Judge: Monica Bachner, Case: 21STCV22114, Date: 2022-12-05 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV22114    Hearing Date: December 5, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant GHC of Upland, SNF, LLC, dba Heritage Park Nursing Center’s demurrer to first amended complaint of Plaintiffs Elisa Rister, individually and as successor-in interest to Herbert S. Rosenzweig, Michael Rosenzweig, Myra Rosenzweig, and Helen Schmidt is overruled.

Defendant GHC of Upland, SNF, LLC, dba Heritage Park Nursing Center’s motion to strike is denied.

A.   Demurrer

          Defendant GHC of Upland, SNF, LLC, dba Heritage Park Nursing Center (“Heritage”) (“Defendant”) demurs to the 1st (elder abuse) and 2nd (violations of resident’s rights) causes of action in the first amended complaint (“FAC”) of Plaintiffs Elisa Rister (“Rister”), individually and as successor-in interest to Herbert S. Rosenzweig (“Herbert”) (“Decedent”), Michael Rosenzweig (“Michael”), Myra Rosenzweig (“Myra”), and Helen Schmidt (“Schmidt”) (collectively, “Plaintiffs”). Defendant demurs on the grounds that the first cause of action is uncertain and the first and second causes of action fail to allege sufficient facts to constitute the causes of action.  (Notice of Demurrer, pg. 2; C.C.P. §§430.10(e), (f).)

This action arises out of the alleged injuries Decedent sustained while under the care of Defendant, a licensed 24-hour skilled nursing facility.  (FAC ¶¶8, 10.)  Plaintiffs allege Decedent was 65 years old had physical or mental limitations that restricted his ability to carry out normal activities, and was admitted to non-moving Defendant Casa Colina on April 25, 2020.  (FAC ¶¶19, 24.)  Plaintiffs allege that by May 9, 2020, Decedent had an unstageable pressure injury to his sacrum.  (FAC ¶29.)  Plaintiffs allege on May 28, 2020, Decedent was admitted to Defendant Heritage for skilled nursing care, and upon admission, Decedent’s sacral skin area was noted with an unstageable pressure injury for which a skin integrity care plan was initiated to prevent further skin breakdown.  (FAC ¶¶31, 32.)  Plaintiffs allege Defendant Heritage was on notice upon Decedent’s admission that Decedent had a poor appetite, and Defendant Heritage failed to initiate care plans related to Decedent’s poor appetite.  (FAC ¶¶33, 34.)  Plaintiffs allege Defendant Heritage’s staff failed to inspect Decedent’s skin for breakdown as required by his care plan on the following dates: May 30, 2020; June 3, 2020; June 6, 2020; June 7, 2020; June 9, 2020; June 11, 2020; June 12, 2020; June 14, 2020; June 15, 2020; June 16, 2020; June 18, 2020; and June 19, 2020.  (FAC ¶¶35, 40, 44, 46, 53-58, 60-61.)  Plaintiffs allege Defendant Heritage’s staff failed to ensure Decedent was receiving adequate fluids and nourishment to meet his intake needs on the following dates: June 1, 2020-June 7, 2020.  (FAC ¶¶37-39, 41-43, 45.)  Plaintiffs allege on June 7, 2020, Decedent suffered a fall while getting out of bed and suffered multiple contusions as a result of his fall; Plaintiffs allege after Decedent’s June 7 fall, Defendant Heritage failed to initiate any care plans relating to Decedent’s risk for falls.  (FAC ¶¶47-48.) Plaintiffs allege that by June 8, 2020, Decedent had a nine-pound weight loss from the previous week and was severely malnourished, and through Decedent’s discharge on June 22, 2020, Decedent continued to have poor appetite and lose weight.  (FAC ¶¶49, 50.)  Plaintiffs allege on June 8, 2020, Decedent suffered another fall, from which Decedent suffered soft tissue injuries.  (FAC ¶51.)  Plaintiffs allege on June 16, 2020, Decedent suffered another fall and was found face down on the floor mat in his room with his feet still on the bed, and Decedent suffered soft tissue facial injuries.  (FAC ¶59.)  Plaintiffs allege by June 19, 2020, Decedent’s sacral pressure injury had increased in size to 3.1 x 0.5 x 0.1 and was now a Stage III injury.  (FAC ¶62.)  Plaintiffs allege Decedent died on June 23, 2020.  (FAC ¶1.) 

Plaintiffs allege that as a result of Defendant Heritage’s deliberate understaffing, nursing staff’s failure to reposition Decedent at least every two hours and inspect Decedent’s skin twice a shift, Decedent’s unstageable pressure injury worsened in stage and size and as a result, and the nursing staff’s failure to monitor Decedent and provide adequate hydration and nourishment, Decedent endured extreme pain and suffering and an untimely death.  (FAC ¶¶65-67.)

On June 14, 2021, Plaintiffs filed their complaint. On May 11, 2022, Plaintiffs filed the operative FAC alleging three causes of action: (1) elder abuse, (2) violation of resident’s rights, and (3) wrongful death. On June 10, 2022, Defendant filed the instant demurrer and accompanying motion to strike. Plaintiffs filed their oppositions to the demurrer and motion to strike on November 18, 2022. Defendant declares Plaintiff failed to timely serve its oppositions on Defendant.  (Decl. of Karapetyan ¶¶4-6, Exh. A.)  The Court in its discretion will still consider Plaintiff’s oppositions.  Defendant filed its replies on November 28, 2022.

Summary of Demurrer

In support of its demurrer to Plaintiffs’ first and second causes of action, Defendant argues Plaintiffs’ FAC fails to satisfy the heightened pleading requirements associated with both statutory causes of action.  (Demurrer, pg. 1.)  Defendant argues Plaintiffs fail to allege sufficient facts that would show anyone at Defendant Heritage’s skilled nursing center engaged in conduct that constituted acts of egregious abuse directed at Decedent, and Plaintiffs do not allege sufficient facts showing corporate authorization or ratification.  (Demurrer, pg. 3.)  Defendant argues its demurrer to Plaintiffs’ second cause of action should be sustained because Plaintiffs failed to plead that Defendant violated any enumerated rights in 22 C.C.R. §72527 or any other right provided for by federal or state law or regulation.  (Demurrer, pg. 9.)  Defendant argues the 2nd cause of action is moot and therefore uncertain because by the time this matter is held, pursuant to Health and Safety Code §1430(b)(1)(A), Defendant will have tendered a check to Plaintiffs in the amount of $500 in accordance with the remedy provided in the statute.  (Decl. of Karapetyan ¶6.) 

Legal Standard

“[A] demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.”  (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562; see also 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.”].)

Failure to State a Claim

Elder Abuse (1st COA)

A cause of action for elder abuse includes the following elements: (1) plaintiff is an elder or dependent adult; (2) defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (3) defendant  knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (4) defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either: (i) with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice); or (ii) with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness); and (5) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407 [“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.”].)

Defendant argues Plaintiffs fail to allege sufficient facts that would show support the conclusory allegations of intentional wrongdoing or any facts which establish any specific willful, malicious, or reckless conduct by Defendant and the allegations sound only in negligence and are insufficient to state a cause of action for Elder Abuse.  (Mahoney v. Corralejo (1974) 36 Cal.App.3d 966, 973.)  Defendant argues Plaintiffs fail to plead with particularity the facts establishing the causal link between the abuse/neglect and the injury.  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)  Defendant argues Plaintiffs fail to allege facts showing an officer, director, or managing agent of Defendant acted “despicably in willful and conscious disregard for the rights or safety of others.”  (Romo v. Ford Motor Company (2002) 99 Cal.App.4th 1115, 1141.)  Defendant further argues Plaintiffs fail to allege facts showing ratification, authorization, or approval by any director, officer, or managing agent of Defendant.  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168.)

Plaintiffs allege sufficient facts to constitute a cause of action for elder abuse, and the facts are pled with particularity.  Plaintiffs sufficiently allege Decedent is an elder.  (FAC ¶19.) Plaintiffs sufficiently allege Defendant had care or custody of Decedent.  (FAC ¶20.)  Plaintiffs sufficiently allege that one or more of Defendant’s employees failed to use the degree of care a reasonable person in the circumstances would have used by failing to protect Decedent from health and safety hazards and failing to provide medical care for Decedent’s physical and mental health needs.  (FAC ¶21.)  Plaintiffs sufficiently allege Defendants’ employees’ conduct was a substantial factor in causing Decedent’s harm.  (FAC ¶¶31-70, 76-95.)  Plaintiffs sufficiently allege Defendant’s employees acted with recklessness, malice, oppression, or fraud.  (FAC ¶¶31-70, 76-95.)   Plaintiffs sufficiently allege an officer, director, or managing agent of Defendants ratified or authorized the employees’ conduct.  (FAC ¶¶13, 16, 31-70, 76-95.)  Plaintiffs have sufficiently pled allegations constituting Defendant’s neglect of Decedent: Defendant failed to provide Decedent medical care, failed to protect Decedent from health and safety hazards, failed to provide proper care planning, and failed to provide sufficient staff.  (FAC ¶¶12, 31-70, 76-89, 90, 91-95.)

Accordingly, Defendant’s demurrer to the 1st cause of action is overruled.

          Violation of Resident’s Rights (2nd COA)

Health and Safety Code §1430(b) provides that “a current or former resident or patient of a skilled nursing facility as defined in subdivision (c) of section 1250 . . . may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients’ Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.”  (Health & Saf. Code §1430(b)(1).)

Defendant argues Plaintiffs failed to plead that Defendant violated any enumerated rights in 22 C.C.R. §72527 or any other right provided for by federal or state law or regulation because Plaintiff only pleads conclusory allegations not based on specific facts.

Plaintiffs allege sufficient facts to plead a cause of action for violation of resident’s rights.  Plaintiffs sufficiently allege Defendant failed to prevent Decedent’s pressure injuries from worsening in stage and size while he was admitted to Defendant’s facility in violation of 22 C.C.R. §72527(a)(12).  (FAC ¶¶40, 44, 46, 53-58, 60-62, 100-102.)  Plaintiffs sufficiently allege Defendant understaffed Defendant’s facility in quality and quantity of staff in violation of 22 C.C.R. §72527(a)(25).  (FAC ¶¶65-67, 89.)  Plaintiffs sufficiently allege Defendant failed to keep Decedent’s pressure injuries free from infection in violation of 22 C.C.R. §72527(a)(25).  (FAC ¶¶65, 66, 84, 93.)  Plaintiffs sufficiently allege Defendant failed to provide the necessary care and services in accordance with Decedent’s plan of care in violation of 42 C.F.R. §483.25.  (FAC ¶¶31-34, 47-48.)  Plaintiffs sufficiently allege Defendant failed to prevent formation and progression of decubiti, contractures, and deformities in violation of 22 C.C.R. §72315.  (FAC ¶¶40, 44, 46, 53-58, 60-62.)

Accordingly, Defendant’s demurrer to the 2nd cause of action for failure to state a claim is overruled.

Uncertainty

Violation of Resident’s Rights (2nd COA)

“For violations that occurred prior to March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) and for costs and attorney’s fees, and may be enjoined from permitting the violation or violations to continue.”  (Health & Saf. Code §1430(b)(1)(A).)

Defendant argues its demurrer to Plaintiffs’ second cause of action should be sustained without leave to amend because it is moot.  Defendant argues that by the time this matter is held, pursuant to Health and Safety Code §1430(b)(1)(A), Defendant will have tendered a check to Plaintiffs in the amount of $500 in accordance with the remedy provided in the statute.  (Decl. of Karapetyan ¶6.)  Plaintiff does not dispute Defendants tendered the full remedy for this cause of action. However, given that the statute also provides for injunctive relief, it is not moot

Accordingly, Plaintiffs’ 2nd cause of action for violation of resident’s rights is moot, and Defendant’s demurrer to Plaintiffs’ 2nd cause of action for uncertainty is overruled.

B.   Motion to Strike

Defendant moves to strike portions of the FAC.  Defendant moves to strike the following paragraphs from of the FAC on the grounds they assert factually unsupported, conclusory requests for punitive damages; fail to allege facts for allegations of oppression, fraud, or malice; fail to allege sufficient facts to show Defendant’s officer, director, or managing agent were involved; impermissibly seek to recover attorneys’ fees; impermissibly seek general damages under Welfare and Institutions Code §15657 and C.C.P §377.34; and improperly reference the Department of Public Health: (1) ¶13; (2) Prayer ¶1, Line 17; (3) Prayer ¶3, Lines 19-20; (4) Prayer ¶4, Lines 21-22; and (5) Prayer ¶5, Lines 23-24.  (Notice of MTS, pg. 2.)

Meet and Confer

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (C.C.P. §435.5(a).)

Pursuant to C.C.P. §435.5, parties met and conferred by telephone on June 2, 2022, regarding Defendant’s intention to file the instant motion to strike and did not reach an agreement.  (Decl. of Karapetyan ¶5.)

Legal Standard

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (C.C.P. §437.)  Conclusory allegations will not be stricken where they are supported by other, factual allegations in the complaint. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [“The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” (Citations.)].)

Punitive Damages

Civil Code §3294(a), governing punitive damages, provides: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

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(c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., §3294(c)(2).) “Fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., §3294(c)(3).)

“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.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; accord Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17.)  Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

“Ratification . . . may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee’s actions by the corporate agent. Such ratification may be inferred from the fact that the employer, after being informed of the employee’s actions, does not fully investigate and fails to repudiate the employee’s conduct by redressing the harm done and punishing or discharging the employee.”  (Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 801.)

Plaintiffs’ allegations for punitive damages in the first cause of action state,

[Defendant] HERITAGE’s neglect of [Decedent] was reckless, oppressive, and malicious. Specifically, the individuals who cared for [Decedent] knew that taking the necessary precautions to prevent him from incurring avoidable falls, dehydration, malnourishment, and worsening pressure injuries, was critical to his health, well-being, and prognosis. By failing to address [Decedent]’s patient care issues, [Defendant] HERITAGE knew that it was highly probable that he would suffer injury and they knowingly disregarded that risk.

. . .

DEFENDANTS’ neglect of [Decedent] was reckless, oppressive, and malicious. Specifically, the individuals who cared for [Decedent] knew that taking the necessary precautions to prevent him from incurring avoidable pressure injuries, was critical to his health, well-being, and prognosis. By failing to address [Decedent]’s patient care issues, DEFENDANTS knew that it was highly probable that he would suffer pressure injuries and infections and they knowingly disregarded that risk.

(FAC ¶¶77, 85.)

Defendant argues Plaintiffs’ request for punitive damages in their prayer section and claims throughout their complaint alleging Defendant’s conduct was despicable, malicious, and oppressive should be stricken because they are factually unsupported and insufficient to show that Defendant acted with a “deliberate disregard for the high degree of probability that an injury will occur.” (See Delaney v. Baker (1999) 20 Cal.4th 23, 31.)  Defendant argues Plaintiffs fail to allege facts showing Defendant intended to cause Decedent’s alleged injuries, acted despicably with a willful and conscious disregard of his rights, or intentionally misrepresented a material fact. (MTS, pg. 3.)  Defendant further argues Plaintiffs have not pled any facts to show an officer, director, or managing agent had advance knowledge of the unfitness of any employee who engaged in recklessness, malice, oppression, or fraud.  (MTS, pg. 5.)

Defendant is not entitled to a motion to strike Plaintiffs’ requests for punitive damages because Plaintiffs have pleaded the ultimate facts showing an entitlement to such relief.  Plaintiffs allege Defendant’s employees “who cared for [Decedent] knew that taking the necessary precautions to prevent [Decedent] from incurring avoidable falls, dehydration, malnourishment, and worsening pressure injuries, was critical to his health, well-being, and prognosis. By failing to address [Decedent]’s patient care issues, [Defendant] knew that it was highly probable that Decedent would suffer injury and [Defendant] knowingly disregarded that risk.”  (FAC ¶77; Sababin v. Covina Rehabilitation Center (2006) 144 Cal.4th 81, 90 [“A trier of fact could find that when a care facility’s employees ignore a care plan and fail to check the skin condition of a resident with Huntington’s chorea, such conduct shows deliberate disregard of the high probability that she will suffer injury”].)  Plaintiffs’ allegations that Defendant’s failure “to address [Decedent]’s patient care issues, [demonstrated] DEFENDANTS knew that it was highly probable that [Decedent] would suffer pressure injuries and infections and they knowingly disregarded that risk” are adequate to allege punitive damages against Defendant.  (FAC ¶85.)  Further, Plaintiff alleges Defendant enacted, established, and implemented a financial plan and scheme which led to its facilities being understaffed, both in number and training, by way of imposition of financial limitations on its facilities.  (FAC ¶¶13, 14, 15, 17, 31-70, 76-95; see McInerney v. United Railroads of San Francisco (1920) 50 Cal.App. 538, 549.)

Based on Plaintiffs’ sufficient pleading of punitive damages, Plaintiffs are also entitled to attorney’s fees pursuant to Welfare & Institutions Code §§15657(a), (c), and Civil Code §3294(b).  Further, Plaintiffs are also entitled to general damages under Welfare & Institutions Code §§15657(b), (c), and C.C.P. §377.34.

“Irrelevant,” “False,” or “Improper” References

Falsity of allegations must appear on the face of the pleadings or form matters judicially noticed.  (C.C.P. §436.)  If falsity can be proven only by reference to extrinsic evidence, there is no ground for a motion to strike. (See Garcia v. Sterling (1985) 176 Cal. App. 3d 17, 21.)

Defendant argues Plaintiff’s references to the California Department of Public Health (“CDPH”) are improper.  (MTS, pg. 7, citing Health & Safety Code §1280(f).)  Defendant further argues Plaintiff’s references to surveys or deficiencies allegedly cited by CDPH consist of the opinions of layperson State surveyors, who apply their own interpretation of Title 22 of the California Code of Regulations to the contents of medical records, interviews with facility staff and third parties, consultant reports, and intra-departmental consultation, and essentially proffers lay opinions and asserts them as though they are settled fact and law to establish wrongful conduct on the part of the Defendant.

The falsity of Plaintiff’s references to the CDPH do not appear on the face of the pleading.  (C.C.P. §436.)  

Accordingly, Defendant’s motion to strike is denied.

Dated:  December ____, 2022

Hon. Monica Bachner

Judge of the Superior Court