Judge: Peter A. Hernandez, Case: 21STCV30753, Date: 2022-10-13 Tentative Ruling
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Case Number: 21STCV30753 Hearing Date: October 13, 2022 Dept: O
1. Defendants,
Ramona Care, Inc. dba Ramona Nursing & Rehabilitation Center’s, NAHS
Southeast, Inc.’s and Maria Wilson’s Demurrer to Plaintiffs’ Second Amended
Complaint is SUSTAINED, without leave given to amend.
2. Defendants, Ramona Care, Inc. dba Ramona Nursing & Rehabilitation Center’s, NAHS Southeast, Inc.’s and Maria Wilson’s Motion to Strike Plaintiffs’ Second Amended Complaint is DENIED as MOOT.
Background
Plaintiffs, Maggie Winston (“Maggie”), deceased, by and through her personal legal representative and successor in interest, Angela Love and Angela Love, individually (“Plaintiffs”) allege as follows:
Maggie was admitted to the Ramona Nursing & Rehabilitation Center
(“RNRC”) in October 2019 for long term care. On June 16, 2020, Maggie tested
positive for COVID-19. Maggie was subsequently transported to the hospital.
Maggie died on July 8, 2020.
On November 19, 2021, this case was transferred from Department 32 of the Personal Injury Court to this instant department.
A Case Management Conference is set for October 13, 2022.
Legal Standard
A demurrer may be made on the grounds that, inter alia, the pleading does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)
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
Defendants demur, per Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first and second causes of action in Plaintiffs’ FAC, on the basis that they both fail to state facts sufficient to constitute causes of action and are uncertain.
First Cause of Action (i.e., Elder Abuse and Neglect (Welf. & Inst. Code, § 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 Defendants denied or withheld good
or services necessary to meet Plaintiffs’ decedent’s basic needs, “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.)
Plaintiffs have alleged that Defendants “denied and withheld basic care” to Maggie “by failing to assess and reassess [her] condition, update individualized care plan(s), and monitor her condition to see whether she was improving, or worsening” (Id., ¶ 80). Plaintiffs have alleged that Defendants “failed to provide [her] with the care and treatment she needed, failed to ensure adequate nutritional and fluid intake, promote and maintain personal hygiene, and monitor and manage her pain levels” (Id., ¶ 81). Plaintiffs have alleged that Defendants “failed to monitor, assess, and reassess [her] deteriorating condition and to report her changes of condition to her physician and/or family to arrange for a higher level of care.” (Id., ¶ 82.) The aforesaid allegations are unchanged from the FAC. Plaintiffs have also alleged that Defendants failed to properly staff the facility, failed to properly train, monitor or supervise the staff and designed RNRC’s operation “so as to maximize profitability.” (Id., ¶¶ 32, 68, 74, 75, 83-89, 91-97, 99, 102, 108, 111 and 113.) The foregoing allegations, however, were set forth in the FAC and are not supported by specific facts. Plaintiffs have alleged in a conclusory manner that Maggie suffered injury or harm purportedly as a result of result of Defendants’ improper acts or omissions, again without offering any factual support.
Plaintiffs have also alleged that (1) “Defendants failed to screen all staff members for COVID-19 signs and symptoms by not taking the temperature of the staff at the start and end of shift[s]” (SAC, ¶ 69), (2) a resident was not moved to a designated “yellow zone” after exhibiting signs and symptoms of COVOID-19 due to a lack of rooms set up for the “yellow zone;” (Id., ¶ 70); (3) Defendants allowed LVNs to take care of both COVID-19 positive COVID-19 negative residents (Id., ¶ 77) and that (4) COVID-19 positive residents were isolated in their room even if their roommate was not COVID positive (Id., ¶ 78.). Plaintiffs, however, have failed to offer up any specific facts in support of these allegations.
Accordingly, Defendants’ demurrer to the first cause of
action is sustained.
Health & Safety Code § 1430, subdivision (b) allows a current or former resident or patient to sue the licensee of a facility that “violates any rights” set forth in the Patients Bill of Rights (Cal. Code Regs., tit. 22, § 72527.) Since a Health & Safety Code § 1430 cause of action is a statutory claim, it must be pled with particularity.
Plaintiffs’ allegations are conclusory and not factually supported.
Defendants’ demurrer to the second cause of action is sustained.
2. Motion to Strike
Based upon the ruling made on the demurrer, the motion to strike is denied as moot.