Judge: Melvin D. Sandvig, Case: 21STCV20894, Date: 2022-09-27 Tentative Ruling

Case Number: 21STCV20894    Hearing Date: September 27, 2022    Dept: F47

Dept. F-47

Date: 9/27/22

Case #21STCV20894

 

DEMURRER & MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

 

Demurrer and Motion to Strike filed on 8/10/22.

 

MOVING PARTY: Defendants Cucumber Holdings, LLC dba Stoney Pointe Healthcare Center and California Opco, LLC

RESPONDING PARTY: Plaintiffs Stella Wilson, deceased, by and through her personal legal representative and successor in interest, Darlene Warren and Darlene Warren, individually

NOTICE: ok

 

Demurrer is to the entire First Amended Complaint:

            1.  Elder Abuse and Neglect (Welfare & Institutions Code 15600, et seq.)

            2.  Violation of Patient Rights (Health & Safety Code 1430(b)

            3.  Negligence

            4.  Wrongful Death

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking portions of Plaintiffs’ First Amended Complaint, including claims for attorney’s fees and punitive damages. 

 

Specifically, Defendants move to strike the following portions of the First Amended Complaint:

 

(1) Pg. 23, lines 15-18, at Paragraph 109: “In addition to special damages, Plaintiff is therefore entitled to an award of the reasonable attorney’s fees and costs incurred in prosecuting this case as well as Decedent STELLA’s pain and suffering and punitive damages pursuant to Welfare & Institutions Code § 15657 and Civil Code § 3294.” 

 

(2) Pg. 28, lines 11-12, Prayer for Relief, 1d.: “For attorney’s fees and costs pursuant to Welfare & Institutions Code § 15657 and according to proof; and”

 

(3) Pg. 28, lines 13-14, Prayer for Relief, 1e.: “For punitive and/or exemplary damages pursuant to Welfare & Institutions Code § 15657 and Civil Code § 3294; and”

 

(4) Pg. 28, line 15, Prayer for Relief, 1f.: “For treble damages pursuant to Civil Code § 3345”.

 

RULING: The demurrer is overruled and the motion to strike is denied.  Answer is due within 30 days. 

 

SUMMARY OF FACTS

 

This action arises out of the care and treatment provided to decedent Stella Wilson (Decedent) while she was a resident at Defendants Cucumber Holdings, LLC dba Stoney Pointe Healthcare Center and California Opco, LLC’s skilled nursing facility (facility).

 

Decedent was admitted to Defendants’ facility in 2015 for skilled and custodial services to meet her care needs.  (First Amended Complaint (FAC) ¶41).  At that time, Decedent had a history of dementia, hypertension, hyperlipidemia, depressive disorder, anemia, muscle weakness and difficulty walking.  (Id. at ¶42).  In or around May of 2020, 42 cases of COVID-19 were reported at Defendants’ facility.  (Id. at ¶52).  Plaintiffs allege that employees failed to report to work and  Defendants failed to provide required care to the facility residents and placed them in harm’s way.  Id.  Plaintiffs further allege that Defendants were aware of the staff shortage and made the conscious decision to continue to operate a skilled nursing facility with less than the appropriate number of trained staff.  (Id. at ¶53).

 

On 4/28/20, Decedent tested positive for COVID-19.  (Id. at ¶54).  On that same day, Decedent was transported to Northridge Hospital Medical Center’s Emergency Room.  (Id. at ¶55).  On 5/10/20, Decedent died from extreme respiratory infection/syndrome and other injuries.  (Id. at ¶57).  At all relevant times, Decedent was over the age of 65.  (Id. at ¶59).  

 

PROCEDURAL HISTORY   

 

On 6/4/21, Plaintiffs Stella Wilson, deceased, by and through her personal legal representative and successor in interest, Darlene Warren and Darlene Warren, individually (Plaintiffs) filed this action against Defendants (and others) for: (1) Elder Abuse and Neglect (Welfare & Institutions Code 15600, et seq.); (2) Violation of Patient Rights (Health & Safety Code 1430(b);

(3) Negligence and (4) Wrongful Death.  After Defendants’ demurrer was overruled on certain grounds and sustained with leave on certain grounds and Defendants’ motion to strike was ruled upon, on 4/21/22, Plaintiffs filed the subject First Amended Complaint which contains the same four causes of action as the original complaint.  Defendants’ now demurrer to the entire First Amended Complaint on the grounds that each of the causes of action therein fails to state sufficient facts to constitute a cause of action and is uncertain.  CCP 430.10(e), (f).

 

Defendants also move to strike certain allegations in the complaint, including claims for attorney’s fees and punitive damages.  Specifically, Defendants move to strike the following portions of the complaint:

 

(1) Pg. 23, lines 15-18, at Paragraph 109: “In addition to special damages, Plaintiff is therefore entitled to an award of the reasonable attorney’s fees and costs incurred in prosecuting this case as well as Decedent STELLA’s pain and suffering and punitive damages pursuant to Welfare & Institutions Code § 15657 and Civil Code § 3294.” 

 

(2) Pg. 28, lines 11-12, Prayer for Relief, 1d.: “For attorney’s fees and costs pursuant to Welfare & Institutions Code § 15657 and according to proof; and”

 

(3) Pg. 28, lines 13-14, Prayer for Relief, 1e.: “For punitive and/or exemplary damages pursuant to Welfare & Institutions Code § 15657 and Civil Code § 3294; and”

 

(4) Pg. 28, line 15, Prayer for Relief, 1f.: “For treble damages pursuant to Civil Code § 3345”.

 

Plaintiffs have opposed the demurrer and motion to strike. 

 

ANALYSIS

 

Defendants’ Request for Judicial Notice (RJN) is granted.

 

1ST CAUSE OF ACTION – ELDER ABUSE AND NEGLECT UNDER WELFARE & INSTITUTIONS CODE 15600, ET SEQ.

 

Neglect under the Elder Abuse Act is especially egregious conduct including the failure of those responsible for attending to the basic needs and comforts of the elderly or dependent adults to carry out their custodial obligations.  See Covenant Care, Inc. (2004) 32 C4th 771, 783.  A statutory claim for elder abuse and neglect requires specific factual allegations, not merely conclusory language which mirrors the statute.  Id. at 790.  To state a claim for elder abuse/neglect, a plaintiff must allege: (1) that the defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) that  the defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) that the defendant denied or withheld goods or services necessary to meet the elder’s basic needs with knowledge that injury was substantially certain to befall the elder or with conscious disregard of the high probability of such injury.  See Carter (2011) 198 CA4th 396, 406-407; Covenant Care, supra at 790.

 

There seems to be no dispute that Plaintiffs have adequately pled facts to support the first two  factors set forth above with regard to Decedent.  (See FAC ¶¶42, 48, 60, 61, 75).  The real dispute is based on Defendants’ claim that Plaintiffs have failed to allege sufficient specific facts to support the third factor. 

 

However, the Court finds that the allegations in the First Amended Complaint are sufficiently specific to support the third factor.  Plaintiffs have alleged that Defendants: (1) failed to screen staff members for COVID-19 signs and symptoms by not taking their temperature (FAC ¶65); (2) failed to isolate residents who exhibited signs and symptoms of COVID-19 from those residents who did not, allowing an infectious disease to spread (FAC ¶¶66, 73); (3) allowed LVNs who were assigned to take care of COVID-19 positive residents to also take care of residents who did not have COVID-19 (FAC ¶73); and (4) kept COVID-19 positive residents in their room even if their roommate was not COVID-19 positive (FAC ¶74).  Additionally, Plaintiffs have alleged that although Decedent was found to have an elevated temperature,  Defendants failed to timely evaluate whether Decedent had COVID-19, delaying her access to medical treatment and resulting in her demise.  (See FAC ¶¶77-91).   

 

As noted above, Plaintiff has also alleged that after staff failed to report to work during the COVID-19 pandemic, Defendants, being aware of the staff shortage, made the conscious decision to continue to operate a skilled nursing facility with less than the appropriate number of trained staff.  (See FAC ¶¶52-53, 90, 92, 95, 103).  On demurrer, the Court must accept the foregoing allegations as true and cannot determine whether Defendants had other viable alternatives under the circumstances to refute Plaintiffs’ allegations of conscious disregard/despicable conduct and/or recklessness.  See Delaney (1999) 20 C4th 23, 28, 31; Carter, supra at 407; Fenimore (2016) 245 CA4th 1339, 1350; Sababin (2006) 144 CA4th 81, 90.  Plaintiffs have further alleged that these decisions were authorized and/or ratified by Defendants officers, directors, managing agents, Administrator, Directory of Nursing and Medical Director.  (FAC ¶¶102-104). 

 

2ND CAUSE OF ACTION – VIOLATION OF PATIENT RIGHTS (HEALTH & SAFETY CODE 1430(b)); 3RD CAUSE OF ACTION – NEGLIGENCE & 4TH CAUSE OF ACTION – WRONGFUL DEATH

 

The Court finds that the background allegations in the First Amended Complaint and those contained in the 1st cause of action which are incorporated into the remaining causes of action, along with the specific allegations in the 2nd, 3rd and 4th causes of action are sufficient to state each of those claims. 

 

MOTION TO STRIKE

 

Since Plaintiffs have adequately pled the claim for elder abuse/neglect, they have also pled a sufficient basis for the enhanced remedies under the Elder and Dependent Adult Abuse Act, including attorneys’ fees and punitive damages.  Similarly, as noted above, Plaintiffs have sufficiently alleged that the alleged misconduct was authorized and/or ratified by Defendants’ officers, directors and/or managing agents including the Administrator, Director of Nursing and Medical Director.