reasonably deducible that Covina's employees neglected to follow the care plan by failing to check Renteria's skin condition on a daily basis and failing to notify a physician of the need for a treatment order. Thus, there is a triable issue as to whether Covina's employee's conduct was neglect under section 15610.57 because they failed to provide Renteria with medical care for physical needs and to protect her from health and safety hazards. Moreover, when the evidence and inferences are liberally construed, we easily conclude that there is a triable issue as to whether Covina's employees acted with recklessness, oppression or malice. A trier of fact could find that when a care facility's employees ignore a care plan and fail to check the skin condition of a resident with Huntington's Chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89–90.)

Here, there is evidence that Ms. Vanasse’s Service Plan was revised on 1/14/21 by Pritchard, who inexplicably eliminated the interventions intended to reduce her risk of falling, i.e., the monitoring devices to include tab alarm, pressure alarm, and 1 to 1 monitoring. These protocols were meant to keep Ms. Vanasse safe considering her risk for falling had increased.

Furthermore, there is evidence that Defendants failed to follow the Service Plan by allowing Ms. Vanasse to wander unsupervised and unassisted on 3-9-21.

Based on the foregoing, Plaintiff raises a triable issue of material fact as to whether Defendant consciously disregarded Ms. Vanasse’s care plan when it revised it and allowed her to walk outside unsupervised.

Accordingly, the Court DENIES the Motion for Summary Adjudication as to the first cause of action and the Motion for Summary Judgment.

2. Second cause of action—Negligence

Defendants contend that the second cause of action for negligence is without merit because the care, treatment, and supervision rendered to Alma Vanasse by the facility, Silverado, and their employees, complied with the standard of care in the community and because there is nothing the facility, Silverado, or their employees, did or failed to do that caused or contributed to injury to, or the death of, Alma Vanasse.

Regarding the negligence cause of action, the Complaint alleges the following 52. During Ms. VANASSE’s residency at SILVERADO SENIOR LIVING – NEWPORT MESA, Defendants SILVERADO SENIOR LIVING MANAGEMENT, INC. dba SILVERADO SENIOR LIVING – NEWPORT MESA; SUBTENANT 350 W. BAY STREET, LLC, dba SILVERADO SENIOR LIVING – NEWPORT MESA; and DOES 1 through 40, their employees, and/or agents, negligently failed to care for Ms. VANASSE, causing her to fall and multiple occasions and sustain significant head trauma and a traumatic brain injury. These actions, to include others, are negligent and fell below the duty of care owed by the Defendants to Ms. VANASSE. At the time of Ms. VANASSE’s residency at SILVERADO SENIOR LIVING – NEWPORT MESA, there were statutory and regulatory duties imposed upon the Defendants, and each of them, which were violated by Defendants, and each of them, as set forth herein and below … d. To provide basic services, which shall at a minimum include care and supervision in accord with C.C.R. § 87464(f)(1); …”

The elements of professional negligence are: 1. A duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; 2. a breach of that duty; 3. a proximate causal connection between negligent conduct and resulting injury; and 4. actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2; see also CACI 500, citing Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

When a defendant moves for summary judgment on a claim for professional negligence and supports the motion with expert declarations that its conduct fell within the community standard of care, it is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

Similarly, as to causation, the plaintiff must offer an expert opinion that contains a reasoned explanation showing why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of plaintiff’s injury. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781.)

Defendants provided the declaration of Karen Josephson, M.D. who stated the following, establishing Defendants met the standard of care:

· “I am familiar with the standard of care as it existed in 2020, 2021, and currently in Southern California for the care provided in residential care facilities for the elderly ("RCFE"), including care and supervision of RCFE residents with medical conditions such as those presented by Alma Vanasse. Based upon my review of Ms. Vanasse's records and other documents, as well as my knowledge, training, and experience, it is my opinion that the care, treatment, and supervision rendered to Alma Vanasse by the facility, Silverado, and their employees, complied with the standard of care in the community.” (¶ 5)

· “It is my opinion that Ms. Vanasse's service plans adequately addressed her fall risk and implemented interventions that were within the standard of care, including a lowered bed and bed alarm. Moreover, Ms. Vanasse's service plans were adequately addressed and updated after her falls on September 12, 2020, and January 5, 2021, with updates completed on September 14, 2020 (date plans initiated), October 8, 2020, and January 7, 2021. In my expert opinion, the service plans and fall prevention measures for Ms. Vanasse were within the standard of care during her admission at the facility.” (¶ 6)

· “It is also my expert opinion that it was within the standard of care for Ms. Vanasse to be unaccompanied in the courtyard of the facility on March 9, 2021. Alma Vanasse was independent with ambulation on March 9, 2021. Ms. Vanasse had dementia and received hospice care due to her age, deconditioned status, and COVID-19 diagnosis in January 2021. However, she was permitted to use the courtyard at the facility, and she did not require any assistance with ambulation. In my opinion, continuous observation was not indicated because Ms. Vanasse could ambulate without assistance and she did not present any behavior problems at the facility that might have indicated a need for heightened monitoring.” (¶ 7)

· “Based on my training and experience, it is my opinion that because Ms. Vanasse was Do Not Resuscitate and was a hospice patient on March 9, 2021, it was within the standard of care to contact Ms. Vanasse's daughter, Laura Crosson, to receive authorization prior to transferring Ms. Vanasse to the hospital on March 9, 2021.” (¶ 10)

Dr. Josephson also declared the following regarding causation:

· “In my opinion, to a reasonable degree of medical probability, there is nothing the facility, Silverado, or their employees, did or failed to do that caused or contributed to injury to, or death of, Alma Vanasse. Nothing Silverado, the facility, or their employees, did or failed to do caused or contributed to Ms. Vanasse's fall on March 9, 2021.” (¶ 8)

· “Based on information contained in Ms. Vanasse's records and records of the investigation completed by the Costa Mesa Police Department, it is my opinion that the time period of 27 minutes between when a staff member responded to Ms. Vanasse in the courtyard (3:15 pm) and when EMS personnel were dispatched (3:42 pm) was not a significant delay in care. Moreover, to a reasonable degree of medical probability, it is my opinion that this 27-minute period did not cause or contribute to Ms. Vanasse's death on March 13, 2021.” (¶ 9)

Dr. Josephson thus has opined that to a reasonable medical probability, Defendants complied with the standard of care for fall risk residents with the capabilities of Ms. Vanasse, and complied with the standard of care after the fall.

Regarding causation, Dr. Josephson opines that the fall risk protocol followed or the lapse in delay in calling EMS personnel to get Ms. Vanasse to the hospital did not cause her death. (¶¶ 8, 9)

Based on the foregoing, Defendants meet their initial burden of establishing that there is no triable issue of material fact as to whether Defendants breached the standard of care or caused the injury. What is presented is enough to shift the burden to Plaintiff to show some evidence of breach and causation here.

In response, Plaintiffs provide the declaration of Cristina Flores, RN, BSN, Ph.D., who opined: “Silverado breached the standard of care by failing to supervise or assist Ms. Vanasse while she ambulated unassisted outside of the facility on 3/9/21. California Health & Safety Code § 1569.312 required Silverado to monitor the activities of Ms. Vanasse to ensure her general health, safety, and well-being. Section 1569.312 also required Silverado to be aware of Ms. Vanasse’s general whereabouts. Silverado violated these statutes in the care of Ms. Vanasse during the afternoon of 3/9/21. She was discovered by another resident, down on the concrete, on the side of the building. Ms. Vanasse’s Service Plan also required staff to “encourage frequent periods of rest” due to her increase in weakness due to her COVID infection. Ms. Vanasse’s service plan was amended to require “hands on assistance from staff member(s)” with mobility/ambulation and “escorts” and an “assistive device”. Silverado breached the standard of care by failing to provide any of these interventions while Ms. Vanasse wandered around in the outdoor areas unassisted.

Silverado’s staff failed to follow their own care plan for Ms. Vanasse, which shows a disregard for her health and safety.” (¶ 30) Cristina Flores, RN, BSN, Ph.D., further opined: “Based upon my education, knowledge, experience and training as well as my review of Ms. Vanasse’s resident file and medical records, Silverado Policy and Procedures, and my opinions as stated above, it is my professional opinion that during Ms. Vanasse’s custodial care at Silverado, the direct care staff repeatedly failed to comply with the applicable standards of care.” (¶ 37)

The foregoing is sufficient to create a triable issue of material fact as to whether Defendants breached the standard of care.

Regarding causation, Cristina Flores, RN, BSN, Ph.D., further opined: “[t]hese failures caused Ms. Vanasse unnecessary pain and suffering and a fatal traumatic brain injury.” (¶ 37)

Defendants object to this causation opinion and argue that nothing in Cristina Flores' background, education, and training indicates she is an expert in medical causation and diagnosis and thus she lacks the expertise to opine on medical diagnosis and causation.

However, the causation opinion here is questionably not one of an expert but one of a layperson. It is undisputed that the cause of death was “epidural hematoma with subarachnoid hemorrhage and subdural hemorrhage and mechanical fall.” (Material Undisputed Fact No. 85; Josephson decl. ¶ 4O; Flores Decl. ¶ 6gg) Thus, the fall was a substantial factor in causing the death. Cristina Flores is opining that Defendants failure to supervise and assist Ms. Vanasse while she ambulated outside of the facility on 3/9/21 was a breach and this failure caused her death. This particular opinion regarding causation does not require medical expertise for diagnosis.

Based on the foregoing, Plaintiffs have raised a triable issue of material fact regarding whether Defendants alleged breaches of the standard of care caused Ms. Vanasse’s injuries and death.

Accordingly, the Court DENIES the Motion for Summary Adjudication as to the second cause of action.

3. Third cause of action— Financial Elder Abuse

Defendants contend that the third cause of action for financial elder abuse is without merit because the care, treatment, and supervision rendered to Alma Vanasse by the facility, Silverado, and their employees, complied with the standard of care in the community and because getting paid for services rendered to an elder does not amount to financial abuse.

Welfare and Institutions Code section 15610.30 states: “(a) 'Financial abuse' of an elder or dependent adult occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70. (b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult. (c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult. (d) For purposes of this section, 'representative' means a person or entity that is either of the following: (1) A conservator, trustee, or other representative of the estate of an elder or dependent adult. (2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.”

Although Defendants do not clearly state their argument regarding the third cause of action, they appear to contend that the allegations in support of the cause of action are insufficient as a matter of law. Defendants no not provide any facts specifically related to their defense of financial elder abuse cause of action in their separate statement.

In the third cause of action for financial elder abuse, successor plaintiff alleges: "57. Ms. Vanasse was admitted to Silverado in September of 2020 after she agreed to pay $8,500 per month for a shared room at the facility. One month later, Silverado increased her rent to $9,700, claiming that she required additional services, none of which were ever provided to Ms. Vanasse after she was forced to pay the higher monthly fee. Silverado knew that Ms. Vanasse would have no choice but to pay the higher fee to avoid the detrimental health and psychological effects of changing her residency twice in one month, which would trigger a condition called 'transfer trauma,' a term used to describe the stress that a person with dementia may experience when changing living environments. ¶ 58. Defendants Silverado Senior Living Management, Inc. dba Silverado Senior Living Newport Mesa, Subtenant 350 W. Bay Street, LLC dba Silverado Senior Living Newport Mesa and Does 1 through 40 did all of the foregoing with the fraudulent intent of seizing property from Ms. Vanasse." (Complaint, ¶¶57-58.)

Defendant contends: “Under section 15610.30(b), wrongful conduct in the context of a financial abuse of an elder claim occurs only when the party who violates a contract with the elder actually knows that it is engaging in a harmful breach, or reasonably should be aware of the harmful breach. (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 656-658. …” (Motion, 14:5-9.) However, the Complaint properly alleges the creation of a contract to obtain additional money from an elder and with the intent of breaching. Defendants do not provide undisputed facts regarding this cause of action.

Based on the foregoing, Defendants did not meet their initial burden and the Court DENIES the Motion for Summary Adjudication as to this cause of action.

4. Fourth cause of action—Wrongful Death

Defendants contend that the fourth cause of action for wrongful death is without merit because the care, treatment, and supervision rendered to Alma Vanasse by the facility, Silverado, and their employees, complied with the standard of care in the community and because there is nothing the facility, Silverado, or their employees, did or failed to do that caused or contributed to injury to, or the death of, Alma Vanasse.

For the same reasons as the second cause of action, the Court DENIES the Motion for Summary Adjudication as to this cause of action.

Based on the foregoing, the Court DENIES Defendants’ Silverado Senior Living Management and Silverado Newport Mesa, LLC Motion for Summary Judgment, or in the Alternative, Adjudication, filed on 6-8-22 under ROA 149.

Plaintiff to give notice.

Future hearing dates

12/8/22 – Motion for Terminating Sanctions

1/6/23 – MSC

2/6/23 – Jury Trial

2/23/23 – Motion to Compel Production

3/2/23 – Motion to Compel Production