Judge Ralph C. Hofer, Case 22GDCV01119 2023-05-05 Tentative Ruling

Plaintiff Mary C. Southall, through her GAL, Anna Fuson, alleges that plaintiff Southall was at all relevant times over the age of 65, and suffers from Alheimer’s dementia, and is therefore an elder and an incapacitated person pursuing this action through her GAL.

The complaint alleges that plaintiff had been a resident at a skilled nursing facility of defendant Broadway Manor Care Center since October 2017, and had a medical history including stroke, incontinence, disorientation, significant aphasia and severe Alzheimer’s dementia, and was bedridden, unable to sit up without assistance, and needed help with all activities of daily living. In addition, plaintiff required tube feeing by way of a gastrostomy tube.

As of August 2021, plaintiff continued to be incontinent and required help with her personal hygiene, as a result of which skin management protocols were put into place, requiring that plaintiff be turned every two hours and repositioned.

The complaint alleges that despite these skin management protocols, plaintiff was not turned every two hours and repositioned, but was left in her bed unmoved for hours at a time, lying in soiled pads and in her own urine and feces. In October of 2021, plaintiff was seen by a doctor who noted plaintiff had developed an unstable pressure injury, and first aid was administered. The complaint alleges that over the course of the following week, plaintiff was again not turned every two hours, continued to be left lying in her own urine and feces, and the wound increased in size and was deemed unstageable. Over the next three days, plaintiff was again not turned every two hours or repositioned but left lying in her own urine and feces, and the pressure sore was noted to be a Stage IV pressure ulcer.

The complaint alleges that plaintiff’s family was made aware of the pressure injury and that plaintiff was being left unattended for hours at a time, and that this was happening despite the fact that plaintiff was vomiting and suffering from diarrhea. Plaintiff’s family brought these concerns to the attention of the staff, but defendant’s staff took no action to address these concerns. By early November 2021, plaintiff became unconscious with low oxygen saturation levels and plaintiff was transported to the emergency department of Glendale Adventist Hospital, where she was noted to have a Stage IV pressure ulcer, and diagnosed with a urinary tract infection and severe sepsis. Plaintiff remained ill for several months, and was transferred to a transitional care center, where she has received the care necessary to recover from her severe illnesses and infection.

The complaint also alleges that in addition to not turning or repositioning plaintiff, and allowing her to lie in her own urine, feces and vomit, defendant failed to address plaintiff’s severe pain, and deprived plaintiff of adequate nutrition because her gastrostomy tube was not appropriately placed and was mismanaged, resulting in the tube becoming displaced on multiple occasions and requiring numerous hospitalizations.

Defendant Broadway Manor Care Center argues that plaintiff has failed to sufficiently plead an appropriate and factual basis for a statutory violation of the Elder and Dependent Adult Civil Protection Act, and that the allegations speak in terms of medical negligence and not reckless neglect for failure to provide custodial care.

“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…”

(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.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.”

Defendant argues that the allegations here involve only alleged breaches of duties giving rise to a negligence claim, in reliance on Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771. Covenant Care concerned resolution of the issue, which had resulted in a split among the Districts, of whether an Elder Abuse plaintiff need file a separate CCP section motion to allege punitive damages. The court relied on the distinction between professional negligence and the higher level of misconduct required to support an Elder Abuse claim, noting:

“It is true that statutory elder abuse includes "neglect as defined in Section 15610.57" (Welf. & Inst. Code, @ 15657), which in turn includes negligent failure of an elder custodian "to provide medical care for [the elder's] physical and mental health needs" (id., @ 15610.57, subd. (b)(2)). But as we explained in Delaney, " neglect" within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from "professional negligence."

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." (Delaney, supra, 20 Cal.4th at p. 34.) Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. (Ibid.) Notably, the other forms of abuse, as defined in the Act--physical abuse and fiduciary abuse

is reckless or done with oppression, fraud, or malice, "then the action falls within the scope of [Welfare and Institution Code] section 15657 and as such cannot be considered simply 'based on ... professional negligence' ....

That only these egregious acts were intended to be sanctioned under Section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened 'clear and convincing evidence' standard." (Delaney, supra, 20 Cal.4th at p. 35.)

Covenant involved allegations of long-term neglect, resulting in decedents’ near starvation, severe dehydration, and infected bed sores, as well as allegations of a corporate scheme to misappropriate Medicare funds and avoid serious code violations. Those allegations were clearly sufficient to amount to Elder Abuse under the statute.

Delaney v. Baker (1999) 20 Cal.4th 23 involved allegations that decedent had been repeatedly permitted to lie in her own urine and feces at a nursing home, so that four months after admission, she suffered pressure ulcers down to her bones.

The complaint here appears to allege conduct similar to that found sufficient in Covenant Care and Delaney, as there are detailed allegations that plaintiff was continually left lying in her own urine and feces, and even vomit, despite orders and a care plan requiring repositioning, and that this neglect continued after the staff had been alerted by the family, resulting in a Stage IV sacro-coccyz pressure ulcer, pressure ulcers on plaintiff’s feet, and severe sepsis. [Complaint, paras. 32-41, 43, 54]. It is also alleged that plaintiff was deprived of adequate nutrition due to mismanagement of her g-tube. [Complaint, paras. 43, 54]. The complaint also includes allegations that defendant engaged in understaffing and underfunding the facility in an effort to maximize profits, and ignored deficiencies identified by public health agencies. [Complaint, paras. 15-24, 26].

Both sides cite to 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.

Significantly, 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 defendant skilled nursing facility 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.

The opposition also points out that there is authority under which it is recognized that repeated withholding of care, of failing to follow a care plan, may be found to constitute recklessness for purposes of the statute. Plaintiff cites to Sababin v. Superior Court (2006) 144 Cal.App.4th 81, in which the Second District granted a petition for writ of mandate following the trial court’s granting of a motion for summary adjudication on a dependent adult abuse cause of action, finding that triable issues had been raised with respect to whether defendant rehabilitation facility’s employees had acted with recklessness, oppression or malice when they failed to follow the care plan established for maintaining the health of decedent’s skin, and ordered the trial court to determine whether defendant care facility’s motion for summary adjudication eliminated a triable issue as to employer liability.

“(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.”

“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. “

The pleading here alleges in some detail that a managing agent of the facility is Ermine Alaverdyan, its administrator, and alleges that defendants, “through their administrators, directors, and managing agents, have ratified all conduct as alleged herein.” [Complaint, paras. 14, 25]. That ratification is then further detailed with respect to signatures on surveys, acknowledged receipt of deficiencies, and notice of substandard care. [Complaint, para. 25].

The opposition also points out that there is case authority under which understaffing allegations have been found sufficient to withstand demurrer with respect to direct neglect on the part of a health care facility. The opposition relies on Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, in which the Second District reversed the trial court’s judgment entered after it sustained a hospital’s demurrer to plaintiffs’ causes of action for Elder Abuse and negligent hiring and supervision, finding that the allegations stated there, that the hospital committed neglect by allowing an elder patient to fall minutes after entering the facility, and then failed to treat his fractured hip for four days, and violated certain state regulations for acute psychiatric hospitals, were not insufficient as a matter of law to state an elder abuse claim. The Second District noted that while the first two allegations alone would likely be insufficient, the alleged regulatory violations “add more to the story, however.” Fenimore, at 1347-1348. The Second District concluded:

“A violation of staffing regulations here may provide a basis for finding neglect. Such a violation might constitute a negligent failure to exercise the care that a similarly situated reasonable person would exercise, or it might constitute a failure to protect from health and safety hazards (George's known fall risk). The former is the definition of neglect under the Act, and the latter is just one nonexclusive example of neglect under the Act. (§ 15610.57, subds. (a), (b)(3).)”

The Second District noted that in that case, it was alleged that the hospital “had a pattern and knowing practice of improperly understaffing to cut costs.” Fenimore, at 1348-1349. As noted above, similar allegations are asserted here. [Complaint, paras. 15, 24, 26, 44, 51].

The pleading sufficiently alleges direct neglectful conduct by the corporate defendant, as well as authorization or ratification of conduct by managing agents. The demurrer to the first cause of action on this ground also is overruled.

“(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) 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.”

The complaint alleges, quoting the specific regulatory language, that plaintiff’s rights included to be treated with respect and dignity, to show evidence of “good personal hygiene and be given care to prevent bedsores,” and to receive food to meet the patient’s needs. [Complaint, para. 65]. It is then alleged that plaintiff’s rights were violated in various ways, including the failure of defendant to give care to prevent bedsores, and to provide appropriate food, conduct with is supported with specific details in the preceding incorporated allegations. [Complaint, paras. 62, 66]. The cause of action is sufficiently stated in connection with at least one alleged violation, and the demurrer is overruled to this cause of action.

The demurrer also argues that the references in the pleading to Department of Public Health violations are improper. This argument does not appear to be the basis of a demurrer, which would not dispose of any entire cause of action. A general demurrer does not lie to only part of a cause of action, and a cause will survive demurrer if there are sufficient allegations that might entitle the pleader to relief. Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1682. The demurrer accordingly is overruled on this ground. The demurrer as to the entire complaint accordingly is overruled.

Defendant argues that the pleading fails to support the enhanced remedies of attorney’s fees and punitive damages connected with the first cause of action, and attorney’s fees in connection with the third cause of action.

(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 377.34 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.”

(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.”

As discussed in detail above, the complaint sufficiently alleges the type of conduct which would support a finding that defendant engaged in elder and dependent adult abuse, and the complaint includes sufficiently specific facts of both egregious misconduct and direct misconduct as well as ratified misconduct in connection with defendant as an employer.

The motion seems to briefly argue that plaintiff has failed to file a motion pursuant to CCP section 425.13 to support a claim for punitive damages arising out of the professional negligence of a health care provider but concedes in the moving papers that punitive damages may be alleged against a healthcare provider without a party first complying with CCP section 425.13 when the gravamen of the claim is a violation of the elder abuse act. See Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004, 2nd Dist.) 120 Cal.App.4th 426, 435. A violation has been sufficiently alleged here, and the motion to strike the claims for enhanced remedies in connection with the first cause of action is denied.

“For violations that occur on or after March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) for each violation, and for costs and attorney’s fees, and may be enjoined from permitting the violation of violations to continue.”

The statute accordingly provides a basis for seeking attorney’s fees. The motion argues that plaintiff has failed to specifically plead sufficient facts to support the claim or violation of resident’s rights. As discussed in detail above, the pleading sufficiently alleges a cause of action under the statute, and the motion to strike the attorney’s fees will be denied.

The motion to strike also seeks to strike allegations that defendant acted recklessly, which defendant argues are conclusory and not alleged with factual particularity. As discussed above, the complaint alleges in some detail conduct which rises to the level of the characterizations given, and the motion to strike on this ground is denied.

The motion to strike then argues that plaintiff’s reference to and inclusion of alleged involvement and findings by the California Department of Public Health are improper. Defendant relies on Health & Safety Code section 1280(f), which provides:

“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.”

Under CCP section 435, a party may serve and file a motion to strike a part of a pleading. The motion appears to be brought under CCP sec. 436(a), under which, upon a motion under section 435, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading.”

The allegations at issue are allegations referencing what plaintiff indicates are publicly available California Department of Public Health investigation findings which allegations are made to show the prevalence of the issues of understaffing and pressure ulcers during the time plaintiff was a resident at the facility.

The allegations do not appear to be based on any “act of providing a plan of correction, the content of the plan of correction, or the execution of a plan of correction,” referenced in the subject statute. The allegations include reference to a Medicare assessment score of the facility, and investigations into the facility for various regulatory violations, such as for false documentation, failing to provide proper gastrostomy tube nutrition to a resident, failing to comply with COVID-19 requirements, failing to provide proper wound care treatment in connection with pressure ulcers, and failing to maintain appropriate staffing. [Complaint, paras. 16-24].

Plaintiff argues that these allegations are not immaterial, but relate to the state of the facility at the time of plaintiff’s residency, and are probative as to the issue of corporate employer ratification. As discussed above, such ratification or direct neglect is a necessary component of pursuing an elder or dependent adult abuse claim. The allegations do not appear immaterial or irrelevant for purposes of a motion to strike at the pleading stage, as they are pertinent to plaintiff’s claim. In addition, to the extent plaintiff relies on such allegations to establish ratification by or notice to the facility concerning the issues which arose with plaintiff, the allegations are not being offered as an admission of defendant the licensee, as prohibited by the statute. In addition, again, the allegations do not appear to implicate any specific potentially privileged plan of correction. The motion to strike is denied.

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