Judge: Lee W. Tsao, Case: 23NWCV00683, Date: 2023-09-06 Tentative Ruling
Case Number: 23NWCV00683 Hearing Date: March 28, 2024 Dept: C
WALKER v. NORWALK
SKILLED NURSING & WELLNESS CENTRE, LLC
CASE NO.: 23NWCV00683
HEARING: 03/28/24
#6
I.
Defendant NORWALK SKILLED NURSING & WELLNESS
CENTRE, LLC’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.
II.
Defendant NORWALK SKILLED NURSING & WELLNESS
CENTRE, LLC’s Motion to Strike Portions of Plaintiff’s First Amended Complaint
is DENIED in part and GRANTED with 20 days leave to amend in part.
Opposing Party to give notice.
This action for elder abuse was filed by Plaintiff CHIVALA WALKER,
individually and as heir and successor-in-interest to DOROTHY MAE HILL
(“Decedent”) (“Plaintiff”) on March 2, 2023.
On August 24, 2023, the operative First Amended Complaint (“FAC”) was
filed. Plaintiff alleges “Defendant was required to meet the basic needs of Ms.
HILL such as hygiene, safety and medical care, as Ms. HILL was admitted with
chronic combined systolic (congestive) and diastolic (congestive) heart
failure, unspecified pulmonary hypertension, other specified disorders of bone
density and structure of unspecified site, generalized muscle weakness, other
abnormalities of gait and mobility, stage 2 pressure ulcer of right buttock,
unspecified Alzheimer’s disease, and unspecified hyperlipidemia. Additionally,
Ms. HILL was admitted with left ankle pain and a possible left ankles sprain
after suffering a fall at home. Ms. HILL relied on NORWALK staff for extensive
assistance with bed mobility, transfers, dressing, toilet use and personal
hygiene.” (FAC ¶6.) Plaintiff alleges that Defendant knew that Decedent was
unable to provide for her own basic needs, and that Defendant denied and
withheld the services and supervision needed to meet Decedent’s basic needs.
(FAC ¶¶7-8.) “On or about July 2, 2022,
as a result of Defendant’s reckless neglect, Ms. HILL suffered a preventable
fall at NORWALK. An x-ray was performed, and Ms. HILL was diagnosed with an
acute left hip fracture. [¶] Defendant’s neglect, abuse, and abandonment as
alleged herein was the direct and proximate cause of Ms. HILL’s pain and
suffering from her preventable fall and resulting injuries.” (FAC ¶¶9-10.)
The FAC asserts the following causes of action:
(1) Negligence;
(2) Violations
of the Elder and Dependent Adult Civil Protection Act;
(3) Violations
of Resident Rights; and
(4) Wrongful
Death
Defendant NORWALK SKILLED NURSING & WELLNESS CENTRE, LLC
(“Defendant”) generally demurs to the second, third, and fourth causes of
action.
Second 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. ‘Recklessness’ refers to a subjective state of
culpability greater than simple negligence, which has been described as a
‘deliberate disregard’ of the ‘high degree of probability’ that an injury will
occur. Recklessness, unlike negligence, involves more than ‘inadvertence,
incompetence, unskillfulness, or a failure to take precautions’ but rather
rises to the level of a ‘conscious choice of a course of action… with knowledge
of the serious danger to others involved in it. [Citations Omitted.]” (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 against an entity, 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.)
In support of its
Demurrer, Defendant argues that the present case is similar to Worsham v.
O’Connor Hosp. (2014) 226 Cal.App.4th 331, where the Court found that the
plaintiff’s claims amounted to negligence, not recklessness. In Worsham,
the plaintiff alleged that defendants were aware that plaintiff had a risk of
falling, failed to have the proper staffing in place to prevent plaintiff’s
fall, which resulted in the plaintiff failing and suffering a broken arm and
rebreak of her hip. In affirming the sustaining of the demurrer without leave
to amend, the Court determined that these allegations of understaffing and
undertraining were insufficient to support a claim for anything more than
professional negligence. (Id. at 338.)
In Opposition,
Plaintiff argues that this case is distinguishable from Worsham, and
more analogous to Fenimore v. Regents of the Univ. of Calif. (2016) 245
Cal.App.4th 1339. In Fenimore, the Court reviewed allegations similar to
those in Worsham. In response to Worsham, Fenimore held: “Worsham’s
determination that understaffing constitutes no more than negligence may be
true, absent further allegations showing recklessness. But the Fenimores have
alleged more than a simple understaffing here. The FAC identified the staffing
regulation the Hospital allegedly violated and suggested a knowing pattern of
violating it constituted recklessness.” (Id. at 1350.) The Fenimore Court held
that the plaintiff alleged sufficient facts to constitute neglect under the
Elder Abuse Act.
This Court finds
that the facts of this case are closer to Fenimore because Plaintiff
alleges that Defendant engaged in a knowing pattern of understaffing and a
conscious disregard of fall risk care plans and protocols for purposes of
surviving demurrer. (See e.g. FAC ¶¶31, 32, and 46.)
On demurrer, the
Court is bound to accept Plaintiff’s 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.
The demurrer to
the second cause of action is OVERRULED.
Third Cause of
Action – Violation of Resident 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 in the 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 ¶67.)
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.) To prevail on a cause of action
for wrongful death, “plaintiffs must prove (1) a wrongful act or neglect on the
part of one or more persons [that is negligence’ that (2) causes (3) the death
of [another] person. [Citations.]” (Musgrove v. Silver (2022) 82
Cal.App.5th 694, 705.)
Defendant argues that Plaintiff fails to plead a causal link between
Decedent’s fall and her death. Plaintiff alleges “that as a direct result of
Defendants’ failures to implement proper fall prevention protocols in
accordance with state laws and regulations and in accordance with facility
policy and procedure, Ms. HILL suffered a traumatic fall on July 2, 2022,
resulting in a traumatic femur fracture. Due to her poor prognosis, Ms. HILL
was placed under comfort care and hospice services, and died on August 5, 2022,
depriving her family, including Plaintiff, of the society and companionship,
affection, moral support, love, care and comfort she provided, including the
ability to share and express love as they provided care to Ms. HILL. Ms. HILL’s
health would not have progressively and rapidly declined, and she would not
have died on August 5, 2022 but not for the fall and subsequent fracture she
sustained at Defendant’s facility.” (FAC ¶71.) The Court determines that
causation was sufficiently where Decedent, 91 years old, suffered a traumatic
femur fracture as a result of the fall, her condition “progressively and
rapidly declined” thereafter, she was placed on hospice, and she died just over
a month after the fall.
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
Defendants 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 treble
damages under Cal. Civ. Code §3345 is GRANTED with 20 days leave to amend.
Defendant contends that Plaintiff’s claim for treble damages under Cal. Civ.
Code §3345 is improper as a matter of law, as alleged. The Court agrees. Cal.
Civ. Code §3345 states: “This section shall apply only in actions brought by,
and on behalf of, or for the benefit of senior citizens or disabled persons, as
those terms are defined in subdivisions (f) and (g) of Section 1761, to redress
unfair or deceptive acts or practices or unfair methods of competition.” (Id.)
Plaintiff’s claim for treble damages appears solely in their elder abuse cause
of action. Lacking from the elder abuse cause of action is a claim which seeks
“redress” for any “unfair or deceptive acts or practices or unfair methods of
competition.” Since this is an explicit prerequisite for treble damages under
Cal. Civ. Code §3345, Plaintiff’s claim for treble damages within the elder
abuse claim is improper.