Judge: Michael Shultz, Case: 21STCV29973, Date: 2022-08-16 Tentative Ruling

Case Number: 21STCV29973    Hearing Date: August 16, 2022    Dept: A

21STCV29973 Ollie Pearl Owens v. St. Francis Medical Center, et al.

Tuesday, August 16, 2022 at 8:30 a.m.




I.            BACKGROUND

The Second Amended Complaint (“SAC”) filed on May 17, 2022, alleges that during Plaintiff’s admission to St. Francis Medical Center (“St. Francis”) for emergency care, Defendants negligently failed to lock the wheels to Plaintiff’s hospital bed causing Plaintiff to fall and sustain injury while Defendants transferred Plaintiff from a gurney to the bed. Plaintiff alleges claims for medical malpractice, negligence, negligent supervision and retention, elder abuse, and negligent infliction of emotional distress. 



A.      Demurrer filed May 27, 2022

St. Francis demurs to the fourth cause of action for violation of the Elder Abuse and Dependent Adult Civil Protection Act (the “Act”).  This action sounds in negligence only. Defendant’s rendering of treatment to an elder does not transform a negligence claim to one for elder abuse. Plaintiff is not entitled to recover the heightened remedies under the Act. Plaintiff alleges negligence because she fell from a bed. This is not “sufficiently egregious” to support a claim for elder abuse which is premised on a fundamental failure to provide medical care for physical and mental health needs. Leave to amend should not be granted.


B.      Opposition filed August 3, 2022

Plaintiff argues that she is a “Dependent Adult” as defined by Welfare and Institutions Code section 15610.23. Defendants dropped Plaintiff while being transporting her to a hospital bed. Defendants failed to prevent a second fall in quick succession when Plaintiff tried to stand up. Plaintiff is entitled to heightened remedies where Defendants acted with malice, fraud, or oppression in commission of abuse. Elder abuse is a viable claim where Defendants dropped the patient. If the court sustains demurrer, Plaintiff requests leave to amend.

C.      Reply filed August 9, 2022

The facts alleged in the SAC sound in negligence, not elder abuse. Plaintiff’s conclusion that the Defendants acted recklessly does not transform it into elder abuse. The court has discretion to reject conclusions.



A demurrer reaches defects that appear on the face of the complaint. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true for purposes of the demurrer. Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 838. A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the Plaintiff’s ability to prove them, or the possible difficulty in making such proof. Id. at 840.

In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The court may not consider contentions, deductions, or conclusions of fact or law. Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.

Because a demurrer tests the legal sufficiency of a pleading, the plaintiff must show that the pleading alleges facts sufficient to establish every element of each cause of action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43. Where the pleading fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Procedure § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.

Sufficient facts are the essential facts of the case stated "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644. Whether the Plaintiff will be able to prove the pleaded facts is irrelevant.  Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610. A demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).

A pleading is required to assert general allegations of ultimate fact. Evidentiary facts are not required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. However, unlike federal courts, California state courts are not a notice-pleading jurisdiction; notice alone is not a sufficient basis for any pleading. California is a fact-pleading jurisdiction. Merely putting an opposing party on notice is not sufficient. Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.


IV.            DISCUSSION

Defense counsel complied with the requirement to meet and confer with Plaintiff’s counsel prior to filing the demurrer. The parties were not able to resolve their disputes. Declaration of Daniel Dik, ¶ 3; Code Civ. Proc., § 430.41/

Abuse of an elder is defined in pertinent part as "(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering." Welf. & Inst. Code, § 15610.07. “Neglect” is further defined in part as "[t]he 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." Welf. & Inst. Code, § 15610.57.

The California Supreme Court distinguished claims for medical malpractice based on negligence with statutory claims for “neglect” defined under the Act. The Court concluded that “nothing in the legislative history suggests that the Legislature intended the Act to apply whenever a doctor treats any elderly patient. Reading the act in such a manner would radically transform medical malpractice liability relative to the existing scheme. " Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 163. “Neglect” under the Act is distinguished from medical malpractice. The act states that "any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action." Welf. & Inst. Code, § 15657.2.

The degree of neglect that will support a claim for elder abuse is the failure to provide medical care, not the undertaking of medical services.” Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 336. The act does not apply to simple or gross negligence by health care providers. Id. Rather, to obtain the enhanced remedies provided for under the Act, Plaintiff must show "’by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ (Delaney, supra, 20 Cal.4th at p. 31, 82 Cal.Rptr.2d 610, 971 P.2d 986.) ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur [citations]. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.’” Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 337.

Plaintiff alleges that Defendants “failed to lock the wheels of Plaintiff’s bed,” causing Plaintiff to fall to the ground upon being transferred from a gurney. SAC, 2:11-12. Plaintiff alleges a failure to take the necessary precautions, as opposed to conduct showing malice, fraud, or oppression. Even if Defendants “dropped” Plaintiff as she contends in opposition, the actionable conduct is the alleged failure to lock the wheels. Opp. 1, 8-9.

Plaintiff contends that Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, applies since the defendants in that action dropped the plaintiff, and the court found that the conduct was egregious enough to support the elder abuse claim. However, in Country Villa, the Plaintiff was not provided pain relief as prescribed, Defendants failed to implement protocols to prevent pressure ulcers, and failed to provide for decedent’s personal hygiene, “leaving her in filthy and unsanitary conditions." Id. at 430. She developed aspirational pneumonia as a result of Country Villa’s failure to provide plaintiff with the property diet, to monitor her food intake, and assist her with her eating. Id. Therefore, Country Villa is distinguishable, because it did not arise solely from Defendants’ negligence in dropping plaintiff, but alleged other conduct amounting to a failure to provide care.

The SAC does not allege a failure to provide care. The action is premised on injuries suffered as a result of the alleged fall after Plaintiff was admitted to Defendant’s emergency department. SAC, ¶¶ 17-19. 

While leave to amend is ordinarily given if there is a reasonable possibility that the defect can be cured, it is the Plaintiff’s burden to demonstrate how the defects can be cured by articulating in what manner she can amend the complaint and how that amendment will change the legal effect of his pleading.” Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298, 302.

      Plaintiff has not adequately demonstrated what allegations could transform a negligent failure to lock wheels into an action that amounts to a failure to provide care, on which an elder abuse claim can be based.



Based on the foregoing, Defendant’s demurrer to the fourth cause of action for elder abuse only is sustained without leave to amend. Defendant is ordered to file an answer to the remaining causes of action within 10 days. CA ST CIVIL RULES Rule 3.1320.