Judge: Michael Shultz, Case: 23CMCV01616, Date: 2024-03-14 Tentative Ruling
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TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/u
Case Number: 23CMCV01616 Hearing Date: March 14, 2024 Dept: A
23CMCV01616
Rosa SanFilippo individually and as Successor in Interest v. Paramount Meadows
Nursing Center, LP, et al.
[TENTATIVE] ORDER
OVERRULING DEMURRER TO PLAINTIFF’S COMPLAINT BY DEFENDANT, LAKEWOOD REGIONAL
MEDICAL CENTER, INC.
[TENTATIVE] ORDER
DENYING MOTION TO STRIKE BY DEFENDANT, LAKEWOOD REGIONAL MEDICAL CENTER, INC.
I.
BACKGROUND
The
complaint alleges that Plaintiff is the mother of Carlo Sanfilippo, who died on
April 6, 2023, while he was a resident at Affinity Health Care Center
(“Affinity”). Plaintiff alleges that Paramount Meadows Nursing Center, LP,
(“Paramount”), a skilled nursing facility owns, controls, and operates Affinity.
Plaintiff alleges that Paramount was negligent in providing decedent with care.
Against Paramount, Plaintiff alleges claims for (1) professional negligence,
(2) elder abuse, (3) violation of Patient’s Bill of Rights.
Plaintiff
alleges that decedent was later admitted to Lakewood Regional Medical Center,
Inc. (“Lakewood.”) Against Lakewood, Plaintiff alleges a claim for (4) professional
negligence, (5) elder abuse, and (6) wrongful death against all Defendants.
II.
ARGUMENTS
Lakewood
demurs to the fifth cause of action for elder abuse only. Plaintiff fails to
state a claim because the complaint does not allege custodial care (as
distinguished from medical care) or egregious acts of misconduct abuse.
“Neglect” in its general sense is not the same as “neglect” under the elder
abuse statutes. To support the claim against a corporate employer, Plaintiff
must allege facts demonstrating corporate ratification, advance knowledge, or
conscious disregard on the part of an officer, director, or managing agent.
In
opposition, Plaintiff argues that all
claims are adequately alleged. If the Court sustains the demurrer, Plaintiff
asks for leave to amend.
In
reply, Lakewood reiterates that Plaintiff’s allegations are insufficient for
the same reasons raised in its demurrer.
III.
LEGAL STANDARDS
A demurrer tests the sufficiency of a
complaint as a matter of law and raises only questions of law. (Schmidt
v. Foundation Health (1995) 35
Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must
assume the truth of the properly pleaded factual allegations as well as facts
that can be reasonably inferred from those expressly pleaded facts. The court
may also consider matters properly subject to judicial notice. (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.4th
634, 638.) Plaintiff is required to allege 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 complaint fails to state facts
sufficient to constitute a cause of action, courts should sustain the demurrer.
(Code Civ. Proc., § 430.10(e); (Zelig
v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1126.)
Sufficient facts are the essential facts
of the case "with reasonable precision and with particularity that is
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.)
IV.
DISCUSSION
Pursuant to the
Elder Abuse and Dependent Adult Civil Protection Act (“EADCPA”), 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 subd. (a)(1).)
“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 subd. (a)(1).)
The California
Supreme Court distinguished claims for medical malpractice arising from negligence
from statutory claims for “neglect” defined under the EADCPA. 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.)
The EADCPA 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
EADCPA does not apply to simple or gross negligence by health care providers. (Id.)
Rather, to obtain the enhanced remedies provided for under the EADCPA,
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 at
337; Carter
v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 405 [“In short, “[i]n order to obtain the
Act's heightened remedies, a plaintiff must allege conduct essentially
equivalent to conduct that would support recovery of punitive damages.’”].)
Plaintiff
adequately alleges facts showing deliberate disregard of the high probability
that injury will occur, and that Lakewood’s conduct was a conscious choice or
course of action. Plaintiff alleges Lakewood knew that Decedent was dependent
upon them for medical and custodial care which left him bed ridden. (Complaint,
¶ 58.) Lakewood allegedly knew that Decedent was unable to meet his own needs,
relied on Lakewood for all activities of daily living. (Id.).
Plaintiff alleges
that Decedent was at high risk for developing pressure injuries and that a
physician’s order required repositioning, however, “despite this knowledge,
defendants denied or withheld services necessary to meet his needs and acted
with conscious disregard of the high probability of significant injuries,” failed
to provide medical care and failed to protect decedent from health and safety
hazards. (Complaint, ¶ 60-61.)
Therefore, the
allegations are sufficient to meet the heightened pleading standards by
alleging a failure to provide or a deliberate withholding of medical care,
despite Lakewood’s alleged knowledge of Plaintiff’s condition. Finally,
Plaintiff alleges corporate ratification, by stating that Lakewood ratified and
authorized the wrongful conduct of the employee, and that advance knowledge,
conscious disregard, authorization, and ratification was made on the part of an
officer, director, or managing agent. (Complaint, ¶¶ 64.a. through c.)
III. CONCLUSION
Based
on the foregoing, Defendant’s demurrer to the fourth cause of action for elder
abuse only is OVERRULED. Defendant is ordered to file an answer within 10 days.
(Cal. Rules of Court, rule 3.1320.)
[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION
TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
I.
ARGUMENTS
Lakewood
moves to strike the fifth cause of action for elder abuse and any allegations
in support of the prayer for punitive damages as Plaintiff did not allege facts
showing that Lakewood acted with malice, fraud, or oppression to warrant
recovery of such damages. The fifth cause of action is not well stated as
explained in Lakewood’s demurrer.
In
opposition, Plaintiffs argue that the fifth cause of action is adequately alleged,
and the egregious misconduct serves as predicate acts necessary to recover
punitive damages.
Lakewood
did not file a reply brief by March 7, 2024 (five court days before the hearing
date (Code Civ. Proc., § 1005 subd.
(b).)
II. LEGAL STANDARDS
The
court may, upon 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 the pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the Court. (Code Civ. Proc., § 436 subd (a)-(b).) Grounds for the motion to
strike are limited to matters that appear on the face of the pleading or on any
matter which the court shall or may take judicial notice. (Code Civ. Proc., § 437.)
III.
DISCUSSION
The
motion to strike the fifth cause of action for elder abuse is DENIED for the
reasons stated in the Court’s ruling in connection with demurrer. As alleged,
the claim is not improper.
Plaintiff
may recover exemplary damages if they establish “by clear and convincing
evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294 subd. (a).) The predicate acts to support a claim for
punitive damages must be intended to cause injury or must constitute
“malicious” or “oppressive” conduct as defined by statute. “Malice” is defined
as “conduct which is intended by the defendant to cause injury to the plaintiff
or despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.”
(Civ.
Code, § 3294 subd. (c)(1); College
Hospital Inc. v. Superior Court (1994)
8 Cal.4th 704, 725 ["malice involves awareness of dangerous consequences and a
willful and deliberate failure to avoid them"].) "Oppression" is
defined as “despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (a) subd. (c)(2).) These requirements are
essentially the same as the heightened standards of pleading required for elder
abuse cases.
Absent
an intent to injure the plaintiff, the conduct must be “despicable” which is
defined as “base, vile, or contemptible.” (College Hospital Inc. at 725.) Plaintiff must demonstrate that “the defendant acted in such an
outrageous and reprehensible manner that the jury could infer that he knowingly
disregarded the substantial certainty of injury to others." (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.)
As
previously noted, Plaintiff alleges that Lakewood had advance knowledge of
decedent’s condition, that he was bed bound, and dependent on Defendant for
daily living activities, however, Defendant “withheld” or “denied” medical
care, knowing the probability of harm to Decedent. (Complaint, ¶ 16.) Because
Plaintiff has alleged facts from which a jury could infer despicable conduct on
the part of Lakewood, the prayer for punitive damages is adequately supported.
The
EADCPA also provides for recovery of attorney’s fees, therefore, the prayer is
proper. (Complaint, ¶ 5.)
IV.
CONCLUSION
Based
on the foregoing, Defendant’s motion to strike is DENIED. Defendant is ordered
to answer within 10 days.