Judge Kerry Bensinger, Case Number: 23STCV01665, Date: 2024-01-25 Tentative Ruling

This is a negligence and elder abuse action. Plaintiff, Linda McAfee, alleges as follows:

Plaintiff is 70 years old and has been receiving medical care from Cedars-Sinai Medical Center (“Cedars Sinai”) from July 2021 to present. On June 16, 2022, Plaintiff was admitted to Cedars Sinai for in-patient neck surgery. She was transported on the Cedars Sinai campus from a personal vehicle to her patient room while seated in her personal transport chair. The chair did not have footrests. Plaintiff underwent neck surgery.

On June 21, 2022, Plaintiff was discharged from Cedars Sinai. She was still under the effect of prescribed pain medications which affected her motor functions and left her mind in a “haze.” Plaintiff’s husband arrived at the hospital to take Plaintiff directly to a rehabilitation facility. Nurse Arlene Datu placed Plaintiff in Plaintiff’s personal transport chair and summoned a Cedars Sinai transporter to take Plaintiff to her husband’s vehicle. Ereck Coleman arrived to transport Plaintiff with a Cedars Sinai “STAXI” transport chair that transporters use to move patients on the campus. The STAXI chair has footrests. Mr. Coleman insisted that Plaintiff use the STAXI transport chair. However, Ms. Datu overruled Mr. Coleman and directed him to push Plaintiff in Plaintiff’s personal chair. During the transport, Mr. Coleman and Plaintiff arrived at a ramp. At the ramp, Mr. Coleman rammed Plaintiff and her left foot into the incline of the ramp. Plaintiff’s left foot was pushed back and trapped underneath the transport chair. Plaintiff cried out in pain. Mr. Coleman looked down to see why Plaintiff was crying out in pain and saw that Plaintiff’s left foot was trapped underneath the transport chair. Mr. Coleman immediately turned the transport chair, with the Plaintiff’s left foot still trapped under the chair, and began dragging the transport chair up the handicap transport ramp. Plaintiff’s left foot was twisted, trapped, and dragged for approximately ten feet before her foot dislodged from underneath the chair. X-rays later reveal that Plaintiff suffered a fractured leg.

This action was initiated on January 25, 2023. Plaintiff later filed an amendment to the complaint naming Defendant, Cedars Sinai, as Doe 1. On July 24, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) for Negligence and Elder Abuse. The FAC seeks attorney’s fees and costs in connection with the elder abuse claim.

On August 25, 2023, Defendant filed this Demurrer to the Second Cause of Action for Elder Abuse and a Motion to Strike the request for attorney’s fees and costs.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defense counsel has complied with the meet and confer requirement. (See Declaration of Pamela Hayati, ¶¶ 3, 4.)

To plead a cause of action for elder abuse under the Elder Abuse Act based on neglect, a plaintiff must allege facts establishing that: (1) the defendant had a substantial caretaking or custodial relationship with plaintiff, involving ongoing responsibility for her basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance, (2) that plaintiff was 65 years of age or older or a dependent adult while she was in defendant’s care or custody, (3) that the employer defendant’s employee failed to use the degree of care that a reasonable person in the same situation would have used in providing for plaintiff’s basic needs, including protecting plaintiff from health and safety hazards, (4) that plaintiff was harmed, and (5) that the employer defendant’s employee’s conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 3103; see also Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405-407.) A cause of action under the Elder Abuse Act must be alleged with particularity. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 (Covenant Care).)

Defendant demurrers because the FAC does not plead particular facts amounting to a conscious or willful act of egregious neglect. However, Defendant conflates the elements of an elder abuse claim for neglect with the pleading requirement for obtaining heightened remedies, such as attorney’s fees and costs (see discussion below re: motion to strike.)

The issue here is whether a claim for elder abuse is sufficiently pled. The FAC alleges facts as to each element.

The first element is whether defendant had a substantial caretaking or custodial relationship with plaintiff. (CACI No. 3103.) In Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148, the California Supreme Court explored what sort of conduct is covered for individuals having the care or custody of an elder or dependent adult. “What [the Legislature] seem[s] to contemplate is the existence of a robust caretaking or custodial relationship – that is, a relationship where a party has assumed a significant measure of responsibility for attending to one or more of an elder’s [or dependent adult’s] basic needs that an able bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Id. at 158.) Here, the FAC alleges that Plaintiff was admitted for in-patient neck surgery from June 16, 2022 to June 21, 2022. (Complaint, ¶¶ 8, 12.) During this time, “Cedars Sinai has a substantial caretaking and custodial relationship with Plaintiff” and “provides basic needs to Plaintiff, ... including bathing Plaintiff, putting on clothes, and transporting Plaintiff due to her difficulty walking post-surgery.” (Complaint, ¶ 70.) Defendant contends, in reply, that the FAC does not allege “a robust caretaking or custodial relationship.” For this proposition, Defendant relies on Winn. However, “[i]t must be determined, on a case-by-case basis, whether the specific responsibilities assumed by a defendant were sufficient to give rise to a substantial caretaking or custodial relationship.” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405.) In Winn, the High Court found that plaintiffs did not explain why defendants’ intermittent, outpatient medical treatment forged a caretaking or custodial relationship. (Winn, supra, 63 Cal.4th at p. 165.) By contrast, Plaintiff, here, received in-patient treatment. Plaintiff also alleges several basic needs that Defendant provided to Plaintiff during that that treatment period, including “transporting Plaintiff due to her difficulty walking post-surgery.” The first element is sufficiently pled.

The second element concerns Plaintiff’s age and whether she was at least 65 years of age at the time she was in Defendant’s care. (CACI No. 3103.) Here, the FAC alleges she was 70 years old at the time of incident. (Complaint, ¶ 69.) The second element is sufficiently pled.

The third element concerns whether the defendant employer’s employee used reasonable care. (CACI No. 3103.) Here, the FAC alleges that Plaintiff’s motor functions were impaired by pain medication following neck surgery and put her in a “haze.” (Complaint, ¶¶ 12, 71.) Plaintiff was also in a neck brace which prevented Plaintiff from seeing her feet while seated. (Complaint, ¶ 14.) Despite Plaintiff’s physical state, Ms. Datu overruled Mr. Coleman and directed him to transport Plaintiff in her personal transport chair rather than the STAXI chair. Unlike Plaintiff’s personal chair, the STAXI chair has footrests. (Complaint, ¶ 19.) While transporting Plaintiff, Mr. Coleman rammed her foot into a ramp and, despite seeing that her foot was trapped under the chair, continued to drag the chair up the ramp approximately 10 feet. (Complaint, ¶¶ 29, 30.) These allegations sufficiently show a lack of care on the part of Defendant’s employees. Ms. Datu withheld the use of the STAXI chair, which would have supported Plaintiff’s feet and prevented any limb from getting caught underneath the chair during the transport. Mr. Coleman continued to push the chair despite seeing that Plaintiff’s foot was caught underneath the chair. The third element is sufficiently pled.

The fourth element is harm to plaintiff and the fifth element is causation. (CACI No. 3103.) Here, the FAC alleges that Plaintiff cried out in pain when her left foot was caught underneath the chair. (Complaint, ¶¶ 28, 32, 83.) This event took place on June 22, 2022. The FAC also alleges that after complaining for about a year of pain in her leg, on June 28, 2023, Plaintiff was diagnosed with a fracture to her left leg and underwent surgery on the leg two days later. (Complaint, ¶¶ 48, 49.) The parties do not dispute that the FAC adequately alleges the element of harm to Plaintiff. As to the fifth element, these allegations, liberally construed, established that Mr. Coleman caused Plaintiff’s injury to her left leg during the transport. The FAC states a cause of action for elder abuse.

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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿ The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subd. (b).)¿ An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.¿ (Code Civ. Proc., § 431.10, subd. (b).)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Code Civ. Proc., § 437.)¿ For the purposes of a motion to strike, the term “pleading” means a demurrer, answer, complaint, or cross-complaint.¿ (Code Civ. Proc., § 435.)¿¿

Defendant moves for an order striking the request for attorney’s fee and costs from the FAC. The attorney’s fees and costs are tied to the elder abuse claim.

The Elder Abuse Act provides for enhanced remedies such as attorney’s fees and costs when a plaintiff demonstrates by clear and convincing evidence that defendant is guilty of something more than negligence, such recklessness, oppression, fraud, or malicious conduct. “In order to obtain the remedies available in [Welfare and Institutions Code] section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)

When an elder abuse claim is alleged against an employer defendant only, California Civil Jury Instruction No. 3102B sets forth the elements for the employer’s liability. It states “Plaintiff must prove by clear and convincing evidence that (1) the subject employee was an officer, director, or managing agent, or (2) an officer, director, or managing agent had advance knowledge of the unfitness of the employee who committed the acts and employed her with a knowing disregard of the rights or safety of others, or (3) an officer, director, or managing agent authorized the conduct of the employee who committed the acts, or (4) that an officer, a director, or a managing agent knew of the wrongful conduct of the employee who committed the acts and adopted or approved the conduct after it occurred.” (CACI No. 3102B.)

Here, Plaintiff seeks enhanced remedies against an employer defendant. As such, the FAC must allege facts that satisfy each element for employer liability as set forth in California Civil Jury Instruction No. 3102B. However, the FAC is devoid of any allegations showing either that Ms. Datu or Mr. Coleman was an officer, director, or managing agent, or that an officer, director, or managing agent had advance knowledge of Ms. Datu’s or Mr. Coleman’s unfitness. Nor are there any allegations showing that an officer, director, or managing agent authorized or knew of Ms. Datu’s or Mr. Coleman’s alleged conduct. The FAC does not advance allegations sufficient to sustain the request for attorney’s fees and costs.

The motion to strike is GRANTED. Leave to amend is DENIED without prejudice. If Plaintiff discovers information supporting the request for attorney’s fees and costs, Plaintiff may seek leave to amend the complaint at that time.

Defendant is ordered to file and serve its responsive pleading within 10 days of this order.

Kerry Bensinger

Judge of the Superior Court