Judge: John J. Kralik, Case: 22STCV08456, Date: 2022-12-09 Tentative Ruling
Case Number: 22STCV08456 Hearing Date: December 9, 2022 Dept: NCB
North Central District
LINDA HEIGLE AND MATTHEW ZABELLE, Individually and as Successors in Interest on behalf of Decedent RUTH S. ZABELLE, Plaintiffs, v.
ICC CONVALESCENT CORP. dba IMPERIAL CARE CENTER; et al., Defendants. |
Case No.: 22STCV08456 Hearing Date: December 9, 2022 [TENTATIVE] ORDER RE: DEMURRER; MOTION TO STRIKE |
BACKGROUND
A. Allegations
Plaintiffs Linda Heigle and Matthew Zabelle (“Plaintiffs”), individually and as successors in interest on behalf of Decedent Ruth S. Zabelle (“Decedent”) allege that Decedent was a resident at Defendant ICC Convalescent Corp. dba Imperial Care Center (“Facility”) beginning August 21, 2020 until her discharge on March 8, 2021. Decedent is alleged to have been over the age of 65. Defendant David Friedman (individually and as agent for Facility, “Friedman”) is alleged to be the Facility’s director and owner of 39 nursing facilities. Plaintiffs allege that Decedent was transferred to Providence St. Joseph Medical Center. When she presented at Providence, Plaintiffs allege that Decedent was profoundly dehydrated and has sepsis, chronic kidney disease, acute hypoxic respiratory failure, and acute chronic encephalopathy.
Defendant Keino Rutherford, M.D. (“Dr. Rutherford”) was Decedent’s physician and Plaintiffs claim that he made no effort to speak to the family or obtain consent for treatments and did not recognize Decedent’s lesions from scabies. Plaintiffs allege that Dr. Rutherford knew or should have known that scabies, if left untreated, can cause sepsis.
The First Amended Complaint (“FAC”), filed May 17, 2022, alleges causes of action for: (1) wrongful death; (2) elder/dependent abuse and neglect (Welf. & Inst. Code, §§ 15600 et seq.); and (3) violation of patient’s rights.
On September 19, 2022, Plaintiffs dismissed the 3rd cause of action as against David Friedman only.
B. Motions on Calendar
On August 29, 2022, Defendant Friedman filed a demurrer to the FAC and a motion to strike portions of the FAC.
On September 16, 2022, Plaintiffs filed opposition briefs.
On September 26, 2022, Defendants filed reply briefs.
DISCUSSION RE DEMURRER
Defendant Friedman demur to the 1st, 2nd, and 3rd causes of action as alleged against Friedman.
A. Request for Judicial Notice
Defendant requests judicial notice of the facts that: (1) Imperial Care Center was a licensed skilled nursing facility, as issued by the State of California Department of Public Health, as supported by the Facility Licenses in effect from February 10, 2020 to February 9, 2022; and (2) the Licensee of Imperial Care Center was ICC Convalescent Corp., as supported by the Facility Licenses in effect from February 10, 2020 to February 9, 2022. (See RJN, Ex. A.) The Court will take judicial notice of Exhibit A, which contains the State of California Department of Public Health’s license information regarding ICC Convalescent Corp. and Imperial Care Center.
B. 1st cause of action for Wrongful Death
In the 1st cause of action, Plaintiffs allege that Defendants owed Decedent a duty of care and that they put her in harm’s way by failing to have her neurologically examined; “plac[ing] her on antipsychotic as chemical restraint”; allowing her to fall from her bed or wheelchair to the floor numerous times; subjecting her to pain to her right hand, from the rash on her front and back torso, and to her hand from the pustules; allowing her to be subjected to and infected with scabies from their failure to follow their own protocol and state and federal regulations; and allowing her to become profoundly dehydrated and get sepsis without early intervention. (FAC, ¶86.)
Defendant Friedman demurs to the 1st cause of action on the ground that it is uncertain. He argues that the allegations specifically made against him are sparse and that the only allegations against him are that he is Facility’s director, he was aware of the facts of this case and the conditions of Decedent’s death, and he was responsible for implementing the policies and procedures of the Facility. (FAC, ¶5.)
In opposition, Plaintiffs argue that they alleged sufficient facts because their allegations were against “Defendants” generally, of which Friedman is included.
While Plaintiffs allege that Defendants generally were liable for Decedent’s death, Plaintiffs have not alleged facts showing how Defendant Friedman owed a duty of professional medical care to Decedent. As shown in the 1st cause of action, the duties that appeared to be owed were in the course of her physical care. In the FAC, Plaintiffs allege that Defendant Friedman is the director of Facility only and there are no allegations that he was specifically involved in Decedent’s care as a nurse, doctor, caretaker, or in any other capacity.
As such, the demurrer to the 1st cause of action is sustained with leave to amend.
C. 2nd cause of action for Elder/Dependent Abuse and Neglect
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 3rd cause of action, Plaintiffs allege that Decedent was an “elder” pursuant to the code. (FAC, ¶92.) They allege that Defendants’ conduct constituted abuse, neglect, abandonment, and physical abuse pursuant to the code. (Id., ¶¶97-100.) Plaintiffs allege that Defendants operated the Facility in a manner to generate maximum revenue and income at the expense of providing Decedent medical care and basic life necessities, such that Decedent had injuries to her hand, a rash on her torso, lesions on her hand, and dehydration—all of which led to her death. (Id., ¶103.)
Friedman argues that the FAC is devoid of facts showing that Decedent was in his care or custody. Friedman cites to allegations that he was the Facility’s director but argues that there are no allegations the had was personally responsible for Decedent’s basic needs. He also argues the FAC lacks facts that he engaged in reckless, oppressive, malicious, or fraudulent conduct against Decedent.
In opposition, Plaintiffs argue that Friedman is a care custodian because administrators or employees of a facility can qualify pursuant to Welfare & Institutions Code, § 15610.17. Plaintiffs cite to Delaney v. Baker (1999) 20 Cal.4th 23, where the Supreme Court affirmed the Court of Appeal’s judgment that the defendant nursing home and its administrators were subject to the heightened remedies of the Welfare & Institutions Code. In that case, the plaintiff had brought an action against the nursing facility and its administrators, alleging neglect as a result of the rapid turnover of nursing staff, staffing shortages, inadequate training of employees, violations of medical monitoring and recordkeeping regulations, etc. The jury found in favor of plaintiff on the elder abuse claim based on neglect.
While Delaney may show that there is a basis to impose liability against an administrator in performing his or her administrative duties at a nursing care facility, it is unclear whether Friedman engaged in administrative or staff roles at the Facility, as opposed to being an owner or director of the Facility. The FAC does not allege facts showing that Friedman engaged in the hiring, training, or termination of staff, or that he violated medical monitoring/recordkeeping regulations. Based on the allegations of the complaint as currently worded, Plaintiffs have not shown that Friedman was a care custodian of Decedent.
The demurrer to the 2nd cause of action is sustained with leave to amend.
D. 3rd cause of action for Violation of Patient’s Rights
The demurrer to the 3rd cause of action is moot as Plaintiffs dismissed the 3rd cause of action against Friedman on September 19, 2022.
DISCUSSION RE MOTION TO STRIKE
Defendant Friedman moves to strike page 36 at lines 5-6 from the FAC, which includes a request for punitive damages in connection with the 2nd cause of action.
In light of the ruling on the demurer to the 2nd cause of action, the motion to strike is taken off-calendar as moot
CONCLUSION AND ORDER
Defendant David Friedman’s demurrer to the 1st and 2nd causes of action in the First Amended Complaint is sustained with 20 days leave to amend. The demurrer to the 3rd cause of action is moot as Plaintiffs dismissed the 3rd cause of action against Defendant David Friedman on September 19, 2022.
In light of the ruling on the demurrer, Defendant David Friedman’s motion to strike the request for punitive damages in the First Amended Complaint is taken off-calendar as moot.
Defendants shall provide notice of this order.