Judge: John J. Kralik, Case: 21STCV40177, Date: 2024-08-16 Tentative Ruling
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Case Number: 21STCV40177 Hearing Date: August 16, 2024 Dept: NCB
North
Central District
|
sandra martin, et al., Plaintiffs, v. baj management, inc. dba Prospect manor, Defendant. |
Case
No.: 21STCV40177 Trial
Date: August 16, 2024 [TENTATIVE] ORDER RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiffs Sandra Martin, Stanley Brown,
Elizabeth Brown, and Charlotte Bland, as individuals and as successors and
heirs (“Plaintiffs”) of Olive Brown (“Decedent”) allege that Decedent was a
resident of Defendant Baj Management, Inc. dba Prospect Manor (“Defendant”). Plaintiffs allege that in the midst of the
coronavirus pandemic, Defendant intentionally concealed that several working
staff members and residents had been exposed to the COVID-19 and failed to take
steps to ensure that its staff members followed CDC guidelines to safeguard
elderly and vulnerable residents.
Plaintiffs
allege that Decedent was a resident of Defendant’s nursing home and was
generally in good health during the last year of her life with certain
monitored medical conditions that were being well-managed and under control. (Compl., ¶¶25-26.) Plaintiffs allege that her pre-existing
medical conditions required attention and care and any changes to her condition
were to be reported to the attending physician.
(Id., ¶27.) They allege that
Defendant accepted responsibility to provide caretaking and custodian
services. (Id., ¶28.) Plaintiffs allege that throughout 2020,
Defendant failed to provide staff, employees, and residents with adequate
personal protective equipment (“PPE”) for the COVID-19 outbreak; failed to
properly instruct staff regarding proper protocol to protect residents; failed
to adopt and implement effective procedures to instruct and warn visitors
regarding the dangers of COVID-19; failed to post conspicuous signs to warn of
the dangers and mandate PPE and other safety precautions; failed to
provide/require visitors or staff the use of sanitizers or take temperatures;
were understaffed such that Defendant was unable to effectively screen or
prevent visitors on the premises; knowingly permitted staff to work at the
facility despite contracting or exhibiting signs of COVID-19; and concealed or
failed to warn residents about staff with COVID-19. (Id., ¶¶32-39.) Plaintiffs allege that due to Defendant’s
failures as listed above, its failure to test staff and residents, and delay in
implementing an effective policy for isolating carriers, Decedent was exposed
to, contracted, and passed away due to COVID-19. (Id., ¶¶40-43.) They allege that on December 10, 2020, nurse
Gloria informed Plaintiff Charlotte Bland that Decedent had tested positive for
COVID-19 but was asymptomatic and was doing fine, and Bland contacted Dr. Marilynn
Moore. (Id., ¶¶46-47.) Under Dr. Moore’s instructions, Decedent was
transported to Huntington Hospital Emergency Room that same day, where her
condition worsened and Decedent passed away on December 27, 2020 due to
COVID-19. (Id., ¶49.)
The complaint, filed November 1, 2021,
alleges causes of action for: (1) elder abuse; (2) willful misconduct; (3)
negligence; and (4) wrongful death.
B.
Motions on Calendar
On May 9, 2024, Defendant filed a demurrer
and motion to strike portions of the complaint.
On May 29, 2024, Plaintiffs filed
opposition briefs.
On June 4, 2024, Defendant filed reply
briefs.
REQUEST
FOR JUDICIAL NOTICE
Defendant requests judicial notice
of Exhibits: (A) the complaint; (B) the CDC’s July 31, 2020 Public Health
Guidance for Community-Related Exposure; (C) a CDC study published on January
7, 2021 entitled, “SARS-CoV-2 Transmission from People without COVID-19
Symptoms; (D) an October 6, 2020 California Department of
Social Services PIN 20-37-ASC, notifying Residential Care Facilities for the
Elderly of the latest staffing waivers in effect; and (E) a November 20, 2020
California Department of Social Services PIN 20-42-ASC, notifying Residential
Care Facilities for the Elderly of the latest directives relating to the
mitigation of COVID-19. The request is
granted. (Evid. Code, § 452(c)-(d).)
DISCUSSION
RE DEMURRER
Defendant demurs to each cause of action alleged in the complaint.
A.
1st cause of action for elder abuse
A plaintiff must prove more than
simple or even gross negligence in the provider’s care or custody of the elder or dependent
adult. (Carter v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 405.)
The plaintiff must prove by clear and convincing evidence that defendant
was guilty of recklessness, oppression, fraud or malice in the commission of
the neglect, which applies essentially the equivalent standard to support
punitive damages. (Id.; Welf. & Inst. Code, § 15657.) The enhanced remedies are available only for
acts of egregious abuse against elder or dependent adult. (Carter, supra, 198
Cal.App.4th at 405.) “‘Recklessness’ refers to a subjective state of culpability
greater than simple negligence, which has been described as ‘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.
(Delaney v. Baker (1999) 20
Cal.4th 23, 31-32.) Unlike negligence,
recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. (Id.
at 31.)
There are several factors that must
be pled with particularity, including: (1) defendants had
responsibility for meeting the basic needs of the elder or dependent adult,
such as nutrition, hydration, hygiene or medical care; (2) defendants
knew of conditions that made the elder or dependent adult unable to provide for
his or her own basic needs; (3) defendants 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); and (4) the neglect caused the elder
or dependent adult to suffer physical harm, pain or mental suffering. (Carter, supra, 198 Cal.App.4th at 406-407.)
In the 1st cause of
action, Plaintiffs allege that Decedent was an elderly person and Defendant had
the care and custody of her during the relevant times. (Compl., ¶¶56-57.) Plaintiffs allege that Defendant failed to
protect Decedent from health and safety hazards, thereby committing
neglect. (Id., ¶58.) Plaintiffs allege that Decedent was
intentionally or recklessly exposed to COVID-19 and not provided with PPE equipment
needed to guard against the dangers faced from the transmission of COVID-19. (Id.,
¶59.)
Upon review of the general factual
allegations of the complaint and the allegations of the 1st cause of
action, the Court finds that the 1st cause of action for elder abuse
and neglect has not been adequately pled with the requisite specificity. While Plaintiffs allege that Defendant failed
to implement certain CDC standards, failed to post warning signs in the
facility, and allowed staff and residents with COVID-19 to remain at the
facility, the allegations at most rise to the level of negligence. The allegations, taken together, do not rise
to a showing of willful, intentional conduct, or reckless behavior on the part
of Defendant; rather, at most, the allegations rise to a level of negligent
conduct, which is not sufficient for a statutory elder abuse claim.
The demurrer to the 1st
cause of action is sustained with leave to amend.
B.
2nd cause of action for willful misconduct
A claim for willful misconduct is
intentional wrongful conduct, done either with a knowledge that serious injury
to another will probably result, or with a wanton and reckless disregard of the
possible results. (New v. Consolidated Rock Products Co. (1985) 171 Cal. App. 3d 681,
689-90.) Willful misconduct is an
aggravated form of negligence, differing in quality rather than degree from
ordinary lack of care. (Id.)
The usual meaning assigned to willful or reckless conduct is that the
actor has intentionally done an act of an unreasonable character in disregard
of a risk known to him or so obvious that he must be taken to have been aware
of it, and so great as to make it highly probable that harm would follow. (Id.) Accordingly, three essential elements must be
present to raise a negligent act to the level of willful 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.) Further, the tort’s pleading requirements are
similar to negligence but stricter. (Berkley v. Dowds (2007) 152 Cal.App.4th
518, 526.)
In the 2nd cause of action,
Plaintiffs allege that Defendant knew or should have known of their failure to
comply with the standard of care by lacking appropriate safety equipment and
not employing reasonable custodial policies for isolating COVID-positive
residents. (Compl., ¶65.) Plaintiffs allege that Defendant knew or
should have known that the peril posed by its failure to comply with the
standard of care exposed Decedent to a high probability of her death. (Id., ¶66.) Plaintiffs allege that Defendant failed to
comply with certain duties. (Id.,
¶67, see ¶¶32-39.) Plaintiffs allege
that Defendant made certain financial and budgetary decisions to limit purchase
of PPE, which resulted in exposure of COVID-19 to its residents including
Decedent. (Id., ¶68.)
For the same reasons discussed above, the
willful misconduct cause of action also fails to allege sufficient facts. The
allegations are conclusory recitations of the elements and fail to rise to a
showing that Defendant acted with intentionality, as such facts must be pleaded
with a higher pleading standard than ordinary negligence. Again, the Court finds that, at most, the
facts alleged in this cause of action are indicative of negligence, but not
necessarily willful conduct.
The
demurrer to the 2nd cause of action is sustained with leave to
amend.
C.
3rd cause of action for negligence
The elements of a negligence cause of
action are “duty, breach of duty, proximate cause, and damages.” (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
In the 3rd cause of action,
Plaintiffs allege that Decedent was admitted as a resident of Defendant for
approximately the last 20 years of her life.
(Compl., ¶73.) They allege that
Defendant owed her a duty of ordinary care to use the degree of care and skill
that a reasonably prudent person and nursing home would owe. (Id., ¶74.) Plaintiffs allege that Defendant breached
their duties by failing to implement policies, procedures, and safety measures
necessary to prevent Decedent’s exposure to COVID-19 and by failing to provide
appropriate treatment once she was infected by the virus. (Id., ¶75.)
Defendant argues that it is a residential
care facility and not a skilled nursing facility, such that the duty and
standard of care it would owe is that of a reasonably prudent residential care
facility for the elderly, which is a different standard. However, at the pleading stage, the Court
takes the allegations of the complaint as true and Plaintiffs have alleged that
Defendant is a nursing home, as opposed toa residential care facility. Defendant may, at the summary judgment or
trial stage, prove that it is not a nursing home and that it is instead a
residential care facility and held to a different standard, but at the demurrer
stage, the Court cannot accept Defendant’s extrinsic facts.
The demurrer to the 3rd cause
of action is overruled.
D.
4th cause of action for wrongful death
The elements of a wrongful death cause of
action are: (1) a wrongful act or neglect on the part of one or more persons
that (2) causes (3) the death of another person. (Nogart
v. Upjohn Co. (1999) 21 Cal.4th 383, 390.)
In the 4th cause of action,
Plaintiffs incorporate all prior allegations and allege that as a direct and
proximate result, Decedent died and Plaintiffs are deprived of her care,
comfort, and society. (Compl.,
¶¶77-78.)
As Plaintiffs have alleged a viable cause
of action for negligence, there are sufficient facts to allege a cause of
action for wrongful death premised upon negligence. As such, the demurrer to the 4th
cause of action is overruled.
DISCUSSION
RE MOTION TO STRIKE
Defendant moves to strike
allegations for enhanced remedies under the Elder Abuse Act, including attorney’s
fees and punitive damages.
In light of the ruling on the
demurrer to the 1st cause of action for elder abuse, the Court
grants the motion to strike the allegations for enhanced remedies and the
request attorney’s fees pursuant to the Elder Abuse Act. Similarly, the allegations for punitive damages
are generalized and conclusory, such that they do not rise to the level of
particularity required for a request for punitive damages. Plaintiffs should allege further facts
supporting a showing of oppression, malice, and/or fraud to warrant a request
for punitive damages.
The motion to strike is granted with
leave to amend.
CONCLUSION AND ORDER
Defendant Baj Management, Inc. dba
Prospect Manor’s demurrer to the 1st and 2nd causes of
action in the complaint is sustained with 20 days leave to amend. The demurrer to the 3rd and 4th
causes of action is overruled.
Defendant Baj Management, Inc. dba
Prospect Manor’s motion to strike is granted with 20 days leave to amend.
Defendant shall
provide notice of this order.
DATED:
August 16, 2024 ___________________________
John
Kralik
Judge
of the Superior Court