Judge: Malcolm Mackey, Case: 21STCV30776, Date: 2022-09-02 Tentative Ruling
Case Number: 21STCV30776 Hearing Date: September 2, 2022 Dept: 55
POOCHIGIAN
v. UNITED CONVALESCENT FACILITIES, INC. 21STCV30776
Hearing Date: 9/2/22,
Dept. 55
#5: DEMURRER TO PLAINTIFFS’ COMPLAINT. MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT.
Notice: Okay
Opposition
MP:
Defendants
RP:
Plaintiffs
Summary
On 8/19/21, plaintiffs, who are surviving children of
decedent GEORGE POOCHIGIAN, filed a Complaint alleging that defendants’
healthcare facility knowingly failed to provide the full assistance decedent
required with eating and drinking inabilities caused by dementia, and
decedent’s condition deteriorated due to hypoxemic respiratory failure,
pneumonia, and Covid, leading to death “from extreme respiratory infection/syndrome
and other injuries… (e.g., Complaint, ¶¶
44 -50, 54-55).
The causes of action are:
1. ELDER ABUSE AND
NEGLECT (WELF. 8 INST. CODE, 515600, ET SEQ.)
2. VIOLATION OF PATIENT
RIGHTS (HEALTH & SAFETY CODE $1430(B))
3. NEGLIGENCE
4. WRONGFUL DEATH.
MP
Positions
Moving parties request an order sustaining the
demurrer to the Complaint, and granting the motion to strike, on grounds
including the following:
·
Immunities:
o
The Secretary of HHS invoked the Public
Readiness and Emergency Preparedness Act (“PREP Act”), which provides immunity
from suit and liability and allows nursing facilities and senior living
communities the opportunity to focus on responding to a global pandemic without
worrying about the threat of lawsuits.
Plaintiffs’ claims center around the contention that Defendants failed
to engage in appropriate infection control protocols to prevent the decedent
from contracting COVID-19.
o
The California Emergency Services Act
under Government Code Section 8659, invoked by Governor Newsom’s Executive
Order in response to the global pandemic, provides Defendants absolute immunity
from suit and liability.
·
Elder Abuse: No reasonable inference of reckless,
malicious, or oppressive conduct by Defendants can be drawn. There is no alleged
pattern of withholding necessary care and services from decedent by this
defendant. Decedent was a resident at the facility since 2019, prior to any
alleged wrongful conduct occurred. Plaintiffs fail to identify any other
alleged wrongful conduct prior to the current dispute which centers around the
coronavirus pandemic. The gravamen of the Complaint is that Decedent contracted
a highly contagious novel coronavirus at the nursing facility that was working
tirelessly to combat in accordance with the CDC, CMS and CDPH guidelines.
·
Negligence and Wrongful Death: The issue of Wrongful Death secondary to
negligent medical treatment, is not a viable claim in the COVID-19 context.
This was a new and novel virus with no known treatment other than supportive
care at that time, which to the extent possible in the skilled nursing facility
is alleged to have been provided. However, there is and can be no standard of
care as there is no previous experience with this disease. Likewise, there can
be no causation between a breach of the standard.
·
Motion to Strike:
o
The Court should strike all allegations
covered by immunity of the PREP Act.
o
Plaintiffs’ claims for enhanced remedies
under the Elder Abuse Act and for punitive damages should be stricken.
o
Plaintiffs’ vague and conclusory
allegations are insufficient to allege causes of action for Elder Abuse and
Neglect, Negligence and Wrongful Death fail to set forth facts establishing
that any alleged act or omission by Defendants was reckless, malicious,
oppressive or fraudulent. Defendants were doing all they could to respond to a
highly contagious viral outbreak plagued by healthcare staffing shortages.
o
The Complaint fails to plead any facts, as
opposed to conclusions, relating to ratification, or advanced knowledge of the
unfitness of an employee, as required to recover such damages or any acts of
oppression, fraud or malice on the part of an officer, director or managing
agent of University Park Healthcare Center.
o
Plaintiffs failed to plead facts
sufficient to support the claims for attorney’s fees.
RP
Positions
Opposing parties advocate overruling and denying, or
leave to amend, for reasons including the following:
·
The PREP Act is inapplicable to the
allegations. Plaintiffs allege that
during the COVID-19 crisis, Defendants made conscious decisions that
disregarded the wellbeing of elder dependents, resulting in the injury to death
of some of those dependents, including Mr. Poochigian. The claims are not
related to any "covered countermeasures." The language of the PREP Act denotes action
taken, while Plaintiffs' Complaint pleads Defendants' inaction (i.e., failure
to sequester either infected employees or residents away from uninfected
residents, failure to protect residents}.
Defendants United Convalescent Facilities, INC., Krieger Family Trust,
The Jennifer Nurit Smedra 1997 Trust, and The Wihtner Living Trust Dated
7/08/1992, are not alleged to be "licensed health professionals," and
there is nothing to support any claim that the PREP Act applies to these
Defendants. These defendants likewise do not meet the definition of a
"qualified person" in 42 U.S.C. § 11 247d-6d(i)(8), because they are
administrators of a skilled nursing facility,
as opposed to natural persons who are a licensed healthcare
professional. See 42 13 U.S.C. § 247d-6d(i)(8)(A).
·
The January 27, 2021 Executive Order that
invoked Gov. Code § 8659 for health care professionals and providers was
expressly limited to shield those “who participate[] in the State’s vaccine
administration program…to the extent that the administered vaccines have been
authorized for use under federal law.” See Executive Order N-02-21 at 1. The
actions taken by any nurses or nursing staff that are at issue in this case
were not done in response to an express or implied request from a state or
local official. Gov. Code Section
8659(a) expressly does not apply “in the event of a willful act or omission.”
·
Plaintiffs’ Elder Abuse and Dependent
Adult Civil Protection Act (“EADACPA”) claim, and its related prayers for
relief, are proper, in support of enhanced remedies.
·
Negligence and Wrongful Death are
sufficiently alleged.
·
The Complaint alleges that University Park
Healthcare Center engaged in reckless neglect through its managing agents,
including but not limited to, acts and ratifications by the Administrator and
Director of Nursing. Compl. ¶¶ 39, 75-76.
·
The Complaint provides an abundance of
specific factual detail demonstrating University Park Healthcare Center’s
pattern of conscious disregard and willful failure to act to avoid known
serious injuries to Mr. Poochigian. For example, Plaintiffs allege that
University Park Healthcare Center knew Mr. Poochigian was admitted to their
facility with a history of renal failure, prostate cancer, hypertension,
anxiety disorder, dementia, primary hyperparathyroidism and difficulty walking;
yet they failed to assess him, update his care plans regarding dehydration,
provide him with assistance with feeding and drinking, or monitor him for signs
and symptoms of dehydration and malnutrition. Id. at ¶¶ 45, 48, 63-65.
Tentative
Ruling
The demurrer is overruled.
The motion is denied.
Twenty days to answer.
PREP
Act
This immunity defense is not revealed by the
Complaint. Plaintiffs
are not required to address and anticipate affirmative defenses in their
pleadings, unless already revealed. E.g.,
Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825. “‘[A] demurrer based on an affirmative
defense will be sustained only where the face of the complaint discloses that
the action is necessarily barred by the defense.’” McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78-79.
The Prep Act provides covered persons with immunity
from liability with respect to all claims for loss caused by, arising out of,
relating to, or resulting from, administration or use of a covered Covid
countermeasure. Cannon v. Watermark
Ret. Communities, Inc., No. 21-7067, 2022 WL 3130653, at *1 (D.C. Cir. Aug.
5, 2022).
Here, the Complaint does not allege that Covid
countermeasures caused decedent’s death, but instead alleges countermeasures were lacking, and Covid, plus other health
conditions, including dementia causing decedent’s inability to eat, susceptibility
to infection and pneumonia, and death “from extreme respiratory
infection/syndrome and other injuries… (e.g.,
Complaint, ¶¶ 44 - 50, 54 -55, 58 – 62, 64 - 65).
Plaintiffs may evidence a reasonable conclusion that
it is more probable than not that defendants were a cause of harm. Raven H. v. Gamette (2007) 157
Cal.App.4th 1017, 1029. As to negligence
claims, the issue of the of reasonable foreseeability generally is to be determined
by the trier of fact, and not on demurrer.
Cline v. Watkins (1977) 66
Cal.App.3d 174, 180. “The issue of
causation may be decided as a question of law only if, under undisputed facts,
there is no room for a reasonable difference of opinion.” Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.
Emergency
Services Act, Government Code Section 8659
The Complaint does not admit that defendants’
rendering Covid-19 services caused the alleged death, but instead alleges
willful omissions of care needed for advanced dementia et cetera (e.g.,
Complaint, ¶¶ 66, 73).
“Physicians, hospitals,… and other medical providers
are immune from liability for injuries sustained from nonwilful acts or
omissions in rendering emergency services at the request of the responsible
public official or agency.” 5 Witkin, Summary 11th Torts § 406 (2022) (citing Gov..C. 8659.).
Elder
Abuse
The Complaint particularly alleges ongoing withholding
of known, needed care for advanced dementia and related health conditions, evidenced
by defendants’ records, in support of the remedies (e.g.,
Complaint, ¶¶ 42 -55, 66 (“Defendants denied and withheld basic care
to Decedent….”), 73).
The elements of a claim for Elder Abuse are:
Carter v. Prime Healthcare Paradise Valley
LLC
(2011) 198 Cal.App.4th 396, 407 (“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.”). See also Covenant Care,
Inc. v. Sup. Ct. (2004) 32 Cal.4th
771, 789 (“In order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent
to conduct that would support recovery of punitive damages); Fenimore v. Regents of Univ. of Cal.
(2016) 245 Cal.App.4th 1339, 1349
(demurrer should have been overruled, where plaintiff alleged hospital health care facility had a pattern and
knowing practice of understaffing, recklessly causing injury); Sababin v.
Sup. Ct. (2006) 144 Cal.App.4th 81, 90 (if a health care
facility knows it must provide a certain type of care on a daily basis but
provides it sporadically, or is supposed to provide multiple types of care but
only provides some, then the withholding of care may constitute more than
negligence, and reckless conduct, in support of heightened remedies, where a
trier of fact finds a significant pattern of withholding medical care.); Stewart v. Sup. Ct. (2017) 16
Cal.App.5th 87, 108 (triable issues
regarding whether medical entity’s decision-making structure, and doctor’s
decision about treatment, were beyond professional negligence and instead
reckless); Intrieri v. Sup. Ct.
(2004) 117 Cal. App. 4th 72, 85 (determining triable issue existed regarding
reckless neglect in not providing medical care); Benun v. Sup. Ct. (2004) 123 Cal.App.4th 113, 126 (“the intent
of the Elder Abuse Act is to subject health care providers to its ‘heightened
remedies’ when their acts or omissions are reckless or willful and, thus, more
culpable than professional negligence.”);
Worsham v. O'Connor Hospital (2014) 226 Cal. App. 4th 331, 338
(alleged failures to provide a doctor-recommended sitter to prevent fall,
understaffing and undertraining, amounted to professional negligence lacking in
specific facts indicating any recklessness, defined as a conscious choice of
action done with knowledge of serious danger to others involved); Nevarrez v. San Marino Skilled Nursing and
Wellness Centre (2013) 221 Cal.App.4th 102, 128 (“To recover enhanced remedies under the act,
‘a plaintiff must prove more than simple or even gross negligence in the
provider's care or custody of the elder.’”).
Because a claim is adequately alleged, there is no
authorized basis to sustain the demurrer to any of the remedies. A demurrer does not lie as to only a claim
for relief (e.g., punitive damages or penalties) where some valid claim is
alleged. E.g., Caliber Bodyworks, Inc. v. Sup. Ct. (2005) 134 Cal.
App. 4th 365, 384, disapproved on
other grounds by ZB, N.A. v.
Sup.Ct. (2019) 8 Cal. 5th 175, 196 n. 8.
Finally, a court errs in striking a prayer for
damages, such as enhanced damages, where the plaintiff sufficiently stated a supportive
cause of action, including a statutory violation. Ruiz v. Musclewood Inv. Properties, LLC
(2018) 28 Cal. App. 5th 15, 24–25. A
motion to strike cannot be based upon the grounds that a complaint fails to
state facts sufficient to constitute a cause of action, but instead is properly
based on grounds of superfluous or abusive allegations, or improprieties in
form or procedure. Ferraro v.
Camarlinghi (2008) 161 Cal.App.4th
509, 528-29.
Wrongful
Death
The Complaint sufficiently alleges elder abuse and negligence
in support of wrongful death, beyond just Covid considerations, such as
dementia and swallowing-related complications (e.g., Complaint, ¶ 94 (incorporating by
reference prior allegations)).
The elements of a claim for Wrongful Death are:
Norgart v. Upjohn Co.
(1999) 21 Cal. 4th 383, 404 (citing CCP § 377.60). See
also Daniels v. Sunrise Senior
Living, Inc. (2013) 212 Cal.App.4th 674, 680 (wrongful death actions compensate heirs for
their own losses and personal injuries, and are not derivative of decedents’
claims); Quiroz v. Seventh Ave.
Center (2006) 140 Cal.App.4th 1256, 1263
(elements of cause of action for wrongful death are a tort, resulting
death, and damages of the heirs); Jacoves v. United Merchandising Corp.
(1992) 9 Cal.App.4th 88, 105 (“In any
action for wrongful death resulting from negligence, the complaint must contain
allegations as to all the elements of actionable negligence.”).
Further, in this limited procedure, the Court cannot legitimately
consider defense factual assertions to the effect that defendants did the best
possible care under novel and insurmountable pandemic conditions. “‘[D]efendants cannot set forth allegations
of fact in their demurrers which, if true, would defeat plaintiff's
complaint.’” Gould v. Maryland Sound
Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144. “No matter how unlikely or improbable,
plaintiff's allegations must be accepted as true for the purpose of ruling on
the demurrer.” Kerivan v. Title Ins.
& Trust Co. (1983) 147 Cal.App.3d 225, 229.
Punitive
Damages
The Complaint well alleges ultimate facts about
defendants’ knowing of probable harm to the decedent from knowingly withholding
needed care or negligence (e.g.,
Complaint, ¶¶ 56, 66, 67 (“there was
repeated withholding of care….”), 68).
Additionally, the pleading sufficiently alleges
actions by managerial agents (e.g., Complaint, ¶¶ 25 – 32, 36, 39, 68 (“Defendants, together with its directors,
officers, and managing agents including the Administrator, Director of Nursing,
and Medical Director….”), 74 - 75).
“In order to survive a motion to strike an allegation
of punitive damages, the ultimate facts showing an entitlement to such relief
must be pled by a plaintiff.” Clauson
v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. Accord
Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th
1004, 1055; Blegen v. Sup. Ct.
(1981) 125 Cal.App.3d 959, 962.
The statutory definition of “malice” does not require
an actual intent to harm to support an award of punitive damages, but instead a
conscious disregard for the safety of others may be sufficient, where defendant
was aware of the probable dangerous consequences of his or her conduct, and he
or she willfully failed to avoid the consequences. Pfeifer v. John Crane, Inc. (2013) 220
Cal. App. 4th 1270, 1299. Punitive
damages may be awarded in medical-malpractice cases, depending upon the particular
facts. Baker v. Sadick (1984) 162
Cal. App. 3d 618, 630. Cf. Sababin v. Sup. Ct. (2006)
144 Cal. App. 4th 81, 89 (for purposes of elder abuse law applying the
punitive-damages standards to medical services,
actionable “recklessness” includes a “deliberate disregard” of a “high
degree of probability” an injury would occur, and “oppression” and “malice”
include “intentional or conscious wrongdoing of a despicable or injurious
nature.”).
Moreover, the Court cannot rule soundly, in this
procedure, that the defendants did all they could to contend with pandemic
staff shortages, where the Complaint to the contrary alleges that shortstaffing
was the managerial plan to increase profitability (e.g., Complaint, ¶ 68 (“The decision to understaff was made at the
corporate level by Defendant UNITED … to increase the profitability….”)). “[J]udges
read allegations of a pleading subject to a motion to strike as a whole, all
parts in their context, and assume their truth.” Clauson v. Sup. Ct. (1998) 67 Cal.
App. 4th 1253, 1255. In ruling on a
motion to strike punitive-damages allegations, judges assume the truth of the
pleading allegations. Kaiser
Foundation Health Plan, Inc. v. Sup. Ct. (2012) 203 Cal.App.4th 696, 699 n.1.
Allegations of managerial agents are easily
accomplished under governing law. Alleging
that persons acted "with the permission and consent" of all
defendants including corporate defendants is sufficient to plead corporate
employer liability for punitive damages. O'Hara v. Western Seven Trees Corp.
(1977) 75 Cal. App. 3d 798, 806 (“it was alleged that the misrepresentations
were made by persons who acted ‘with the permission and consent’ of all the
defendants. For the purpose of meeting a general demurrer, this was a
sufficient allegation that the corporations had authorized their agent's acts;
a corporation is liable for punitive damages when it authorizes the wrongful
act.”); Kisesky v. Carpenters’ Trust
(1983) 144 Cal.App.3d 222, 235
(allegations of agents acting in scope of employment with employer’s permission
and consent were sufficient). See
also generally Scannell v. County
of Riverside (1984) 152 Cal. App. 3d 596, 614 (insufficiency where a
complete failure to plead acts done with the knowledge or under express
direction or ratification of officer, director or managing agent); United W. Medical Ctrs. v. Sup. Ct.
(1996) 42 Cal. App. 4th 500, 505 n. 2 (dicta re sufficiency being questionable
where a complete failure to allege authorization, ratification, or conduct by
managerial agent).
According to the following
case quote, direct evidence of actions by an officer, director or managing
agent, is not required, but instead circumstantial evidence is allowed:
There is no requirement
that the evidence establish that a particular committee or officer of the
corporation acted on a particular date with "malice." A corporate
defendant cannot shield itself from liability through layers of management
committees and the sheer size of the management structure. It is enough if the evidence
permits a clear and convincing inference that within the corporate hierarchy
authorized persons acted despicably in "willful and conscious disregard of
the rights or safety of others." (See Civ. Code, § 3294, subd. (c)(1).)
A
plaintiff may satisfy the "managing agent" requirement of Civil Code
section 3294, subdivision (b), through evidence showing the information in the
possession of the corporation and the structure of management decisionmaking
that permits an inference that the information in fact moved upward to a point
where corporate policy was formulated. These inferences cannot be based merely
on speculation, but they may be established by circumstantial evidence, in
accordance with ordinary standards of proof.
Romo v. Ford
Motor Co. (2002) 99 Cal. App. 4th
1115, 1140-1141, overruled in part on
other grounds by People v. Ault (2004) 33 Cal. 4th 1250, 1272, overruling
on other grounds recognized by Huitt
v. S. Cal. Gas Co. (2010) 188 Cal. App. 4th 1586, 1596; criticized
in part on other grounds by Johnson
v. Ford Motor Co. (2005) 35 Cal. 4th 1191, 1206.
Attorneys’
Fees
The Complaint alleges a statutory basis for attorneys’
fees (e.g., Complaint, ¶ 85), but need
not allege anything about it.