Judge Jill Feeney, Case Number: 23STCV24336, Date: 2024-05-20 Tentative Ruling

This is an action for elder abuse, negligence, violation of residents’ rights, and wrongful death. Plaintiffs allege that Decedent Beverly M. Haller passed away on September 28, 2023. (Compl., ¶1.) Decedent was an elder older than 65 years of age with physical or developmental disabilities who was admitted to Santa Paula Post Acute, LLC (SPPA), an inpatient 24-hour health facility pursuant to 1250.3 of the Health and Safety Code. (Compl., ¶12.) Decedent was taken to SPPA in September 2023. (Compl., ¶17.) Decedent was deemed at high risk for pressure injury development. (Coimpl., ¶19.) Between September 5 and September 18, 2023, SPPA staff failed to adequately inspect and monitor Decedent’s skin for redness or breakdown. (Compl., ¶20.) SPPA’s nursing staff failed to reposition Decedent at least every two hours, causing her to develop pressure sores, suffer extreme pain, and suffer an untimely death. (Compl., ¶24.) Decedent was transferred to Fillmore Country Club (Fillmore) and placed in hospice. (Compl., ¶21.) Fillmore determined Decedent had a Stage IV pressure injury to her coccyx. (Compl., ¶22.) On September 28, 2023, Decedent passed away. (Compl., ¶23.)

Plaintiffs allege the oversight in Decedent’s care was caused by deliberate understaffing caused by Simcha Cyrulnik and Esperanza Collins. (Compl., ¶25.) Cyrulnik and Collins allowed understaffing and a lack of training to continue at SPPA to reduce labor costs. (Compl. ¶30.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., sections 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Welfare and Institutions Code section 15600 et seq. (“Elder Abuse Act”) governs elder abuse claims. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336.) “‘The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’” (Id. (quoting Welf. & Inst. Code, section 15610.27.) Abuse is defined, in part, as “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code, section 15610.07(a)(1); see also Worsham, supra, 226 Cal.App.4th at 336.) Plaintiff must also establish that the defendant committed the abuse with recklessness, oppression, fraud, or malice. (Welf. & Inst. Code, section 15657; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156.)

“‘Neglect’ within the meaning of Welfare and Institutions Code, section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 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.)

In order to distinguish dependent adult abuse from professional negligence, there must be a showing of recklessness, fraud, malice, or oppression. (See Covenant Care, Inc., supra, 32 Cal.4th at 783.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 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, section 3294; Cal. Welf. & Inst. Code, sections 15657(c).)

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).)

SPPA first argues the Complaint fails to set forth facts demonstrating Decedent was denied care and services because it does not state Decedent was denied care. However, even if a defendant provides some care, that will not necessarily absolve a care facility of dependent abuse liability. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) For example, if a provider only provides care sporadically or only provides some types of care, withholding of care has occurred. (Id.)

The Complaint states SPPA staff failed to adequately inspect or monitor Decedent’s skin for redness or breakdown. (Compl., ¶20.) SPPA staff failed to reposition Decedent every two hours and inspect her skin twice a shift, resulting in her stage IV pressure injury and death. (Compl., ¶25.) SPPA staff failed to adequately inform Decedent’s physician of her pressure injuries, failed to carry out doctor’s orders, and failed to adequately document Decedent’s plan of care. (Compl., ¶26.) Decedent was deemed at high risk for pressure injury development when she was admitted to SPPA. (Comp., ¶19.)

As alleged, SPPA knew Decedent was at high risk of pressure injury and failed to reposition her every two hours. It is reasonable to infer that SPPA’s staff knew they had to provide care on a daily basis to prevent Decedent from developing pressure injuries. Because Decedent developed a severe stage IV pressure injury, it is reasonable to infer that SPPA staff failed to provide this care or only provided it sporadically. Therefore, it is sufficiently alleged that SPPA withheld care.

SPPA next argues there are no facts alleged that Defendants engaged in reckless conduct or intentional wrongdoing. Plaintiffs allege the Complaint pleads adequate facts to show SPPA’s misconduct rose to the level of recklessness, oppression, fraud, or malice because there are facts sufficient to support a reasonable inference that SPPA acted with a deliberate disregard of the high degree of probability that Decedent would suffer injuries.

Allegations of a failure to maintain specific staff-to-patient ratios to address the needs of patients and ensure compliance with state and federal law, understaffing, and inadequate training of staff is generally indicative of negligent undertaking of medical services and not elder abuse. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 337-38.)

However, while lone allegations of understaffing and undertraining leading to injury are insufficient to arise to recklessness, they can demonstrate recklessness when there is a showing of a knowing pattern of violations of staffing regulations. (Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1349-50.) Recklessness may be inferred where a medical provider knows it must provide a certain type or types of care on a daily basis but withholds that care and there is a significant pattern of withholding care. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) A significant pattern is a repeated withholding of care which would lead to the conclusion that the pattern was the result of a choice or deliberate indifference. (Id.) For example, if a provider knew of staffing regulations, violated them, and had a significant pattern of doing so, a factfinder could infer recklessness because this pattern constitutes a conscious choice of a course of action with knowledge of the serious danger to others involved in it. (Filmore at p.1350.)

Here, as discussed above, the Complaint states SPPA knew Decedent was at high risk of pressure injury and failed to provide the care it knew Plaintiff required. SPPA’s staff failed to provide care due to understaffing. (Compl., ¶25.) SPPA deliberately failed to maintain minimum staffing ratios as required by Health and Safety Code, section 1276.5 in order to reduce labor costs. (Compl., ¶29.) SPPA was chronically understaffed, which directly caused staff to withhold care. (Compl., ¶36.)

The facts alleged show SPPA knew of staffing regulations, violated them to cut costs, and did so chronically. Additionally, SPPA failed to provide Decedent with care to prevent pressure injuries despite knowing she was at high risk for pressure injuries. It is reasonable to infer from these facts that SPPA knew of the serious danger failing to prevent Decedent’s pressure injuries would pose to Decedent. The Complaint thus contains facts sufficient to support an inference that SPPA withheld care as a conscious choice knowing the danger to Decedent. Therefore, the Complaint states sufficient facts to support an inference that SPPA’s conduct was reckless.

Finally, SPPA argues there are no allegations that SPPA’s conduct caused Decedent’s pressure injury or death. However, the Complaint states SPPA’s failure to reposition Decedent and inspect her skin caused her extreme pain, suffering, and ultimately her death. (Compl., ¶25.) Therefore, SPPA’s argument is without merit.

Welfare and Institutions Code section 15657 specifically provides that the standards set forth in Civ. Code, Section 3294(b) must be satisfied before any damages or attorney’s fees permitted under the Act may be imposed against an employer. (Welf. & Inst. Code, section 15657(c).) Section 3294(b) provides that “[a]n employer shall not be liable for [punitive damages], based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code, section 3294(b).) Section 3294 further provides that “[w]ith respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Id.)

Here, the Complaint states the chronic understaffing was a deliberate decision bade by SPPA’s managing agents, Simcha Cyrulnik and Esperanza Collins. (Compl., ¶25.) This allegation is sufficient to show that SPPA’s managing agents ratified the alleged wrongful conduct. SPPA’s argument is without merit.

SPPA next demurs to the cause of action for violation of residents’ rights under Cal. Code of Regulations, section 72527. SPPA argues that the Complaint fails to plead with particularity what conduct of SPPA staff violated the twelve statutes alleged in the Complaint.

Health and Safety Code, section1430(b) provides that “a current or former resident or patient of a skilled nursing facility as defined in subdivision (c) of section 1250 . . . may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients’ Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” (Health and Safety Code, section1430(b)(1).)

The Court notes that the Complaint does allege facts sufficient to state SPPA violated some but not all of these statutes. For example, 9. Title 22 C.C.R., section 72315(f) states patients are to receive care to prevent formation and progression of decubiti, contractures, and deformities. In other words, patients have a right to receive care to prevent pressure wounds such as bed sores. As discussed above, the Complaint states SPPA failed to reposition Plaintiff and failed to prevent her pressure wounds. Thus, the Complaint alleges facts sufficient to state SPPA violated Decedent’s rights under Health and Safety Code, section 1430(b).

Some violations stated in the Complaint are unsupported. For example, 22 C.F.R., section 72527(a)(3) pertains to a patient’s right to be fully informed of their health status and to be afforded the opportunity to participate in their plan of care. However, there are no allegations in the Complaint which state SPPA deprived Decedent of these rights. Therefore, the Complaint does not state facts sufficient to state SPPA violated this statute.

Here, because the Complaint states facts sufficient to support a cause of action for violation of residents’ rights under at least some of the rights and statutes stated in the Complaint, the demurrer fails to dispose of this cause of action and must be overruled.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

SPPA also argues that any alleged findings of the CDPH consist of mere opinions of the surveyor who conducted standard investigations of Defendant’s facility. Defendant contends that essentially, Plaintiff is asserting the lay opinions in an attempt to establish them as though they are settled law and fact.

Health & Safety Code, Section 1280(f) provides that “[i]n no event shall the act of providing a plan of correction, the content of the plan of correction, or the execution of a plan of correction, be used in any legal action or administrative proceeding as an admission within the meaning of Sections 1220 to 1227, inclusive, of the Evidence Code against the health facility, its licensee, or its personnel.”

The allegations related to the Department of Public Health are relevant to whether SPPA was chronically understaffed and whether SPPA had a significant pattern of violating staffing regulations. This information is necessary to prove Plaintiff’s claims for elder abuse, negligence/willful misconduct, wrongful death, and punitive damages. The allegation is therefore not an irrelevant, false, or improper matter that should be stricken. Defendant’s citation to Section 1280(f) is unpersuasive, as it bars the use of the content of Plans of Correction, not deficiencies. Moreover, Section 1289(f) deals with the admissibility of such Plans of Correction as an admission. The section does not bar a plaintiff from referencing deficiencies issued by the CDPH in a Complaint.

SPPA moves to strike Plaintiffs’ demand for attorney’s fees and costs under the Elder Abuse cause of action on the grounds that the Complaint fails to state facts sufficient to allege SPPA’s conduct rose to recklessness, oppression, fraud, or malice. SPPA also moves to strike Plaintiffs’ demand for attorney’s fees under the cause of action for violations of residents’ rights on the grounds that the Complaint fails to state sufficient facts to state this cause of action and misquoted the codes cited.

“In 1991, in order “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults”…, the Legislature added Welfare and Institutions Code section 15657 to the [Elder Abuse] Act. That section makes available, to plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies “in addition to all other remedies otherwise provided by law”…Specifically, a plaintiff who proves “by clear and convincing evidence” that a defendant is liable for physical abuse, neglect, or financial abuse (as these terms are defined in the Act), and that the defendant has been guilty of “recklessness, oppression, fraud, or malice” in the commission of such abuse, may recover attorney fees and costs.” (Covenant Care, Inc. v. Superior Court¿(2004) 32 Cal.4th 771, 779–780.)

With respect to the elder abuse cause of action, the Complaint states sufficient facts to state SPPA’s conduct was reckless because SPPA was aware of Decedent’s high risk for pressure injuries, knew of staffing regulations, failed to provide Decedent with the care she required, and was chronically understaffed. Because the Complaint alleges SPPA violated staffing regulations chronically, the facts support an inference that SPPA’s conduct withholding Plaintiff’s care was a conscious choice made with disregard for the danger to Plaintiff. Therefore, the conduct was reckless. Because the Complaint does sufficiently allege SPPA’s conduct was reckless, the motion to strike is denied on this ground.

With respect to the cause of action for violation of residents’ rights under Health and Safety Code, section 1430(b), as discussed above, the Complaint states facts sufficient to show that SPPA violated at least some of the statutes enumerated in the Complaint. Thus, the Complaint sufficiently states facts to support a cause of action for a violation of Decedent’s rights under Health and Safety Code, section 1430(b). Because the cause of action survives, attorney’s fees and costs remain available. The motion to strike is denied on this ground.

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, section 3294, subd. (c)(2).)

“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

After Taylor, the Legislature amended the “malice” standard interpreted by the Supreme Court in that case to add the requirement that malicious conduct under section 3294 be shown to be “despicable” and “willful.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) As noted above, “[t]he statute’s reference to ‘despicable conduct’ represent[ed] ‘a new substantive limitation on punitive damage award.’” (Ibid. (quoting College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 725).) Consequently, punitive damages must be supported by facts that show both a willful disregard for the probable consequences of one’s actions and despicable conduct.

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [citation omitted].) As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” (Ibid. [citing College Hospital, Inc., supra, 8 Cal.4th at p. 726 [for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character]].)

Here, as discussed above, the Complaint alleges that SPPA failed to provide Decedent with care to prevent her pressure injuries despite knowing she was at high risk for pressure injuries. The lack of care was caused by SPPA’s managing agents’ deliberate decision to keep SPPA understaffed in violation of staffing regulations in order to cut costs. The Court finds these allegations are sufficient to show SPPA, through its managing agents, acted with willful disregard for the probable consequences of its actions. The facts are also sufficient to show that the conduct was despicable because the managing agents chose to keep SPPA understaffed to cut costs. Therefore, the Complaint states sufficient facts to show SPPA’s conduct was malicious.

SPPA also argues that the Complaint fails to allege wrongful conduct by an officer, director, or managing agent. However, as discussed above, the Complaint states SPPA’s managing agents, Simcha Cyrulnik and Esperanza Collins, ratified the alleged wrongful conduct by making the deliberate choice to keep SPPA understaffed. SPPA’s argument is without merit.