Judge Kenneth J. Medel, Case 37-2021-00002161-CU-PO-CTL 2023-08-25 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2021-00002161-CU-PO-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00002161-CU-PO-CTL NAVARRO VS CEDAR HOLDINGS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 06/02/2023

Defendants CEDAR HOLDINGS, LLC dba HIGHLAND PALMS HEALTHCARE CENTER and PLUM HEALTHCARE GROUP, LLC's Demurrer is SUSTAINED, in part, and OVERRULED, in part as set forth below.

This is an action against a skilled nursing facility regarding the care received by an elderly patient that died from COVID allegedly contracted while in the care of the facility. The Complaint alleges multiple causes of action, including: Elder Abuse; Willful Misconduct; Violation of Unfair Competition Law; Misrepresentation//Fraud; Breach of Contract; Violation of Resident Rights (Health & Safety Code §1430(b)- Care Issue No. 1); Violation of Resident Rights (Health & Safety Code §1430(b)- Care Issue No. 2); and Violation of Resident Rights (Health & Safety Code §1430(b)- Care Issue No. 3.

On June 9, 2020, Decedent Edward Navarro was placed as resident in Defendant's nursing home facility, Highland Palms Healthcare Center ('HPHC'). Complaint ('Comp'), ¶2, 6, 7. Mr. Navarro suffered from a debilitating stroke. Comp, ¶6. Less than one month later, on July 8, 2020, Lesia Navarro, his wife, was told that he had tested positive for COVID-19. Comp, ¶21. On or about the evening of July 8, 2020, Plaintiff received a telephone call from a staff person at HPHC telling her that Decedent had been transferred by ambulance to Redlands Community Hospital. Comp, ¶22. Decedent died at Redlands Community Hospital on July 11, 2020. Comp, ¶22. The Complaint alleges that COVID-19 ran rampant through the HPHC nursing home facility, infecting residents, and employees; as of the date of this Complaint, HPHC has 84 cumulative positive residents, including 22 deaths, and 62 cumulative positive health care workers (employees) at the nursing home facility. Comp, ¶5 First Cause of Action for Elder Abuse Overruled.

The cause of action for elder abuse alleges that Defendants were 'care custodians' within the meaning of §15610.17 of the Elder Abuse and Dependent Adult Civil Protection Act (Welfare and Inst. Code §15600, et seq.). Comp, ¶27. The Complaint alleges that 'Decedent, who was 66 years old, was at all times herein mentioned substantially more vulnerable than other members of the public to the conduct of the Defendants because of his age, illness, restricted mobility and disability ....' Comp, ¶29. The Comp, at paragraph 30, alleges neglect: Defendants recklessly failed to provide decedent with aid to enable him to avoid pain and suffering he wished to avoid, failed to provide information to him and his spouse that was needed to make an informed decision about his care, and repeatedly, fraudulently and knowingly misrepresented to decedent that they would provide proper care and services to him.

Paragraph 31 alleges decedent Edward Navarro, he was intentionally and/or recklessly exposed to the coronavirus and not provided with basic necessary custodial care such as feeding or bathing by employees of HPHC in appropriate protective equipment.

Paragraph 39 alleges 'Defendants knew or should have known that the peril posed by their failure to comply with the standard of care, by failing to provide care in appropriate safety equipment, and/or take Calendar No.: Event ID: TENTATIVE RULINGS

2984093 43 CASE NUMBER: CASE TITLE: NAVARRO VS CEDAR HOLDINGS LLC [IMAGED] 37-2021-00002161-CU-PO-CTL appropriate safety precautions, and/or failing to employ reasonable custodial policies for isolating COVID positive residents, exposed Decedent to the high probability of serious injury. [emphasis added] The Complaint further alleges that the conduct discussed below 'constituted 'abuse,' 'neglect' and/or 'abandonment' within the meaning of Welfare and Inst. Code §15610, et seq., and caused physical pain and/or mental suffering and/or deprived Decedent of the services that were necessary to protect him from physical pain and mental suffering.' Comp, ¶32.

The Complaint also alleges that the 'specific facts set forth herein show a disregard of the high probability that Decedent would suffer injury or death by the complete failure to provide care to avoid infection of residents with COVID-19 as mandated by the CDPH in its January 27, 2020, letter to California's long-term health care facilities, including HPHC. Defendants completely failed to follow the CDPH guidelines for medical care, and thereby caused Decedent to be infected with COVID-19.' Comp, ¶34.

The Court finds that these allegations are sufficient for purposes of pleading. Under either standard (neglect or egregious abuse), the allegations in the cause of action are sufficiently pled, and the allegations of corporate ratification and knowledge are sufficient.

The Second Cause of Action for Willful Misconduct Overruled This cause of action can be separately alleged. Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526 (distinguishing the claim from a negligence claim). Berkley v. Dowds expressly acknowledges that a willful misconduct claim may be alleged in an elder abuse action. Here, the allegations in this cause of action (which incorporate the other allegations in the complaint discussed herein) sufficiently allege a willful misconduct cause of action.

Sixth Cause of Action for Violation of the Unfair Competition Law (UCL) Overruled.

The Complaint pleads sufficient allegations that Defendants' actions were unlawful, unfair, or deceptive.

There is nothing in §17200, et seq., which precludes elder abuse claims. Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 647 (holding that under the unfair competition statute 'any unlawful, unfair or fraudulent business act or practice is deemed to be unfair competition').

Misrepresentation/Fraud SUSTAINED with 10 days leave to amend Under California law, fraud must be plead with particularity, i.e., 'facts which show how, when, where, to whom, and by what means the representations were tendered.' (Stansfield v. Skarkey, 220 Cal.App.3rd 59, 73-74 (1990); Lazar v. Superior Court, 12 Cal.4th 631, 645 (1996).) Plaintiff's general claims regarding 'promising a high quality of nursing care, supervision and management that was not provided to residents', is insufficient to allege fraud. Plaintiff's Complaint fails to identify the names of the persons who made the alleged misrepresentations, what exactly was said, and when the representations were made. Plaintiff only generally alleges that 'Defendants' made the misrepresentations. Moreover, there are no allegations that Defendant had knowledge that the facility would not provide proper and safe nursing and custodial care for Decedent at the time the alleged misrepresentations were made, or of any intent to defraud by Defendants. Likewise, the Complaint fails to set forth the facts that Defendants allegedly failed to disclose, and any facts showing that Defendants intentionally concealed or suppressed such fact(s) with intent to defraud Plaintiff.

Plaintiff argues that less specificity is required as the facts relating to the care of Decedent at Highland Palms Healthcare Center lie with Defendant since Defendant controls the records regarding Decedent's stay. However, given that plaintiff has access to the chart as well as knowledge of what was communicated, more specificity can be alleged as to any alleged fraud.

Eighth Cause of Action for Breach of Contract Overruled A cause of action for breach of contract requires proof of the following elements: (1) existence of a contract; (2) plaintiff's performance; (3) defendant's breach; and (4) damages to plaintiff because of the breach. (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) Here, a contract has clearly been made (Comp ¶¶2, 6-9). Plaintiff's performance was the payment of monies. Id. Plaintiffs allege Defendants breached the contract by failing to live up to its obligations such as the basic necessary custodial care such as feeding or bathing by employees of HPHC in appropriate Calendar No.: Event ID: TENTATIVE RULINGS

2984093 43 CASE NUMBER: CASE TITLE: NAVARRO VS CEDAR HOLDINGS LLC [IMAGED] 37-2021-00002161-CU-PO-CTL protective equipment. (Comp, ¶31).

Ninth, Tenth, and Eleventh Causes of Action for Violation of Resident Rights Overruled The Complaint sufficiently alleges violations of rights in paragraphs 31, 81 and 88.

Motion to Strike In the Notice of Motion, Defendants move for an Order striking several provisions of Plaintiff's Complaint.

The Court rules as follows: (1) Pg. 2, lines 6-8, at Paragraph 5: 'As of the date of this Complaint, HPHC has 84 cumulative positive residents, including 22 deaths, and 62 cumulative positive health care workers (employees) at the nursing home facility.' Motion to Strike DENIED. The allegation is not clearly 'irrelevant, false or improper matter inserted in any pleading' per CCP 436. These allegations are narrative regarding the threat of COVID and response of care facilities.

(2) Pg. 4, line 27 – pg. 5, line 1 at Paragraph 19: 'In late February 2020, a coronavirus outbreak at a nursing home in Washington infected two-thirds of its residents and killed 37 people. The media widely covered this story.' Motion to Strike DENIED.

The allegation is not clearly 'irrelevant, false or improper matter inserted in any pleading' per CCP 436.

The allegation is relevant to the narrative The allegation is not clearly 'irrelevant, false or improper matter inserted in any pleading' per CCP 436.

(3) Pg. 7, lines 11-13, at Paragraph 33: 'As a direct and legal result of the abuse, neglect and/or abandonment of decedent by Defendants, Plaintiff sustained pecuniary loss from the loss of love, comfort, society, attention, services and support of Decedent in a sum within the jurisdiction of this Court.

Motion to Strike is GRANTED.

Plaintiff, Lesia Navarro, the wife of the decedent and not herself the alleged victim of elder abuse/neglect, has no claim in her own right under the Elder Abuse statute. Only the alleged victim of Elder Abuse/Neglect, and not the family of a decedent/victim, is entitled to recover damages under the Act. (Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1282-1284.) (4) Pg. 7, lines 13-16, at Paragraph 33: Before his death, Decedent suffered permanent injuries, and/or increased risk of injuries to body ad health, including, but not limited to, mental and emotional stress, all to his general damage in a sum within the jurisdiction of this Court.

DENIED The Court finds that there is sufficient support in the pleading for 'enhanced remedies' as alleged in the pleading.

(5) Pg. 7, lines 20-21, at Paragraph 34: '. . . Plaintiff is entitled to attorneys' fees under Welf. & Inst.

Code § 15657.' DENIED.

The Court finds that there is sufficient support in the pleading for 'enhanced remedies' as alleged in the pleading.

(6) Pg. 7, line 27 to pg. 8, line 1 at Paragraph 35: '. . .such as to constitute malice, oppression or fraud under California Civil Code section 3294, thereby entitling Plaintiff to punitive damages in an amount appropriate to punish or set an example of Defendants.' DENIED The Complaint sufficiently alleges a basis for punitive damages (7) Pg. 9, lines 11-12 at Paragraph 44: By virtue of the foregoing, punitive damages should be assessed against Defendants, and each of them, in a sum according to proof at trial.' DENIED The Complaint sufficiently alleges a basis for punitive damages.

(8) Pg. 10, lines 5-9, at Paragraph 50: 'As a direct and proximate result of the wrongful conduct as alleged herein, and the breaches of duty owed to Decedent, Decedent suffered harm and injury including but not limited to physical pain and mental suffering, isolation, fear, anxiety, humiliation, physical pain and discomfort, and emotional distress, and eventually death, all to his general damage in Calendar No.: Event ID: TENTATIVE RULINGS

2984093 43 CASE NUMBER: CASE TITLE: NAVARRO VS CEDAR HOLDINGS LLC [IMAGED] 37-2021-00002161-CU-PO-CTL a sum to be established.' GRANTED.

Plaintiff's claims for Decedent's pre-death pain and suffering under the Negligence, and Negligent Infliction of Emotional Distress causes of action are stricken because such damages are not available to Plaintiff under Code of Civil Procedure § 377.34. Code of Civil Procedure § 377.34, addresses the damages that are available under a survival claim, and provides, in pertinent part, as follows: '(a) In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement. (b) Notwithstanding subdivision (a), in an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.' Here, Plaintiff's Complaint was filed on January 15, 2021. Thus, pre-death pain and suffering may not be recovered under the Negligence, Negligence Per Se and Negligent Infliction of Emotional Distress causes of action.

(9) Pg. 10, lines 26- 27 at Paragraph 56: 'The acts and omissions of Defendants were done with malice, fraud and/or oppression as described in this Complaint, entitling Plaintiff to the imposition of punitive damages.' DENIED.

The Complaint sufficiently alleges a basis for punitive damages.

(10) Pg. 11, lines 8-10, at Paragraph 59: 'As a direct and legal result of the conduct alleged herein, Decedent experienced extreme emotional distress, and as a proximate and direct result of Defendants' conduct, acts and omissions, suffered extreme emotional distress.' GRANTED.

See analysis for Item 8 (11) Pg. 12, lines 20-21, at Paragraph 67: '. . . and is entitled to restitution' GRANTED Prevailing plaintiffs on claims under the unfair competition law are limited to injunctive relief and restitution. (see Section 17203, Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179. ) (12) Pg. 12, lines 22-24, at Paragraph 68: 'Plaintiff respectfully requests that this Court issue an injunction against Defendants enjoining them from engaging in unlawful, unfair and fraudulent conduct described above.' DENIED At this juncture, whether defendants are engaging in an on-going pattern of conduct to be enjoined is premature at the pleading stage.

(13) Pg. 12, lines 27-28, at Paragraph 69: 'Plaintiff also requests that the Court order Defendants to disgorge all illicit profits and provide restitution to Plaintiff that is proportional to the amount of money spent by Decedent and Plaintiff for his nursing and related care at HPCH, and order Defendants to pay reasonable attorney fees incurred by Plaintiff.' GRANTED Prevailing plaintiffs on claims under the unfair competition law are limited to injunctive relief and restitution. (see Section 17203, Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179. ) (14) Pg. 15, lines 17-18, at Paragraph 85: '. . . for violation of the primary right identified under this cause of action. Plaintiff serves the right to amend the pleadings to add additional causes of action based on violations of additional primary rights as the case progresses.' DENIED The Court finds that the underlying claim for purposes of the Health & Safety Code has been sufficiently alleged.

Defendants argue that the amount of the damages are limited to $500. Defendants make the following argument: Health and Safety § 1430(b) is a statutory claim under which the damages are limited to Calendar No.: Event ID: TENTATIVE RULINGS

2984093 43 CASE NUMBER: CASE TITLE: NAVARRO VS CEDAR HOLDINGS LLC [IMAGED] 37-2021-00002161-CU-PO-CTL those set forth in the statute. § 1430(b), was revised effective January 1, 2022, and permits the successor in interest of a current or former residents of a skilled nursing facility to bring a civil action against the licensee of a facility that violated any rights of the resident and recover the damages set forth in the statute. For violations that occurred prior to March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) and for costs and attorney's fees, and may be enjoined from permitting the violation(s) to continue. For violations that occurred on or after March 1, 2021, the licensee shall be liable for up to $500 per violation. Here, Decedent's admission and therefore any alleged 1430(b) violations occurred in 2020. Thus, Plaintiff is limited to a total of $500 total, not $500 per violation, or per 'primary right.' Thus, defendants argue that Plaintiff's claims for $500 for each alleged issue/violation is improper and any claims for statutory damages beyond $500 should be stricken.

The Court reserves the issue of the amount of the damages to trial but at this juncture will allow the remedy itself to be pled in the Complaint.

(15) Pg. 15, line 20, at Paragraph 86: 'Plaintiff is entitled to attorney's fees and costs . . .' DENIED The Court finds that the underlying claim for purposes of the Health & Safety Code has been sufficiently alleged and the remedy is properly alleged.

(16) Pg. 16, lines 20-23, at Paragraph 91: 'Plaintiff is entitled to an award of statutory damages as set forth in Health and Safety Code section 1430(b) for up to $500 for violation of the primary right identified under this cause of action. Plaintiff serves the right to amend the pleadings to add additional causes of action based on violations of additional primary rights as the case progresses' DENIED with the caveat stated in item 14.

(17) Pg. 16, line 24, at Paragraph 92: 'Plaintiff is entitled to attorney's fees and costs . . .' DENIED.

The Court finds that the underlying claim for purposes of the Health & Safety Code has been sufficiently alleged and the remedy is properly alleged.

(18) Pg. 17, line 28- pg. 18, line 3 at Paragraph 97: 'Plaintiff is entitled to an award of statutory damages as set forth in Health and Safety Code section 1430(b) for up to $500 for violation of the primary right identified under this cause of action. Plaintiff serves the right to amend the pleadings to add additional causes of action based on violations of additional primary rights as the case progresses.' DENIED with the caveat stated in Item 14.

(19) Pg. 18, line 4, at Paragraph 98: 'Plaintiff is entitled to attorney's fees and costs . . .' DENIED The Court finds that the underlying claim for purposes of the Health & Safety Code has been sufficiently alleged and the remedy is properly alleged.

(20) Pg. 19, line 12, Prayer for Relief: '4. For punitive damages, according to proof at the time of trial;' DENIED The Complaint sufficiently alleges a basis for punitive damages.

(21) Pg. 19, lines 13-14, Prayer for Relief: '5. For exemplary damages pursuant to Welfare and Institutions Code § 15657 and Civil Code §3294;' DENIED Based on the pleading, remedy is adequately pled.

(22) Pg. 19, lines 15, Prayer for Relief: '6. For treble damages pursuant to Civil Code §3345;' GRANTED Plaintiff also seeks treble damages under Civil Code §3345 under the UCL claim. Section 3345 however, applies only 'in actions brought by, or on behalf of, or for the benefit of senior citizens or disabled person, ... to redress unfair or deceptive acts or practices or unfair methods of competition.' It affords the trebling of damages in certain circumstances for violations of statutes meant to punish the wrongdoer when defendant's conduct caused the senior citizen(s) to lose their home, employment, retirement, etc. Here, Plaintiff claims that Decedent was neglected by professional health care providers at HPHC. There are no facts pled establishing any unfair or deceptive practices, or unfair methods of competition, which caused such a financial loss.

(23) Pg. 19, line 16, Prayer for Relief: '7. For attorney's fees . . . ;' GRANTED Calendar No.: Event ID: TENTATIVE RULINGS

2984093 43 CASE NUMBER: CASE TITLE: NAVARRO VS CEDAR HOLDINGS LLC [IMAGED] 37-2021-00002161-CU-PO-CTL Plaintiff contends that the prayer for attorney's fees under the Unfair Competition Law is proper since a Court may award attorney fees to a successful party pursuant to Code of Civil Procedure §1021.5 upon a showing that the action has resulted in the enforcement of an important right affecting the public interest. However, here, Plaintiff has not brought this action to enforce an important right affecting the public interest but instead seeks to recover the amount paid by Plaintiff and Decedent for Decedent's nursing care at HPHC. The attorney's fees are sought, not in connection with a lawsuit brought in the public interest, but in personal lawsuit relating to the care of Decedent at HPHC.

(24) Pg. 19, lines 17-18, Prayer for Relief: '8. For attorney's fees and costs pursuant to Welfare and Institutions Code § 15657 and according to proof;' DENIED.

Allegations are sufficiently pled to support remedies under the W&I 15657.

(25) Pg. 19, lines 21-22, Prayer for Relief: '10. For attorney's fees and costs due to violation of Residents' Rights pursuant to Health & Safety Code § 1430;' DENIED.

The Court finds support in the pleading for a violation of Residents Rights.

(26) Pg. 19, lines 23-24, Prayer for Relief: '11. Restitution and disgorgement of money wrongfully retained by Defendants, and each of them;' GRANTED Prevailing plaintiffs on claims under the unfair competition law are limited to injunctive relief and restitution. (see Section 17203, Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179. ) (27) Pg. 19, lines 25-26, Prayer for Relief: '12. Equitable and injunctive relief enjoining Defendants, and each of them, from engaging in unlawful, unfair and deceptive conduct described above in the Complaint' DENIED.

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