Judge Margaret L. Oldendorf, Case Number: 21STCV24836, Date: 2023-10-11 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 21STCV24836, Date: 2023-10-11 Tentative Ruling

This action concerns the death of Kevin Powell Senior (Decedent), who died during an epileptic seizure at the Vagabond Inn. He was a recipient of transitional housing provided as a part of a housing program for homeless individuals. Defendant First to Serve, Inc. (FTS) was a corporation that managed and operated the subject hotel where the incident occurred. Defendants Lekendrick Richards (Richards), and Olivia Cobain were employees of FTS, serving as project manager of the hotel and head nurse of the hotel, respectively. FTS contracted with City of Glendale and Los Angeles Homeless Services Authority to provide housing for chronically homeless individuals. The Los Angeles Homeless Services Authority then separately contracted with Go RN to provide medical services to housing recipients.

Plaintiffs are the minor children of decedent and personal representative of the estate of decedent. They sued Vagabond Inn, First to Serve, Inc., Lekendrick Richards and Olivia Cobain for: (1) wrongful death, (2) negligence, (3) survival action and (4) negligent hiring, training and retention. Defendants Go RN LLC, Lizzet Zepeda Yeo, Vista Inn Glendale LLC, Vista Investments Managements Co. and Vagabond Glendale LLC were later substituted for Doe defendants. Defendants Vista Inn and Vagabond Glendale have since been dismissed; and Defendants (and Cross-Complainants) First to Serve and Lekendrick Richards have settled with Plaintiffs. The First to Serve/Richards settlement has been determined to be in good faith.

Defendants Go RN LLC, Lizzet Zepeda Yeo and Olivia Cobain (collectively Defendants) filed this motion for summary judgment on October 11, 2023. Defendants move for summary judgment as to the main action on the grounds that: (1) no triable issues of material fact exist; and (2) Defendants are entitled to judgment as a matter of law. Plaintiffs filed an opposition on December 14, 2023. The motion was subsequently continued from December 14, 2023 to February 2, 2024. Defendants submitted a reply on January 26, 2024; including a reply to Plaintiff’s Opposition to the Separate Statement. Plaintiffs then responded to the reply on January 29, 2024.

The hearing on this motion was further continued from February 2, 2024 to February 6, 2024, and then to March 15, 2024. The hearing on March 15, 2024 was continued to March 28, 2024, to allow for the completed deposition of non-party witness Saveza Landers.[1] Both Plaintiffs and the Go RN Defendants submitted additional briefing on March 25 and 26, 2024.

For the reasons that follow, the motion for summary judgment is DENIED. The motion for summary adjudication as to the survival cause of action is GRANTED.

Plaintiffs request that the Court take judicial notice of information published on the Centers for Disease Control’s website. “Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1605 fn. 10.) The Court declines to take judicial notice of information published on the website, as it is subject to change and therefore may be subject to dispute. (See Evid. Code Section 452(h).)

To the extent that Plaintiffs are asserting evidentiary objections to Defendants’ separate statement of undisputed facts, (1) it is unclear what evidence Plaintiffs are objecting to; and (2) the objections are not in the proper form. (CRC § 3.1354(b).)

Accordingly, the Court declines to consider Plaintiffs’ improperly formatted evidentiary objections.

Defendants’ evidentiary objections to Plaintiffs’ Request for Judicial Notice (1):

The following objections are overruled: 3 (permissible expert opinion), 5 (permissible expert opinion)

Summary judgment is appropriately granted where it is shown that an action has no merit or that there is no defense to the action. (Code Civ. Proc. § 437c(a).) A cause of action has no merit if one of the following exists: (1) one or more necessary elements cannot be established; (2) a defendant establishes an affirmative defense. (CCP § 437c(o).)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.¿ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)¿ A defendant moving for summary judgment must show either: (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.¿ (Code Civ. Proc. §437c(p).)

A motion for summary judgment should be granted where all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).)

Under California Rules of Court, rule 3.1350(b), If summary adjudication is sought, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated “specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (CRC 3.1350(b).)

Here are the issues identified in the Defendants’ Notice: Plaintiffs (1) cannot establish a prima facie case of wrongful death by Defendants because Plaintiffs cannot support each element, (2) Plaintiffs cannot establish a prima facie case for negligence by Defendants because Plaintiffs cannot support each element, (3) Plaintiffs cannot establish a prima facie case for a Survival Action because Plaintiffs cannot support each element, and because Decedent suffered no economic damages, (4) Plaintiffs cannot recover punitive damages under the Survival Action because Powell did not suffer any economic loss before his death; and even if Powell had suffered an economic loss, Plaintiffs fail to show malice, oppression, or fraud by Defendants, (5) Plaintiffs cannot establish a prima facie case for Negligent Hiring, Training, and Supervision as a matter of law, and (6) noneconomic damages are capped by the Medical Injury Compensation Reform Act (MICRA) as this is a cause of action for professional negligence against a medical services provider. (Motion p. 2:19- p. 3: 20.)

Here, it is undisputed that Project Roomkey was a housing initiative furnishing motel rooms to homeless individuals during the COVID-19 pandemic (Defendants’ UMFs 1, 2), Defendant First To Serve operated as site coordinator for Project Roomkey at the Vagabond Inn in Glendale, California (UMF 3); and Defendant Go RN was contracted by the Los Angeles Housing Authority to provide nursing services at the Vagabond Inn. (UMF 4, 5.) Go RN scheduled one registered nurse (RN) and one certified nursing assistant (CNA) for each day shift. The RN and CNA performed temperature checks and symptom surveys on the residents of the Vagabond Inn. (UMFs 6, 7.)

Decedent Kevin Powell was a resident at the Vagabond until his death. He had a working cell phone and hotel phone in his room. (UMFs 8-11.) Defendants Lizzet Yeo and Olivia Cobain were on duty the morning of Powell’s death. Ms. Yeo was the CNA on duty and Ms. Cobain was the RN on duty. (UMF 12).

It is also undisputed that sometime before breakfast the morning of Mr. Powell’s death, Ms. Saveza Landers, who had the room next to Mr. Powell, notified staff that Mr. Powell should be checked on. (UMFs 13, 14.) While walking to Mr. Powell’s room, Ms. Landers informed Ms. Yeo, the CNA on duty, that she believed Mr. Powell had recently suffered from seizures. (UMF 15.) When they arrived at the room, Mr. Powell did not respond; Ms. Yeo then used the master key and opened the door to find Mr. Powell on the toilet. She asked if he was okay, and he told her he was fine. (UMFs 16-19.) Ms. Yeo believed Powell was okay. (UMF 20.)

Ms. Yeo returned to the nurse’s station and reported what occurred to the RN on duty, Ms. Cobain. (UMFs 20-22.) When Ms. Cobain delivered breakfast to the residents’ rooms, she checked on Powell. (UMF 23-25.) She asked Powell if he had had a seizure; he did not respond. (UMF 26.) She asked Powell if he needed assistance, and he said he did not. (UMF 27.) She then performed a COVID-19 temperature check, symptom survey, and general wellness check. (UMFs 28, 31.) She asked if Powell wanted her to call emergency services, and he said no. (UMFs 29, 30.)

Ms. Cobain did not smell urine or fecal matter (possible indications that a seizure had occurred). Powell did not mention he was in pain; and he did not appear to be in medical distress. (UMFs 32-34.)

Later that morning, Ms. Yeo and Ms. Cobain were informed by a First to Serve staff member that Powell had been found unresponsive in his room. (UMF 35.) LeKendrick Richards then called 911 and Ms. Cobain spoke on the phone to emergency personnel. (UMFs 36-38.) EMS personnel arrived and pronounced Powell deceased. (UMFs 39-41.) His cause of death was determined to be due to an epileptic seizure. (UMF 42.)

Ms. Cobain and Ms. Yeo, the on-duty nurses, did not observe Powell seizing; nor did he report any prior seizures. (UMF 44.)

Plaintiffs submitted additional material facts with their opposition (hereinafter “PAMF”); including that Project Roomkey was designed to house homeless individuals more susceptible to COVID-19 (PAMF 2); and that the nurses were responsible for coordinating the care of the residents. (PAMF 3, 4.)

Plaintiffs submitted a supplemental separate statement after the second session of Ms. Landers’ deposition (hereinafter “Plaintiffs’ SSUMF”). Plaintiffs note that Ms. Landers testified that the noises she heard the morning of Powell’s death were abnormal (Plaintiffs SSUMF 3, 4); and that she checked on Powell twice. (SSUMF 5) She then went to the employee lounge and attempted to get help (SSUMF 6); but she became agitated at the lack of response she got from the staff. (SSUMF 8-10.) Ms. Landers grew tired from repeatedly checking on Powell, and went back to bed. (SSUMF 11, 12.) She then asked another resident, Francis, to watch out for Powell. (SSUMF 12.) When she woke up, Powell was dead. (SSUMF 13.) Landers thought calling 911 was the nurses’ responsibility. (SSUMF 14, 15.)

The elements of a cause of action for wrongful death are: 1) negligence or some wrongful act, 2) a resulting death, and 3) damages (consisting of the pecuniary loss suffered by the heirs of the decedent). (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) Defendants urge that there was no negligence on their part; and second, that there was no pecuniary loss to Powell’s heirs, as he did not financially support them. (Motion p. 16: 12.) The discussion concerning negligence is contained in Section B.iii. below.

Defendants cite Government Code Section 8659 for the proposition that, during a state of emergency, a medical services provider, such as a nurse, cannot be held liable for injuries sustained by a patient as a result of those services. (GC § 8659(a).) Here, Defendants argue that they rendered services to Powell and other residents at the Vagabond Inn during the COVID-19 pandemic. Per California mandates and the declaration of the Governor of California, the COVID-19 pandemic was deemed to have created a state of emergency at the time Powell suffered the epileptic seizure, and Defendants rendered services. (See UMFs 1, 51; Bullock v. Superior Ct. of Contra Costa Cnty.(2020) 51 Cal.App.5th 134, 141 [acknowledging COVID-19 was declared a state of emergency in California.]) Government Code Section 8659 applies “regardless of how or under what circumstances or by what cause those injuries are sustained; provided, however, that the immunity herein granted shall not apply in the event of a willful act or omission.” (GC § 8659(a).)

The Court disagrees with Defendants that Government Code Section 8659 clearly provides them with immunity in the context of this case. A significant question exists as to the scope of the “emergency” presented in this case.

Defendants also urge that the damages element is not met under this cause of action. Damages for wrongful death in California include: (1) the financial support the heirs were receiving at the time of death from the decedent, (2) reasonable future financial support expected from the decedent had he/she/they lived, (3) the monetary value of loss of companionship and protection. (See CCP §§ 377.61, 377.34; Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 997.) Defendants point out that here, Powell did not have custody of any of his children (UMFs 46-47); that there was no in-person communication with the children in recent years (UMFs 48-49); and he did not provide any financial support to them. (UMF 50.) However, wrongful death damages also include the monetary value of companionship.

In their opposition, Plaintiffs urge that they have adequately demonstrated a triable issue of reasonable future financial support. (Opposition p. 24: 21-24.) Specifically, they urge that UMF 50, where they provided their response as follows: “Defendants’ claims that decedent did not or could not provide for children financially simply because of his being in transitional housing is unfounded, as decedent was seeking to resume his career in the music industry immediately before his passing.” (Response to Separate Statement p. 38.). With regard to the issue of companionship, Plaintiffs have presented evidence that Powell posted on social media about his kids, and had spoken to the mothers of his children about being more involved in his children’s lives. (See Response to Separate Statement p. 37.)

While the amount of wrongful death damages in this case might not be significant, the Court finds that Plaintiffs have adequately demonstrated a triable issue of material fact as to the damages issue.

Here, there is a preliminary issue whether the Plaintiffs’ cause of action for negligence is founded upon a claim of medical negligence, or general negligence. The elements of a cause of action for medical malpractice (i.e., medical negligence) are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate or causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.) “In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care, except in cases where the negligence is obvious to laymen.” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742.) When a defendant moves for summary judgment in a medical negligence case and supports his motion with expert declarations that they complied with the professional standard of care, the defendant is entitled to summary judgment unless the plaintiff presents conflicting expert testimony. (Munro v. Regents of the Univ. of Calif. (1989) 215 Cal.App.3d 977, 984-985.)

Here, in contrast, Plaintiffs argue that they are seeking to hold Defendants Go RN and their two nurses, Ms. Yeo and Ms. Cobain, liable under a theory of general negligence for failing to summon emergency assistance when placed on notice that Powell was in medical distress. Thus, the Declaration of Plaintiff’s witness Dr. Stephen Nelson does not need to satisfy the test for admissibility of a medical expert in a malpractice case.[3]

The Court continued the hearing on this motion to allow for Ms. Landers’ deposition to be completed. In her March 21, 2024 deposition, Ms. Landers testified that she first met Powell in November of 2020, when he moved into the hotel room next to hers at the Vagabond Inn. (Landers Deposition p. 6:20.) She testified that after Powell moved in, she would occasionally hear noises coming from his room that she learned to associate with his seizures. (Landers Deposition p. 20: 24.) She would hear groaning, and Powell’s bed moving or shaking. (Landers Deposition p. 21:6-12.) She heard these noises most nights; and the noises typically would be in a singular period of time and then it would be silent. ((Landers Deposition p. 22:18-24.) She testifies that she had knocked on his door several times in the two months they lived next to each other, and he often said he was okay. (Landers Deposition p. 26:11-p.27:13.)

Landers testifies that she believed it was the nurses’ responsibility to give out residents’ medications. (Landers Deposition p. 29:11-14.) However, she also testified that she never saw nurses handing out medications; or any other staff members handing out medications. (Landers Deposition p. 31:11-19.) She also testified that the residents’ doors at the Vagabond Inn did not indicate to the nurses or other staff if the person inside had medical issues. (Id. at p. 121:10-14.)

On the day Powell died, Ms. Landers testified that it was her understanding that calling 911 was the nurses’ responsibility, not hers. (Landers Deposition p. 42: 18-25) She also testified that she didn’t think Powell’s first seizures on the day that he died were “that bad.” (Landers Deposition p. 43:5-7.) However, she testified that the seizures grew progressively worse, and so she became concerned. (Landers Deposition p. 45.)

She testifies that she was awakened by the noises Powell was making (Landers Deposition p. 52: 19-25); that she went over to check on him, and he answered the door and told her he was fine. (Landers Deposition p. 54:13-20.) She checked in on him a second time, about half an hour after the first, after hearing more noises. Powell was laying down. When she went into his room the second time, he tried to “mumble don’t get help but I don’t think he knew the severity of the seizure he had or was having.” (Landers Deposition p. 50: 7-9.) After the second visit, Ms. Landers went to the employees’ lounge to contact the nurses or other staff members. (Id. at p. 60: 16-24.)

She testified that she doesn’t remember if the nurses were present in the employee lounge when she first went to notify someone that Powell was having seizures. (Id. at p. 68:3-11.) She testified that she is unsure who was in the lounge at that time; but four or five people were there. (Id. at p. 124:16-21, p. 129: 6-23.) She testified that after going to the employee lounge and requesting that someone check in on Mr. Powell, she asked another resident, Ms. Francis Ghodsi, to check in on Decedent so she could sleep. (Id. at p. 71:4-11.) She testified that she visited the lounge once more to request help, spoke to Ms. Ghodsi again, and then woke up, after a “dead sleep.” Mr. Powell had died in the interim (Id. at p. 73: 9-20.) Landers did not witness the EMS providers attempting to treat Mr. Powell. (Id. at p. 90: 13.)

In their supplemental brief, Defendants urge that Ms. Landers’ additional testimony does not create a triable issue of material fact as to whether there was, among other things, any special relationship between Defendants and Mr. Powell that would give rise to an affirmative duty to act. (Defendants’ Brief p. 4: 4-6.) Defendants argue that Ms. Landers did not know the specific roles or duties the nurses performed; and she did not recall whether a nurse was in the employee lounge when she sought help for Mr. Powell. (Defendants’ Brief p. 4: 22-24.) Defendants also cite to Ms. Landers’ testimony that she was in a “dead sleep” after her last visit to the employee lounge. Defendants urge that it is speculative, based on Ms. Landers’ testimony, as to what she knew about whether any nurse had checked on Mr. Powell. (Defendants’ Brief p. 5:1-10.) Defendants cite Ms. Cobain’s undisputed testimony that she checked on Mr. Powell and determined that he was okay. (UMF 24-31.)

In their supplemental brief, Plaintiffs urge that Ms. Landers’ testimony creates a triable issue of material fact as to whether the nurses were negligent in not calling 911. (Plaintiffs’ Brief p. 5: 20-23.) Plaintiffs also urge that the testimony creates a triable issue of material fact as to whether the Defendants were indifferent and therefore grossly negligent. (Plaintiffs’ Brief p. 6: 15-22.) Plaintiffs urge that indifference in this context can be actionable as gross negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.)

The Court considers the impact of Ms. Landers’ deposition and the arguments each side raised in analyzing this motion.[4]

A negligence cause of action requires: duty, breach of the duty, causation, and damages. (Antiglio v. Corning, Inc. (1998) Cal.4th 604,614.) In general, one does not owe an affirmative duty to act unless a “special relationship” exists between the defendant and plaintiff. Special relationships include parent-child, doctor-patient, common-carriers, and innkeepers. (Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291, 1300.)

Defendants urge that they did not have a special relationship with Powell. (UMFs 5-7.) Defendants also argue that Plaintiffs cannot assert a duty of care under a theory of “negligent undertaking.” (Motion p. 18: 14-15.) A duty of care under a negligent undertaking theory requires: (1) someone began to render aid to another, (2) the services were of a type reasonably necessary to the person receiving them, and (3) the harm was suffered because of reliance on the services, or the provider carelessly increased the risk of harm. (Peredia v. HRMobile Services, Inc. (2018) 25 Cal.App.5th 680, 691.) Specifically, Defendants urge that they did not increase the risk of Powell dying. In support, Defendants cite case law for the proposition that failing to reduce harm is not the same as increasing harm. (Paz v. State of California (2000) 22 Cal.4th 550, 560; Greyhound Lines, Inc. v. Dep't of California Highway Patrol (2013) 213 Cal.App.4th 1129, 1136-1137.) Here, Powell apparently told Defendants he was fine and declined their offers to call 911. (UMF 18-20, 27.)

Defendants further urge that even assuming they had a duty of care, that duty was not breached because: (1) Powell exercised his right to refuse medical care; and (2) they acted with reasonable care. (Motion p. 19: 16- p. 21: 5.) Citing Thor v. Superior Court, Defendants urge that they cannot be held liable for respecting an individual’s wish to refuse medical treatment. (See Thor v. Superior Court (1993) 5 Cal.4th 725, 732.) Specifically, “Once a patient has declined further medical intervention, [a] physician’s duty to provide such care ceases.” (Thor, supra, at 744.) Defendants also urge that there is no evidence that they failed to act with reasonable care, citing Cabral v. Ralphs Grocery Co. for the proposition that if no reasonable jury could find that defendants violated their duty of care, defendants did not breach their duty as a matter of law. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, 773.) Here, Defendants asked Powell if he was okay (UMFs 18-19), checked on him a second time and each time he said he was fine (UMFs 19, 20, 25-27.)

Next, Defendants urge that they are not the proximate cause of Powell’s death, as his official cause of death was an epileptic seizure. Specifically, defendants urge “[w]hether contacting emergency services would have prevented Powell’s death is pure speculation.” (Motion, p. 23: 8-9.) In the Complaint, Plaintiffs allege that the failure/delay in calling emergency services caused Powell to expire. In the Court’s view, causation is, fundamentally, a question of fact for the jury.

In opposition, Plaintiffs argue that a special relationship did exist between Defendants and Powell. (Opposition p. 15: 19-23.) Plaintiffs cite Marois v. Royal for the proposition that a third party hired by an owner/landlord to perform a certain duty is responsible for carrying that duty out reasonably. (Marois v. Royal (1984) 162 Cal.App.3d 193, 199-200. [security guard].) Plaintiffs cite the Statement of Work for Nurse Services, the agreement between First to Serve and Go RN, as to the services Go RN agreed to. (Plaintiff’s Compendium of Evidence, Exh 12: p. 181 ¶ 3, Plaintiff’s Additional Material Facts 2, 3, 4.) Per the Statement of Work, Go RN agreed to provide: COVID-19 screening, initial health assessment, follow-up health assessments, wound care, care coordination, education about COVID-19 and biohazard disposal. (Exh. 12 at p. 181-p.183.) Go RN would be providing these services to persons deemed more susceptible to COVID-19, including people with “Neurological, neurologic, and neurodevelopment conditions, including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders).” (PAMF 2, emphasis added.)

The Court finds that Plaintiffs have adequately demonstrated a triable issue of material fact as to whether a special relationship existed between the Go RN Defendants and Mr. Powell. Additionally, triable issues exist as to whether the Defendants breached the applicable duty of care; and whether such negligence was the proximate cause of Powell’s death.

Defendants urge that the cause of action for survival fails as a matter of law as the underlying cause of action for negligence fails. (Motion p. 26: 18.) As set forth above, the Court disagrees with this argument.

Secondly, Defendants urge that this cause of action fails as Plaintiffs cannot demonstrate any economic loss that is compensable under a survival action. In support, Defendants cite County of LA v. Superior Court for the proposition that California’s survival statutes “preclude[] the estate from obtaining any damages for the plaintiff’s pain and suffering.” (Cnty. of Los Angeles v. Superior Ct. (1999) 21 Cal.4th 292, 294-295.) The complaint seeks to recover Powell’s pain and suffering under this cause of action, not his lost wages or other allowed measures. This argument is well-taken.

Lastly, Defendants urge that Powell’s estate cannot seek punitive damages as punitive damages must be predicated on economic damages and cannot be awarded on their own. This argument is also well-taken. (CC § 3294.)

Plaintiffs do not directly address the economic loss issue under this cause of action; or the problem presented with the lack of economic damages upon the punitive damages claim.

Accordingly, summary adjudication is granted as to Tewitt Powell’s survival action.

“To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” (Alexander v. Cmty. Hosp. of Long Beach (2020) 46 Cal.App.5th 238, 264, internal citations omitted.)

Here, Defendants urge that the cause of action for negligent hiring, training or supervision fails because prior knowledge is not alleged. They urge that the complaint does not allege, assuming that the individual Defendants Lizzet and Olivia did something wrong, that their employer Go RN LLC knew of their propensity to do that wrong prior to it happening.

In opposition, plaintiffs urge by virtue of the agreement between First to Serve and Go RN identifying individuals with epilepsy, Go RN had a duty to help those individuals with epilepsy specifically and by virtue of not training their employees on how to help someone with epilepsy, Go RN is liable for negligent training, hiring or supervision. (Opposition p. 18: 1-7.) Plaintiffs urge “The SOW executed by GORN specifically identifies persons suffering from epilepsy as a disease with which it must have training and experience to fulfill its duties and obligations under the contract.” (Opposition p. 18: 4-6.) However, this is not entirely accurate; the section of the agreement that identifies individuals with epilepsy relates to their eligibility for Project Roomkey, not that the nursing staff hired for Project Roomkey must specifically know how to treat individuals with epilepsy. (Plaintiff’s Compendium of Evidence, Exh 12: p. 180 ¶ IV(1).)

Plaintiffs also argue that, due to the variety of conditions of eligible persons and the fact that these persons were medically fragile/susceptible to COVID-19, Go RN should have had a policy in place in case of medical emergency. (Opposition, p. 18: 19-20.) In support, plaintiffs cite deposition testimony and discovery responses of Defendants Olivia Cobain and Lizzet Yeo, who both speak to a lack of policies and procedures in general, as well as a lack of clear guidance as to what to do in a medical emergency. (See e.g., Plaintiff’s Compendium of Evidence, Exh 2 p. 118: 1-3.) Plaintiffs also cite the declaration of their medical expert, Dr. Stephen Nelson, for the proposition that the proper procedure for seizures is to immediately call 911. (Nelson Decl. ¶ 10.) Indeed, the Statement of Work directs Go RN to “direct all nursing activities to support the wellbeing and to meet the needs of participants served on site.” (PAMF 4.) The policies and procedures of Project Roomkey directs healthcare professionals contracted with the program to “in case of medical emergencies, triage PRK-IH participants, staff and vendors to appropriate healthcare intervention.” (PAMF 5.)

In reply, Defendants urge that Go RN was contracted to prevent the spread of COVID-19. Defendants cite the Statement of Work in support: “should a participant require a higher level of care such as nursing care [or] hospital care,” Go RN would “coordinat[e] with the onsite service provider.” (Plaintiff’s Compendium of Evidence, Exh. 12: p. 183, item 3.6.6.) The Statement of Work provides that the purpose of the program was to “combat the spread of COVID-19 and address the needs of the most vulnerable in the community[.]” (Plaintiff’s Compendium of Evidence, Exh 12: p. 180 ¶ 1.) It sets out seven duties for Go RN, as a nursing contractor: (1) COVID-19 screenings, (2) initial health assessments, (3) follow up health assessments, (4) participant education, (5) wound care, (6) coordination of care and (7) biohazard disposal. (Id. at p. 180-p.183.) It does not contain a specific requirement as to how to respond to medical emergencies related to epilepsy. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249, internal citations omitted; see also Reply p. 5: 11-18.) However, it does contain a requirement for “appropriate healthcare intervention” in case of medical emergency generally. (PAMF 5.) Additionally, Ms. Landers testified that it was her understanding that calling 911 was the nurse’s responsibility. (Landers Deposition p. 42: 18-25.)

The Court finds that the Plaintiffs have raised triable issues of material fact as to whether the nurses were adequately trained to deal with medical emergencies.

Defendants’ Motion for Summary Judgment is DENIED. The motion for summary adjudication as to the survival cause of action is granted.

[1] As the hearing on the motion for summary judgment was continued to allow parties to complete Ms. Landers’ deposition, the Court discusses Ms. Landers’ March 21, 2024 deposition in detail.

[2] In considering Defendants’ Evidentiary Objections submitted with their reply, the Court uses the numbering set forth in the evidentiary objections.

[3] Defendants also argue that, because this is a case involving medical negligence, any potential damage award should be capped by the Medical Injury Compensation Reform Act (MICRA). MICRA limits the non-economic recovery for medical malpractice in California to $350,000. (CC § 3333.2(b).) As noted above, however, the Plaintiffs’ Second Cause of Action is one sounding in general negligence. Therefore, MICRA does not apply.

[4] Plaintiffs also included an additional declaration by their attorney, attaching an excerpt of Ms. Frances Ghodsi’s February 6, 2023 deposition which is not already in evidence on the motion. In continuing the hearing, the Court requested briefing only as to the deposition of Ms. Landers. Accordingly, the Court declines to consider the Ghodsi deposition excerpts.