Judge: Lee W. Tsao, Case: 19STCV15911, Date: 2023-06-29 Tentative Ruling
Case Number: 19STCV15911 Hearing Date: March 26, 2024 Dept: C
DOE v. COLLEGE
HOSPITAL, INC.
CASE NO.: 19STCV15911
HEARING: 03/26/24
#1
I.
Defendant MANOLITO FIDEL, M.D.’s Motion for
Summary Judgment is GRANTED. The Alternative Motion for Summary
Adjudication is MOOT.
II.
Defendant COLLEGE HOSPITAL, INC.’s Motion for
Summary Adjudication is DENIED.
Prevailing Party(s) to give notice.
The parties’ Requests for Judicial Notice are GRANTED. (Cal.
Ev. Code §452.)
This dependent abuse/neglect action was filed by Plaintiff JANE
DOE (“Plaintiff”) on May 7, 2019. On March 7, 2023, the operative Second
Amended Complaint (“SAC”) was filed.
Plaintiff alleges that “On April 27, 2017, she left her home
and everything in it, including her cell phone, her identification, and her
beloved dog. Plaintiff’s mind had completely detached from reality and her
judgment and ability to care for her basic needs, welfare, and safety went with
it. Plaintiff’s delusions and psychosis led her to actively place herself in
high-risk, life-threatening situations.” (SAC ¶3.) “At 1:30 a.m. on May 2,
2017… [a] Critical Assessment Team… arrived on-scene, assessed Plaintiff as
gravely disabled, and placed Plaintiff on an involuntary hold pursuant to
section 5150 of the California Welfare and Institutions Code (‘5150 hold’).”
(SAC ¶5.) “Even though Plaintiff entered College Hospital gravely disabled with
no ability to care for her basic needs or safety, only six days later, still
gravely disabled and a danger to herself, Plaintiff was ‘discharged to self’
with some bus tokens, so that she could ostensibly bus herself away from
Defendants facilities and into homelessness.” (SAC ¶7.) “After being dumped by
Defendants, Plaintiff wandered the streets for 15 days, utterly incapable of
providing for her own basic needs and safety. With no ability to defend herself
or avoid highly dangerous situations, she suffered two sexual assaults during
the course of the 15 days.” (SAC ¶9.)
Plaintiff’s SAC asserts the following causes of action:
(1) Dependent Adult Abuse;
(2) Professional Negligence;
(3) Unfair Business Practice;
(4) Intentional Infliction of
Emotional Distress; and
(5) Breach of Fiduciary Duty.
Defendant MANOLITO FIDEL, M.D. (“Fidel”) moves for summary
judgment or alternatively summary adjudication.
Defendant COLLEGE HOSPITAL, INC. (“College Hospital” or
“CHC”)) separately move for summary adjudication.
Defendant FIDEL’s Motion for Summary
Judgment/Adjudication
Fidel seeks
summary adjudication on the following issues: (1) There is no triable issue of
material fact as to the entire case against Fidel because it is barred by the
applicable statute of limitations as the ROE amendment does not relate back to
the original complaint as a matter of law; (2) There is no triable issue of
material fact with respect to the first cause of action for Dependent Adult
Abuse and Negligence as to Fidel because he was not a care custodian nor did he
neglect Plaintiff during his care and treatment of her; (3) There is no triable
issue of material fact with respect to the second cause of action for
Professional Negligence as to Fidel because at all times he complied with the
standard of care with respect to his care and treatment of Plaintiff; (4) there
is no triable issue of material fact with respect to the second cause of action
for Professional Negligence as to Fidel because no act or omission on his part
was the legal cause of Plaintiff’s alleged injuries; (5) There is no triable issue
of material fact with respect to the third cause of action for Unfair Business
Practices as to Dr. Fidel because he did not engage in any unlawful or unfair
business practice; (6) There is no triable issue of material fact with respect
to the fourth cause of action for IIED as to Fidel because he did not engage in
any extreme or outrageous conduct nor does Plaintiff recall meeting or
otherwise interacting with Fidel; and (7) Fidel cannot be held criminally or
civilly liable to plaintiff under Welf. & Inst. Code §5278.
Issue One - Relation-Back Doctrine
This action was
filed on May 7, 2019. Plaintiff alleges that she was prematurely discharged on
May 18, 2017. (SAC ¶45). Dr. Fidel was ROE’d into this case on March 24, 2023 (almost
four years after this action was filed and almost 6 years after the Subject
Incident allegedly occurred). Thus, Fidel argues that Plaintiff’s claims
against him are time-barred where the statute of limitations for: Dependent
Adult Abuse is two years (CCP §335.1); professional negligence is one or three
years (CCP §340.5); unfair business practices is four years (B&P §17208);
and IIED is two years (Cal. Civ. Code §335.1). Fidel argues that the
relation-back doctrine does not apply because Plaintiff and/or Plaintiff’s
mother Marian Thompson knew who Dr. Fidel was and what his role was in the care
and treatment of Plaintiff since or around the time of Plaintiff’s Subject
Admission date back in May of 2017.
In Opposition, Plaintiff does not dispute
that Plaintiff’s mother was aware that Fidel was Plaintiff’s treating
psychiatrist at College Hospital, but does dispute that Plaintiff and/or her
mother knew of Fidel’s actions or inactions to support the claims ultimately
brought against him since 2017. (RUMF No. 1.)
Under CCP § 474, the fictitious name statute states in
pertinent part: “When the plaintiff is ignorant of the name of a defendant, he
must state that fact in the complaint and such defendant may be designated in
any pleading or proceeding by name, and when his true name is discovered, the
pleading or proceeding must be amended accordingly.” This section is to be
liberally construed. (See General Motors Corp. v. Superior Court (1996)
48 Cal.App.4th 580, 593-594, fn. 12.) Under
the relation-back doctrine, an amendment relates back to the original complaint
if the amendment (1) rests on the same general set of facts; (2) involves the
same injury; and (3) refers to the same instrumentality. (Pointe San Diego
Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP
(2011) 195 Cal.App.4th 265, 276.) Doe amendments are governed by the
relation-back doctrine. “The general rule is that an amended complaint that
adds a new defendant does not relate back to the date of filing the original
complaint and the statute of limitations is applied as of the date the amended
complaint is filed, not the date the original complaint is filed. [Citation.] A
recognized exception to the general rule is the substitution under section 474
of a new defendant for a fictitious Doe defendant named in the original
complaint as to whom a cause of action was stated in the original complaint.
[Citation.] If the requirements of section 474 are satisfied, the amended
complaint substituting a new defendant for a fictitious Doe defendant filed
after the statute of limitations has expired is deemed filed as of the date the
original complaint was filed.” (Woo v. Sup. Ct. (1999) 75 Cal.App.4th
169, 176.)
“[T]he relevant inquiry when the plaintiff seeks to
substitute a real defendant for one sued fictitiously is what facts the
plaintiff actually knew at the time the original complaint was filed.” (General
Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 58, 588.) “It is when
[plaintiff] is actually ignorant of a certain fact, not when [plaintiff] might
by the use of reasonable diligence have discovered it. Whether [plaintiff’s]
ignorance is from misfortune or negligence, [plaintiff] is alike ignorant, and
this is all the statute requires. (Irving v. Carpentier (1886) 70
Cal.23, 26.) “The phrase ‘ignorant of the name of a defendant’ is broadly
interpreted to mean not only ignorant of the defendant’s identity, but also
ignorant of the facts giving rise to a cause of action against that defendant.
‘[E]ven though the plaintiff knows of the existence of the defendant sued by a
fictitious name, and even though the plaintiff knows the defendant’s actual
identity (that is, his name) the plaintiff is ‘ignorant’ within the meaning of
the statute if [plaintiff] lacks knowledge of that person’s connection with the
case or with [plaintiff’s] injuries. [Citations.] The fact that the plaintiff
had the means to obtain knowledge is irrelevant. [Citation.]” (citations omitted.) (Fuller v. Tucker (2000) 84
Cal.App.4th 1163, 1170.)
“Ignorance of the facts
giving rise to a cause of action is the ‘ignorance’ required by section 474,
and the pivotal question is, ‘did plaintiff know facts?’ not ‘did plaintiff know or believe that [he] had a cause of
action based on those facts?’ [Citations Omitted.]” (McClatchy v. Coblentz,
Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 36, 372.) McClatchy goes on to state:
“[a]lthough it is true that a plaintiff’s ignorance of the defendant’s name
must be genuine (in good faith) and not feigned [citations] and that a
plaintiff need not be aware of each and every detail concerning a person’s
involvement before the plaintiff loses his ignorance [citations], it is equally
true that the plaintiff does not relinquish [his] rights under section 474 simply because [he] has a
suspicion of wrongdoing arising from one or more facts [he] does know.” (Id.)
“If the identity of the Doe defendant is known but, at the time of filing the
complaint the plaintiff did not know facts that would cause a reasonable person
to believe that liability is probable, the requirements of section 474 are
met.” (Id. at 374.) “Ignorance of the facts is the critical issue, and
whether it be due to misinformation or negligence is not relevant.” (Dover
v. Sadowinsky (1983) 147 Cal.App.3d 113, 116.)
Fidel submits evidence to show that Plaintiff and/or
Plaintiff’s mother knew of Fidel’s involvement in Plaintiff’s care since 2017 where
Plaintiff’s mother admits that she learned her daughter’s attending
psychiatrist’s identity upon admission and Plaintiff’s mother was in possession
of Plaintiffs medical records from College Hospital in 2017. (See Fidel Ex.
C(2), Deposition of Marian Thompson).) Fidel’s
evidence rebuts any allegation of genuine ignorance of Fidel’s identity. The
burden therefore shifts to Plaintiff to rebut Defendant’s evidence by
presenting evidence that she was ignorant of facts concerning Fidel’s
involvement or that Plaintiff’s memory could not have been refreshed with “readily
available information.” (Woo, supra, 75 Cal.App.4th at 180.)
Based on the evidence presented in support of and opposition
to the Motion, the Court finds that Plaintiff has failed to establish that they
lacked knowledge of Fidel’s connection with this case. Here, Plaintiff admits
that Plaintiff’s mother was aware that Dr. Fidel was Plaintiff’s treating
psychiatrist at College Hospital. (RUMF No. 1.) The original Complaint in this
action contains summaries from Plaintiff’s medical records of College Hospital,
which contain Fidel’s name and role. (See RJN Ex. A.) In Opposition, Plaintiff
fails to produce any evidence challenging Fidel’s showing of knowledge. The
deposition testimony of Plaintiff and Plaintiff’s mother that Plaintiff relies
upon in Opposition to create triable issues of material fact do not contain
evidence that Plaintiff/Plaintiff’s mother denied knowledge of Fidel’s role in
Plaintiff’s care at either the time of Plaintiff’s admission, or upon the date
that Plaintiff’s mother received a copy of Plaintiff’s medical record in 2017.
Fidel’s evidence establishes that Plaintiff knew of Fidel’s identity and the
facts supporting probable liability on or around 2017.
Although Plaintiff knew of Fidel’s existence at the time of
filing suit, Plaintiff argues that they did not have any reasonable basis to
suspect any wrongdoing by Fidel until after College Hospital took Dr. Fidel’s
deposition as a third-party witness on November 8, 2022. This argument is unavailing. Plaintiff admits
that she and/or her mother knew of Fidel’s role in her care since she was
admitted to College Hospital, and that Plaintiff/Plaintiff’s mother have been
in possession of her medical records naming Fidel as her treating psychiatrist
since 2017. Moreover, Plaintiff filed a Second Amended Complaint on March 7,
2023 (after Dr. Fidel’s deposition was taken on November 8, 2022), that still
failed to name Fidel as a defendant in
this action. Fidel was not ROE’d into his case until March 24, 2023.
Plaintiff’s claims against Fidel are time-barred. Summary
Judgment is GRANTED. The alternative Motion for Summary Adjudication of issues
is rendered MOOT.
Plaintiff’s Evidenitary
Objections to the Declaration of Mace Beckson, M.D.
1.
Sustained
2.
Overruled
3.
Overruled
4.
Overruled
5.
Overruled
Defendant Manolito Fidel, M.D.’s
Objections to Evidence Submitted by Plaintiff
Declaration of
Stephen S. Marmer, M.D.
1.
Overruled
2.
Sustained
3.
Sustained
4.
Overruled
5.
Overruled
6.
Sustained
7.
Overruled
8.
Overruled
9.
Overruled
10.
Sustained
11.
Sustained
12.
Overruled
Declaration of Kimberly Telesh, PH.D
1.
Overruled
Declaration of Will Jay Pirkey
1-15. Sustained
Declaration of
Marian M. J. Thompson
1.
Overruled
2.
Overruled
3.
Overruled
Declaration of
Alexander Korchmarev, M.D.
1.
Overruled
Declaration of
Alyssa E. Musante
1.
Sustained
2.
Sustained
3.
Overruled
4.
Overruled
5.
Overruled
6.
Overruled
Defendant
COLLEGE HOSPITAL, INC.’s Motion for Summary Adjudication
Defendant
CHC moves for summary adjudication of the following issues: (1) the second
cause of action for professional negligence is time-barred under CCP §340.5;
(2) the nurses and non-physician staff at CHC, as well as physicians, acted in
accordance with the prevailing standard of care at all times relevant including
the period of May 2, 2017 to May 8, 2017, and all protocols and/or policies and
procedures concerning Plaintiff’s discharge form the facility were implemented
and followed by CHC staff in accordance with the law; (3) that nothing which
was done, or allegedly not done, for or to Plaintiff by the nursing and
non-physician staff at CHC, as well as physicians, at all times relevant
including the period of May 2, 2017 to May 8, 2017, caused or was a substantial
factor in causing Plaintiff’s alleged injuries and damages, including, but not
limited to, damages occurring after she was discharged; (4) the second cause of
action against CHC has no merit; (5) the first cause of action against CHC has
no merit; (6) CHC is protected by the immunities embodied in Welf. & Inst.
Code. §5278 against Plaintiff’s claims arising from her involuntary detention
and subsequent discharge; (7) the third cause of action against CHC has no
merit; (8) The fourth cause of action against CHC has no merit; and (9)
Plaintiff cannot recover punitive damages and attorney fees against CHC.
Issue
One – Whether the Second Cause of Action for Professional Negligence is
Time-Barred
CHC
argues that the second cause of action for Professional Negligence is
time-barred under CCP §340.5.
In
Opposition, Plaintiff argues that the statute was tolled under CCP §352 from May 2017 until June 2018
because she lacked necessary capacity, thus rendering her May 7, 2019 Complaint
timely.
CCP
§340.5, which is part of the Medical Injury Compensation Reform Act (MICRA)
states, “In an action for injury or death against a health care provider based
upon such person’s alleged professional negligence, the time for the
commencement of action shall be three years after the date of injury or one
year after the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first.” (CCP §340.5.)
The Court finds
Plaintiff’s tolling argument to be persuasive. CCP §352 proves that “[i]f a
person entitled to bring an action… is at the time the cause of action accrued
either under the age of majority or lacking the legal capacity to make
decisions, the time of the disability is not part of the time limited for the
commencement of the action.” (CCP §352(a).) For the purpose of CCP §352, a
plaintiff is “insane” if incapable of caring for his or her property or
transacting business or understanding the nature and effects of his or her
acts.” (Alcott Rehabilitation Hospital v. Sup. Ct. (2001) 93 Cal.App.4th
94, 101.) Pursuant to a 2014 Amendment, the term “lacking the legal capacity to
make decisions” was substituted for the word “insane”. It is not necessary that
the plaintiff be adjudicated mentally ill. (Hsu v. Mount Zion Hosp.
(1968) 259 Cal.App.2d 562, 571-572.) It is only necessary that the plaintiff
suffered from some mental condition which rendered him or her incapable. (Freeley
v. S. Pac. Transp. Co. (2001) 234 Cal.App.3d 949, 952.)
CHC does not
produce any expert testimony or other evidence from which the Court can
determine that Plaintiff was capable under CCP §352 of caring for her property
or transacting business or understanding the nature or effects of her acts.
Conversely,
Plaintiff submits the declaration of her treating psychiatrist who opines that
“[a]fter beginning treatment… in August 2017, it took several months to
stabilize Plaintiff’s overall condition…. In my opinion… she remained severely
traumatized and impacted by the events that transpired in May 2017 for months
thereafter. She began to improve with this by June 2018.” (Plaintiff’s Ex. F;
Korchmarev Decl., ¶5.) “[I]t is my professional opinion that [Plaintiff] was
incapable of processing the events surrounding her discharge from CHC or
understanding the nature or effect of her actions regarding those events until
at least June 2018.” (Id. ¶7.)
Based on the
evidence produced, CHC has not established that Plaintiff regained mental
capacity before June 2018. CHC has not met their burden of showing that there
are no triable issues of fact as to whether the Complaint is time-barred under
CCP §340.5.
Summary Adjudication
of Issue One is DENIED.
Issues Two, Three,
and Four – Whether CHC Complied with the Relevant Standard of Care; Whether CHC
was the Legal Cause of Plaintiff’s Injuries and Damages; and Whether the Second
Cause of Action for Professional Negligence Against CHC Lacks Merit
“[I]n any medical malpractice action, the plaintiff must
establish: ‘(1) the duty of the professional to use such skill, prudence, and
diligence as other members of his profession commonly possess and exercise; (2)
a breach of that duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage resulting from
the professional’s negligence.’ [Citation Omitted.]” (Gami v. Mullikin
Medical Center (1993) Cal.App.4th 870, 877.)
The standard of care in a medical malpractice case requires
that physicians exercise in diagnosis and treatment that reasonable degree of
skill, knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. (Mann. v. Cracchiolo
(1985) 38 Cal.3d 18, 36.) “The standard of care against which the acts of a
physician are to be measured is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations], unless the conduct required by the
particular circumstances is within the common knowledge of the layman.’
[Citations.]” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Therefore,
when a defendant moves for summary judgment/adjudication of a medical
malpractice cause of action, and supports the motion with expert declarations
that the defendant’s conduct fell within the community standard of care, that
defendant is entitled to summary judgment unless the plaintiff comes forward
with conflicting expert evidence.” (Munro v. Regents of California
(1989) 215 Cal.App.3d 977, 984-985.)
Further, in a medical malpractice action, a plaintiff must
prove the defendant’s negligence was a cause-in-fact of injury. (Bromme v.
Pavitt (1992) 5 Cal.App.4th 1487, 1502.) “The law is well settled that in a
personal injury action causation must be proven within a reasonable medical
probability based [on] competent expert testimony. Mere possibility alone is
insufficient to establish a prima facie case. That there is a distinction
between a reasonable medical ‘probability’ and a medical ‘possibility’ needs
little discussion. There can be many possible ‘causes,’ indeed, an infinite
number of circumstances [that] can produce an injury or disease. A possible
cause only becomes ‘probable’ when, in the absence of other reasonable causal
explanations, it becomes more likely than not that the injury was a result of
its action. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d
396, 402-403.) Thus, proffering an expert opinion that there is some
theoretical possibility the negligent act could have been a cause-in-fact of a
particular injury is insufficient to establish causation. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 775-776.) “[W]hen the matter
remains one of pure speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of the court to determine the issue in
favor of the defendant as a matter of law.” (Leslie G. v. Perry &
Associates (1996) 43 Cal.App.4th 472, 485.)
Here, CHC proffers the declaration of Thomas Robert Garrick,
M.D. in support of the instant Motion. Dr. Garrick is board-certified in forensic,
psychosomatic and geriatric psychiatry and licensed to practice medicine in the
State of California. (Garrick Decl., ¶1). Dr. Garrick opines that the care and
treatment provided to Plaintiff by CHC’s nurses and non-physician staff, as
well as physicians was within the applicable standard of care. (Garrick Decl.,
¶8.) Dr. Garrick further opines that “nothing that the nursing and
non-physician staff at CHC as well as physicians did or failed to do was a
substantial factor in causing or contributing any injury to Plaintiff.” (Id.
¶9.)
In Opposition, Plaintiff proffers the declaration of Stephen
Marmer, M.D., Ph.D to rebut CHC’s proffered expert. Dr. Marmer is board
certified in psychiatry and licensed to practice in the state of California.
(Marmer Decl., ¶1.) Dr. Marmer opines that the care provided to Plaintiff at
CHC fell below the standard of care. (Id. ¶¶56-58, 61.) Dr. Marmer states that
“the negligent failure to obtain a proper and accurate history, combined with
the failure to provide the hearing referee complete and accurate information
about the patient’s true condition, resulted in neglectfully releasing the
patient to the street. Once there, the patient was sexually abused multiple
times and was found in a psychotic and disheveled state…. This unfortunate
outcome would have been avoided had the appropriate people in charge at CHC
carried out their responsibilities in the thorough, accurate, and competent way
the standard of care calls for.” (Id. ¶60.) Dr. Marmer concludes that CHC
“failed to exercise and provide the degree of care responsible professionals
entrusted with the care and safety of a mentally disabled person, should
provide.” (Id. at ¶61.)
Plaintiff has made a sufficient showing based on the
declaration of their expert, Marmer, that there is a triable issue of material
fact regarding whether CHC’s conduct was within the standard of care, and
whether CHC was a proximate cause of Plaintiff’s alleged injuries. The Court
may not weigh the evidence or conflicting inferences. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 856.)
Summary Adjudication of Issue Two, Issue Three, and Issue
Four is DENIED.
Issue Five and Issue Nine –
Whether The First Cause of Action for Dependent Adult Abuse and Neglect Lacks
Merit and Whether Plaintiff’s Claims for Punitive Damages and Attorney’s Fees
Has Merit
A cause of action for
Dependent Adult Abuse is a statutory claim and must be alleged with
particularity. (See Covenant Care,
Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Acts that constitute mere professional
negligence do not constitute dependent adult abuse. “In order to obtain the remedies available in
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.)
“To recover the enhanced remedies available under the [Dependent] 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 [dependent].” (See Carter v. Prime Healthcare Paradise
Valley LLC (2011) 198 Cal.App.4th
396, 405.) “‘[T]he legislature intended
the [Dependent] Abuse Act to sanction only egregious acts of misconduct
distinct from professional negligence….” (Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 784.) In summary, to plead a cause of action
for [dependent] abuse under the Act based on neglect, a plaintiff must allege
facts establishing that the defendant: “(1) had responsibility for meeting the
basic needs of the elder or dependent adult,” “(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…or with conscious disregard for the high probability of
such injury….” (Carter v. Prime Healthcare Paradise Valley, LLC (2011)
198 Cal.App.4th 396, 405-407.) A plaintiff must also allege facts demonstrating
that the neglect caused the elder or dependent adult to suffer physical harm,
pain, or mental suffering such that the causal link between the neglect and
injury is specifically alleged. (Id at 407.) Section 15610.63(a)(1)
defines neglect in relevant part as follows: “The negligent failure of any
person having the care or custody of an elder or dependent adult to exercise
that degree of care that a reasonable person in a like position would
exercise.” Subsection (b) provides specific examples of neglect, and states in
relevant part: “Neglect includes… (3) [f]failure to protect from health and safety
hazards.” “Recklessness involves deliberate disregard of the high degree of
probability that an injury will occur and rises to the level of conscious
choice of a course of action… with knowledge of the serious danger to others
involved in it.” (Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396, 405.)
To state a
dependent abuse claim against an entity-defendant, a plaintiff must show that
an officer, director, or managing agent of defendant was involved in the abuse,
authorized the abuse, ratified the abuse or hired the person who did the abuse
with advance knowledge of the persons unfitness and hired him with a conscious
disregard of the rights and safety of others. (Welf. & Inst. Code
§15657(c); Cal. Civ. Code §3294.) “[T]he Act does not apply unless the
defendant health care provider had a substantial caretaking or custodial
relationship, involving ongoing responsibility for one or more basic needs,
with the elder patient.” (Winn v. Pioneer Medical Group, Inc. (2016) 63
Cal.4th 148, 152.)
As noted above, CHC provides sufficient evidence in support
of the Motion to establish that it satisfied the applicable standard of care
and therefore its conduct was not “reckless, oppressive, fraudulent, or
malicious” as required to state a claim for dependent abuse under Welf. &
Inst. Code §15657. CHC further argues that Plaintiff cannot show that CHC
ratified the alleged abuse or neglect because there is no evidence that
demonstrates CHC ratified the alleged allegations.
In Opposition, Plaintiff argues that CHC recklessly
neglected Plaintiff by failing to provide suitable medical care for Plaintiff’s
mental health needs, failing to protect Plaintiff from foreseeable health and
safety hazards, and failing to prevent malnutrition and dehydration. (DMF Nos.
52-63.) “Plaintiff was still in the throes of psychosis on May 8, 2017 and
lacked decision-making capacity and the mental capacity to make her own
healthcare decisions.” (DMF No. 49.) Dr. Marmer opines that CHC “egregiously
gave misleading, inaccurate, and incomplete information to the hearing referee
at the PCH (such as her true status and her medication non-compliance, as well
as her psychotic condition documented less than three hours before the
hearing), depriving him of knowledge that would have generated a more accurate
and informed ruling.” (Marmer Decl., ¶61(c).) Dr. Telesh, a clinical and
forensic psychologist licensed to practice in California, opines that CHC has a
fairly thorough discharge plan, but their policies were not followed in this
case. (Telesh Decl., ¶6.) Dr. Telesh further opines that “[t]he information
contained in the May 4, 2017 email from Jane Doe’s mother to College Hospital
establishes a pattern of illness that meets criteria for grave disability.”
(Id. ¶24(d).) Plaintiff argues that CHC’s conduct was “reckless” because they
knew it was highly probable that discharging Plaintiff to herself while in a
psychotic mental state would cause harm to Plaintiff, and they knowingly
disregarded that risk. (Marmer Decl., ¶61.)
Plaintiff presents
evidence that demonstrates that triable issues of material fact exist as to
whether CHC acted recklessly under the meaning of the Act, by discharging
Plaintiff given their mental state at the time of discharge. The Court also
finds that triable issues of fact exist as to whether CHC ratified the reckless
behavior by failing to investigate the incident after receipt of Plaintiff’s
mother’s May 4, 2017 email prompting CHC to reconsider Plaintiff’s premature
discharge. (DMF No. 35, 36.) Consequently, Plaintiff has also raised triable
issues as to whether Plaintiff is entitled to punitive damages and attorney’s
fees under the Act.
Summary
adjudication of Issue Five and Issue Nine is DENIED.
Issue
Six – Whether CHC is Immune from Liability
Welf. & Inst. Code §5278 states in pertinent part:
“Individuals authorized under this part to detain a person for 72-hour
treatment and evaluation…, or to certify a person for intensive treatment…or to
file a petition for post-certification treatment for a person…shall not be held
criminally or civilly liable for exercising this authority in accordance with
the law.” (Id.) “Thus, the immunity of section 5278 necessarily applies to
individuals or entities who make the decision to detain, when that decision is
supported by probable cause. [Citations.]” (Jacobs v. Grossmont Hospital
(2003) 108 Cal.App.4th 69, 76.)
“These statutory provisions reflect a policy that provides
immunity of diagnosing, treating, confining, and releasing the mentally ill, but
makes clear that public entities and employees are liable for injuries caused
by negligent or wrongful acts or omissions in administering or failing to
administer prescribed treatment or confinement. [Citation.]” (Id. at
79-80.)
The SAC does not allege that Defendants should be held
liable for their decision to detain Plaintiff. Rather, Plaintiff alleges that
Defendants are liable due to their alleged neglect and abuse of Plaintiff by
failing to detain her. Section 5278 immunity is inapplicable.
Summary adjudication
of Issue Six is DENIED.
Issue Seven – Whether the Third Cause of Action for Unfair Bus.
Practices Lacks Merit
To state a claim under §17200, a Plaintiff must
allege whether the conduct complained of is a fraudulent, unlawful or an unfair
business practice. To bring a claim under the fraud prong, Plaintiff must
allege an affirmative misrepresentation, conduct or business practice on the
part of a defendant; or an omission in violation of defendant’s duty to
disclose; and that is likely to deceive members of the public. (Buller v.
Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the
unfairness prong, Plaintiff must allege that one or more of Defendant’s
business practices are unfair, unlawful or fraudulent; and the remedy sought is
authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139
Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51
Cal.4th 310, 337.) To state a claim under the unlawful prong, Plaintiff must
allege a violation of law and cite that law. (Graham v. Bank of America,
N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to
allege violation of a law was properly sustained without leave to amend].)
This claim is derivative of Plaintiff’s claim for
elder abuse. Given the Court’s ruling above, summary adjudication of Issue 7 is
DENIED.
Issue
Eight – Whether The Fourth Cause of Action for IIED Lacks Merit
A cause of action for intentional infliction of emotional
distress consists of three elements: (1) extreme and outrageous conduct by the
Defendant with the intention of causing, or reckless disregard for the
possibility of causing, emotional distress; (2) Plaintiff suffering severe or
extreme emotional distress; and (3) actual and proximate causation of the
emotional distress by Defendant’s outrageous conduct. (Hughes v. Pair
(2009) 46 Cal.4th 1035, 1050.) Outrageous conduct is defined as conduct that is
“so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Id. at p. 1050-1051.)
CHC argues that there is no evidence demonstrating that they
acted with intent to cause Plaintiff emotional distress, or that Plaintiff
actually did suffer emotional distress given that Plaintiff purportedly cannot
recall the events of her hospitalization (including the May 8, 2017 hearing).
For reasons indicated above, Plaintiff sufficiently proffers
evidence in Opposition to show that CHC acted recklessly by discharging
Plaintiff to the streets, and should have known that their conduct would cause
harm to Plaintiff but nonetheless proceeded. Plaintiff also proffers evidence
raising a triable issue of material fact as to whether CHC’s purported actions
caused Plaintiff to suffer from severe emotional distress: “Jane Doe’s
subsequent hospitalization on May 23, 2017 identified that she was lying in
trash, in dirty clothing, malodorous and reporting she was hungry, thirsty and
did not fee safe. She presented as confused, disorganized and delusional. These
types of experiences in seriously mentally ill people are often extremely
traumatizing, to the point of developing additional symptoms that qualify for a
secondary diagnosis of Post-Traumatic Stress Disorder. The experience of
repeated psychotic episodes creates fear, confusion and uncertainty in patients
as they feel out of control and unable to protect themselves.” (Telesh Decl.,
¶24(j).)
Summary adjudication of Issue Eight is DENIED.
Plaintiff’s Evidentiary Objections to the
Declaration of Thomas Garrick, M.D.
1.
Overruled
2.
Overruled
3.
Overruled
4.
Sustained
5.
Sustained
6.
Overruled
7.
Overruled
8.
Overruled
9.
Sustained
10.
Overruled
11.
Overruled
12.
Overruled
13.
Overruled
14.
Overruled
15.
Overruled
16.
Overruled
17.
Overruled
18.
Overruled
19.
Overruled
20.
Overruled
CHC’s Evidentiary Objections
Declaration
of Alyssa E. Musante
1.
Overruled
2.
Sustained
3.
Sustained
4.
Sustained
5.
Sustained
6.
Sustained
Declaration of Jane Doe
1-96. Overruled
Declaration of
Will Jay Pirkey
1-67. Sustained
Declaration
of Stephen S. Marmer
1.
Overruled
2.
Overruled
3.
Overruled
4.
Overruled
5.
Overruled
6.
Overruled
7.
Overruled
8.
Overruled
9.
Overruled
10.
Overruled
11.
Overruled
12.
Overruled
13.
Overruled
14.
Overruled
15.
Overruled
16.
Sustained
17.
Sustained
18.
Sustained
19.
Sustained
20.
Overruled
21.
Sustained
22.
Overruled
23.
Overruled
24.
Overruled
25.
Overruled
26.
Overruled
27.
Sustained
28.
Overruled
29.
Overruled
30.
Overruled
31.
Overruled
Declaration of Marian M.J. Thompson
1-154. Overruled
Declaration
of Alexander Korchmarev, M.D.
1-7. Overruled
Declaration
of Kimberly Telesh, M.D.
1-18. Overruled