Judge Peter A. Hernandez, Case 21STCV35442 2022-08-16 Tentative Ruling

1. Defendant Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center’s Demurrer to 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 Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is GRANTED in part (i.e., as to the third request), DENIED in part (i.e., as to the second and fourth requests) and DENIED as MOOT in part (i.e., as to the first and fifth through tenth requests).

3. Defendant Kaiser Foundation Hospitals dba Southern California Permanente Medical Group’s and Kaiser Foundation Health Plan’s Demurrer to 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.

4. Defendant Kaiser Foundation Hospitals dba Southern California Permanente Medical Group’s and Kaiser Foundation Health Plan’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED as MOOT.

Plaintiffs Tammy Denney and Dyanna Denney, as heirs and successors-in-interest to Janice Larcom, decedent (“Plaintiffs”) allege as follows:

On April 15, 2020, Janice Larcom (“Larcom”) was discharged from Kaiser’s Fontana Medical Center to Inland Valley Care and Rehabilitation Center. Larcom died on September 26, 2020 as a result of deficiencies in care.

On February 16, 2022, this case was transferred from Department 29 of the Personal Injury Court to this instant department.

On May 9, 2022, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants Inland Valley Care and Rehabilitation Center, Inland Valley Partners, LLC, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Inc., Kaiser Foundation Health Plan and Does 1-50 for:

A demurrer may be made on the grounds that the pleading, inter alia, 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].)

Defendant Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center (“Inland Valley”) demurs, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the second cause of action in Plaintiffs’ FAC, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.

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 alleged that decedent was hospitalized at Kaiser; no specified time or reason for said hospitalization is given. (FAC, ¶ 10.) On April 15, 2020, decedent was discharged from Kaiser’s Fontana Medical Center to Inland Valley. (Id.) Decedent was 69 years old, morbidly obese, ventilator-dependent and required full assistance with her activities of daily living. (Id.) Decedent was admitted to Inland Valley for treatment, care, and therapy required to wean her off the ventilator. (Id., ¶ 10.) Decedent had “existing” wounds in the sacral area and around her abdomen. (Id., ¶¶ 12 and 36.) Inland Valley staff left decedent to lie for hours in her own feces, did not bathe or shower her and did not turn and re-position her (Id.) No information is alleged as to when these alleged failures occurred or the frequency with which they occurred. Decedent’s pressure sores became worse, with one becoming unstageable. (Id.) Decedent’s pressure sores became infected, which led to sepsis and resulted in decedent’s death. (Id.)

Plaintiffs have further generically alleged that “on numerous occasions during her admission and residency at Defendant INLAND VALLEY’s facility, Ms. Larcom suffered from abuse, neglect and other preventable complications and injuries. Moreover, on numerous occasions during her admission, Defendant INLAND VALLEY, and its managing agents, officers, directors and others that direct corporate affairs, failed to provide Ms. Larcom medically necessary care, medication, nutrition, hydration, physical therapy, occupational therapy and other rehabilitative services. In addition, on numerous occasions during her admission and residency at Defendant INLAND VALLEY’s facility, Defendant INLAND VALLEY, and its managing agents, officers, directors and others that direct corporate affairs, failed to monitor Ms. Larcom for changes in her condition, failed to properly document and report changes in her condition, and otherwise failed to supervise and prevent harm to Ms. Larcom.” (FAC, ¶ 33.)

Plaintiffs have failed to plead with specificity facts demonstrating that Inland Valley 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.) Plaintiffs have made generic allegations of “understaffing,” “underfunding” and “ignor[ing] laws,” “disregard” for decedent’s “care plan(s),” “disregard[ ] [of] orders,” and “disregard[ ] [of] its own policies and procedures,” without providing any specific facts regarding same. Further, Plaintiffs have failed to plead any causal link with specificity. Plaintiffs have failed to plead with specificity facts demonstrating the alleged corporate authorization or ratification of any wrongful conduct.

Accordingly, Inland Valley’s demurrer to the second cause of action is sustained.

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.)

Inland Valley moves the court for an order striking out the following portions of Plaintiffs’ FAC:

1. Page 10, lines 4-6 (i.e., “failing to report incidents and issues to the Department of Health Services for the purposes of concealing their neglect and abuse of Ms. Larcom and others”);

At the outset, the motion is denied as moot as to Inland Valley’s first and fifth through tenth requests, based on the ruling made on the demurrer.

The motion is summarily denied as to Inland Valley’s fourth request, inasmuch as Inland Valley does not explain why Plaintiffs’ request for costs of suit is “irrelevant, false, or improper.” The motion is further summarily denied as to Inland Valley’s second request, inasmuch as Inland Valley does not explain why Plaintiffs would not be entitled to general damages on their first cause of action. Inland Valley’s discussion on general damages is limited to Welfare & Institutions Code § 15657, which pertains only to the second cause of action.

Plaintiffs do not address Inland Valley’s contention that they may not recover pre-judgment interest[2]. Accordingly, the motion is granted as to the third request.

Kaiser Foundation Hospitals dba Southern California Permanente Medical Group and Kaiser Foundation Health Plan (hereinafter collectively, “Kaiser Defendants”) demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the second cause of action in Plaintiffs’ FAC, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.

The Kaiser Defendants’ demurrer is sustained, for the same reasons as set forth in the analysis on Demurrer #1. Plaintiffs have alleged that decedent was discharged by the Kaiser Defendants from its Fontana Medical Center to Inland Valley on April 15, 2020 (FAC, ¶ 10). The allegations directed against the Kaiser Defendants (specifically, ¶¶ 13, 22-25 and 35) have not been pled with the specificity required for an elder abuse claim.

The Kaiser Defendants’ motion to strike is denied as moot, based upon the ruling made on the demurrer.

[1] Demurrer #1 and Motion to Strike #1 were filed (and served via email) on June 8, 2022 and set for hearing on August 11, 2022. Demurrer #2 and Motion to Strike #2 were also filed (and served via email) on June 8, 2022, but were set for hearing on August 16, 2022. On June 9, 2022, a “Notice Re: Continuance of Hearing and Order” was filed, wherein the August 11, 2022 hearing scheduled for Demurrer #1 and Motion to Strike #1 was continued to August 16, 2022; notice was given to all counsel.

[2] Inland Valley cites to Civil Code § 3288 (i.e., “[i]n an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.”)