Judge: Joseph Lipner, Case: 23STCV10136, Date: 2024-03-14 Tentative Ruling
Case Number: 23STCV10136 Hearing Date: March 14, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
IRVIN SMITH, Plaintiff, v. LA BREA REHABILITATION, Defendant. |
Case No:
23STCV10136 Hearing Date: March 14, 2024 Calendar Number: 6 |
Defendants La Brea Rehabilitation Center, LLC (“La Brea”),
Citrus Administrative Services, Inc. (“Citrus”), La Brea SNF Holdings, LLC (“La
Brea Holdings), and SR Investments, LLC (“SR”) (collectively, “Defendants”)
demur to the first, third, and fourth causes of action in the First Amended
Complaint (“FAC”) filed by Plaintiff Irvin Smith (“Plaintiff”). Defendants
additionally move to strike Plaintiff’s demands for attorney’s fees, punitive
damages, and injunctive relief.
The Court OVERRULES the demurrer to Plaintiffs first and
third causes of action.
The Court SUSTAINS the demurrer to Plaintiff’s fourth cause
of action WITH LEAVE TO AMEND.
The Court DENIES the motion to strike.
This is an elder abuse case. La Brea operates a nursing
facility where Plaintiff was a resident. Plaintiff alleges that the facility
was chronically understaffed and that the staff were insufficiently skilled,
resulting inadequate care.
Plaintiff’s condition declined over the course of his time
at La Brea, and he was assessed as being of a high risk for a fall.
Plaintiff suffered three falls while in Defendants’ custody
– on September 23, 2019, November 21, 2019, and May 21, 2022. The May 21, 2022
fall occurred when Plaintiff fell out of a shower chair and struck his head,
breaking his neck.
Plaintiff filed this case on May 5, 2023, raising claims for
(1) elder abuse/neglect; (2) negligence; and (3) violation of residents’ rights
pursuant to Health and Safety Code, section 1430, subd. (b).
On August 31, 2023, Plaintiff’s counsel filed a notice of
the death of Plaintiff.
On December 21, 2023, the Court granted Plaintiff’s motion
to amend the Complaint to name a successor in interest.
The operative complaint is now the FAC, filed on December
26, 2023, which raises claims for (1) elder abuse/neglect; (2) negligence; (3)
violation of residents’ rights pursuant to Health and Safety Code, section
1430, subd. (b); and (4) wrongful death. The FAC names Gloria Smith as
Plaintiff’s successor in interest.
Defendants filed the motion to strike on January 25, 2024
and demurred to the first, third, and fourth causes of action in the FAC on
January 26, 2024. Plaintiff filed oppositions to each and Defendants filed a
reply in support of each.
As a general matter, 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 pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc., § 436(b).) The grounds for a motion to strike are that the
pleading has irrelevant, false or improper matter, or has not been drawn or
filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Code Civ. Proc., § 437.)
A complainant may obtain leave from the trial court to amend
their pleading beyond the number of amendments allowed under Code of Civil
Procedure section 472 (a) by filing a noticed motion. (Cal. Rules of Court,
Rule 3.1324.) The motion must be accompanied by a declaration stating: (1) the
effect of the amendment; (2) why the amendment is necessary and proper; (3)
when the facts giving rise to the amended allegations were discovered; and (4)
why the request was not made earlier.¿(Cal. Rules of Court, Rule 3.1324 (b).)
“Any judge, at any time before or after commencement of
trial, in the furtherance of justice, and upon such terms as may be proper, may
allow the amendment of any pleading or pretrial conference order.”¿(Code Civ.
Proc., § 576.) In the absence of a showing of prejudice from the opposing side,
the trial court ordinarily lacks discretion to deny a motion to amend a
pleading. (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960,
965.)
The Elder Abuse and Dependent Adult Civil Protection Act
(Welf. & Inst. Code, § 15600 et seq.) provides for steep penalties against
those who abuse an elder or a dependent adult. Dependent adult abuse includes
physical abuse, neglect, isolation, deprivation by a care custodian of
necessary goods or services, and financial abuse. (Welf. & Inst. Code, §
15610.07, subd. (a).) Neglect includes failure to assist in personal hygiene,
failure to provide medical care for physical and mental health needs, and
failure to protect from health and safety hazards. (Welf. & Inst. Code, §
15610.57, subd. (b).)
[S]everal factors []
must be present for conduct to constitute neglect within the meaning of the
Elder Abuse Act and thereby trigger the enhanced remedies available under the
Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence)
facts establishing that the defendant: (1) had responsibility for meeting the
basic needs of the elder or dependent adult, such as nutrition, hydration,
hygiene or medical care; (2) knew of conditions that made the elder or
dependent adult unable to provide for his or her own basic needs; and (3)
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). The
plaintiff must also allege (and ultimately prove by clear and convincing
evidence) that the neglect caused the elder or dependent adult to suffer
physical harm, pain or mental suffering. Finally, the facts constituting the
neglect and establishing the causal link between the neglect and the injury
“must be pleaded with particularity,” in accordance with the pleading rules
governing statutory claims.
(Carter v. Prime
Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407,
citations omitted.)
However, a plaintiff still need only plead ultimate facts,
and not evidentiary facts, in order to meet this heightened pleading standard.
(Knox v. Dean (2012) 205 Cal.App.4th 417, 431.)
Plaintiff alleges that Defendants recklessly moved him from
the shower to the bed before the fire department arrived after his May 21, 2022
fall. Plaintiff alleges that moving him in this manner exacerbated his injuries,
especially because Defendants failed to provide him with proper neck support.
Plaintiff also contends that it was reckless to place him in
a shower chair, rather than a shower bed, for his showers, given that Plaintiff
had a history of falls, was completely immobile, had contractures in all limbs,
had cognitive impairments and poor safety awareness, and was dependent for all
care. Plaintiff further alleges that these mistakes resulted from Defendants’
decisions to underfund and understaff the facility, including with many
personnel who were not trained and qualified to care for residents in
Plaintiff’s position.
Defendants argue that supervision and staff were present
when Plaintiff fell, so this case is fundamentally a question of whether more
staff should have assisted, and that this claim therefore sounds in negligence,
rather than recklessness. Defendants argue that this case is analogous to Worsham
v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 334, where the Court of
Appeal affirmed a demurrer when the plaintiff suffered a fall at a nursing
facility due to alleged understaffing and undertraining.
However, Plaintiff has alleged more than just inadequate
staffing at the time of the fall. Plaintiff’s fundamental argument is that
Defendants structurally understaffed the facility, resulting in a series
of bad decisions including the assignment of a shower chair to Plaintiff
despite his immobility and history of falls, inadequate staffing present while
Plaintiff showered, the decision to move Plaintiff after the fall, and the
failure to provide him with inadequate neck support.
Further, unlike in Worsham, Plaintiff had two prior
falls at the facility in question. Whereas in Worsham the
plaintiff only had one prior fall prior to her admittance, here, La Brea allegedly
had strong reason to believe that Plaintiff required an especially high amount
of care and that he would suffer falls if that care were not provided. Thus,
Plaintiff may be able to prove a case for recklessness under these facts.
Plaintiff similarly alleges that the defendants other than
La Brea participated in the decision to chronically understaff and undertrain
the staff at La Brea.
Defendants argue that Plaintiff cannot prove a heightened
elder abuse case. However, demurrers are not proper vehicles for splitting up
causes of action. The same is true for Defendant’s objection to Plaintiff’s
prayer for punitive damages. A motion to strike is the proper vehicle for these
objections.
The Court therefore overrules the demurrer to this cause of
action.
Health and Safety Code, section 1430, subd. (b) provides
that “a current or former resident or patient of a skilled nursing facility as
defined in subdivision (c) 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 the Patients’ Bill of Rights in Section 72527 of Title
22 of the California Code of Regulations [which incorporates Health and Safety
Code §1599.1], or any other right provided for by federal or state law or
regulation.” (Ibid.)
Defendants argue that Plaintiff has not set forth a specific
right from the Patients’ Bill of Rights that was violated. However, the
Patients’ Bill of Rights includes the right “[t]o be treated with
consideration, respect and full recognition of dignity and individuality, …
care for personal needs.” (22 C.C.R § 73523, subd. (a)(11).) As discussed
above, Plaintiff has alleged that Defendants recklessly failed to meet his
personal needs as a patient who was prone to falls.
The Court overrules the demurrer to this cause of action.
Plaintiff’s original complaint did not allege wrongful
death; rather, this claim was added in the FAC. However, the Court did not
grant leave to amend to add a new cause of action.
Plaintiff states that he will seek leave to amend to
properly add this cause of action.
The Court therefore sustains the demurrer with leave to
amend.
Defendants move to strike Plaintiff’s demands for attorney’s
fees, punitive damages, and injunctive relief.
“In order to survive a motion to strike an allegation of
punitive damages, the ultimate facts showing an entitlement to such relief must
be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion
to strike, judges read allegations of a pleading subject to a motion to strike
as a whole, all parts in their context, and assume their truth.” (Ibid.)
“In ruling on a motion to strike, courts do not read allegations in isolation.”
(Ibid.) Conclusory allegations, devoid of any factual assertions, are
insufficient to support a conclusion that parties acted with oppression, fraud
or malice. (Smith v. Superior Court
(1992) 10 Cal.App.4th 1033, 1042.)
An award of attorney’s fees is proper when authorized by
contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd.
(a)(10).)
Welfare & Institutions Code, section 15657 and Civil
Code section 3294, acting in concert, provide that to recover punitive damages
and attorney’s fees, a plaintiff must prove by clear and convincing evidence
that a defendant committed physical abuse or neglect of an elder or dependent
adult and that the defendant did so with “recklessness, oppression, fraud, or
malice.” (Welfare & Institutions Code, § 15657.)
An employer cannot be liable for punitive damage by its
employees unless an officer, director, or managing agent authorized or ratified
the abuse or hired the person who committed the act with advance knowledge of
the person’s unfitness. (Welfare & Institutions Code, § 15657, subd. (c);
Civ. Code, § 3294, subd. (b).)
The FAC alleges that Defendants had advance knowledge of the
unfitness of La Brea’s nursing employees. The FAC alleges that the facility
received a Department of Health Services AA citation for its conditions in 2022,
establishing knowledge. Further, from 2015 to 2022, the facility received a
total of nine citations for violations of various regulations. The FAC alleges
that, despite this, Defendants continued to understaff the facility and retain
employees who were not adequately trained. Thus, Plaintiff has adequately pled
his demand for attorney’s fees and punitive damages.
Although it is unclear what injunctive relief Plaintiff
seeks, Defendants’ only argument for striking this prayer is that Plaintiff’s
claim for violation of residents’ rights fails. Because the Court overrules the
demurrer to that cause of action, it denies the motion to strike as well.