Judge Lynette Gridiron Winston, Case Number: 22STCV25416, Date: 2024-02-07 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22STCV25416, Date: 2024-02-07 Tentative Ruling

Case Number: 22STCV25416 Hearing Date: February 7, 2024 Dept: 6

CASE NAME: Nancy Bailey, by and through her Guardian ad Litem David Hester v. Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center, et al.

Defendant Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center’s Demurrer to Plaintiff’s Complaint

TENTATIVE RULING

The Court OVERRULES the demurrer to the First Cause of Action. The Court SUSTAINS the demurrer to the Second Cause of Action without leave to amend. The Court SUSTAINS the demurrer to the Third Causes of Action with leave to amend. Plaintiff must file and serve the amended complaint within 30 days of the Court’s order.

The Court DENIES the motion to strike.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is an elder abuse case. On August 5, 2022, plaintiff Nancy Bailey, by and through her Guardian ad Litem David Hester (Plaintiff) filed this action against defendants Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center (Inland Valley), Elizabeth Casey, Floyd Rhoades, Phillip Chase, Ted Weiner, and Does 1 through 50, alleging causes of action for dependent adult abuse & neglect, negligence, and violations of residents [sic] rights.

On December 12, 2023, Defendant Inland Valley filed a demurrer and motion to strike. On December 29, 2023, Plaintiff opposed the motions. On January 5, 2024, Inland Valley replied.

LEGAL STANDARD – Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

PRELIMINARY ISSUES

“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, rule 3.1320, subd. (a); A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A [“If several grounds are stated conjunctively in the same paragraph (e.g., ‘the complaint is uncertain and fails to state facts sufficient to constitute a cause of action’), the demurrer violates CRC 3.1320(a).]) The Court notes that Defendant’s demurrer combines each ground for demurrer to the First and Third Causes of Action into one paragraph, which violates Rule 3.1320, subdivision (a) of the California Rules of Court. (Notice, 2:8-11, 2:17-20.) The Court will still consider the demurrer, but admonishes Defendant to comply with the requirements of the California Rules of Court going forward.

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendant’s efforts to meet and confer insufficient, as there is no evidence Defendant met and conferred telephonically or in person. (Le Melle Decl., ¶ 4.) Nevertheless, the Court may not overrule the demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward.

First Cause of Action – Dependent Adult Abuse & Neglect

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). (Welf. & Inst. Code § 15600 et seq.) The EADACPA defines “neglect” as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code § 15610.57.) Neglect under the EADACPA “refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89, quotation marks and citation omitted.)

Several 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 services necessary 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, quotation marks and citations omitted.)

Defendant demurs to the First Cause of Action for dependent adult abuse and neglect on the grounds that it fails to allege sufficient facts to state a cause of action and is uncertain. More specifically, Defendant contends the complaint fails to allege facts that satisfy the heightened pleading requirements for an elder abuse claim, such as the Defendant’s conduct in the particular circumstances that demonstrate Defendant engaged in any wrongdoing, citing Carter, supra, 198 Cal.App.4th 396. Defendant then contends the complaint fails to allege sufficient facts demonstrating Defendant engaging in intentional wrongdoing, and that it fails to allege facts showing involvement by an officer, director, or managing agent of Defendant.

In opposition, Plaintiff contends the complaint alleges sufficient facts to state a cause of action for dependent adult abuse and neglect. More specifically, Plaintiff contends the complaint alleges that Defendant had care and custody of Plaintiff, Plaintiff was over the age of 65 during the relevant period in question, Defendant failed to use the appropriate degree of care, Plaintiff was harmed, and Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (Compl., ¶¶ 2, 37-41, 57, 59, 63.) Plaintiff then contends the complaint alleges sufficient facts to establish evidence of malice, oppression, fraud, and recklessness, citing the case of Delaney v. Baker (1999) 20 Cal.4th 23. Plaintiff further contends the allegations of the complaint support corporate liability, citing the case of Marron v. Superior Court (2003) 108 Cal.App.4th 1049.

The Court agrees with Plaintiff that the complaint alleges sufficient facts with the requisite particularity to satisfy the basic requirements of an elder abuse claim. (See Carter, supra, 198 Cal.App.4th at p. 410.) The complaint alleges that Plaintiff was over 65 years old, and that Defendant had responsibility to care for Plaintiff by providing services such as turning, repositioning, transferring in and out of bed, toileting, dressing, grooming and maintaining personal hygiene, ensuring adequate nutrition and hydration, and managing medications. (Compl., ¶¶ 2, 30-34.) The complaint alleges Defendant knew Plaintiff was bedridden and required assistance with mobility and the other items listed above. (Id., ¶ 33.) The complaint further alleges that Defendant denied or withheld goods or services, either with knowledge that injury was substantially certain to befall Plaintiff or with conscious disregard of the high probability of such injury, by failing to provide Plaintiff with adequate moving, repositioning, or applying splint devices to prevent contractures, as evidenced by Plaintiff developing sores and contractures while in Defendant’s care. (Id., ¶¶ 44-46, 50, 68.)

The Court finds Defendant’s attempt to liken this case to the facts in Carter to be unpersuasive and factually distinguishable. In Carter, the decedent had experienced three separate hospitalizations with the defendant hospital. (Carter, supra, 198 Cal.App.4th at p. 407.) The decedent developed pneumonia, sepsis, and pressure ulcers while staying at a different care facility between the first and second hospitalizations. (Id. at pp. 407-408.) The Court of Appeal found that although there were some allegations the decedent had developed other ulcers during the second hospitalization, there were no allegations as to how the hospital caused the decedent’s ulcers or any other injury. (Id. at p. 408.) The Court of Appeal further found that hospital’s alleged failures during the third hospitalization may amount to professional negligence, but not neglect for purposes of elder abuse, as the defendant hospital had provided medical care to the decedent. (Id.)

Here, Defendant is the only care facility involved in this action, whereas many of the decedent’s injuries at issue in Carter arose at a different care facility before the decedent was admitted to the defendant hospital. (Carter, supra, 198 Cal.App.4th at pp. 409-410.) The Court of Appeal explicitly held the defendant hospital could not be liable for injuries that arose at the other care facility. (Id.) Moreover, this action only involves the provision of medical care, whereas the defendant hospital in Carter was involved with the undertaking of medical services for the decedent. (Id. at p. 408; see Sababin, supra, 144 Cal.App.4th at p. 89.)

As for the issue of egregious abuse, or malice, fraud, oppression, and recklessness, the California Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23 stated that, “’[r]ecklessness’ 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. (Id. at p. 31.) In Delaney, the decedent died after four months at the defendant care facility, where it had been found that the decedent developed extreme bedsores due to the defendant care facility leaving the decedent unattended for extended periods of time. (Id. at p. 27.) Although not necessarily as extreme as the circumstances in Delaney, the Court notes that the complaint sufficiently alleges Defendant withheld goods or services based on conscious disregard, i.e., recklessness, of the high probability of injury by failing to provide Plaintiff with adequate moving, repositioning, or applying splint devices to prevent contractures, as evidenced by Plaintiff developing sores and contractures while in Defendant’s care. (Id., ¶¶ 44-46, 50, 68.)

The Court further finds the complaint adequately alleges facts demonstrating corporate ratification of the underlying conduct. Section 15657, subdivision (c) of the Welfare and Institutions Code provides that, “The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.” (Welf. & Inst. Code § 15657, subd. (c).) Civil Code section 3294, subdivision (b) provides that:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code § 3294, subd. (b).)

Plaintiff alleges that “the FACILITY, through its managing agents and the MANAGEMENT Defendants, made a conscious choice to understaff the FACILITY, in both quantity and quality of nursing personnel. The decisions to understaff was made at the corporate level by INLAND VALLEY and the MANAGEMENT Defendants in order to increase the profitability of the FACILITY, in conscious disregard of patient care needs. INLAND VALLEY and the MANAGEMENT Defendants, together, conceived of and implemented plans to increase business profits at the expense of patients like Ms. Bailey. Integral to this plan was the practice and pattern of INLAND VALLEY and the MANAGEMENT Defendants staffing the FACILITY with an insufficient number of care personnel, many of whom were not properly trained nor qualified to care for the patients whose lives were entrusted to them. The understaffing and lack of training was designed to reduce labor costs and to increase profits, and resulted in high staff turnover and the physical abuse and neglect of many residents of the facilities and most specifically, Ms. Bailey. Their corporate policies to not maintain sufficient staffing as required by law was developed and implemented with the conscious disregard for the likelihood of physical harm and injury to those who it is in the business to protect, including Ms. Bailey, who did in fact suffer as a direct consequence of INLAND VALLEY’s and the MANAGEMENT Defendants’ proprietary interests, which they placed above that of Ms. Bailey and other residents/patients.” (Compl., ¶ 71.)

Plaintiff further alleges that “Defendants had a duty to direct the nurses and staff yet did not make any changes at the FACILITY, even with knowledge of substandard care, failures to assess, monitor and respond to changes in resident condition, inadequate custodial care, inadequate hygiene, and inadequate safety measures at the facilities. The managing agents of the FACILITY knew or should have known of the lack of proper custodial care to its patients, as well as its understaffing, poor training, and the failure to implement care plans based on internal reporting and also the oversight, monitoring and reporting of the Department of Public Health. Any and all findings of the Department of Public Health regarding care failures at the FACILITY were reported up the corporate chain of INLAND VALLEY and to the MANAGING Defendants. Despite each Defendants’ conscious knowledge of these conditions, the managing agents of each Defendant did not take appropriate and adequate steps to prevent and correct them, and they did not inform Ms. Bailey or her family of what they knew about these dangerous conditions.” (Compl., ¶ 78.) The Court finds these allegations sufficient to allege corporate ratification.

Based on the foregoing, the Court OVERRULES the demurrer to the First Cause of Action.

Second Cause of Action – Negligence

To plead a cause of action for professional negligence, the plaintiff must allege facts demonstrating: “(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.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122, internal citations omitted.)

“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.” (Code Civ. Proc., § 340.5.) A demurrer based on the statute of limitations only lies where the dates are shown on the face of the complaint. (Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25.)

Defendant demurs to the Second Cause of Action on the grounds that it is time-barred. Defendant contends it is time-barred because Plaintiff was discharged from the facility in June 2021, and that Plaintiff’s claim expired by June 2022. But Plaintiff did not file this action until August 5, 2022. In opposition, Plaintiff contends the rule of delayed discovery applies because Defendant failed to report the development of Plaintiff’s upper and lower extremity contractures and pressure sore, and fraudulently concealed the severity of Plaintiff’s condition from her responsible party, citing paragraph 76 of the complaint. (See Compl., ¶ 76.) The Court finds Defendant’s arguments persuasive.

The complaint alleges that Defendant discharged Plaintiff from its care in June 2021, by which point Plaintiff had contracted sores and contractures. (Compl., ¶ 34.) Plaintiff’s opposition does not mention this date at all or otherwise dispute Defendant’s contention here, which the Court construes as a tacit admission that Defendant’s argument is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) Plaintiff’s argument regarding delayed discovery has no bearing on this issue because even if Defendant failed to report the development of Plaintiff’s injuries to Plaintiff’s responsible party, the complaint alleges that this failure to report occurred while Defendant was caring for Plaintiff and before Plaintiff was discharged in June 2021. (See Compl., ¶¶ 34, 76.) Either way, that is more than one year between the discharge and the filing of the complaint, and is therefore time-barred.

Therefore, the Court SUSTAINS the demurrer to the second cause of action without leave to amend.

Third Cause of Action – Violations of Residents [sic] Rights

A current or former resident or patient, or the legal representative, personal representative, or successor in interest of a current or former resident or patient, of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in Section 72527 or 73523 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.

(Health & Safety Code § 1430, subd. (b)(1).)

Statutory causes of action generally must be pleaded with particularity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

Defendant demurs to the Third Cause of Action on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the Third Cause of Action is a statutory cause of action and must be pleaded with particularity, but Plaintiff instead merely references regulations in a boilerplate fashion and alleges in a conclusory manner that Defendant violated the statute. Defendant also contends the Third Cause of Action is uncertain because it lacks specific allegations describing how Defendant caused Plaintiff’s health problems during her residency at Defendant’s facility. In opposition, Plaintiff contends all of its preceding allegations in the complaint are sufficient to state a cause of action for violation of Health and Safety Code section 1430, subdivision (b).) The Court agrees with Defendant.

Health and Safety Code section 1430, subdivision (b) is a statute, and therefore a cause of action based thereon must be alleged with particularity. (Lopez, supra, 40 Cal.3d at p. 795.) The complaint simply lists a number of rights under various code regulations without specifying how the underlying allegations stated earlier in the complaint also constitute violations of those rights. (See Compl., ¶¶ 97-98.)

Based on the foregoing, the Court SUSTAINS the demurrer with leave to amend as to the Third Cause of Action.

LEGAL STANDARD – Motion to Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 435.5, subdivision (a), Defendant was required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendant’s efforts to meet and confer insufficient, as there is no evidence Defendant met and conferred telephonically or in person. (Le Melle Decl., ¶ 4.) Nevertheless, the Court may not overrule the demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 435.5, subd. (a)(4).) The Court admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward.

Analysis

Based on the Court overruling the demurrer to the First Cause of Action, the Court DENIES the motion to strike Plaintiff’s requests for general damages, statutory damages, attorney’s fees and costs, exemplary damages, and costs of suit set forth in the Prayer for Relief, p. 41, ¶¶ 1-7.

Defendant also seeks to strike the entire paragraph 50 of the complaint which alleges that in May 2021, the facility was found by the California Department of Public Health (CDPH) to have violated a number of regulations. (See Compl., ¶ 50.) Defendant argues that Health and Safety Code Section 1280(f) precludes CDPH records from being used in any legal action. The Court, however, disagrees. Under Health and Safety Code section 1280, subdivision (f), plans of correction are not to be used in any legal action as an admission by a party opponent. They also are subject to exclusion as remedial measures under Evidence Code section 1151. Such Sections do not prohibit allegations that Defendant violated regulations. Nor do any of the cases cited by Defendant. Accordingly, the Court DENIES the motion to strike paragraph 50 of the complaint.

CONCLUSION

The Court DENIES the motion to strike.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.