Superior Court of California

County of Los Angeles

Department 78

IRMA YBARRA, an individual,, and as successor-in-interest to SOCORRO FRANCO (Deceased); RUBEN FRANCO, an individual,

ALAL, LLC DBA KEI-AI LOS ANGELES HEALTHCARE CENTER; ASPEN SKILLED HEALTHCARE, INC.; TANNER MITCHELL, an individual; and DOES 1 through 160, inclusive, 

DEFENDANT ALAL, LLC; ASPEN SKILLED HEALTHCARE, INC. AND TANNER MITCHELL’S DEMURRER TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE

The demurrer is OVERRULED, except for the items in bold below. Leave to amend is granted

The motion to strike is DENIED, except for the request for attorney's fees with respect to the third cause of action which is GRANTED without leave to amend.

The second amended complaint must be filed and served within 20 days after the date of this order.

DISCUSSION

A wrongful death action compensates survivors for their losses.

A survival cause of action compensates the estate for losses suffered by the decedent prior to death. 

Punitive damages are recoverable in a survival cause of action. However, they are not recoverable for a wrongful death claim.

A wrongful death action may be brought within two years of death.

A survival action must be brought the later of two years after the wrongful act or six months after death.

First Cause of Action: Elder Abuse and Neglect

The FAC must be amended to make clear which plaintiffs in which capacity are the plaintiffs in this cause of action. 

“Abuse of an elder or a dependent adult” means any of the following:

(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

(3) Financial abuse, as defined in Section 15610.30.

(Welf. & Inst. Code, § 15610.07, subd. (a).)

To state a cause of action for elder abuse and neglect pursuant to Welfare and Institutions Code 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. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31.)

Defendants contend Plaintiffs’ fail to adequately plead the underlying conduct required to state a claim for elder abuse or facts sufficient to demonstrate that Defendants were reckless, oppressive, fraudulent or malicious in the commission of the alleged abuse, as section 15657 requires, or that the two entities ratified the alleged abuse. Furthermore, Defendants contend the allegations in the FAC sound like medical negligence not elder abuse because they are based on Plaintiffs’ dissatisfaction with the medical care provided to decedent. 

In opposition, Plaintiffs argue the alleged conduct of Defendants is not simply professional negligence. Plaintiffs’ further argue the FAC alleges Decedent was in Defendants’ care and entirely dependent upon Defendants for her basic needs. Additionally, Plaintiffs contend they have established Defendants’ deliberate disregard towards the health and safety of their residents, which included the conscious choice of prioritizing profits over the health and safety of its residents by taking in non-resident COVID positive patients from hospitals and other nursing facilities into their nursing home. Plaintiffs also argue they have alleged Defendants knowingly and willfully placed Decedent and other residents in immediate harm's way and substantially increased their risk of exposure to and contraction of the deadly virus. Moreover, Plaintiffs contend they have alleged Defendants falsely represented to Plaintiffs that they we doing everything to prevent COVID-19 infections at their facilities while intentionally concealing that they were receiving non-resident COVID positive patients for profit. Lastly, Plaintiffs assert they have alleged facts that Defendants implemented a plan to increase business profits by also understaffing and not properly training personnel. 

In reply, Defendants argue the FAC fails to set forth specific acts of alleged abuse by each defendant as opposed to pleading against them as a group. Defendants also argue Plaintiffs have not stated sufficiently detailed allegations to permit this Court to determine if what is being claimed is actually elder abuse versus medical negligence. 

Here, the FAC alleges that on or about February 13, 2019, Decedent Socorro Franco became a resident of Defendant Kei-Ai Los Angeles Healthcare Center. (FAC ¶ 37.) Decedent had been diagnosed with Alzheimer’s, had suffered two separate strokes, was bedridden, immobile, unable to speak or eat, was on a feeding G-tube, unable to manage her saliva or swallow and required frequent suctioning of mucus and saliva within her mouth and throat. (Id.) Decedent was a “dependent adult” as defined in Welfare & Institutions Code section 15610.23. (FAC ¶ 60.) During the height of the Coronavirus Pandemic, Defendants volunteered to participate in a for profit program to take non-resident COVID positive patients from hospitals and other nursing facilities into their nursing home. (FAC ¶ 43.) Defendants falsely represented in emails to Plaintiffs and other residents’ families that they were doing everything they could to prevent COVID from coming to their facilities. (FAC ¶ 44.) Defendants intentionally concealed that they were participating a little-publicized volunteer program to receive COVID positive patients from hospitals and other nursing facilities for profit. (Id.) Defendants knowingly, intentionally, and willfully brought the deadly virus into their nursing home thereby exposing their elderly and otherwise fragile residents to the substantial and very real risk of death. (FAC ¶ 45.) Defendants sent an email on or about April 9, 2020 indicating there were no COVID-19 positive patients and made no mention of their participation in the program. (FAC ¶ 47) On December 22, 2020, Plaintiffs were informed Decedent tested positive for COVID-19. (FAC ¶ 54.) On January 19, 2021, Decedent passed away from COVID-19. (FAC ¶ 58.)

Accordingly, the FAC sufficiently alleges Defendants engaged in malicious and fraudulent conduct that was willful, intentional, and with conscious disregard to the health and safety of their residents including Decedent. 

Second Cause of Action: Wrongful Death

The FAC must be amended to make clear which plaintiffs in which capacity are the plaintiffs in this cause of action. 

A wrongful death action must be filed within two years of the death. (CCP Section 335.1)

This action cannot be based on a claim of medical malpractice/professional negligence as that carries a statute of limitations of one year.

To prevail on a wrongful death claim, “plaintiffs must prove (1) a ‘wrongful act or neglect’ on the part of one or more persons [(that is, negligence)] that (2) ‘cause[s]’ (3) the ‘death of [another] person.” (Musgrove v. Silver (2022) 82 Cal.App.5th 694, 705 [internal citations omitted].) Damages must also be proven.

The FAC does not clearly state which causes of action among the other three pled form the basis for the alleged wrongful act underlying the wrongful death cause of action. The FAC must be amended to remove this ambiguity. 

Third Cause of Action for Willful Misconduct

The FAC must be amended to make clear which plaintiffs in which capacity are the plaintiffs in this cause of action. 

As a preliminary matter, in the Notice of Motion Defendants do not demur to the third cause of action for willful misconduct on the grounds that it fails to allege facts sufficient to state a cause of action for willful misconduct. However, Defendants do raise this argument in the Demurrer and Memorandum of Points and Authorities. Thus, the Court will rule on the merits below. 

“No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528.) Additionally, “[t]hree essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Id. [internal citations omitted].)

Defendants contend Plaintiffs have failed to adequately plead an intent on the part of Defendants to ignore or fail to address the particular peril and the mere fact that these events occurred is insufficient to establish willful misconduct. 

In opposition, Plaintiffs argue the FAC alleges the risks associated with COVID-19 were widely and publicly known. Furthermore, Plaintiffs contend the FAC alleges Defendants consciously failed to act to avoid the risks. 

Here, the FAC alleges each defendant knew or should have known that their failure to comply with the standard of care, by participating in the for profit program; and failing to disclose to their residents and their families of Defendants participation posed a peril to Decedent. (FAC ¶ 89.) Each defendants knew or should have known that the peril posed exposed Decedent to a high probability of her injury or death. (FAC ¶ 90.) Defendants knowingly disregarded the peril and high probability of injury by participating in the for profit program to actively bring non-resident COVID positive patients to their facilities. (FAC ¶ 91.)

Accordingly, the FAC sufficiently alleges Defendants had actual knowledge of the peril, that injury was highly probable, and consciously disregarded the peril, which led to the death of the Decedent. 

Fourth Cause of Action: Negligence

The FAC must be amended to make clear which plaintiffs in which capacity are the plaintiffs in this cause of action. 

The FAC must also be amended to make it clear that plaintiffs are not pursuing a professional negligence claim and must clearly state the basis for the negligence cause of action.

Motion to Strike

Plaintiffs don't have to meet the requirements of Section 425.13 since the case does not involve a professional negligence claim.

Plaintiffs' punitive damages allegations are sufficient. 

The FAC asks for attorney's fees for the first cause of action and the third cause of action.

Plaintiffs have met the standard for pleading a request for attorney's fees with respect to the cause of action for elder abuse/neglect.

The Court does not know the legal basis for requesting for attorney's fees with respect to the third cause of action. Plaintiffs do not provide one. The motion to strike the request for attorney's fees with respect to the third cause of action is granted without leave to amend.

DATED:  January 24, 2024

                                                                 Hon. Jill Feeney 

                                                                 Judge of the Superior Court