Judge: Lee W. Tsao, Case: 21STCV24995, Date: 2023-08-10 Tentative Ruling
Case Number: 21STCV24995 Hearing Date: August 10, 2023 Dept: C
FOX v. CERRITOS
VISTA HEALTHCARE CENTER LLC
CASE NO.: 21STCV24995
HEARING: 08/10/23
#9
I.
Defendant CERRITOS VISTA HEALTHCARE CENTER LLC’s
Demurrer to Plaintiffs’ First Amended Complaint is OVERRULED.
II.
Defendant CERRITOS VISTA HEALTHCARE CENTER LLC’s
Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.
Opposing Party to Give notice.
Defendant’s Request for Judicial Notice is GRANTED. (Cal.
Ev. Code §452.)
This wrongful death/elder abuse action was filed by
Plaintiffs MAUDE FOX, deceased, by and through her personal legal
representative and successor in interest Deisree Fox; and DESIREE FOX,
individually (collectively “Plaintiffs”).
On December 29, 2022, the operative First Amended Complaint
(“FAC”) was filed.
Plaintiffs allege that “Decedent MAUDE was admitted to
Defendant FACILITY in 2019 for skilled and custodial services to meet her care
needs.” (FAC ¶40.) “Decedent MAUDE’s medical history made her susceptible to
viral communicable diseases. [¶] Defendants knew or should have known, that
prevention and care is especially important among nursing home residents such
as Decedent MAUDE, who are more susceptible to respiratory infection/syndrome
due to their age and medical conditions.” (FAC ¶44.) “Defendant FACILITY failed
to provide adequate care to Decedent MAUDE and failed to effectively develop,
implement, and modify care plans for her individualized care needs.” (FAC ¶45.)
“On June 17, 2020, Decedent MAUDE tested positive for COVID-19. [¶] Over the
next few days, Decedent MAUDE’s health continued to decline. She was diagnosed
with pneumonia. [¶] Unsurprisingly, Decedent MAUDE’s health continued to
deteriorate. Decedent MAUDE could not recover from her extreme respiratory
infection/syndrome and other injuries and died on June 21, 2020.” (FAC
¶¶50-52.)
Plaintiffs’ FAC asserts the following causes of action: (1) Elder
Abuse and Neglect; (2) Violation of Patient Rights; (3) Negligence; and (4)
Wrongful Death.
Defendant CERRITOS VISTA HEALTHCARE CENTER LLC (“Defendant”)
argues that Plaintiffs’ action is preempted, and the demurrer should be
sustained without leave to amend. Defendant also generally demurs to the first,
second, third, and fourth causes of action.
Preemption
The PREP act states that “a covered person shall be immune
from suit and liability under Federal and State law with respect to all claims
for loss caused by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered countermeasure if a
declaration under subsection (b) has been issued with respect to such
countermeasure.” (42 U.S.C.A §247d-6d(a)(1).) “The immunity under paragraph (1)
applies to any claim for loss that has a causal relationship with the administration
to or use by an individual of a covered countermeasure, including a causal
relationship with the design, development, clinical testing or investigation,
manufacture, labeling, distribution, formulation, packaging, marketing,
promotion, sale, purchase, donation, dispensing, prescribing, administration,
licensing, or use of such countermeasure.” (42 U.S.C.A §247d-6d(a)(1)(B).)
In line with the 9th Circuit’s holding in Saldana
v. Glenhaven Healthcare LLC (“Saldana”) (2022) 27 F.4th 679, 688,
this Court finds that Plaintiffs’ claims herein are not preempted by the PREP Act.
Saldana is factually analogous. In Saldana, the plaintiffs
alleged that their decedent died from COVID-19 while residing at the defendant
nursing home. The complaint alleged four state-law causes of action: elder
abuse, willful misconduct, custodial negligence, and wrongful death. The 9th Circuit determined that federal
subject matter jurisdiction was not proper because Plaintiffs failed to demonstrate
that the PREP Act is a complete preemption statute; that is, Congress intended
the scope of the federal law to be so broad as to entirely replace any
state-law claim. (Saldana at 686,
emphasis in original.) Rather, “[t]he
text of the statute shows that Congress intended a federal claim only for
willful misconduct claims and not claims for negligence and recklessness.” (Id
at 688.) Moreover, simply because one of
Plaintiffs’ claims may be preempted is different than finding that the
federal statutory scheme is so comprehensive that it entirely supplants
state law causes of action. (Id,
emphasis in original.) Here, on
analogous facts, Defendant’s preemption argument fails for the reasons set
forth in Saldana.
First Cause of Action – Elder Abuse
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.)
Acts that constitute mere professional negligence do not constitute
elder 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 Elder 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 elder.”
(See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.) “‘[T]he legislature intended the Elder 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 elder 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.” To state an elder abuse claim, a plaintiff must allege facts showing
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.)
The demurrer to
the first cause of action is OVERRULED.
Plaintiffs
adequately allege the existence of a caretaking/custodial relationship. (FAC ¶20.)
The FAC also adequately alleges that the Defendant wrongfully and knowingly
withheld care from the Decedent for purposes of surviving demurrer. (See e.g., FAC
¶¶ 55, 58, 60-79.)
On demurrer, the
Court is bound to accept Plaintiffs’ allegations and construe the allegations
‘liberally in favor of the pleader.’ (Ferrick v. Santa Clara University
(2014) 231 Cal.App.4th 1337, 1341.) The arguments raised by Defendant raise
factual determinations improperly resolved at this stage in the litigation.
Second Cause of
Action – Violation of Patient Rights
“A current or
former resident or patient of a skilled nursing facility…. or intermediate care
facility…may bring a civil action against the licensee of a facility who
violates any rights of the resident or patient as set forth int eh Patients
Bill of Rights…or any other right provided for by federal or state law or
regulation.” (Cal. Health and Safety Code §1430(b).)
Defendants’
demurrer to the second cause of action is OVERRULED. Plaintiff adequately
alleges a claim for a Violation of Health and Safety Code §1430(b). (See FAC ¶89.)
Third Cause of
Action – Negligence
A claim for professional medical negligence has three necessary
elements: (1) negligence (standard of care); (2) harm; and (3) causation.
Defendant’s demurrer to the third cause of action is OVERRULED.
Plaintiff has adequately alleged the elements of negligence. (See FAC ¶¶93-95.)
Fourth Cause of
Action – Wrongful Death
“The elements of a cause of action for wrongful death are a tort, such
as negligence, and resulting death. [Citation.]” (Lopez v. City of Los
Angeles (2011) 196 Cal.App.4th 675, 685.)
Plaintiffs have sufficiently alleged an underlying claim for elder
abuse, and that Decedent’s death was caused by Defendant’s elder abuse and
neglect. For pleading purposes, this is sufficient. The demurrer to this cause
of action is OVERRULED.
Motion to Strike
A motion to strike lies either when (1) there is “irrelevant, false or
improper matter inserted in any pleading”; or (2) to strike any pleading or
part thereof “not drawn or filed in conformity with the laws of this state, a
court rule or order of court.” (CCP §436.)
The motion to strike punitive
damages and attorney’s fees is DENIED. Plaintiffs adequately allege that Defendant
engaged in malicious and/or despicable conduct under the cause of action for dependent/adult
abuse sufficient to warrant such remedies.
The motion to strike allegations
regarding covered countermeasures, including those relating to PPE and
allegations of willful misconduct that Defendant argues is barred by the PREP
Act is DENIED. The
Court cannot make factual determinations in response to a Motion to Strike.
(See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) The
Court must accept the factual allegations set forth in the FAC as true at this
stage in the litigation.