Judge Joel R Wohlfeil, Case 37-2023-00051326-CU-PO-CTL 2024-03-29 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00051326-CU-PO-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 27, 2024

03/29/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00051326-CU-PO-CTL GAINEY VS SUNRISE WAY RESIDENCE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/02/2024

1. The special and general Demurrer (ROA # 21) of Defendants SUNRISE WAY RESIDENCE, SUNRISE WAY RESIDENCE FACILITY, SUNRISE WAY RESIDENCE IV, NICOLE GUIBERT and BEATRIZ FERREIRA DOBBIN ('Defendants') to causes of action 1 and 3 in the Complaint by Plaintiffs BRIGETT GAINEY, Individually and as Case Successor in Interest to ABIGAIL WHITEHEAD, Deceased and WILLIAM WHITEHEAD, JR., Individually and as Successor in Interest to ABIGAIL WHITEHEAD, Deceased ('Plaintiffs'), is OVERRULED.

Defendants are ordered to file their Answer within twenty (20) days of this hearing.

The special Demurrer is overruled because causes of action 1 and 3 are not fatally ambiguous or unintelligible. Code Civ. Proc. 430.10(f). Ambiguities will be clarified via discovery.

Regarding the general Demurrer to the first cause of action, the Elder Abuse Act's heightened remedies are available only in limited circumstances. Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal. 4th 148, 156.

'A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with 'recklessness, oppression, fraud, or malice.' (§ 15657.) Section 15610.57, in turn, provides two definitions of neglect. First, '[t]he 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.' (§ 15610.57, subd. (a)(1).) Second, '[t]he negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.' (Id., subd. (a)(2).) ... ¶ ...Complementing these two definitions is the statute's explicitly non-exhaustive list of 'neglect' examples. These include failures 'to assist in personal hygiene' or to provide 'food, clothing, or shelter' (§ 15610.57, subd. (b)(1)); 'to provide medical care for physical and mental health needs' (id., subd. (b)(2)); 'to protect from health and safety hazards' (id., subd. (b)(3)); and 'to prevent malnutrition or dehydration' (id., subd. (b)(4)).' Id. In order to obtain the remedies available in section 15657, Plaintiff must demonstrate that Defendant is guilty of something more than negligence; Plaintiff must show reckless, oppressive, fraudulent, or malicious conduct. Delaney v. Baker (1999) 20 Cal. 4th 23, 31.

'Recklessness' refers to a subjective state of culpability greater than simple negligence, which has been Calendar No.: Event ID: TENTATIVE RULINGS

3084980 CASE NUMBER: CASE TITLE: GAINEY VS SUNRISE WAY RESIDENCE [IMAGED] 37-2023-00051326-CU-PO-CTL described as a 'deliberate disregard' of the 'high degree of probability' that an injury will occur. Id. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions, but rather 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 31 - 32.

Section 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Id. at 32.

In Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406 – 407, the necessary pleading elements were described as follows: 'From the statutes and cases discussed above, we distill several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) 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 ...; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs ...; 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) .... The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering .... Finally, the 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. (Covenant Care, at p. 790.)' (most internal citations omitted) In this case, paragraphs 4 - 9 of the Complaint allege sufficiently detailed facts demonstrating that the named Defendants were decedent's care custodians.

Paragraphs 24 - 30 allege sufficient facts demonstrating a negligent failure to exercise a degree of care that a reasonable person in a like position would exercise, and as a result the decedent was exposed to health and safety hazards.

As alleged, decedent was exposed to a health and safety hazard when she was left unattended in a closed vehicle on a July day in Lemon Grove. The facts alleged could constitute oppression or recklessness.

As alleged, Defendants should have known that leaving the decedent in a closed vehicle was substantially certain to result in injury. Detailed facts are alleged that defendants acted with conscious disregard of a high probability of heat related injury. These fact allegations are sufficiently egregious such that the enhanced Elder Abuse Act remedies are potentially available.

Evidence is required demonstrating that the employer authorized or ratified a malicious act, personally committed such an act, or wrongfully hired or retained an unfit employee. College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 723.

An employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. C.R. v. Tenet Healthcare Corp. (2009) 169 Cal. App. 4th 1094, 1110.

The failure to discharge an employee who has committed misconduct may be evidence of ratification. Id. Calendar No.: Event ID: TENTATIVE RULINGS

3084980 CASE NUMBER: CASE TITLE: GAINEY VS SUNRISE WAY RESIDENCE [IMAGED] 37-2023-00051326-CU-PO-CTL Paragraphs 9, 47, 52 and 53 of the Complaint allege facts that could demonstrate ratification of the reckless conduct giving rise to the dependent adult abuse claim. These fact allegations are sufficiently detailed given Plaintiffs' limited knowledge of the organization and operation of Defendants' facilities.

Regarding the general Demurrer to the second cause of action, the wrongful or neglectful cause of decedent's death is the same events as support the first cause of action. No authority is cited for the proposition that the survivors and the decedent must have 'lived together but for the alleged wrongful acts.' _____ 2. The Motion (ROA # 22) of Defendants SUNRISE WAY RESIDENCE, SUNRISE WAY RESIDENCE FACILITY, SUNRISE WAY RESIDENCE IV, NICOLE GUIBERT and BEATRIZ FERREIRA DOBBIN ('Defendants') for an order dismissing portions of Plaintiffs' Complaint, is GRANTED IN PART and DENIED IN PART.

The Court strikes Prayer paragraph 2 for cause of action 2 for 'punitive and exemplary damages pursuant to Welfare & Institutions Code section 15657, and / or other legal entitlement, according to proof.' The remainder of the disputed allegations are not stricken.

As stated within the concurrent ruling on the Demurrer, the first cause of action is not improper. This cause of action alleges sufficient detail regarding reckless conduct causing death, and that this conduct was ratified by the facility owners and administrator. See Taylor v. Superior Court (1979) 24 Cal. 3d 890, 895 - 896 (conscious disregard of the safety of others may constitute malice within the meaning of Civil Code section 3294; punitive damages awarded when Plaintiff establishes the defendant willfully and deliberately failed to avoid the probable dangerous consequences of their actions).

Causes of action 1 and 3 are premised on the same alleged reckless conduct in which Defendants deliberately failed to avoid the probable dangerous consequences of their actions. The claim for attorney fees and the prayer for punitive damages within these causes of action are proper. On the other hand, the second cause of action for 'professional negligence' does not appear to be premised on reckless conduct. Instead, this appears to be an alternative claim for simple negligence.

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