Judge: John J. Kralik, Case: 22BBCV00707, Date: 2023-01-13 Tentative Ruling

Case Number: 22BBCV00707    Hearing Date: January 13, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Robert Hohman (“Decedent”) is alleged to have been an elder within the meaning of the Welfare and Institutions Code, § 15600 et seq. at all relevant times.  Plaintiff Mary Kathryn Myszka (“Ms. Myszka”) is alleged to be the daughter of Decedent and the heir of his estate.

On November 21, 2022, Decedent was admitted to St. Joseph’s Medical Center for acute confusion where he was diagnosed as having suffered a transient cerebral ischemic attack.  On November 24, 2021, he was discharged from the hospital and admitted to Defendant Burbank Healthcare, Inc. dba Burbank Healthcare & Rehabilitation Center (“Burbank H&R Center”) for rehabilitation and care.  Plaintiffs allege that the Burbank H&R Center Staff knew that Decedent represented a high fall risk following his physical therapy evaluation on November 25 and 26, 2021.  Plaintiffs allege that Burbank H&R Center failed to develop and implement interventions to prevent Decedent from falling.  On November 28, 2021, Decedent was ambulating without assistance or supervision, when he fell and struck his head forcefully against the ground, such that he was admitted to the emergency room at St. Joseph’s Medical Center.  On December 5, 2021, Decedent was discharged and returned home with hospice care.  Plaintiffs allege that on December 7, 2021, Decedent died from the injuries sustained in his fall. 

Defendants Burbank Investments, LP, Longwood Management Corporation, and Longwood Enterprises, Inc. are alleged to be the entity that owned, managed, controlled, and/or operated Burbank H&R Center. 

The complaint, filed October 4, 2022, alleges causes of action for: (1) elder neglect; (2) elder neglect (enhanced remedies sought); (3) negligence (custodial); (4) fraud (constructive); (5) violation of Patients’ Bill of Rights; (6) NIED; and (7) wrongful death.

B.     Demurrer and Motion on Calendar

On November 28, 2022, Defendants Burbank Healthcare, Inc., Burbank Investments, LP, Longwood Management Corporation, and Longwood Enterprises, Inc. filed a demurrer and a motion to strike portions of the complaint.

On December 30, 2022, Plaintiffs filed opposition briefs.

On January 4, 2023, Defendants filed reply briefs.

DISCUSSION RE DEMURRER

            Defendants demur to the 4^th and 6^th causes of action for fraud (constructive) and NIED. 

A.    4^th cause of action for Fraud (Constructive)

The elements of a constructive fraud cause of action are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).  (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.)  This cause of action is a tort of deceit and the facts constituting each element must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings.  (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)  Since the claim must be pleaded with particularity, the cause of action based on misrepresentations must allege facts showing how, when, where, to whom, and by what means the misrepresentations were tendered.  (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

In the 4^th cause of action, Plaintiffs allege that Decedent was dependent on Defendants for custodial care and assistance with his basic daily needs.  (Compl., ¶57.)  Plaintiffs allege that Defendants accepted Decedent as a resident, accepted his trust and confidence, and entered into a fiduciary relationship.  (Id., ¶58.)  The fiduciary relationship was alleged to be based on Defendants’ provision of care, comfort, safety, and health to Decedent and Decedent’s payment of money for the proper care.  (Id., ¶59.)  Plaintiffs allege that Defendants breached their duty and concealed from Plaintiffs that they were managing Burbank H&R Center with a focus of maximizing profits, such that they prioritized profits over patient care.  (Id., ¶¶60-61.)  Plaintiffs also allege that Defendants concealed that the facility was not capable of properly caring for Decedent because they lacked sufficient staff, training, and supervision.  (Id., ¶62.)  Plaintiffs allege that had they known about these facts, Decedent would not have resided at Burbank H&R Center.  (Id., ¶63.) 

Defendants argue that this cause of action fails because there was no fiduciary relationship between Decedent and Defendants when he became a resident of the facility.  Defendants do not cite any authority regarding this proposition.  However, “[c]onfidential and fiduciary relations are in law, synonymous and may be said to exist whenever trust and confidence is reposed by one person in another.”  (Barrett v. Bank of America (1986) 183 Cal.App.3d 1362, 1369; see e.g., Wohlgemuth v. Meyer (1956) 139 Cal.App.2d 326, 331 [“The doctor-patient relationship is a fiduciary one and it is incumbent on the doctor to reveal all pertinent information to his patient. The same is true of the hospital-patient relationship.”].) 

Next, Defendants argue that there was no concealment because Plaintiffs alleged that Ms. Myzska was very attuned to Decedent’s needs and directly witnessed Defendants’ maltreatment and neglect of Decedent.  (See Compl., ¶¶71-72.)  However, the 4^th cause of action alleges that Defendants concealed facts before Decedent became a resident of the facility and that had Plaintiffs known about the concealed facts, Decedent would not have resided at the facility.  The fact that Plaintiffs may have become aware of the conditions after Decedent entered the Facility are not the basis of this fraud claim.

Finally, Defendants argue that the fraud claim based on staffing issues should be dismissed because strict staffing posting requirements are required to be posted.  However, a demurrer tests the sufficiency of allegations in the complaint.  Plaintiffs have alleged that Defendants lacked sufficient staff, training, and supervision.  Taking the allegations of the complaint as true at the demurrer stage, the Court finds that the 4^th cause of action is adequately pled.

The demurrer to the 4^th cause of action is overruled.

B.     6^th cause of action for Negligent Infliction of Emotional Distress

An NIED claim is not an independent tort, but the tort of negligence.  (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.)  A cause of action for NIED may be brought under two general instances: (1) where Plaintiff is a bystander and seeks to recover damages as percipient witness to the injury of another; or (2) where Plaintiff is a direct victim in that the emotional distress damages result from a duty owed the plaintiff that is assumed by defendant or imposed on the defendant as a matter of law, or that arises out of the relationship between the two.  (Id. at 1509-10.)  Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.  (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) 

In the 6^th cause of action, Plaintiffs allege that Defendants neglected and abused Decedent by failing to consistently track Decedent’s care needs, movements, and requests for assistance; failing to take necessary steps to fully assess those risks or impose preventative measures; failing to ensure properly working safeguards and protections to prevent resident falls; failing to have measures and safeguards to timely detect a resident’s needs for assistance; and failing to have enough sufficiently trained staff.  (See Compl., ¶70.)  Plaintiffs allege that Ms. Myszka was extremely close to her father/Decedent and that she was very much attuned to her father’s needs and Defendants’ utter failure to attend to those needs.  (Id., ¶71.)  Plaintiffs allege that Ms. Myszka visited her father multiple times at the facility and directly witnessed the maltreatment and neglect of Decedent by Defendants, such as their failure to respond to his requests for assistance, Decedent’s distress, Defendants’ failure to monitor and protect Decedent from fall risks, etc.  (Id., ¶72.)  Plaintiffs allege as a result of being present and observing horrendous consequences of Defendants’ neglect of Decedent, Ms. Myszka experienced anguish, shock, disgust, horror, anxiety, and grief.  (Id., ¶73.) 

            Based on the allegations of the 6^th cause of action, the direct victim theory of NIED does not apply.  Thus, the Court will analyze whether Plaintiffs have alleged a cause of action for NIED under the bystander theory.

            Plaintiffs have alleged that Ms. Myszka is closely related to the Decedent, as she is Decedent’s daughter.  (Compl., ¶71.) 

However, Plaintiffs have not alleged that Ms. Myszka was present at the scene of the injury-producing event at the time it occurred and was then aware that it was causing injury to Decedent—i.e., Decedent’s fall on November 28, 2021 when he struck his head.  (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127 [“Because she was not present at the event that caused injury to her sister, plaintiff cannot pursue a bystander cause of action.”]; Thing v. La Chusa (1989) 48 Cal.3d 644, 669 [“[P]laintiff was not present at the scene of the accident in which her son was injured. She did not observe defendant's conduct and was not aware that her son was being injured. She could not, therefore, establish a right to recover for the emotional distress she suffered when she subsequently learned of the accident and observed its consequences.”].)  While Ms. Myszka alleges that she observed substandard care to Decedent during her visits, the actual injury-producing event alleged in the complaint is Decedent’s fall, which is the event that Plaintiffs allege caused Decedent injury and ultimately caused his death. 

In opposition, Plaintiffs argue that Ms. Myszka was present for the injury-causing conduct of Defendants when she observed their utter failure to attend to his basic custodial needs.  Plaintiffs rely on Ochoa v. Superior Court (1985) 39 Cal.3d 159, arguing that an NIED claim was appropriate where parents witnessed the neglect of their son’s medical needs by the staff of a juvenile hall infirmary. 

In Ochoa, the parents witnessed their son being extremely ill with severe pain to his left side and they informed the authorities and expressed concern of their son’s treatment.  Two days later, the mother observed that her son was very pale, looked dehydrated, and had clammy skin, and that he was having convulsions and hallucinations.  The mother again expressed her concerns, but was asked to leave.  The son was then transferred to the ICU, neglected, and thereafter died.  The California Supreme Court found that the NIED cause of action was proper because the mother observed defendant’s conduct and the child’s injury and had contemporaneous awareness that defendant’s conduct or lack thereof was causing harm to her child.  (Ochoa, supra, 39 Cal.3d at 170.)  The Supreme Court stated that the mother did not need to witness the death of her child, but rather death or injury.  (Id. at 167, fn.7.)  The Court stated that “liability is posited on the shock and trauma which they experienced upon seeing their son's medical needs being ignored by the defendants.”  (Id.)

The facts in Ochoa are specific to a close relative seeing the physical injury and decline of their family member, such as a mother seeing her son’s progressively deteriorating health.  In contrast, Plaintiffs’ allegations for NIED are based on Ms. Myszka’s observations of the Defendants’ failures to have proper safeguards to prevent falls and sufficient staff members at the facility.  She does not allege that she observed any actual injuries or decline to Decedent, like the case facts in Ochoa. 

Thus, the demurrer to the 6^th cause of action is sustained with leave to amend. DISCUSSION RE MOTION TO STRIKE

            Defendants move to strike allegations for injunctive relief from the complaint in connection with the 5^th cause of action for violation of the Patients’ Bill of Rights.  Defendants argue that the complaint alleges that Decedent left the facility on November 28, 2021, did not return to the facility, and passed away on December 7, 2021.  Thus, they argue that injunctive relief is not proper where Plaintiffs lack standing.  (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1004 [“Further, for standing to seek the prospective relief of an injunction, a plaintiff must show a likelihood he will be harmed in the future if the injunction is not granted.”].) 

            In the 5^th cause of action, Plaintiffs seek “injunctive relief as described in Attachment A.”  (Compl., ¶68.)  In the prayer for damages at paragraph 6, Plaintiffs seek an order pursuant to Health & Safety Code, § 1430 enjoining Defendants from future violations of patient rights at their facilities.  (Compl. at p.32.)  Attachment A to the complaint seeks the following injunctive relief against Defendants: (1) Defendants shall ensure that no patient rights are violated at their facilities; (2) Defendants shall ensure that all of their patients are maintained at their highest practicable level of functionality; (3) Defendants shall ensure that their patients are free from unnecessary pain; (4) Defendants shall ensure that their facilities are adequately staffed, both quantitatively and qualitatively, to meet the needs of their patients; (5) Defendants shall ensure that patients at their facilities are properly assessed on admission to identify high fall risk; (6) 6. Defendants shall ensure that when one of the patients at their facilities is identified as a high fall risk appropriate care planning and interventions will be implemented to protect them from falls; and (7) Defendants shall ensure that when temporary care staff is used at their facilities the temporary care staff will be accurately informed of the needs and care plans for the patients they are responsible for.  (Compl. at Attachment A.)

            Health & Safety Code, § 1430(b) states in relevant part:

(b)(1) A current or former resident or patient, or the legal representative, personal representative, or successor in interest of a current or former resident or patient, of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) 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 Section 72527 or 73523 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee’s employees.

            …

(B) For violations that occur on or after March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) for each violation, and for costs and attorney's fees, and may be enjoined from permitting the violation or violations to continue.

(Health & Saf. Code, § 1430(b)(1)(B).)  Section 1430 allows current or former residents or patients, as well as successors-in-interest, to bring a civil action against a facility.  The section states that licensees “shall” be liable for up to $500 per violation, and costs and attorney’s fees, and “may” be enjoined from permitting the violation(s) to continue.  As such, even though Decedent is no longer a resident of the facility, Plaintiffs may still seek injunctive relief against Defendants. 

            The motion to strike is denied.

CONCLUSION AND ORDER

            Defendants Burbank Healthcare, Inc., Burbank Investments, LP, Longwood Management Corporation, and Longwood Enterprises, Inc.’s demurrer to the complaint is overruled as to the 4^th cause of action and sustained with 20 days leave to amend as to the 6^th cause of action.

            Defendants’ motion to strike the allegations for injunctive relief from the complaint is denied.

Defendants shall provide notice of this order.