Judge: Peter A. Hernandez, Case: 21STCV12166, Date: 2022-09-21 Tentative Ruling

Case Number: 21STCV12166    Hearing Date: September 21, 2022    Dept: O

 

1.         Defendant Oak Park Manor, LP’s Demurrer to the Plaintiffs’ First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

 

2.         Defendant Oak Park Manor, LP’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED as moot in part (i.e., as to general damages, attorney’s fees and punitive damages) and otherwise DENIED (i.e., as to costs of suit and pre-judgment and post-judgment interest).

 

3.         Defendants GT Madison Realty, LLC’s and Madison Realty Equities, LLC’s Motion to Strike Portions of First Amended Complaint is TAKEN OFF-CALENDAR.

Background   

Plaintiffs Janet Marshall (aka Janith Marshall), by and through her Successor in Interest, Christine Evans, Christine Evans, Bruce Marshall, Jeffrey Marshall and Mary Michelle Smith (“Plaintiffs”) allege as follows: Janet Marshall (“Janet”) was a patient at Oak Park Manor from April 12, 2015 until June 8, 2019. Janet died on June 8, 2019 as a result of deficiencies in care.

On August 10, 2021, this action was transferred from the Department 31 of the Personal Injury Court to Department R. On September 1, 2021, this action was transferred from Department R to this instant department.


On March 25, 2022, Plaintiffs filed a First Amended Complaint, asserting causes of action against Oak Park Manor, LP (“Oak Park Manor”), GT Madison Realty, LLC (“GT Madison”), Madison Realty Equities, LLC (“MRE”), Nominal Defendant Monica Marshall and Does 1-100 for:

 

1.               Elder Abuse/Neglect (Welf & Inst. Code Sections 15600, et seq.)

2.               Negligence/Negligence Per Se

3.               Negligence

4.               Wrongful Death

 

A Trial Setting Conference is set for September 21, 2022.

 

1.         Defendant Oak Park Manor’s Demurrer

Legal Standard

A demurrer may be made on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Oak Park Manor demurs, pursuant to Code of Civil Procedure § 430.10, subdivision (e), to the first and fourth causes of action in Plaintiffs’ FAC, on the basis that they both fail to state facts sufficient to constitute causes of action.

Merits

1.                  First Cause of Action (i.e., Elder Abuse/Neglect (Welf & Inst. Code Sections 15600,

et seq.)

 

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”). (Welf. & Inst. Code § 15600 et seq.)

 

At the outset, the EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers. (Delaney v. Baker (1999) 20 Cal.4th 23, 32; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785.) Several factors “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 needs; 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 [quotation marks and citations omitted].) Neglect under the EADACPA “refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89 [quotation marks and citation omitted].)

 

Moreover, “[i]n order to obtain the [EADACPA’s] heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf & Inst. Code, § 15657 [requiring ‘clear and convincing evidence that a defendant is liable for’ elder abuse and ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse’] with Civ. Code, § 3294, subd. (a) [requiring ‘clear and convincing evidence’ that the defendant has been guilty of oppression, fraud or malice].)” (Covenant Care, supra, 32 Cal.4th at 789.) When an elder abuse claim is brought against a corporate defendant, the plaintiff must further show that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welf & Inst. Code, § 15657, subd. (c); Civ. Code, § 3294.)

 

The court determines that Plaintiffs have failed to plead a cause of action for elder abuse. Plaintiffs have failed to plead with specificity facts demonstrating that Oak Park Manor failed to provide care to Plaintiffs’ decedent “either with knowledge that injury was substantially certain to befall the elder or dependent adult . . . or with conscious disregard of the high probability of such injury. . .” (Carter, supra, 198 Cal.App.4th at 407.) The FAC fails to specify how any act or omission by Defendant constituted anything beyond negligence.

Plaintiff’s FAC alleges, in relevant part, as follows:

Plaintiffs’ decedent was admitted to Oak Park Manor on April 12, 2015. (FAC, ¶ 28.) On an unknown date and time, decedent’s head was observed stuck in the side rail of her bed. (Id., ¶ 30.) On June 7, 2018, decedent’s daughter complained that decedent’s knee appeared broken or dislocated, which Plaintiffs conclude, without more, evidenced “rough handling” by staff. (Id., ¶ 31.) In or around February 2019, decedent developed a rash from a scabies infection, which remained unresolved through June 2019. (Id., ¶¶ 32-34, 37, 39-48.) Plaintiffs conclude that Defendants “had actual or constructive knowledge” of the scabies infection and “negligently, recklessly, or willfully concealed [same] from [decedent’s physician and family].” (Id., ¶ 33.) Plaintiffs, however, have also pled that decedent’s doctor ordered triamcinolone 0.1% (corticosteroid) ointment for skin rashes on March 7, 2019, that staff disinfected and refreshed decedent’s bedding on March 25, 2019, that another treatment order was obtained from decedent’s physician on April 12, 2019 and that on May 7, 2019, decedent was scheduled to undergo a skin scrape for a skin culture. (Id., ¶¶ 33, 36, 38 and 42.)

Plaintiffs fail to allege facts reflecting that Defendant’s staff did not treat decedent’s skin condition, or that staff provided treatment in an abusive manner. On March 20, 2019, decedent sustained a skin tear to the left elbow which, again, Plaintiffs summarily claim was caused by “rough handling by Defendants’ staff.” (Id., ¶ 35.) On May 5, 2019, the nurse had to provide peri care, because decedent had a bowel movement smear. (Id., ¶ 41.) On June 8, 2019, decedent was actively dying. (Id., ¶ 49.) Decedent died later that day. (Id., ¶ 50.) Following decedent’s death, several members of decedent’s family developed scabies. (Id., ¶ 51.)

Further, Plaintiffs’ claim of concealment is not sufficiently pled, inasmuch as the FAC alleges that the family and decedent’s physician were advised of/were aware of decedent’s rash. (Id., ¶¶ 32, 33, 37, 38, 40, 41 and 43-45).

Plaintiffs also rely on allegations of inadequate staffing to establish liability for Elder Abuse. Defendant argues that Plaintiffs’ allegations are insufficient pursuant to Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331. In Worsham, a former resident of O’Connor Transitional Care Unit (“TCU”) sued TCU after falling and breaking her arm and hip. TCU demurred to the Elder Abuse cause of action in plaintiff’s Second Amended Complaint (“SAC”), which the trial court sustained without leave to amend, on the basis that “ ‘[a]lthough [Ms. Worsham] alleges [O’Connor] acted recklessly by deliberately understaffing and undertraining, [Ms. Worsham] has not sufficiently supported the allegations with particular facts.” (Id. at 335.)

 

The Sixth District Court of Appeal, in affirming the trial court’s judgment, noted that the SAC alleged that TCU was required to maintain specific staff-to-patient ratios to address the needs of patients and to ensure compliance with state and federal law, that TCU was chronically understaffed and did not adequately train the staff it did have, that TCU was aware that plaintiff had a risk of falling, that TCU failed to have the proper staffing in place to prevent plaintiff’s fall and that, as a result of TCU’s insufficient staffing, plaintiff suffered a fall that resulted in a broken arm and hip. Nevertheless, the Court of Appeal concluded that “[t]he allegations . . . are not sufficient to render O’Connor’s conduct in failing to provide adequate staffing anything more than professional negligence. The allegations, if true, demonstrate O’Connor’s negligence in the undertaking of medical services, not a ‘fundamental “[f]ailure to provide medical care for physical and mental health needs.’” (Id. at 338, quoting Delaney, supra, 20 Cal.4th at 34 (emphasis theirs).)

 

Like Worsham, here, Plaintiffs are claiming without factual support that Defendant was understaffed and that the understaffing resulted in harm.

 

Finally, Plaintiffs’ allegations regarding corporate authorization or ratification are fact-barren.

Accordingly, Oak Park Manor’s demurrer to the first cause of action is sustained.

2.                  Fourth Cause of Action (i.e., Wrongful Death)

The elements of a cause of action for wrongful death are (1) a “wrongful act or neglect” on the part of one or more persons that (2) “cause[s]” (3) the “death of [another] person.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 390; Code Civ. Proc., § 377.60.)

Plaintiffs have not pled a causal connection between Oak Park Manor’s alleged misconduct and decedent’s death.

Oak Park Manor’s demurrer to the fourth cause of action is sustained.

 

2.         Defendant Oak Park Manor’s Motion to Strike

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

 

Discussion

Oak Park Manor moves the court for an order striking out the following portions of Plaintiffs’ FAC:

1.                  Page 23, line 18 (i.e., general damages);

2.                  Page 23, lines 20-21 (i.e., attorney’s fees and costs per Welfare & Institutions Code § 15657(a))

3.                  Page 23, line 22 (i.e., pre-judgment and post-judgment interest);

4.                  Page 23, line 23 (i.e., punitive damages); and

5.                  Page 23, line 24 (i.e., costs of suit).

At the outset, the motion is denied as moot in part (i.e., as to general damages, attorney’s fees and punitive damages), based on the ruling made on the demurrer. The motion is otherwise summarily denied (i.e., as to costs of suit and pre-judgment and post-judgment interest), inasmuch as Defendant fails to set forth any legal or factual basis for these requests.

3.         Defendants GT Madison’s/MRE’s Motion to Strike

 

Discussion

The instant motion was filed on April 26, 2022. On May 19, 2022, the court granted Chiao & Wu, LLP’s motion to be relieved as counsel for GT Madison and MRE. Since that time, GT Madison and MRE have failed to obtain new counsel.

“[A] corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)

The instant motion is taken off-calendar on this basis.