TENTATIVE RULING

 

Calendar:    5

Date:          8/5/2022 

Case No: 21 GDCV01143 Trial Date: None Set 

Case Name: Yadegarian v. Glendale Post-Acute Center, et al.

DEMURRER

MOTION TO STRIKE

Moving Party:            Defendants Glendale Post-Acute Center and LAC Verdugo 

Operations, LLC      

Responding Party: Plaintiffs Loris Yadegarian and Gilda Yadegarian, individually 

and as successors in interest           

RELIEF REQUESTED:

Sustain demurrer to first, third and fourth causes of action of First Amended Complaint  

Strike punitive damages, elder abuse, references to public health department    

CAUSES OF ACTION: from First Amended Complaint  

1) Elder Abuse/Neglect 

2) Wrongful Death 

3) Statutory Violations/Breach of Resident Rights 

4) NIED 

SUMMARY OF FACTS:

Plaintiffs Loris Yadegarian and Gilda Yadegarian bring this action individually and as the surviving heirs of their father, decedent John Yadegarian, alleging that decedent suffered from Parkinson’s disease and dementia and that after a hospitalization when decedent’s condition had stabilized, decedent was admitted to defendant Glendale Post-Acute Center, a facility owned, operated, or managed by defendant LAC Verdugo Operations, LLC. 

The First Amended Complaint alleges that during decedent’s residency at the facility, decedent was not provided with the minimum care mandated by federal and state nursing home laws, and care and services were routinely withheld from him.  The FAC alleges that defendants failed to provide care to prevent the development and progression of decubitus pressure ulcers, but consistently left decedent lying in bed for long periods of time ignoring his needs, and on frequent occasions left him lying in his own excrement or urine-soaked diapers for excessively long periods, and failed to notify decedent’s physician when ulcers first occurred, and when treatment given was not effective, so that at the time of decedent’s final discharge from the facility, he was suffering from stage 3 and stage 4 pressure ulcers.

It is also alleged, among various failings, that defendants failed to provide even the minimum amount of nutrition and hydration to decedent, as a result of which he became increasingly malnourished and dehydrated, that defendants failed to assist decedent with personal hygiene and dignity, resulting in severe emotional distress, embarrassment and physical discomfort, and that defendants overmedicated decedent to keep him from voicing complaints or requiring assistance or supervision of staff.   The FAC alleges that the acts, omissions and conduct of defendants also caused or contributed to decedent’s death in November of 2021.

ANALYSIS:

Demurrer 

First Cause of Action—Elder Abuse/Neglect 

Defendants argue that the FAC fails to sufficiently allege conduct which constitutes elder abuse. 

Welfare & Institutions Code §15657, provides for heightened remedies to an elder or dependent adult: 

“Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse…”

Under Section 15610.57, “neglect” is defined as follows:

“(a) "Neglect" means either of the following:

  (1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(Emphasis added).

Defendants argue that the FAC fails to sufficiently allege neglect, alleging only negligence.   

Defendants rely on Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, in which the court of appeal affirmed the trial court’s sustaining of a demurrer, without leave to amend, of a hospital’s demurrer to claims for elder abuse, willful misconduct and wrongful death, where the allegations were that plaintiff’s decedent developed pneumonia and pressure ulcers after the hospital transferred him to a nursing facility, decedent was twice readmitted to the hospital for treatment of these conditions and died the second time. 

It was also alleged that the hospital did not give decedent lifesaving medications, despite records stating the contrary, and failed to properly stock a crash cart, as a result of which those treating him could not locate a common size endotracheal tube and intubate him in time to save his life.  

The court of appeal set forth several examples of cases in which conduct had been sufficiently egregious to warrant an award of enhanced remedies for Elder Abuse, and set forth the following factors which must be present for conduct to qualify as Elder Abuse:

“From the statutes and cases discussed above, we distill several 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 (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney, supra, 20 Cal.4th at p. 34); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin, supra, 144 Cal.App.4th at pp. 85, 90;Benun, supra, 123 Cal.App.4th at p. 116; Mack, supra, 80 Cal.App.4th at pp. 972–973); 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) (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b), 15657; Covenant Care, supra, 32 Cal.4th at pp. 783, 786; Delaney, at pp. 31–32). 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. (Welf. & Inst. Code, §§ 15610.07, subds. (a), (b), 15657; Perlin, supra, 163 Cal.App.4th at p. 664; Berkley, supra, 152 Cal.App.4th at p. 529.) 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. (Covenant Care, at p. 790.)”

Carter, at 406-407. 

The pleading here alleges in detail that defendants neglected decedent, leaving him lying in his own excrement and urine-soaked diapers so that he developed pressure ulcers which were untreated for so long that they became severely infected and ate through multiple layers of soft tissue, exposing deep muscle tissue and bone.  [FAC, paras.  7-15].   It is specifically alleged that defendants failed to prevent malnutrition and dehydration, resulting in a severe loss weight of 11% of decedent’s total body weight in one month, and that defendants failed to address the issue after being cited by the California Department of Public Health.  [FAC, paras. 18-21].  This is more than sufficient to allege the statutory conditions of neglect with sufficient factual particularity.  

Moreover, as argued in the opposition, the court of appeal in Carter found the demurrer of the hospital had been properly sustained, in part because the egregious conduct alleged in that matter was conduct which had not been engaged in by the hospital, but by the skilled nursing facility, which conduct is similar to that alleged on the part of defendants here:

“The only acts and omissions listed in these “counts” that arguably are sufficiently egregious to constitute elder abuse—abandoning and isolating Grant in the shower; not drying him after bathing; not providing sufficient fluids for proper hydration; and not treating the pressure ulcers on his lower back and buttocks, resulting in sepsis (see Welf. & Inst.Code, § 15610.07, subd. (a) [abuse includes abandonment and isolation]; id., § 15610.57, subd. (b)(1), (2), (4) [neglect includes failure to assist with hygiene, provide medical care or prevent dehydration])—are attributable exclusively to the Center.

Carter, at 409-410, emphasis added.

The cause of action here also additionally alleges physical abuse under the statute. 

Under Welfare & Institutions Code § 15610.63:

“"Physical abuse" means any of the following:

 (a) Assault, as defined in Section 240 of the Penal Code.

 (b) Battery, as defined in Section 242 of the Penal Code.”

Section 15610.63 defines “Physical abuse” to include “(d) Unreasonable physical constraint, or prolonged or continual deprivation of food or water.”

The pleading alleges that staff withheld food and hydration, and used unreasonable restraints, and used chemical restrains or psychotropic medication for purposes not authorized by decedent’s physician.  [FAC, para. 67].  The elder abuse claim is sufficiently stated.  

Defendants also argue that the pleading fails to sufficiently allege that the alleged elder abuse was engaged in or authorized or ratified by an officer, director, or managing agent of a corporate defendant. 

Under Welfare & Institutions Code section 15657(c); 

 (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.”

Civil Code sec. 3294(b) requires that a plaintiff seeking punitive damages against a corporation must show such wrongful conduct by managing personnel of the corporation:

“An employer shall not be liable for [exemplary]...damages based upon acts of an employee of the employer, unless the employer...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, or ratification of an act of oppression, fraud or malice must be on the part of an officer, director or managing agent of the corporation. “

 Civ. Code sec.  3294(b).  

The pleading here alleges numerous acts undertaken directly by the management of defendants, including retaining decedent in the facility knowing it did not have sufficiently qualified staff to provide care, failing to provide training to nursing staff, and failure to comply with nursing home laws as a corporate wide strategy.   [FAC, paras. 47, 59, 60].  The pleading also includes an allegation that the acts of elder abuse were “authorized, ratified, assisted and encouraged” by defendants.   [FAC, para. 72].  The demurrer is overruled on this ground. 

The demurrer also argues that the FAC fails to sufficiently allege elder abuse against defendant LAC Verdugo Operations, LLC, as the pleading fails to allege that LAC Verdugo has a substantial caretaking or custodial relationship with plaintiff.  

Defendant relies on Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, in which the California Supreme Court found that the trial court had properly sustained without leave to amend a demurrer to an Elder Abuse cause of action, where the allegations were that defendant health care provider, delivering care on an outpatient basis, had failed to refer an elder patient to a specialist.  

This situation is not a case where any defendant was treating decedent on an outpatient basis or did not have a custodial relationship with decedent.  The pleading here alleges that defendant LAC Verdugo Operations, LLC “owned, administrated, operated, and managed” the facility, and was a licensee of the facility.  [FAC, para. 54].  This allegation must be accepted as true for purposes of demurrer.   As discussed above, the FAC alleges facts establishing that defendants, through operation of the facility, assumed a traditional caretaking and custodial relationship with decedent.  

The demurrer on this ground is overruled.  The cause of action for elder abuse is sufficiently stated, and the demurrer to this cause of action is overruled. 

Third Cause of Action—Statutory Violations/Breach of Resident Rights 

Defendants argue that the cause of action is moot because the Health and Safety Code section at issue, section 1430(b)(1)(A) provides that for any alleged violations that occurred prior to March 1, 2021, which is the case in this instance, “the licensee shall be liable for up to five hundred dollars ($500) for each violation, and for costs and attorney’s fees…”  Defendants argue that this cause of action will no longer be at issue because by the time of the hearing, defendants will have tendered a check to plaintiff in the amount of $500. 

This argument is not the proper subject of a demurrer, as there is nothing in the pleading which suggests that defendants have paid the maximum recoverable penalty, and nothing which is subject to judicial notice which would suggest such a circumstance. 

Under CCP § 430.30(a), an objection to a pleading may be taken by a demurrer "[w]hen any ground for objection to a complaint...appears on the face thereof, or from any matter of which the court is required to or may take judicial notice…."  

Moreover, as argued in the opposition, even if there is a check in the amount of $500 tendered, that would not render the claim moot, as plaintiffs are also entitled to their costs and attorney fees.   The demurrer on this ground is overruled.  

Defendants then argue that the pleading fails to plead facts in support of a violation of any one of the 26 specific rights listed in the relevant regulations.  

Defendants concede that the pleading identifies by number and subject matter several of the regulations and allege that defendants failed to comply with the requirements of those regulations.  [FAC, paras. 59, 90-94].  The allegations are incorporated by reference into the cause of action.  [FAC, para. 89].   The cause of action is sufficiently stated, and the demurrer is overruled.  

Fourth Cause of Acton NIED

Defendants argue that to the extent this cause of action attempts to state a cause of action based on a bystander theory, the FAC fails to sufficiently allege that plaintiffs experienced contemporary awareness of an injury producing event. 

With respect to the NIED claim, to state a cause of action for NIED in the absence of physical injury to the plaintiff himself, the plaintiff must allege:

1)    A close relationship to the injury victim

2)   That plaintiff was present at the scene of the injury producing event at the time it occurred and is then aware that it is causing injury to the victim; and 

3)   Resulting serious emotional distress.   

Thing v. La Chusa (1989) 48 Cal.3d 644.   

In Thing, the California Supreme Court held, as a matter of law, that a plaintiff to recover on such a theory must contemporaneously witness the accident-causing injury.  

Defendants rely on Bird v. Saenz (2002) 28 Cal.4th 910, in which the California Supreme Court reversed a decision of the Second District which reversed the trial court’s granting of summary judgment on a bystander NIED cause of action.  The Court held that such a cause of action had not been stated where decedent’s daughters claimed they had witnessed their mother being rushed through the hospital hallway, were told medical personnel had nicked an artery or vein and alleged that defendants had failed to immediately diagnose and treat the damaged artery.   The Court first concluded these plaintiffs had not been present at the scene, but also concluded that, even if this had been shown, there was no showing the daughters were “then aware” that injury was being produced, as required under Thing:  

“The problem with defining the injury producing event as defendants' failure

to diagnose and treat the damaged artery is that plaintiffs could not

meaningfully have perceived any such failure. Except in the most obvious cases, 

a misdiagnosis is beyond the awareness of lay bystanders. Here, what plaintiffs 

actually saw and heard was a call for a thoracic surgeon, a report of Nita

suffering a possible stroke, Nita in distress being rushed by numerous medical

personnel to another room, a report of Nita possibly having suffered a nicked

artery or vein, a physician carrying units of blood and, finally, Nita still in

distress being rushed to surgery. Even if plaintiffs believed, as they stated in

their declarations, that their mother was bleeding to death, they had no reason 

to know that the care she was receiving to diagnose and correct the cause of the

problem was inadequate. While they eventually became aware that one

injury producing event  the transected artery  had occurred, they had no basis

for believing that another, subtler event was occurring in its wake.”

Bird, at 917 (emphasis added).

The Court went on to hold that it would be a rare case where a layperson could state facts showing contemporary awareness:

    “In other NIED cases decided after Thing, supra, 48 Cal. 3d 644, and based on 

alleged medical negligence, courts have not found a layperson's observation of

medical procedures to satisfy the requirement of contemporary awareness

of the injury producing event. This is not to say that a layperson can never

perceive medical negligence, or that one who does perceive it cannot assert a

valid claim for NIED. To suggest an extreme example, a layperson who watched as 

a relative's sound limb was amputated by mistake might well have a valid claim

for NIED against the surgeon. Such an accident, and its injury causing effects, 

would not lie beyond the plaintiff's understanding awareness. But the same

cannot be assumed of medical malpractice generally.”

Bird, at 917-919.

The Court accordingly concluded, 

“In view of these undisputed facts, plaintiffs

cannot show they were "present at the scene of the injury producing event at the

time it occur[ed] and [were] then aware that it [was] causing injury to the

victim." (Thing, supra, 48 Cal. 3d 644, 668.) Accordingly, the superior court

properly granted defendants' motion for summary judgment on plaintiffs' claim

for NIED.”

Bird, at 922.   

Defendants argue that plaintiffs here do not allege such an extreme case of negligence and that there is now an emphasis not only on a plaintiff showing that plaintiff was aware that a victim was being harmed, but that the injury producing event was causing the victim harm. 

Defendants cite to Keys v. Alta Base Summit Medical Center (2015) 235 Cal.App.4th 484, in which the court of appeal affirmed a judgment entered in favor of two plaintiffs against a medical center for wrongful death and NIED, finding the NIED claims were supported by substantial evidence.  

The facts in that case were that Madeline Knox was the mother of plaintiff Phyllis Keys and the sister of plaintiff Erma Smith.  Keys and Smith accompanied Knox to defendant Medical Center where she underwent surgery on her thyroid. The court of appeal summarized the facts as follows:

“At approximately 6:45 p.m., Knox was transferred from a postanesthesia care unit to a medical-surgical unit. At that time, a nurse noticed Knox's breathing was “noisy,” and thought it was stridor, a sound that comes from the upper airway suggesting the airway is obstructed. Because of Knox's respiratory difficulty, at 6:46 p.m., the nurse called the hospital's rapid assessment team to evaluate her. The rapid assessment team is composed of a respiratory therapist and a nurse from the intensive care unit (ICU).  Notes taken by the ICU nurse indicated the rapid assessment team arrived at Knox's bedside at 6:48 p.m., and left her room at 6:57 p.m. While there, the respiratory therapist suctioned Knox's mouth, removing some secretions. Dr. Richard Kerbavaz, the surgeon who operated on Knox, was called at 6:50 p.m. and advised about Knox's breathing. Dr. Kerbavaz arrived sometime shortly after 7:00 p.m. At Knox's bedside, Dr. Kerbavaz tried to reposition her and suctioned her mouth and nose. As he removed the bandages and began removing the sutures on her incision to relieve pressure, Knox stopped breathing.  Dr. Kerbavaz called a code blue at 7:23 p.m. Knox was without a pulse for a number of minutes and as a result of her blocked airway, she suffered a permanent brain injury. Knox was transferred to the ICU. She died on October 5, 2008, after life support was withdrawn.”

Keys, at 486, footnote omitted. 

 The court of appeal observed that the daughter, Keys, “was frustrated and upset because she felt there was no sense of urgency among the staff to determine why her mother was in distress; she thought that the nurses and others were not moving quickly enough.”   Keys, at 487. 

The sister, Smith, “believed somebody should have come to help her sister sooner than they did.”  Keys, at 487. 

The court of appeal also noted that the matter had settled as to Dr. Kerbavaz prior to trial, and the verdict and judgment was entered against the Medical Center. 

The court of appeal found that the circumstances fell within the NIED theories discussed in Bird:

“… Bird does not categorically bar plaintiffs who witness acts of medical negligence from pursuing NIED claims. “This is not to say that a layperson can never perceive medical negligence … or that one who does perceive it cannot assert a valid claim for NIED.” (Bird, supra, 28 Cal.4th at p. 918.) Particularly, a NIED claim may arise when, as in Ochoa, caregivers fail “to respond significantly to symptoms obviously requiring immediate medical attention.” (Bird, supra, 28 Cal.4th at pp. 919–920.)

The evidence here showed that plaintiffs were present when Knox, their mother and sister, had difficulty breathing following thyroid surgery. They observed inadequate efforts to assist her breathing, and called for help from the respiratory therapist, directing him at one point to suction her throat. They also directed hospital staff to call for the surgeon to return to Knox's bedside to treat her breathing problems. These facts could be properly considered by the jury to demonstrate that plaintiffs were contemporaneously 

aware of Knox's injury and the inadequate treatment provided her by defendant.”

Keys, at 489. 

The court of appeal found that, “The injury-producing event here was defendant's lack of acuity and response to Knox's inability to breathe, a condition plaintiffs observed and were aware was causing her injury.”  Keys, at 490. 

Defendants rely on the dissent in Keys, in which Justice Pollak pointed out the emphasis by the Supreme Court in Bird on the causation requirement; “There must be ‘contemporaneous, understanding awareness of the event as causing harm to the victim.’” Keys, dissenting opinion, at 492, quoting Bird.  The dissent observed that plaintiffs in that case lacked awareness that the cause of the continued suffering was the failure to correctly diagnose the cause of decedent’s condition, thus precluding NIED recovery; “The result is not changed by characterizing the injury producing event, as does the majority opinion, as a ‘lack of acuity.’”  Keys, dissenting opinion, at 494. 

Plaintiffs rely on Ochoa v. Superior Court (1985) 39 Cal.3d 159, one of the few cases which permitted recovery in circumstances where a bystander observed a course of conduct of inaction as an injury producing event.  In Ochoa, the California Supreme Court vacated the trial court’s order sustaining a demurrer without leave to amend where the mother of a 13-year-old boy in custody at juvenile hall was visiting her son, who grew very ill.   The mother repeatedly requested he be seen by the family physician or transferred to an emergency facility, but these requests were ignored as the son became increasingly more ill, complaining of excruciating pain, and experiencing a high fever, hallucinations, vomiting, inability to retain liquids and coughing up blood.  The son died overnight, after the mother had left the facility.   Defendant argued the mother had not therefore contemporaneously observed her son’s injury or death.  The court reviewed the standard to be applied in determining if NIED relief was appropriate:

 “in determining . . . whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.  (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.”

Ochoa, at 164.  

The issue before the Court in that case was whether the injury producing event need be a sudden occurrence.  The Court reviewed several cases in this area and noted that relief had routinely been permitted where a loved one observed the “immediate consequences” of injury, such as a drowned child being pulled from a pool.  The Court concluded:

  “We are satisfied that when there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing harm to the child, recovery is permitted.”

Ochoa, at 170.  

Since Mrs. Ochoa had experienced mental and emotional distress from seeing her child’s worsening condition, and having her pleas for medical attention ignored, knowing this was causing the child pain and injury, she had the requisite contemporaneous awareness and could state a cause of action. 

The Supreme Court in Bird subsequently analyzed its holding in Ochoa and explained,

 “The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson.”

Bird, at 919-920. 

The cause of action here alleges that plaintiffs were present when incidents of neglect and physical abuse of decedent occurred, and personally witnessed injuries suffered by him.  [FAC, para. 97].  The incidents alleged include matters such as failing to turn or reposition plaintiffs’ father, not assisting with feeding, not regularly bathing, not tending to his dentures, hearing aids or glasses, and similar conduct.  It is not specified what injury occurred from any of this conduct, or facts showing contemporary awareness that injury was occurring, or that any of the events was causing specific harm.  This showing does not appear to be a case at the level of urgency or direct correlation to specific injury which was presented by Ochoa or Keys.   The demurrer accordingly is sustained to the fourth cause of action.     

 

Motion to Strike

Defendant LAC Verdugo Operations, LLC argues that the FAC fails to sufficiently allege a custodial relationship with decedent so that plaintiffs are barred from recovering the heightened remedies under the elder abuse act.  As discussed above, the pleading sufficiently alleges that this defendant was in fact operating and managing the facility and was in fact the entity holding the license for facility operations.  The motion accordingly is denied.  

Defendants argue that plaintiffs cannot recover punitive damages, as they have failed to allege facts sufficient to show oppression, fraud, or malice.   As discussed above, plaintiffs have sufficiently alleged conduct which would support an elder abuse claim.  

The Elder and Dependent Adult Abuse Act provides various criminal consequences to care providers for engaging in abuse.  The civil remedies are set forth in Welfare & Institutions Code section 15657, which provides:

“Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or fiduciary abuse as defined in Section 15610.30, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law:

 

   (a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

(b) The limitations imposed by Section 337.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.”

The FAC sufficiently alleges elder abuse, as discussed above, which has as an element to support heightened remedies a malice, fraud or oppression requirement.  In any case, it would appear that the allegations would also support a finding of malice or oppression, particularly allegations that defendants, knowing of decedent’s plunging weight, continued to withhold food and hydration, and that defendants intentionally used chemical restraints on decedent not authorized by his physician, for defendants’ own purposes.    

The motion to strike is denied. 

Defendants also again argue that corporate ratification is not sufficiently alleged. As discussed above in connection with the demurrer, the pleading is sufficient with respect to this argument.  

Defendants also seek to strike the prayer for enhanced relief or treble damages.  Defendants cite to Civil Code § 3345 provides, in pertinent part:

“(a) This section shall apply only in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons, as those terms are defined in subdivisions (f) and (g) of Section 1761, to redress unfair or deceptive acts or practices or unfair methods of competition.

(b) Whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact's discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

 (1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons.

 (2) Whether the defendant's conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person.

(3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant's conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct.”

Plaintiffs have brought a claim for elder abuse, which authorizes the imposition of exemplary damages.   Defendants argues that this is clearly not a case where there has been some sort of loss or encumbrance of property, or the circumstances referenced in subdivision (2).  The statute, however, permits recovery where there is an affirmative finding in regard to one or more of the three listed factors.  The motion to strike accordingly is denied.  

Defendants also argue that plaintiffs improperly seek interest, when the action is not a contract case, where damages are capable of calculation for purposes of awarding interest.  

Plaintiffs in opposition rely on Civil Code section 3288, which provides: 

“In 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.”

The FAC sufficiently alleges a case of oppression or malice, such that interest could be properly awarded under this statute. The motion to strike accordingly is denied. 

Defendants also request that the court strike references to the California Department of Public Health (“CDPH”), and any plan of correction.  Defendants rely on Health and Safety Code section 1280 (f), which provides, in connection with health facilities:

“In 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.”

Plaintiffs argue that they have not submitted or referred to any plans of correction. Plaintiffs argue that they have only alleged that the CDPH issued deficiencies regarding decedents and prior patients, which placed defendants on notice of existing patient care violations, and which could be evidence of authorization or ratification by a managing agent.   There does not appear to be any plan of correction referenced in the FAC.  In addition, it would appear that any references to CDPH activity or citations are not being used as admissions, such as could be the case where a notice of correction was in fact corrected. The allegations are primarily to support plaintiffs’ theories that the facility was on notice of certain conditions.  The references do not appear prohibited, and the motion to strike is denied.   

RULING:

Demurrer to Plaintiffs’ First Amended Complaint:  Demurrer to the fourth cause of action for NIED is SUSTAINED WITH LEAVE TO AMEND.  The FAC fails to sufficiently allege facts establishing that each plaintiff experienced contemporary awareness of an injury producing event which plaintiff then understood was causing harm to decedent.   

Demurrer to all other causes of action, and on all other grounds, is OVERRULED. 

Ten days leave to amend the fourth cause of action only, if possible. 

Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.  

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed. 

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.