Judge: Michael E. Whitaker, Case: 24SMCV00437, Date: 2024-04-23 Tentative Ruling

Case Number: 24SMCV00437    Hearing Date: April 23, 2024    Dept: 207

TENTATIVE RULING

MOTION

On January 30, 2024, Plaintiff Megan Frilot (“Plaintiff”), who is the heir of Decedent Angela Shalome Streat Wilson (“Decedent”) brought suit for wrongful death against Defendant The Regents of the University of California (“Defendant”). Defendant now demurs on the grounds that the complaint fails to state facts sufficient to constitute a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivision (e).  Plaintiff opposes the demurrer and Defendant replies.

ANALYSIS

1.     DEMURRER - STANDARDS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

2.     FAILURE TO STATE A CAUSE OF ACTION – WRONGFUL DEATH

The elements of a claim for wrongful death are (1) a wrongful act or neglect on the part of one or more persons (i.e., negligence); (2) causation; and (3) the death of [another] person.  “A person acts negligently only if he had a duty to use due care and breached that duty.”  (Musgrove v. Silver (2022) 82 Cal.App.5th 694, 705 [cleaned up].)

Plaintiff alleges:

12. At all relevant times, DECEDENT was a person between the ages of 18 and 64 who has mental limitations that restrict her ability to carry out normal activities or to protect her rights, and therefore is a “Dependent Adult” as defined in the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) found at Welfare & Institutions Code §§15600, et seq. as more fully alleged herein.

13. That DEFENDANTS were to provide “care or services” to DECEDENT and were to be “care custodians” of DECEDENT and in a trust and fiduciary relationship with DECEDENT. That the DEFENDANTS provided “care or services” to dependent adults and the elderly, including DECEDENT, and housed dependent adults and the elderly, including the DECEDENT.

14. That the DEFENDANTS “neglected” DECEDENT as that term is defined in Welfare and Institutions Code §15610.57 in that the DEFENDANTS themselves, as well as their employees, failed to exercise the degree of care that reasonable persons in a like position would exercise by, according to proof at trial and without limiting the generality of the foregoing, wrongfully withholding required services from DECEDENT a gravely disabled adult, as is more fully alleged herein.

(Complaint ¶¶ 12-14.) 

            Welfare and Institutions Code section 15610.57 defines “neglect” in relevant part as:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. A person shall not be deemed neglected or abused for the sole reason that the person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Substantial inability or failure of an elder or dependent adult to manage their own finances.

(6) Failure of an elder or dependent adult to satisfy any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

            “[T]he facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity.”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407.)  In this regard, Plaintiff alleges:

15. While a patient of the HOSPITAL, DECEDENT was allowed to wander and elope.

16. DECEDENT had recently suffered a fall and broken elbow resulting in an infection in her right arm. DECEDENT was admitted to the HOSPITAL on or about July 15, 2023 to receive IV antibiotics until August 25, 2023 when she could then return to Laurel Park to prepare for surgery on her right arm. Upon admission to the HOSPITAL, DECEDENT was schizophrenic, unable to care for herself and had a history of elopement.

17. Furthermore, because of her admitting conditions, the DEFENDANTS further knew that she was at risk for elopement and had cognitive issues which affected her decision making but was still capable of ambulating thereby making vigilant supervision and a code alert bracelet critical to her safety. All these facts were well known to the DEFENDANTS. And in fact, these real and present dangers were the reasons why DECEDENT was admitted to the FACILITY.

18. On August 2, 2023, DECEDENT’S daughter was informed that DECEDENT had eloped from the HOSPITAL.

19. Prior to DECEDENT’S admission to the HOSPITAL, DECEDENT was adjudicated by the Los Angeles Superior Court to be “gravely disabled” and had a conservatorship of her person placed on her based on a mental disorder pursuant to the Lanterman-Petris-Short Act (“LPS”). As a conservatee under the LPS, the court found DECEDENT to be “gravely disabled” (Welf. & Inst. C. § 5008(h)). In so adjudicating, as a matter of law the court made the following two findings beyond a reasonable doubt: (1) DECEDENT was unable to provide for her basic food, clothing, shelter, personal safety, or necessary medical care due to a mental disorder; and (2) there is no willing and responsible family member, friend or other third party available to assist in furnishing the conservatee with these necessities. (Welf. & Inst. Code, § 5008(h); Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1280.)

20. It is further specifically alleged that in being placed in a conservatorship as a “gravely disabled” conservatee under the LPS prior to her admission to the HOSPITAL, the court adjudicated that DECEDENT had the inability to survive safely without proffered third-party assistance. (See Conservatorship of K.P. (2021) 11 Cal.5th 695, 711 [creation of LPS conservatorship only requires establishment that proposed conservatee has a mental health disorder, and that as a result of that disorder, the proposed conservatee is unable to meet basic survival needs, no separate finding of amenability to voluntary treatment required].)

21. It is further alleged that in being placed in a conservatorship as a “gravely disabled” conservatee under the LPS prior to her admission to the HOSPITAL, the court adjudicated that DECEDENT was incapable of making rational decisions about medical treatment related to her grave disability. That is, the court adjudicated that DECEDENT lacked the mental capacity to rationally understand the nature of the medical problem, the proposed treatment, and the treatment risks involving her condition. (K.G. v. Meredith (2012) 204 Cal.App.4th 164, 180.)

22. As a “gravely disabled” adult under a LPS conservatorship, DECEDENT required constant supervision and/or to be placed in a locked, secure healthcare facility and/or a locked, secure unit of a healthcare facility to meet her healthcare needs because DECEDENT was unable to meet basic survival needs and had the inability to survive safely without proffered third-party assistance. And in fact, prior to her admission to the HOSPITAL, DECEDENT had resided in a locked and secure behavioral health center.

23. The DEFENDANTS were well aware that DECEDENT was under a LPS conservatorship and had previously lived in a locked healthcare facility upon her admission to the HOSPITAL or shortly thereafter. On July 15, 2023, at 1928, an ED Provider Note states in relevant part as follows: “Of note patient is under conservatorship. Will attempt to contact patient's conservator who is her sister to update.” (Ex. 1, 1-102, emphasis added.) In addition, on July 20, 2023, at 1231, a physician’s progress note states in relevant part as follows: “Currently living in Laurel Park facility (institute for mental health) since 6/2022 due to schizophrenia. Under LPS conservatorship by daughter.” (Ex. 2, 1-271.)

24. In addition, the DEFENDANTS were well aware that DECEDENT required constant supervision and/or to be placed in a locked, secure healthcare facility and/or a locked, secure unit of a healthcare facility to meet her healthcare needs because DECEDENT was unable to meet basic survival needs and had the inability to survive safely without proffered third-party assistance. In fact, the HOSPITAL repeatedly noted in the medical record of DECEDENT that DECEDENT required placement in a locked facility with the HOSPITAL so noting in well over 100 separate notes!

25. And in fact, on July 15, 2023, the first day of DECEDENT’S admission at the HOSPITAL while she was in the emergency department of the HOSPITAL, the ED of the HOSPITAL actually provided DECEDENT with a 1:1 sitter to provide DECEDENT with constant supervision because the ED of the HOSPITAL was well aware of the conditions and needs of DECEDENT as specifically alleged in the preceding paragraphs. Indeed, on July 15, 2023, at 2053, an ED Note indicates: “Pt resting in bed resp e/u equal rise and fall of chest, sw from facility beside, sitter bedside.” (Ex. 3, 1-107, emphasis added.) Yet for some reason unknown to DECEDENT, thereafter the HOSPITAL repeatedly failed to provide DECEDENT with a sitter at any other time during the entirety of the rest of her admission from July 16, 2023, to August 2, 2023, when she was allowed to elope from the HOSPITAL.

26. The DEFENDANTS were also well aware upon the admission of DECEDENT or shortly thereafter that DECEDENT was at a high risk for elopement given her severe mental disorder. Indeed, on July 18, 2023, at 0942, a discharge planning note states in relevant part as follows:

11:17 AM CM met patient at bedside, introduced self and CM role. Patient stated her e-contact is Yolanda. CM reached out to Yolanda, who is the SW of Laurel Park facility in Pomona. Yolanda stated that the facility is an Institute for mental health disorder, a secured facility, a (sic) Angela has been a patient there since 06/2022 d/t schizophrenia and delusions, risk for elopement. Daughter is the conservator, Megan Frilot, #951 732 4576.

(Complaint ¶¶ 15-26.)  Thus, the Complaint alleges that as an elder adult in a conservatorship, Decedent was in the care and custody of Defendant and Decedent required special care.

Plaintiff further alleges that on July 25, 2023, Defendant developed a care plan for Decedent as follows:

- Maintain a safe environment

- Any equipment with wheels is in the locked position; bed in low position

- Rooms, hallways and walkways free of obstacles (such as furniture, equipment, and electrical cords); spills attended to immediately

- Adequate lighting at night - Call light, telephone and other necessary items (urinal, tissue, water) within reach

- Ambulate with well-fitting non-skid socks or shoes; assist with ambulation with l-2 staff members as needed

- Use restraints alternatives as appropriate

- Move patient bed location adjacent to the nurse's station, if possible

- Keep door and curtain open as appropriate for direct line of view of patient

- Use assistive device as appropriate; use a gait belt during ambulation and transfers with patients that require supervision or assistance for mobility

- Implement constant observation aide or video monitoring system, if needed and if the patient meets specific criteria

(Complaint ¶ 29.)  Yet, Defendant:

repeatedly failed to provide the interventions set forth in the care plan. For example, there is no indication anywhere in the medical record of DECEDENT that the HOSPITAL ever kept a direct line of sight with DECEDENT or implemented a constant observation aide or video monitoring system as called for by the care plan. These repeated failures on the part of the HOSPITAL were significant contributing factors in causing the elopement of DECEDENT. 

(Complaint ¶ 30.)  As a result, Plaintiff asserts:

The HOSPITAL’S repeated withholding of care from DECEDENT and the HOSPITAL’S conscious disregard for the safety of DECEDENT allowed DECEDENT to elope. Unfortunately, DECEDENT was never found alive. On December 21, 2023, DECEDENT was hit by a vehicle and left in the street to die. DECEDENT suffered significant damage to her scalp and nose. DECEDENT’S hands were so damaged that it was difficult to identify DECEDENT via fingerprinting. DECEDENT’S daughter was not notified until January 24, 2024.

(Complaint ¶ 42.)

Thus, Plaintiff has alleged with particularity that Decedent was in the care and custody of Defendant and reliant upon Defendant to care for Decedent’s needs; that Defendant failed to follow its care plan for Decedent, which resulted in Decedent eloping from the hospital, and ultimately led to Decedent being hit by a car and dying in the street. In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, the appellate court held that the failure to implement aspects of a patient’s care plan could rise to the level of recklessness to sustain a cause of action for “neglect” under the Elder Abuse Act.

Defendant argues that Decedent’s “choosing to elope from the hospital against medical advice and care” does not rise to the level of recklessness necessary to constitute neglect under the Elder Abuse Act.  (Demurrer at p. 10.)  But the Complaint alleges that Defendant knew Decedent was in a conservatorship, and therefore Decedent lacked the capacity to “choos[e] to elope from the hospital against medical advice and care[.]” Thus, the Complaint adequately alleges it was Defendant’s responsibility, and part of Decedent’s care plan, for Defendant to prevent Decedent from eloping.

Defendant also argues that the causation is speculative because Decedent was not hit by a car until 4 months after she eloped from Defendant’s care.  The Court finds that at the pleadings stage, the Complaint adequately alleges that Defendant’s neglect caused Decedent to elope, resulting in Decedent being hit by a car and dying in the street.  Whether Defendant is ultimately found to be the legal cause of Plaintiff’s death, or whether there were other superseding causes or contributory fault that go beyond the four corners of the Complaint, are factual issues to be determined at later stages of the litigation.

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendant’s Demurrer to the Complaint. 

Further, the Court orders Defendant to file an Answer to the Complaint on or before May 14, 2024. 

Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  April 23, 2024                                            ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court