Judge: Mark H. Epstein, Case: 21SMCV27415, Date: 2023-05-10 Tentative Ruling

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Case Number: 21SMCV27415    Hearing Date: May 10, 2023    Dept: R

The demurrer is OVERRULED.  The motion to strike is DENIED.

Plaintiff is the successor in interest to decedent Luckie Grigsby.  Plaintiff filed this elder abuse action asserting that Luckie was a resident of the defendant facility with very significant limitations on what he could and could not do.  Defendant allegedly failed to provide Luckie with adequate assistance regarding personal hygiene, or adequate medical care.  Plaintiff also alleges that defendant failed to prevent or cure rashes, pressure sores and other skin issues, and failed to follow orders to change his position.  Further, plaintiff claims that defendant failed to provide Lucke with adequate food and liquids.  (Compl., ¶¶9, 11.)  Defendant demurs.

According to defendant, plaintiff has failed to allege neglect under the Elder Abuse Act with sufficient particularity and, particularly, whether an officer, director, or managing agent was involved in the allegedly wrongful acts.  The Elder Abuse Act provides for liability where there is neglect, which is defined as the negligent failure of any person having the care or custody of an elder to exercise the same care as would a reasonable person in like position.  However, the Act does not transform every act of negligence into abuse.  Rather, the type of abuse required is a more systemic pattern of misconduct, such as repeated withholding of care.  (Sababin v. Superior Court (2006) 144 Cal.App.4th 81.)

This complaint is sufficient.  It alleges that Luckie was left in the same position for protracted periods leading to numerous pressure ulcers and skin issues, and that he was “frequently” found lying in wet clothing and bedding.  The failure to provide adequate liquids and food is also sufficient.  It is reasonable to read the complaint as not alleging that the staff skipped dinner one night but rather that this failure was repeated and systemic to the point where Luckie was malnourished.  That is sufficient.  The court agrees that something more than conclusory allegations are required, and some degree of specificity must be pled.  But this complaint is sufficient to meet the pleading standards.

Defendant also seems to suggest that it cannot be held liable here because plaintiff has not alleged sufficient facts to establish punitive damages under Civil Code section 3294 and that such is required to recover under the Elder Abuse Act.  The court does not agree, or at least not completely.  Welfare and Institutions Code section 15657 provides for recovery where it is proven “by clear and convincing evidence that a defendant is liable for physical abuse . . . or neglect . . . and that the defendant has been guilty of recklessness, oppression, fraud, or malice . . . .”  Where that showing can be made, in addition to other remedies provided by law, the plaintiff can recover attorneys’ fees.  However, defendant misperceives the Act’s nature.  While in some ways section 15657’s burden is similar to Civil Code section 3294, it is not identical, and section 3294 need not be satisfied in all respects to recover thereunder.  To the contrary, 3294 includes other requirements that section 15657 does not have, including those necessary for imposing punitive liability vicariously.  But nothing in the Act requires that section 3294’s strictures be met before liability, including vicarious liability, can be established for neglect.  Indeed, section 15657 has nothing to do with punishment; that statute is about compensatory damages (and attorneys’ fees).  The policies underlying imposing punitive damages upon an entity for the act of an employee and imposing vicarious liability for actual harm suffered vicariously are worlds apart and the court will not import section 3294 and all of its requirements into section 15657’s requirements for liability, even vicarious liability.  Thus, while clear and convincing evidence is required to establish a civil violation and that recklessness, oppression, fraud, or malice must be shown.  But that is all that is required for damages.  And the allegations here are sufficient, in the court’s view, to satisfy that pleading standard.  What 15657 does require is that section 3294 be satisfied before attorneys’ fees can be imposed against an employer.  (W & I Code §15657 subd. c.)  That additional hurdle concerning vicarious liability, therefore, goes only to part of the remedy, not the viability of the entire cause of action.  And one cannot demur to part of a cause of action. 

Accordingly, the demurrer is OVERRULED.

However, a motion to strike can be directed at a particular remedy.  Here, defendant seeks to strike the prayer for attorneys’ fees on the theory that the complaint is insufficient to show that the alleged misconduct was made by an officer, director, or managing agent as required by section 3294.  But that sets the bar too high.  As set forth above, the court agrees with defendant that section 3294’s requirements are imported into section 15657 for purposes of a fee award.  But there are two ways to impose punitive damages on an entity.  One is (as defendant points out) where the offending conduct is committed by an officer, director, or managing agent.  But the statute is also satisfied where the entity had advance knowledge of the employee’s unfitness or where the employer (through an officer, director, or managing agent if the entity is a corporation) authorized or ratified the wrongful conduct.  That is a more nuanced showing in many cases.  It might depend on the entity’s policies and procedures, whether there were rampant violations, whether any violations were brought to the attention of management but no corrective action was taken and the misconduct continued, or a host of other factors.  Discovery will demonstrate whether or not plaintiff can make such a showing.  It is premature to strike the prayer at this time.  That is especially so where, as here, the knowledge just described lies with the defense and not the plaintiff.  No fees will be awarded unless the requisite showing is made, but it is premature to strike even the request.  The court agrees that it must infer some of the elements for punitive damages, and the court does not agree that section 3294 does not apply to non-corporate employers.  But this is a pleading motion and the court will draw all reasonable inferences in the pleader’s favor.  Accordingly, the motion to strike is DENIED.

Defendant has 30 days to answer.