Judge: Michelle Williams Court, Case: 20STCV19417, Date: 2022-08-23 Tentative Ruling
Case Number: 20STCV19417 Hearing Date: August 23, 2022 Dept: 74
20STCV19417 JACKIE
SALDANA vs GLENHAVEN HEALTHCARE LLC
Demurrer to First Amended Complaint; Motion to Strike Re:
First Amended Complaint
TENTATIVE RULINGS:
The demurrer is OVERRULED and the motion to strike is DENIED. Defendants shall file answer(s) the First
Amended Complaint within 15 days.
Background
On May 21, 2020, Plaintiffs Jackie
Saldana, Celia Saldana, Ricardo Saldana Jr., and Maria Saldana, as Individuals
and as Successors and Heirs of Ricardo Saldana filed this action against
Defendants Glenhaven Healthcare, LLC, Caravan Operations Corp., Matthew Karp,
and Benjamin Karp.
On June 10, 2020, Plaintiffs filed the
operative First Amended Complaint asserting cause of action for: (1) elder
abuse; (2) willful misconduct; (3) custodial negligence; and (4) wrongful
death. Plaintiffs allege Ricardo Saldana’s death from COVID-19 on April 13,
2020 was the result of Defendants’ failure to adequately guard against
transmission of the virus.
The case was removed to federal court
and remanded after the Ninth Circuit affirmed the remand order in Saldana v. Glenhaven Healthcare LLC (9th
Cir. 2022) 27 F.4th 679, 689.
Demurrer and Motion to Strike
On July 20, 2022, Defendants filed their demurrer
and motion to strike portions of the FAC. Defendants contend they are immune
from liability under Government Code section 8659 and the federal PREP Act, and
the complaint fails to adequately allege the asserted causes of action.
Defendants also move to strike the claim for willful
misconduct based upon the PREP Act, argue the FAC fails to allege facts
warranting enhanced remedies or punitive damages, and seek to strike reference
to a report to a government agency.
Opposition
In opposition, Plaintiffs argue Defendants are not
immune from liability under either Government Code section 8659 or the PREP Act
and the FAC adequately alleges each cause of action.
Reply
In reply, Defendants reiterate their initial arguments.
Judicial Notice
Defendants request the Court take judicial notice of
various government publications, orders, and declarations. The request is
GRANTED as to Exhibits 1-16, and 18-25. The Court takes judicial notice of the
existence of these documents and their legal effects, if any, but not the truth
of the matters asserted therein. (Evid. Code § 452(c).) The request is DENIED
as to Exhibit 17 as the remarks of the World Health Organization Director
General are irrelevant.
Meet and Confer
Defendants submitted the declaration of Rita Kanno, which satisfies the
requirements of Code of Civil Procedure
sections 430.41 and 435.5.
Demurrer
Standard
A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. In a demurrer proceeding,
the defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code
Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only
allege ultimate facts sufficient to apprise the defendant of the factual basis
for the claim against him. (Semole v.
Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege
evidentiary facts noting plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 872.) A “demurrer does not, however, admit contentions, deductions or
conclusions of fact or law alleged in the pleading, or the construction of instruments
pleaded, or facts impossible in law.” (S.
Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)
A
special demurrer to a complaint is appropriate when the grounds of the pleading
are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f);
Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor
demurrers based on uncertainty, which the court strictly construes even when
the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14
Cal.App.4th 612, 616.)
If
the demurrer is sustained, plaintiff must prove the possibility of cure by
amendment. (Czajkowski v.
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004)
120 Cal.App.4th 72, 78-79).) Leave to amend must be allowed where there is
a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007)
152 Cal.App.4th 86, 92.)
Summary of Plaintiffs’
Allegations
Plaintiffs are the surviving relatives
of Ricardo Saldana, (“Decedent”). (FAC ¶¶ 4-9.) Decedent was an elderly
resident at a skilled nursing facility operated by Defendants and was wholly
dependent upon Defendants for all activities of daily life. (Id. ¶¶ 20-21.)
Plaintiffs allege “[t]hrough March of 2020, Glenhaven did not provide employees
with any personal protective equipment (“PPE”)” and instructed members of the
nursing staff to remove masks and bandanas they had brought from home. (Id. ¶
26.) Glenhaven received masks from the fire department, but locked them in a
cabinet and prohibited their use. (Id. ¶ 27.) Glenhaven knew one of its
employees had been exposed to COVID-19, but did not tell any of the staff and
continued to allow the employee to work on site. (Id. ¶ 28.)
On or about April 1, 2020, Glenhaven
announced it would provide paper surgical masks to staff. (Id. ¶ 31.)
“Glenhaven frequently ran out of masks and gowns forcing staff to finish out
hours of their shifts without clean equipment rather than purchasing additional
equipment for the facility.” (Id. ¶ 32.) Glenhaven “knew that it had staff and
residents who were both exposed to the virus and who also carried the virus yet
it was not testing people” to avoid the need to report positive test results,
and did not begin testing staff and patients until April 7, 2020. (Id. ¶ 33.)
Glenhaven “did not implement an effective policy for isolating proven or
suspected carriers of the coronavirus” and “transferred a resident who had
shared a room with a COVID-19 positive resident to a two bed room with Ricardo
in late March.” (Id. ¶ 34.) Decedent did not show any COVID-19 symptoms prior
to this move, began to develop symptoms thereafter, and died from COVID-19 on
April 13, 2020. (Id. ¶ 35.)
Plaintiffs further list Defendants’
conduct at issue as: “(a) Forbidding staff from wearing appropriate PPE; (b)
Failing to provide staff with PPE; (c) Failing to provide staff with adequate
PPE; (d) Failing to isolate suspected or identified COVID-19 carriers from
staff or residents; (e) Failing to disclose known or suspected COVID-19
carriers to staff and/or residents; (f) Failing to take all reasonable and
necessary precautions to ensure that Ricardo did not contract COVID-19; (g)
Failing to test Ricardo and other residents and staff for COVID-19 to quickly
address and isolate if necessary; and (h) Failing to treat Ricardo with
respect, dignity and without abuse.” (Compl. ¶ 49.)
Government
Code Section 8659 Immunity Does Not Apply
Defendants
first argue they are immune from Plaintiffs’ claims pursuant to California
Government Code section 8659. (Dem. at 12:13-14:9; Reply at 3:1-4:6.) The
statute provides, in relevant part: “[a]ny physician or surgeon (whether
licensed in this state or any other state), hospital, pharmacist, respiratory
care practitioner, nurse, or dentist who renders services during any state of
war emergency, a state of emergency, or a local emergency at the express or
implied request of any responsible state or local official or agency shall have
no liability for any injury sustained by any person by reason of those
services, regardless of how or under what circumstances or by what cause those
injuries are sustained; provided, however, that the immunity herein granted
shall not apply in the event of a willful act or omission.” (Gov. Code §
8659(a).)
Defendants
cite the March 4, 2020 Proclamation of a State of Emergency for COVID-19
pandemic issued by Governor Newsom, (Def RJN Ex. 4), and a January 27, 2021
Executive Order which invoked Government Code section 8659(a) to provide
immunity to healthcare professionals participating in the State’s vaccine
administration program, which significantly post-dates Decedent’s death. (Def. RJN Ex. 25.) Neither of these documents provide blanket
immunity to Defendants for their conduct related to COVID-19 or demonstrate
Defendants were acting “at the express or implied request of any responsible
state or local official or agency” in their care of Decedent as required. Defendants also cite
preexisting regulations, which they were required to comply with regardless of
the state of emergency declaration. (Dem. at 13:1-13:28.) The Court finds the
FAC and the facts subject to judicial notice do not demonstrate Defendants’
immunity under Government Code section 8659 here.
Moreover, as
argued by Plaintiffs, the immunity does not apply to willful acts or omissions
and each of Plaintiffs’ claims largely rely upon Defendant’s omissions. (FAC ¶¶
40, 47, 49, 58. See Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th
1028, 1047 (“[A] demurrer cannot rightfully be sustained to part of a cause of
action or to a particular type of damage or remedy.”).)
The demurrer is based upon
Government Code section 8659 is OVERRULED.
PREP Act
Immunity Does Not Apply
Defendants
also argue they are immune from liability under the PREP Act. (Dem. at
14:10-20:9; Reply at 4:7-6:7.)
“The PREP
Act immunizes a ‘covered person’ from ‘suit and liability’ for claims for loss
‘caused by, arising out of, relating to, or resulting from the administration
to or the use by an individual of a covered countermeasure’ if the Secretary of
the U.S. Department of Health and Human Services has made a determination that
a public-health condition or threat is (or credibly risks) a public-health
emergency. 42 U.S.C. § 247d-6d(a)(1) & (b).” (Hampton v. California
(N.D. Cal., Mar. 20, 2022, No. 21-CV-03058-LB) 2022 WL 838122, at *10.) “When
the PREP Act applies, plaintiffs are relegated to recovery through the Countermeasures
Injury Compensation Program—a regulatory program providing reimbursement for
losses associated with the use or administration of covered countermeasures. 42
U.S.C. § 247d-6(e). Only where the plaintiff alleges willful misconduct may the
plaintiff file a civil action, and such actions must be filed in the District
of Columbia.” (Lawler v. Cedar Operations, LLC (C.D. Cal.,
Oct. 7, 2021, No. EDCV2101017CJCSHKX) 2021 WL 4622414, at *3.)
“The Act, as
extended by the declarations, therefore covers the administration and
distribution of products meant to curb the spread of COVID-19. It does not, by
its plain terms, cover more generally the care received by patients in
healthcare facilities.” (Estate of Maglioli v. Andover Subacute
Rehabilitation Center I (D.N.J. 2020) 478 F.Supp.3d 518, 531.) “[T]he PREP Act addresses the administration or use of covered
countermeasures. There is simply no room to read it as equally applicable to
the non-administration or non-use of covered countermeasures.” (Eaton v. Big Blue Healthcare, Inc. (D. Kan. 2020) 480 F.Supp.3d 1184, 1195.)
The Court
finds the PREP Act does not apply and therefore grant immunity to Defendants
for Plaintiffs’ claims. Defendants do not cite any court ruling in support of
their PREP Act arguments. (Dem. at 14:10-20:9; Reply at 4:7-6:7.) As noted
below, numerous federal courts have found the PREP Act inapplicable to the
allegations asserted by Plaintiffs in the complaint.
For example,
Plaintiffs’ allegations are akin to those found insufficient to establish the
applicability of the PREP Act in Eaton, supra:
Plaintiff's complaint is admittedly broadly
written, as most complaints are. But drilled down, Plaintiff alleges that the
decedent died of COVID-19 because Defendants failed to take preventative
measures to stop the entry and spread of COVID-19 within the facility.
Plaintiff contends that Defendants’ failure to take those precautions led to
the decedent contracting and dying of COVID-19. But nowhere in the complaint
does Plaintiff suggest that the decedent's death was causally connected to the
administration or use of any drug, biological product, or device (i.e. a
covered countermeasures). The claim seems to be precisely the opposite: that
inaction rather than action caused the death.
(Eaton,
supra, 480 F.Supp.3d at 1192.) Similarly, in Lawler, supra, 2021 WL
4622414, the court held:
Surely, failing to inform the Deceased or his
family of a COVID-19 outbreak at Cedar Mountain before readmitting the Deceased
to the facility has nothing to do with the administration of covered
countermeasures. [Citations]See, e.g., Hopman v. Sunrise Villa Culver City,
2021 WL 1529964, at *4-6 (remanding when plaintiff alleged failure to isolate
patients and failure to notify decedent's spouse of decedent's move to a shared
room); (see also Compl. ¶ 22a-b.) The same goes for Defendant's alleged failure
to enforce social distancing, cancel group activities, restrict visitation, and
ensure adequate staff. (See Compl. ¶ 22c-f.) These failures to act do not
implicate the use or nonuse of drugs, biological products, or medical devices.
(Lawler,
supra, 2021 WL 4622414, at *4.) Moreover, the court in Stone
v. Long Beach Healthcare Center, LLC (C.D. Cal., Mar. 26, 2021, No. CV
21-326-JFW(PVCX)) 2021 WL 1163572 found:
Although Plaintiff mentions in her Complaint that
Defendant was cited for not properly ‘using’ personal protective equipment
three months after Decedent's death, there are no allegations linking
Decedent's death to the use of that personal protective equipment or linking
Decedent’s death to the purposeful allocation of personal protective equipment
to other individuals.”
(Stone,
supra, 2021 WL 1163572, at *5.) In Dupervil v. Alliance Health Operations,
LCC (E.D.N.Y. 2021) 516 F.Supp.3d 238, the court similarly held:
None of Plaintiff's claims, however, alleges loss
“caused by, arising out of, relating to, or resulting from the administration
to ... an individual” of such covered countermeasures, see id. § 247d-6d(a)(1),
even accepting the Secretary's recent interpretation that “administration to”
an individual can include “[p]rioritization or purposeful allocation” of a
covered countermeasure, see Fourth Amended Declaration, 85 Fed. Reg. at 79,197.
Rather, the crux of Plaintiff's claims is that his father died because
Defendants failed to take certain steps such as separating residents, enforcing
social distancing among residents and staff, timely restricting visitors,
cancelling group and communal activities, ensuring adequate staffing levels,
enforcing mask-wearing, and screening people entering the facility for symptoms
of COVID-19. (See Complaint, Dkt. 1-1, ¶¶ 110–21; see also id. ¶¶ 134–45,
158–69.) These alleged failures cannot be said to be administering—or even
prioritizing or purposefully allocating—a drug, biological product, or device
to an individual within the meaning of the PREP Act.
(Dupervil,
supra, 516 F.Supp.3d at 255.)
Ultimately,
Plaintiffs allege Decedent’s death resulted from Defendants’ transferring a
resident with confirmed COVID-19 exposure to his room. (FAC ¶¶ 34-35.) Such
conduct is not covered by the PREP Act. (Hopman, supra, 2021 WL
1529964, at *5 (“although Plaintiffs
reference covered countermeasures, the injuries alleged in their complaint
arise from Defendants' decision to transfer Mr. Hopman to a shared room in the
Terrace Club in the midst of a pandemic, not the administration (or
non-administration) of a covered countermeasure.”).) “In
this case, Plaintiff does not allege that Decedent's death was ‘causally
connected’ to the administration or use of any covered countermeasure. Instead,
Plaintiff alleges ‘precisely the opposite’ – that it was inaction, rather than
action, by Defendants that caused Decedent's death.” (Lyons v. Cucumber Holdings, LLC (C.D. Cal. 2021) 520 F.Supp.3d 1277, 1286.)
The demurrer
based upon the PREP Act is OVERRULED.
Elder
Abuse – First Cause of Action
As
stated by the court in Carter v. Prime Healthcare Paradise Valley LLC
(2011) 198 Cal.App.4th 396:
[S]everal factors that must be present
for conduct to constitute neglect within the meaning of the Elder Abuse Act and
thereby trigger the enhanced remedies available under the Act. The plaintiff
must allege (and ultimately prove by clear and convincing evidence) facts
establishing that the defendant: (1) had responsibility for meeting the basic
needs of the elder or dependent adult, such as nutrition, hydration, hygiene or
medical care; (2) knew of conditions that made the elder or dependent adult
unable to provide for his or her own basic; and (3) denied or withheld goods or
services necessary to meet the elder or dependent adult's basic needs, either
with knowledge that injury was substantially certain to befall the elder or
dependent adult (if the plaintiff alleges oppression, fraud or malice) or with
conscious disregard of the high probability of such injury (if the plaintiff
alleges recklessness). The plaintiff must also allege (and ultimately prove by
clear and convincing evidence) that the neglect caused the elder or dependent
adult to suffer physical harm, pain or mental suffering. Finally, the facts
constituting the neglect and establishing the causal link between the neglect
and the injury “must be pleaded with particularity,” in accordance with the
pleading rules governing statutory claims.
(Id. at 406–07
(internal citations omitted).) “Facts, not conclusions, must be pleaded.
Further, where, as here, statutory remedies are invoked, the facts must be
pleaded with particularity. Accordingly, plaintiffs’ use of such terminology as
fraudulently and recklessly cannot cure the failure to point out exactly how or
in what manner the [Hospital has] transgressed.” (Id. at 410.)
Defendants
contend Plaintiffs’ claims fail to meet the specificity requirements to allege
an elder abuse claim. (Dem. at 20:10-21:22; Reply at 6:9-7:21.) “Recklessness,
. . . lies in a ‘conscious choice of a course of action’” and “can be inferred
when the neglect recurs in a significant pattern.” (Fenimore v. Regents of University of
California (2016) 245 Cal.App.4th 1339, 1348, 1350.) The FAC alleges Decedent was
in Defendants’ care and entirely dependent upon Defendants for his basic needs.
(FAC ¶¶ 21-22.) The FAC includes specific facts that Defendants ignored the
known risks of COVID-19, including failing to provide “basic necessary
custodial care such as feeding or bathing by Glenhaven employees in appropriate
protective equipment” and “failed
to provide adequate funding and staffing to ensure that the nursing home
provided necessary care for him.” (FAC ¶¶ 23-35, 40, 43.)
The Court finds Plaintiffs’ allegations
sufficient and the demurrer to the first cause of action for elder abuse is
OVERRULED.
Willful
Misconduct – Second Cause of Action
Defendants
argue Plaintiffs failed to comply with the procedural requirements imposed by
the PREP Act for willful misconduct. (Dem. at 21:23-23:6; Reply at 8:3-9.) As
noted above, the Court finds the PREP Act does not apply and this argument is
unpersuasive.
Defendants
also argue the FAC fails to adequately allege a claim for willful misconduct,
which is duplicative of the elder abuse claim. (Dem. at 8:10-9:15; Reply at
8:10-9:15.) “Three essential elements must be present to raise a negligent act
to the level of wilful misconduct: (1) actual or constructive knowledge of the
peril to be apprehended, (2) actual or constructive knowledge that injury is a
probable, as opposed to a possible, result of the danger, and (3) conscious
failure to act to avoid the peril.” (Morgan v. Southern Pacific Trans. Co. (1974) 37
Cal.App.3d 1006, 1012.)
The Court
finds the FAC adequately alleges facts to state a cause of action for willful
misconduct. The FAC alleges the risks associated with COVID-19 were widely and
publicly known, (FAC ¶¶ 23-25), and that Defendants “knew or should have known that the
peril posed by their failure to their failure to comply with the standard of
care, by providing care which a health care providers in appropriate safety
equipment and employing reasonable custodial policies for isolating COVID
positive residents, exposed Ricardo to the high probability of his injury or
death.” (FAC ¶ 48.) The FAC alleges Defendants consciously failed to act to
avoid the risks. (See e.g. FAC ¶ 49.) Nothing further is required at the
pleading stage.
The demurrer to the second cause of
action is OVERRULED.
Custodial
Negligence – Third Cause of Action
To
adequately state a claim for negligence, Plaintiffs must satisfy “the
requirements for pleading a negligence cause of action: duty, breach of duty,
causation and damages.” (St. Francis Medical Center v. Superior
Court (1987) 194 Cal.App.3d 668, 671.)
Defendants
contend the negligence cause of action is uncertain because “Plaintiffs fail to
set forth sufficient facts to support how the alleged negligence caused injury
to Decedent.” (Dem. at 23:1-10.) However, “[a]
special demurrer for uncertainty is not intended to reach the failure to
incorporate sufficient facts in the pleading, but is directed at the
uncertainty existing in the allegations actually made.” (People v. Lim (1941)
18 Cal.2d 872, 883.) Additionally, the FAC adequately alleges facts to support
a claim for negligence. Defendants had a duty to protect their residents, their
conduct allegedly fell below the standard of care, which resulted in harm to
Decedent. (FAC ¶¶ 21-22, 25-35, 40, 47-51, 57-59.) Defendants’ speculation that
Decedent could have contracted COVID-19 in the absence of negligence, (Dem. at
24:6-8), or that there was no standard of care at the time, (Reply at
9:17-10:1), are extrinsic to the facts alleged in the FAC and not the proper
basis for a demurrer.
The demurrer to the third cause of
action is OVERRULED.
Wrongful
Death – Fourth Cause of Action
“The elements of the cause of action
for wrongful death are the tort (negligence or other wrongful act), the
resulting death, and the damages, consisting of the pecuniary loss suffered by
the heirs.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256,
1263.) “A plaintiff in a wrongful death action is entitled to recover damages
for his own pecuniary loss, which may include (1) the loss of the decedent's
financial support, services, training and advice, and (2) the pecuniary value
of the decedent's society and companionship.” (Nelson v. County of Los
Angeles (2003) 113 Cal.App.4th 783, 793.)
Plaintiffs’ wrongful death claim is
based upon the other adequately alleged tort claims in the FAC. Additionally,
the FAC alleges Plaintiffs, as Decedent’s heirs, “have been deprived of his
care, comfort and society to their general damages according to proof.” (FAC ¶¶
60-61.) The allegations are sufficient to state a cause of action for wrongful
death.
The demurrer to the fourth cause of
action is OVERRULED.
Motion to Strike
Standard
Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (Code of Civ. Proc. § 435(b)(1); Cal. Rules of Court, rule
3.1322(b).) The court may, upon a 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 any
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(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782.)
“In order to
survive a motion to strike an allegation of punitive damages, the ultimate
facts showing an entitlement to such relief must be pled by a plaintiff.
[Citations.] In passing on the correctness of a ruling on a motion to strike,
judges read allegations of a pleading subject to a motion to strike as a whole,
all parts in their context, and assume their truth. [Citations.] In ruling on a
motion to strike, courts do not read allegations in isolation. [Citation.]”
(Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “Pleading in the language of the
statute is not objectionable when sufficient facts are alleged to support the
allegation.” (Perkins v. Superior Court (1981) 117
Cal.App.3d 1, 6-7.)
Willful Misconduct
Defendants contend the Court should
strike “all allegations pertaining to allegations of willful misconduct as such
claims are barred by the PREP Act” or do not meet the standards of the PREP
Act. (Mot. at 9:23-12:19.) “[I]t is improper for a court to strike a whole
cause of action of a pleading under Code of Civil Procedure section 436.” (Quiroz
v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) Additionally, as
noted above, the PREP Act does not apply to Plaintiffs’ allegations and the
willful misconduct claims are adequately alleged.
Enhanced Remedies and
Punitive Damages
Defendants also argue the FAC fails to
allege facts sufficient to support Plaintiffs’ requests for attorneys’ fees and
exemplary damages under the Elder Abuse statute or for punitive damages. (Mot.
at 12:22-17:12; Reply at 4:19-7:3.)
Defendants reiterate their argument
that the FAC fails to state a claim for elder abuse. As noted above, the Court
finds the allegations sufficient. The FAC alleges facts that, if proven, would
support a finding that Defendants’ conduct was reckless and done with malice
they engaged in “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(c)(1).) The FAC alleges Defendants consciously and intentionally
disregarded known risks associated with COVID-19, failed to implement
protective procedures, and ultimately housed an individual with a known
COVID-19 exposure in the same room as Decedent. (FAC ¶¶ 23-35, 49-54.)
Defendants further contend the FAC
fails to allege sufficient facts to hold the entity Defendants liable. Civil
Code section 3294(b) provides “[a]n employer shall not be liable for damages
pursuant to subdivision (a), based upon acts of an employee of the employer,
unless the employer had advance knowledge of the unfitness of the employee and
employed him or her with a conscious disregard of the rights or safety of
others or authorized or ratified the wrongful conduct for which the damages are
awarded or was personally guilty of oppression, fraud, or malice. With respect
to a corporate employer, the advance knowledge and conscious disregard,
authorization, ratification or act of oppression, fraud, or malice must be on
the part of an officer, director, or managing agent of the corporation.”
Welfare and Institutions Code section 15657 imposes the same requirement to
impose liability for attorneys’ fees and damages. (Welf. & Inst. Code, §
15657(c).)
The FAC alleges Glenhaven’s leadership,
Carrie Marks, head administrator of the facility and Marco Gary head of the
department of staff development, were in charge of protecting residents, had
the ability to hire and fire staff, were managing agents of Defendants, and
actively engaged in the conduct at issue. (FAC ¶¶ 25, 34, 45.) At the pleading
stage, the FAC adequately alleges a basis for enhanced remedies and punitive
damages.
Reference to State
Regulators
Finally, Defendants move to strike
paragraph 30 of the FAC, which provides “[a]round this time, a staff member at
Glenhaven called Jackie and told her about her concerns for Ricardo because
Glenhaven was not allowing staff to wear masks. She begged Jackie to contact
the government regulators. Jackie called the Department of Public Health and
reported the situation.” (Mot. at 17:15-18:2; Reply at 7:4-14.)
Defendants cite California Health and
Safety Code section 1280(f), which provides “[i]n no event shall the act of
providing a plan of correction, the content of the plan of correction, or the
execution of a plan of correction, be used in any legal action or
administrative proceeding as an admission within the meaning of Sections 1220
to 1227, inclusive, of the Evidence Code against the health facility, its
licensee, or its personnel.”
This statute does not support
Defendants’ request to strike paragraph 30. The statute applies to a “plan of
correction, the content of the plan of correction, or the execution of a plan
of correction,” which is not part of the allegation at issue. Additionally, the
statute prevents use of the specified acts or information as admissions under
portions of the Evidence Code related to exceptions to the hearsay rule, not
references to government complaints in a pleading. Defendants’ argument lacks
merit and the Court shall not strike paragraph 30.
Defendants’ motion to strike is DENIED
in its entirety.