Judge: Mark A. Young, Case: 22SMCV01405, Date: 2023-12-15 Tentative Ruling

Case Number: 22SMCV01405    Hearing Date: December 15, 2023    Dept: M

CASE NAME:           Heeke, et al., v. Golden Empire Nursing & Rehab Center, LP, et al.

CASE NO.:                22SMCV01405

MOTION:                  Demurrer and Motion to Strike as to the First Amended Complaint

HEARING DATE:   12/15/2023

 

Legal Standard

 

            A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

 

            A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

 

            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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

 

            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

 

Analysis

 

Defendants Susan Claydon, FNP, and Christopher Claydon, MD, Inc., demur to the fourth and fifth causes of action in the First Amended Complaint (FAC). Defendants also move to strike the prayer for attorney’s fees, any “enhanced remedies” and “statutory damages,” and punitive damages.

 

Elder Abuse & Custodial Relationship

 

Defendants principally argue that the fourth and fifth causes of action fail because there are insufficient facts pled to establish a custodial relationship between themselves and Ms. Heeke.  To establish a claim for Elder Abuse and Neglect under the statute, a plaintiff must allege the following: (1) plaintiff is an elder or dependent adult; (2) defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (3) defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (4) defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either: (a) with knowledge that injury was substantially certain to befall the elder or dependent adult malice, oppression, or fraud; or (b) with conscious disregard of the high probability of such injury recklessness; and (5) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407; Welf. & Inst. Code, § 15610.07.) Elder abuse must be pleaded with particularity in accordance with the pleading rules governing statutory claims. (Carter, supra, 198 Cal.App.4th at 407.) 

 

A claim of “neglect” by a person having the “care or custody” of an elder under the Elder Abuse Act requires a caretaking or custodial relationship where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance, which entails more than casual or limited interactions. (Winn v. Pioneer Medical Group, Inc (2016) 63 Cal.4th 148, 158; see Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779, 783.) Neglect covers misconduct that is distinct from, but potentially overlapping with, professional negligence. (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) As used in the Act, neglect 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. (Covenant Care, supra, 32 Cal.4th at 783.) The oppression, fraud, malice, or recklessness requirements can, together, be understood as constituting an “egregiousness” standard for Elder Abuse liability. (Carter, supra, 198 Cal.App.4th at 405.) Recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Ibid.) Further, there must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (Welf. & Inst. Code, § 15657(c); Civ. Code, § 3294(b).)

 

The FAC still alleges facts that the Court found to be conclusory in its June 7, 2023, order, including that Plaintiff was “under the care and custody of the Claydon Defendants” and had “an ongoing responsibility for Ms. Heeke’s basic daily needs.” (FAC ¶ 63-64; 6/7/23 Minute Order p.5.) The Court, however, had noted that “there could be a basis for a custodial relationship regarding her hydration [since] [h]ydration would be recognized as a basic need, which a typical adult could manage without assistance.” (6/7/23 Minute Order p.5.) The Court was concerned that, as currently formulated, the hydration issue would still be medical negligence because it resulted from the digoxin overdose.  (Id.)

 

The FAC adds several additional allegations and facts regarding hydration. (FAC ¶ 65.) For instance, the FAC alleges that the “Claydon Defendants were on notice that Ms. Heeke was dehydrated, that she was not drinking enough fluids, and that she needed to be closely monitored for hydration levels, yet they failed to do so. The Claydon Defendants ignored their obligation to perform basic assessments of her hydration status when, in September of 2021, they not only observed Ms. Heeke to be dehydrated but also had three lab results showing that she was severely dehydrated. In response to her alarming lab results, the Claydon Defendants took no measures to ensure that she received fluids.” (Id.).  The FAC also alleges that the Claydon Defendants’ “assumed responsibility for attending to her basic needs, including but not limited to providing and supervising Ms. Heeke’s hydration, which she was incapable of managing without assistance because of cognitive and physical limitations that made her reliant on others for her basic needs.  (FAC ¶ 24.) 

 

When read as a whole, the FAC clearly establishes that the hydration issues were related to digoxin, and a potential digoxin overdose.  As such, the gravamen of the complaint remains medical negligence.  The additional hydration facts presented in the FAC still do not take the hydration issue outside of the medical negligence claims.  The FAC alleges that (1) Plaintiff was an elder, (2) Defendants had a responsibility for meeting the basic needs of the elder such as providing hydration (custodial relationship), (3) the Defendants knew of Plaintiff’s dementia which prevented her from hydrating herself, (4) Defendants withheld the hydration with conscious disregard of the high probability of such injury recklessness, and (5) Plaintiff suffered physical harm which resulted in her death. (FAC ¶ 64.)  The FAC, however, makes clear that the dehydration issue was caused by a digoxin overdose and alleged medical negligence in handling that overdose, and not as an independent failure of custodial staff.  (FAC ¶¶ 29, 30.)

 

Thus, the Court SUSTAINS the demurrer with leave to amend.

 

Elder Neglect (Enhanced Remedies Sought)

 

As used in the Act, neglect 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. (Covenant Care, supra, 32 Cal.4th at 783.) The oppression, fraud, malice, or recklessness requirements can, together, be understood as constituting an “egregiousness” standard for Elder Abuse liability. (Carter, supra, 198 Cal.App.4th at 405.) Recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Id.) Further, there must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (Welf. & Inst. Code, § 15657(c); Civ. Code, § 3294(b).)

 

In Delaney v. Baker, the court held that that defendants were subject to the heightened remedies of Welf. & Inst. Code, § 15657. (Delaney v. Baker (1999) 20 Cal.4th 23, 40 [82 Cal.Rptr.2d 610, 971 P.2d 986].) The Court reasoned that “there was substantial evidence that plaintiff was subject to neglect in that defendants failed, over an extended period of time, to attend to her advanced bedsores, and otherwise neglected her in such a way as to contribute to her pain and suffering and eventual death.” (Id. at 998.) Moreover, the Court also reasoned that “[t]here is also substantial evidence to support the jury's finding that the conduct was reckless, given defendants' knowledge of plaintiff’s deteriorating condition. . .” (Id.) Similarly, here, Plaintiffs’ FAC provides, that in “the face of their knowledge as to how critical the above care needs were to Ms. Heeke’s life, the Claydon Defendants ignored her obvious resident care issues. By failing to address Ms. Heeke’s resident care issues, the Claydon Defendants knew that it was highly probable that her conduct would cause her harm and they knowingly disregarded this risk.” (FAC ¶68.) Thus, showing there was recklessness involved.

 

Defendants also argue that there are insufficient allegations regarding involvement by a managing agent of the corporate defendant. (6/7/23 Minute Order p.5.) The Court noted that the “Complaint alleges that unspecified officers, directors, and managing agents of Claydon, Inc. “directly participated in the neglect of Ms. Heeke” including personnel that Claydon vested with discretionary decision-making authority. (Compl., ¶72.) Further, such managing agents “approved” of the reckless neglect by not taking adverse employment actions against any individual employee. (¶ 73.) Indeed, such allegations are conclusory. Specific facts are required regarding the managing agents’ direct participation or approval of the reckless neglect.” (6/7/23 Minute Order p.5.)

 

Plaintiffs have failed to add any additional facts to support their conclusory allegations.  Therefore, the demurrer is SUSTAINED with leave to amend.

 

Motion to Strike

 

Defendant moves to strike the prayer in Plaintiffs’ Complaint for attorney’s fees as there is no contract or valid, applicable statute that authorizes attorney’s fees. (Defendant’s Notice of Motion to Demur p.2.) Defendants also move to strike the references to “enhanced remedies” and “statutory damages” as Plaintiffs’ allegations do not support these claims. (Id.) Finally, Defendants move to strike all references to punitive damages as they are made in violation of Code of Civil Procedure section 425.13 since the claims against Defendants are based on professional negligence/medical malpractice. (Id.) In addition, there are no facts claimed against Defendants which are sufficient to support an award of punitive damages. (Id.)

 

Specifically, Defendants move to strike the following portions of Plaintiffs’ Complaint: The attorneys’ fee prayer found on page 33, lines 13-14; The reference to “enhanced remedies” found at page 25, line 7; The reference to damages under Welfare and Institutions Code sections 15657(a) and (b) found at page 27, paragraph 72; The prayer for “statutory damages” found on page 36, lines 15-16; The references to “recklessness, oppression, fraud and malice” and “punitive damages” found at page 27, paragraph 74; and, The prayer for punitive damages found; and page 36, lines 17-18. (Id.)

 

The motion to strike is MOOT given that the Court granted leave to amend. Alternatively, the Court would GRANT the motion to strike for the same reasons discussed above. The attorney’s fees, enhanced remedies and “statutory damages” are based on the Elder Abuse causes of action, and fail due to a lack of a custodial relationship. Further, punitive damages fail because of insufficient allegations concerning a managing agent, and because Code of Civil Procedure § 425.13 prohibits the filing of a claim for punitive damages against a health care provider arising out of the provision of professional services.