Judge: Jon R. Takasugi, Case: 20STCV40085, Date: 2024-01-03 Tentative Ruling

Case Number: 20STCV40085    Hearing Date: March 25, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

           Defendant’s demurrer is SUSTAINED with 15 days leave to amend.

            Accordingly, Defendant’s motion to strike is MOOT.

            On October 19, 2020, Plaintiffs Marion Newman, by and through her Successor-in-Interest, Tiffany Newman, and Tiffany Newman (collectively “Plaintiffs”) filed a Complaint against Defendant KND Development 52, LLC dba Kindred Hospital Baldwin Park (“KND”) for (1) elder abuse (pursuant to Welfare and Institutions Code § 15600, et seq.) and (2) wrongful death.  The complaint also named Debbie Newman, Donna Shelvin, Wesley Newman, Marion Newman, Christine Newman, and Jill Newman as nominal defendants.

On May 12, 2022, Plaintiffs filed an amendment to complaint, substituting in Pomona Valley Hospital Medical Center (“Defendant”) for Doe 2.

The operative Third Amended Complaint (“TAC”) filed on January 19, 2024 alleges the same causes of action.

Defendant Pomona Valley Hospital Medical Center now demurs to both causes of action in the TAC and moves to portions of the TAC.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.)

Discussion

I.                   Judicial Notice

Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)

II.               Sham Pleading

The Court previously sustained the demurrer based in part on it being a sham pleading. The Court stated:

First, Plaintiff has not alleged facts which could show that Defendant’s conduct caused Plaintiff’s injury five month later. Rather, inexplicably, Plaintiff’s SAC entirely omits the allegation that Decedent was discharged from Defendant’s care, and was admitted to Pomona Valley Rehabilitation Center, not a party to this action, for skilled nursing care. The Court agrees with Defendant that this omission gives the appearance that Decedent was under the care of Defendant the entire time until she was admitted to Co-Defendant Baldwin Park on 3/25/2020. As such, “[t]his omission is not trivial or minor; it is a major inconsistency that Plaintiffs fail to explain. The omission of these allegations without any explanation as to why Plaintiffs did not make these allegations in earlier pleadings, or any explanation of the inconsistencies, renders the SAC a sham pleading. (Motion, 13: 7-10.)

Plaintiff must set forth facts to explain the omission of the allegation that Decedent was actually discharged from Defendant's facility and was admitted to an entirely different facility - not a party to this action -before she was ever admitted to Baldwin Park.

. . .

In sum, Plaintiff must set forth: (1) facts to explain the omission of the allegation that Decedent was discharged from Defendant’s care and admitted to Pomona Valley Rehabilitation Center prior to her admission to Baldwin Park; (2) facts which could show a causal connection between the alleged skin breakdown in Defendant’s care and her eventual death while in the care of another facility; and (3) facts which could show that the requisite custodial relationship existed.”

(1/3/24 Minute Order.)

Plaintiffs now allege that “NEWMAN entered Pomona Valley Rehabilitation Center for wound-care and rehabilitation on February 22, 2020,” and that “[o]n March 13, 2020, Pomona Valley Rehab transferred NEWMAN to San Gabriel Valley Medical Center for ongoing wound care for her infected pressure injuries.” (TAC, ¶¶ 55, 57.) “On or about March 25, 2020 NEWMAN was admitted to KINDRED from San Gabriel Valley Medical Center for continuation of her care.” (TAC, ¶ 58.) However, the TAC also alleges that “[f]rom February 22, 2020 through March 25, 2020, POMONA’s staff on many occasions failed to inspect NEWMAN’s skin for breakdown as required by her care plan.” (TAC, ¶ 51.) Plaintiffs further allege that “[f]rom February 4, 2020, through March 25, 2020, POMONA’s repositioning records show POMONA’s nursing staff repositioned NEWMAN sporadically or not at all.” (TAC, ¶ 52.) Based on these allegations, it is still unclear how Defendant’s conduct caused Plaintiff’s injury five month later. Plaintiffs’ allegations still give the appearance that Decedent was under the care of Defendant the entire time until she was admitted to Co-Defendant Baldwin Park on 3/25/2020. The allegations do not explain why Defendant’s staff was required to inspect or reposition Decedent until 3/25/2020 even though she was under the care of other facilities. Plaintiffs’ opposition provides no substantive argument on this issue. Accordingly, the same deficiencies still remain without further explanation.

The Court notes that Plaintiffs have alleged sufficient facts now to show the requisite custodial relationship for an elder abuse claim. (FAC, ¶34.)

Accordingly, the demurrer to the TAC is SUSTAINED with leave to amend.

The motion to strike is moot.

Dated: March 25, 2024

Hon. Jon R. Takasugi

Judge of the Superior Court