Judge: John J. Kralik, Case: 23BBCV01932, Date: 2023-12-15 Tentative Ruling

Case Number: 23BBCV01932    Hearing Date: December 15, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Jamshid Nazarian, deceased (“Decedent”), was an elder at all times relevant to this action.  Plaintiffs Carineh Nazarian and Gohar Nazarian are the adult living daughters of Decedent.  Defendant DP Care, Inc. dba Casa Valle (“Defendant”) is alleged to be the owner and operator of a congregate living health facility located at 11321 Stagg Street, Sun Valley, California 91352.  Plaintiffs allege that Defendant had substantial caretaking and a custodial relationship with Decedent, assuming significant responsibility for tending to his basic needs.

Plaintiffs allege that on May 12, 2022, Decedent fell and suffered a left hip displaced femur fracture and left knee pain, such that he was admitted to Adventist Health Hospital.  He underwent total hip arthroplasty surgery and was discharged with the diagnosis for acute kidney failure, Alzheimer’s disease, COVID-19, dementia, fracture of neck of left femur, hemiplegia affecting left side, hyperlipidemia, metabolic encephalopathy, and pneumonia.  Because he needed healthcare assistance, Carineh Nazarian selected Defendant, which only had a maximum of 6 residents at any time, to care for Decedent.  Plaintiffs allege that Decedent was admitted to Defendant’s facility on May 21, 2022 to receive healthcare and rehabilitative case and that Defendant knew of his basic care needs, that he was a fall risk, had poor safety awareness, cognitive deficits, he could not care for his own basic needs, etc.  (Compl., ¶¶15-16, 18, 20.)  Plaintiffs allege that despite this knowledge, Defendant ignored the risk with not providing Decedent with basic care and monitoring, and withheld care despite knowing his severe medical conditions and reliance.  (Id., ¶¶17, 19, 21.) 

Plaintiffs allege that on May 28, 2022, as a result of Defendant’s withholding of care, Decedent suffered injury to his skin on his buttocks from prolonged pressure on his skin.  (Id., ¶22.)  They allege as a result of Defendant’s failure to provide care, he fell from his bed and fractured and dislocated his left hip on June 2, 2022, which required two surgeries.  (Id., ¶¶23-26.)  Decedent thereafter lived in a skilled nursing facility until his death on November 5, 2022.  (Id., ¶28.) 

The complaint, filed August 22, 2023, alleges causes of action for: (1) statutory violation of California’s Elder and Dependent Abuse Civil Protection Act (Wel. & Inst. Code, § 15600 et seq.); (2) negligence; and (3) wrongful death.      

B.     Motions on Calendar

On October 9, 2023, Defendant filed a demurrer and a motion to strike portions of the complaint.

On December 4, 2023, Plaintiffs filed opposition briefs.

On December 8, 2023, Defendant filed reply briefs.

DISCUSSION RE DEMURRER

            Defendant demurs to the complaint, arguing that Plaintiffs have not alleged sufficient facts to establish a statutory violation for elder abuse. 

The Court of Appeal in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404–405 discussed elder abuse as follows:

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.” (Welf. & Inst.Code, § 15610.27.) In particular, a plaintiff who proves “by clear and convincing evidence” both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of “recklessness, oppression, fraud, or malice” in the commission of such abuse may recover attorney fees and costs. (Id., § 15657, subd. (a).) On the same proof, a plaintiff who sues as the personal representative or successor in interest of a deceased elder is partially relieved of the limitation on damages imposed by Code of Civil Procedure section 377.34 and may recover damages for the decedent's predeath pain and suffering. (Welf. & Inst.Code, § 15657, subd. (b).)

The Elder Abuse Act defines abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst.Code, § 15610.07, subd. (a), italics added); or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., § 15610.07, subd. (b)). The Act defines neglect as “[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.” (Id., § 15610.57, subd. (a)(1).) “Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. [¶] (2) Failure to provide medical care for physical and mental health needs.... [¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration.” (Id., § 15610.57, subd. (b).) In short, neglect as a form of abuse under the Elder Abuse Act refers “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.” (Delaney v. Baker (1999) 20 Cal.4th 23, 34, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney ).) Thus, when the medical care of an elder is at issue, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, 11 Cal.Rptr.3d 222, 86 P.3d 290 (Covenant Care ); see also id. at p. 786, 11 Cal.Rptr.3d 222, 86 P.3d 290 [“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs”].)

To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder. (Welf. & Inst.Code, § 15657.2; Delaney, supra, 20 Cal.4th at p. 32, 82 Cal.Rptr.2d 610, 971 P.2d 986; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88, 50 Cal.Rptr.3d 266 (Sababin ).) The plaintiff must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect. (Welf. & Inst.Code, § 15657.) Oppression, fraud and malice “involve ‘intentional,’ ‘willful,’ or ‘conscious' wrongdoing of a ‘despicable’ or ‘injurious' nature.” (Delaney, at p. 31, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Recklessness involves “ ‘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.’ ” (Id. at pp. 31–32, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Thus, the enhanced remedies are available only for “ ‘acts of egregious abuse’ against elder and dependent adults.” (Id. at p. 35, 82 Cal.Rptr.2d 610, 971 P.2d 986; see also Covenant Care, supra, 32 Cal.4th at p. 786, 11 Cal.Rptr.3d 222, 86 P.3d 290 [“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs”].) In short, “[i]n order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, at p. 789, 11 Cal.Rptr.3d 222, 86 P.3d 290.)

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404–405.)

            Defendant argues that Plaintiffs’ allegations in the complaint fail to rise to the level of conscious or willful act of egregious neglect, or abuse.  It argues that Plaintiffs generally refer to Defendant’s withholding of care but lacks specificity on a pattern of neglect and fails to plead facts at a heightened pleading standard. 

            According to the allegations of the complaint, Defendant knew of Decedent’s conditions regarding his hip, that he presented a fall risk, that he had dementia and Alzheimer’s disease, and could not care for his basic needs himself.  Plaintiffs allege that Defendant ignored the risk and withheld care, such that he was left in a compromised state of being and at a risk of injury.  In the 1^st cause of action, Plaintiffs allege that Defendant recklessly failed to ensure Decedent was not subjected to abuse and neglect, to create and update a care plan, to supervise and monitor him, to utilize alarms and put him in a bed with 2 working bed rails, to put him in the lowest position possible, to put a landing mat next to his bed, to change his position, to send him to the emergency room, etc.  (Compl., ¶38.)  While Plaintiffs have presented some examples of what Defendant failed to do as a facility in general, they have not alleged specific facts showing elder abuse or neglect in their particular care of Decedent. 

Examples of conduct sufficiently egregious to warrant the award of enhanced remedies under the Elder Abuse Act include the following:

1) An 88-year-old woman with a broken ankle was frequently left lying in her own urine and feces for extended periods of time and she developed pressure ulcers on her ankles, feet and buttocks that exposed bone, despite persistent complaints to nursing staff, administration, and to a nursing home ombudsman.  (Delaney v. Baker (1999) 20 Cal.4th 23, 41.) 

2) A physician concealed the existence of a serious bedsore on a nursing home patient under his care, opposed her hospitalization where circumstances indicated it was medically necessary, and then abandoned the patient when she was dying.  (Mack v. Soung (2000) 80 Cal.App.4th 966, 973.)

3) A skilled nursing facility failed to provide an elderly man suffering from Parkinson’s disease with sufficient food and water and necessary medication, left him unattended and unassisted for long periods of time, left him in his own excrement so that ulcers exposing muscle and bone became infected; and misrepresented and failed to inform his children of his true condition.  (Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 778.)

4) A skilled nursing facility failed to provide adequate pressure relief to a 76-year-old woman with severe pain of her left leg and identified as at high risk for developing pressure ulcers, dropped the patient, left her in filthy and unsanitary conditions, and failed to provide her the proper diet, monitor food intake and assist her with eating.  (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 430, 434-435.)

5) The staff of a nursing home failed to assist a 90-year-old, blind, and demented woman with eating, used physical and chemical restraints to punish the elder and prevent her from obtaining help, and physically and emotionally abused the elder by bruising her, withholding food and water, screaming at her, and threatening her.  (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 116-117.)

6) A 78-year-old man admitted to a skilled nursing facility was abused, beaten, unlawfully restrained, and denied medical treatment.  (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1512.) 

7) A facility caring for a dependent adult with a known condition causing progressive dementia, requiring nutrition and hydration through a gastrostomy tube, and subjecting her to skin deterioration, ignored a medical care plan requiring the facility to check the dependent adult’s skin on a daily basis and failed to notify a physician when pressure ulcers and other skin lesions developed.  (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 83-87, 90.)

(See Carter, supra, 198 Cal. App. 4th at 406-407.)  Plaintiffs have alleged facts regarding two incidents: (1) Decedent developed pressure sores on his skin and (2) his fall.   (See Compl., ¶¶22-23.)  However, they have not alleged specific facts showing how these incidents occurred and whether they were the result of intentional, reckless, and/or egregious behavior.  At most, the allegations may rise to a showing of negligence that Defendant and its staff failed to check in on Decedent regularly or provide extra precautions.

            At this time, the Court sustains the demurrer to the 1^st cause of action with leave to amend. 

            Based on the notice of the demurrer, it appears that Defendant intended to demur to the entirety of the complaint.  However, the demurrer focuses solely on the 1^st cause of action.  In addition, the reply brief argues that Plaintiffs’ allegations are conclusory and amount to mere negligence.  Otherwise, Defendant does not make arguments in the demurrer about the 2^nd cause of action for negligence and the 3^rd cause of action for wrongful death.  As such, to the extent Defendant intended to demur to the 2^nd and 3^rd causes of action, the demurrer is overruled. 

DISCUSSION RE MOTION TO STRIKE

            Defendant moves to strike the allegations at page 14, Items 4 and 5, which request attorney’s fees pursuant to Welfare & Institutions Code, § 15657(a) and for punitive damages.  The attorney’s fees and punitive damages are requested in connection with the 1^st cause of action.  (See Compl., ¶¶42-43.) 

            In light of the ruling on the demurrer, the motion to strike is taken off-calendar. 

CONCLUSION AND ORDER

            Defendant’s demurrer to the 1^st cause of action is sustained with 20 days leave to amend.  To the extent Defendant intended to demur to the 2^nd and 3^rd causes of action, the demurrer is overruled.

            Defendant’s motion to strike is taken off-calendar as moot in light of the ruling on the demurrer. 

Defendant shall give notice of this order.  

Warning regarding electronic appearances:  All software for remote or electronic appearances is subject to malfunction based on system weakness and human error, which can originate from any of the multiple parties participating each morning. The seamless operation of the Court’s electronic appearance software is dependent on numerous inconstant and fluctuating factors that may impact whether you, or other counsel or the Court itself can be heard in a particular case. Not all these factors are within the control of the courtroom staff. For example, at times, the system traps participants in electronic purgatories where they cannot be heard and where the courtroom staff is not aware of their presence. If you call the courtroom, please be respectful of the fact that a court hearing is going on, and that the courtroom staff is doing their best to use an imperfect system. If it is truly important to you to be heard, please show up to the courtroom in the normal way. Parking is free or reasonable in Burbank.

DATED: December 15, 2023                                                 ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court