Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV04576, Date: 2025-05-23 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV04576, Date: 2025-05-23 Tentative Ruling

Defendants California Rehabilitation Institute, LLC and Select Hospitals Investors, LP shall file and serve an answer to Plaintiff Robert Johnson, Individually and as Heir and Successor-in-Interest to Patricia Johnson, Deceased’s Second Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

To state a cause of action for elder abuse and neglect, Plaintiff must allege “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1).) Acts which are prohibited under the Elder Abuse Act provisions of the Welfare and Institute Code “do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781 (Covenant Care).)

To constitute abuse and neglect within the meaning of the Elder Abuse Act, thereby triggering the enhanced remedies available under the Act, 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,” with recklessness referring “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,” and “[o]ppression, fraud and malice [involving] intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88-89, quotation marks omitted.) Neglect includes failure to assist in personal hygiene, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards. (Welf. & Inst. Code, § 15610.57, subd. (b).)

[S]everal factors [] must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (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 servicesnecessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury(if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.

In the first cause of action, Plaintiff alleges that Defendant knew the care plan put in place for Decedent Patricia Johnson (“Decedent”) was inadequate to meet her needs, which is shown through her development of pressure ulcers, deep tissue injuries, and resulting complications, and Defendants’ failure to heal those injuries. (Second Am. Compl. ¶ 94.) Plaintiff alleges that the neglect was ongoing, as her medical records indicate her wounds worsened over time, and had needed care been provided, Decedent would not have developed the injuries. (Second Am. Compl. ¶¶ 95-96.) Again, Plaintiff has failed to state facts that meet the heightened standard of pleading for elder abuse and neglect. (See Covenant Care, supra, 32 Cal.4th at p. 790 [“statutory causes of action must be pleaded with particularity”].)

In the Second Amended Complaint, Plaintiff alleges that Decedent’s pressure ulcers were treated by Defendant, and Decedent was discharged on October 15, 2022. (Second Am. Compl. ¶¶ 58, 64-66.) Plaintiff alleges that the wound grew in size (Second Am. Compl. ¶¶ 65-65), and Decedent’s chart fails to show adequate turning and repositioning per the standard of care (Second Am. Compl. ¶ 68). Again, the trier of fact cannot conclude that elder abuse occurred here where the facts tend to show no more than negligence or medical malpractice by Defendant which caused Decedent’s harms. The Court previously advised Plaintiff that he needed to plead a failure to provide necessary medical care, not just a negligent rendering of medical care that caused harm, and he has failed to do so here. The facts alleged focus on a failure to implement specific treatment actions, which alleges negligent or improper care, not a failure to provide care. The Court has allowed Plaintiff ample opportunity to plead more than a negligence claim, and he has failed to do so. Accordingly, Defendants California Rehabilitation Institute, LLC and Select Hospitals Investors, LP’s Demurrer to the Second Amended Complaint is SUSTAINED without leave to amend as to the first cause of action. Defendants California Rehabilitation Institute, LLC and Select Hospitals Investors, LP shall file and serve an answer to Plaintiff Robert Johnson, Individually and as Heir and Successor-in-Interest to Patricia Johnson, Deceased’s Second Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)