Judge Ralph C. Hofer, Case 22STCV07440 2022-10-14 Tentative Ruling

Judge: Ralph C. Hofer, Case: 22STCV07440, Date: 2022-10-14 Tentative Ruling

Case Number: 22STCV07440 Hearing Date: October 14, 2022 Dept: D

TENTATIVE RULING

Calendar: 3

Date: 10/14/2022

Case No: 22 STCV07440 Trial Date: None Set

Case Name: Shu v. Lin, et al.

DEMURRER

MOTION TO STRIKE

Moving Party: Defendant San Gabriel Valley Medical Center

Responding Party: Plaintiff Margaret Shu, individually and as Successor in Interest

RELIEF REQUESTED:

Sustain demurrer to first and fourth causes of action of Second Amended Complaint

Strike punitive damages, enhanced remedies

CAUSES OF ACTION: from Second Amended Complaint

1) Elder Abuse and Neglect

2) Wrongful Death

3) Medical Malpractice

4) Violation of Resident’s Bill of Rights

SUMMARY OF FACTS:

Plaintiff Margaret Shu, individually and as successor in interest to decedent Itzu Po, Shu’s parent, alleges that plaintiffs’ decedent was approximately 80 years old, and at all relevant times an elder, when she was sent from Kaiser to defendant San Gabriel Valley Medical Center on April 13, 2021, and on admission was assessed as being bed bound, intubated and dependent for bed mobility and transfers. On admission, decedent did not have any skin breakdowns.

The SAC alleges that as early as May 4, 2021, Shu advised San Gabriel Valley Medical Center of decedent’s skin breakdown, but defendant failed to treat and comply with decedent’s plan of care, so that the skin breakdown worsened, and decedent developed multiple pressure ulcers to multiple areas, including her sacral area. The SAC alleges that defendant failed to reposition decedent, and that decedent was left sitting in her own urine and feces, and that defendant delayed for lengthy periods in cleaning decedent even after plaintiff Shu had asked for decedent to be changed. Plaintiffs allege that defendant failed to comply with accepted standards and principles as required under federal and state statutes and regulations, including those requiring defendant to develop, implement and update patient care plans, to hire and schedule sufficient staff to care for patients, to accept and retain only those patients for whom the facility could provide adequate care, and to ensure that the resident environment remained one with adequate supervision and assistance devices to prevent accidents. It is alleged that defendant allowed decedent to deteriorate, and to suffer significant skin breakdown necessitating wound care and surgery, and that defendant attempted to conceal their conduct by failing to advise decedent’s family of the situation, and to properly address the issues and recommended interventions.

The SAC also alleges that in February of 2021, decedent presented to defendant Michael W. Lin, M.D. for medical treatment of diabetes, and was prescribed medication. At a follow up appointment defendant Dr. Lin noted that decedent had not responded to the maximum dose of the medication, and therefore started decedent on a Basaglar 30 units in the morning but failed to provide decedent with insulin initiation teaching or other instructions on the use of insulin. On April 2, 2021, decedent had a telehealth appointment with defendant Dr. Lin, and continued to have elevated blood sugar, so that Dr. Lin increased the Basaglar to 50 units. On April 10, 2021, decedent was found unresponsive by plaintiff Shu, and was taken to the hospital and never recovered, ultimately dying on November 15, 2021. The SAC alleges that the breaches of defendants’ duties, and their acts and omissions, were the direct and proximate causes of decedent’s death.

The SAC also alleges that during decedent’s residency at defendant San Gabriel Valley Medical Center, defendant violated several of the patient’s rights under the Resident’s Bill of Rights.

Moving defendant San Gabriel Valley Medical Center filed a demurrer and motion to strike in response to the First Amended Complaint, which was heard on August 12, 2022. The demurrer to the first cause of action for elder abuse and neglect and fourth cause of action for violation of Patient’s Bill of Rights was sustained with ten days leave to amend. The motion to strike was deemed moot in light of the sustaining of the demurrer with leave to amend.

Defendant now challenges the sufficiency of the Second Amended Complaint

ANALYSIS:

Demurrer

First Cause of Action—Elder Abuse and Neglect

The demurrer to this cause of action was previously sustained “on the ground the cause of action fails to allege conduct engaged in by, authorized, or ratified by an officer, director or managing agent of the moving defendant.”

The demurrer on all other grounds was overruled.

Despite the previous court order overruling the demurrer on all grounds other than the failure to sufficiently allege corporate ratification, moving defendant San Gabriel Valley Medical Center again argues that the cause of action is improperly uncertain, incorporates allegations by reference, and lumps together negligent and intentional conduct within the individual cause of action.

The Second District holds that where a demurrer is sustained as to some causes of action, but overruled as to others, and the pleading is then amended, a party may not demur again on the same grounds to those portions of the amended pleading to which an earlier demurrer was overruled. Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.

In Bennett, the Second District held that a trial judge was “foreclosed from rendering a new determination on the viability of” causes of action which had been the subject of a previous demurrer on the same grounds where the demurrer had been overruled, “unless some new facts or circumstances were brought to his attention.” Bennett, at 97.

Here, there are no new facts or circumstances argued, these arguments were previously rejected by the court, and they will not be revisited.

With respect to ratification, defendant again argues that the pleading fails to sufficiently allege facts supporting employer ratification.

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…”

The court has already determined that plaintiff has sufficiently alleged the cause of action based on neglect.

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. “

Civil Code section 3294(b).

The court previously noted that the FAC did not appear to include allegations that defendant employer ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice, or that any authorization or ratification was made on the part of an officer, director, or managing agent of the corporate defendant.

The Second Amended Complaint now alleges that moving defendant “SGVMC” knew that leaving decedent unattended for hours in her feces and urine, and specified other failures, including failure to provide sufficient staffing, was substantially likely to result in severe injury to decedent, but defendant withheld essential medical care, and continued to leave decedent unattended. [SAC, para. 37]. It is alleged that this conduct “was ratified by SGVMC and DOES 1-100’s managing agents including Defendant SGVMC’S Administrator, Director of Nursing, and Director of Quality Assurance.” [SAC, para. 37]. It is further alleged that defendant directly participated in the actionable neglect:

“managing agents of SGVMC and DOES 1-100 directly participated in the neglect of PO. SGVMC and DOES 1-100, and each of them, vested with discretionary decision-making authority relating to patient care issues involving PO were part of the team that utterly failed to provide appropriate care to PO, as described more specifically above. Such individuals were officers, directors, and/or managing agents of SGVMC and DOES 1-100

[SAC, para. 41].

It is also alleged that defendant directly engaged in wrongdoing by having a policy of operating the facility with insufficient staffing, motivated by a desire to increase profits. [SAC, paras. 39, 40].

The pleading now sufficiently alleges moving defendant’s direct participation and ratification by managing agents.

The opposition points out that there is case authority under which understaffing allegations have been found sufficient to withstand demurrer with respect to the 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).)”

Fenimore, at 1348.

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. [SAC, paras. 39, 40].

The pleading now 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 is overruled.

Fourth Cause of Action—Violation of Patient’s Bill of Rights

The demurrer to this cause of action was previously sustained as follows:

“Demurrer is SUSTAINED WITH LEAVE TO AMEND to the fourth cause of action for Violation of Resident’s Bill of Rights on the ground the cause of action is ambiguous and uncertain with respect to whether the moving defendant is alleged to be a general acute care hospital or a skilled nursing facility. [Compare para. 7 to para. 66].”

Defendant San Gabriel Valley Medical Center argues that plaintiff again alleges that defendant is a “general acute care hospital,” and that the Resident’s Bill of Rights relied upon does not apply to such hospitals.

Health and Safety Code section 1430(b) provides:

“(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.”

Under Health and Safety Code section 1250:

“(c) "Skilled nursing facility" means a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis.

(d) "Intermediate care facility" means a health facility that provides inpatient care to ambulatory or nonambulatory patients who have recurring need for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care.”

The section also defines, at subdivision (a), a “General acute care hospital.” This suggests that the provisions of section 1430(b) intentionally exclude such facilities from its reach.

The SAC alleges at paragraph 7 that defendant San Gabriel Valley Medical Center “was doing business as a general acute care hospital located at 438 W. Las Tunas Dr., San Gabriel, CA 91776.” [SAC, para. 7]. The SAC attaches information from the California Department of Public Health website which indicates that defendant is a general acute care hospital. [SAC, para. 7, Ex. A].

In the cause of action itself, plaintiff now alleges that San Gabriel Valley Medical Center, located at 438 W. Las Tunas Drive, “is licensed through the California Department of Public Health to actively provide 24-hour custodial care and services and otherwise do business as a skilled nursing facility…” [SAC, para. 72]. Plaintiff attaches a portion of the California Department of Public Health website, which shows that at the subject address, licensee “AHMC San Gabriel Medical Center LP” operates in a license category, “Skilled Nursing Facility” with a license status, “Active.” [SAC, para. 72, Ex. B].

The SAC now alleges that decedent’s stays with defendant included a period when decedent was being cared for in the skilled nursing facility portion of defendant’s business:

“On information and belief, PO was admitted to SGVMC’S general acute care hospital from April 14, 2021 to May 4, 2021; October 5, 2021 to October 10, 2021 and November 11, 2021 to November 15, 2021. PO was discharged to SGVMC’S skill nursing facility where she resided between May 4, 2021 to November 11, 2021 when she was not admitted to SGVMC’S general acute care hospital. Attached as Exhibit C is a copy of the first page of billing records produced by SGVMC which confirm that PO resided within the skilled nursing facility at SGVMC.”

[SAC, para. 73].

This clarifies any previous ambiguity, as the allegations are now that decedent was a “former resident or patient of a skilled nursing facility,” entitled to enforce any resident or patient rights during the time-period decedent was in the skilled nursing facility.

Defendant argues that the licensing and billing information is not sufficiently authenticated, and that plaintiff has not met the requirements for this court to judicially notice those documents. This argument disregards that there are now allegations in the SAC itself, regardless of any attached documentation, that assert that defendant operates a licensed skilled nursing facility, and that decedent was a patient or resident there on specifically alleged dates. [SAC, para. 73]. For purposes of demurrer, these allegations must be taken as true. See Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb Corp. v. Structural Materials Co. (1981, 2nd Dist.) 123 Cal.App.3d 593, 604 (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”) As pointed out in the opposition, defendant by way of demurrer does not request judicial notice of any material which would show that the allegations are provably false.

Plaintiff in opposition requests that if there should be any doubt about the allegations within the four corners of the complaint, the court take judicial notice of the licensing information for the skilled nursing facility at the same location. This action will not be necessary. The court in connection with the previous demurrer had expressly denied plaintiff’s previous request for judicial notice made in the opposition, noting, “To the extent plaintiffs appear to request that the court judicially notice materials in the opposition memorandum, the request is not made in a separate document, and the material is not sufficiently provided to the Court, so the request for judicial notice is DENIED. CRC Rule 3.1113 (1).”

CRC Rule 3.1113(l) provides, with respect to a memorandum filed in support of a motion:

“(l) Requests for judicial notice Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).”

Again, plaintiff has failed to file a separate document or comply with the Rules, and the request for judicial notice is denied.

Nevertheless, the SAC now sufficiently alleges the fourth cause of action, and the demurrer is overruled.

Motion to Strike

The motion to strike was previously deemed moot, “in light of the sustaining of the demurrer with leave to amend.”

Defendant seeks to strike plaintiff’s request for punitive damages to the extent the punitive damages allegations are sought in connection with the second through fourth causes of action, and also argues that plaintiff has failed sufficiently allege facts to support enhanced remedies in connection with the first cause of action.

In connection with the first cause of action for elder abuse, as noted above, the Elder Abuse Act at Welfare & Institutions Code section 15657 provides for enhanced remedies:

(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….

To the extent defendant argues that these enhanced remedies should be stricken, the grounds are those asserted in the previous demurrer which were rejected with respect to the level of misconduct which has been alleged in this pleading, and the argument that corporate ratification is insufficiently alleged, which argument has been rejected in connection with the current SAC, as discussed above. The pleading sufficiently alleges recklessness and oppression in connection with defendant’s alleged neglect of decedent, and the motion to strike is denied as to the first cause of action.

Defendant concedes in the moving papers that its argument that the allegations of punitive damages are statutorily premature pursuant to CCP section 425.13 does not apply to the first cause of action for elder abuse. [See Motion, p. 4, fn. 2]. It is held 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. The motion to strike the punitive damage allegations as to the first cause of action for elder abuse is denied.

As to the second cause of action for wrongful death, third cause of action for medical malpractice, and fourth cause of action for violation of resident’s bill of rights, the SAC asserts all four causes of action against the moving defendant.

Defendant argues that the SAC in each of these causes of action incorporates by reference the preceding allegations, including the allegations seeking punitive damages at paragraphs 34 and 44.

The causes of action each incorporate “the allegations set forth above as if fully set forth herein.” [SAC, paras. 45, 59, 71].

Paragraph 34 alleges:

“By engaging in the conduct, neglect and abuse, as alleged supra, including that SGVMC and DOES 1-100 undertrained their respective employees, despite the known risk to elders, SGVMC and DOES 1-100’s actions were malicious, oppressive, fraudulent, and/or reckless.

Paragraph 44 alleges:

“As is discussed more fully above, defendants acted with fraud, malice, oppression, and recklessness in doing so, thereby entitled Plaintiff to punitive damages in connection with SGVMC and DOES 1-100’s conduct.”

The prayer of the complaint at paragraph 7 seeks: “punitive and exemplary damages against SGVMC and DOES 1 through 100.”

Defendant argues that these paragraphs, to the extent they are incorporated into each of the second, third, and fourth causes of action, must be stricken as premature under CCP section 425.13.

CCP § 425.13 provides, in pertinent part:

“(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.”

Such an order may be granted where plaintiff “has established there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” Id.

This requirement applies not only to actions which are designated professional negligence actions, but to actions against a health care provider where the injuries alleged as the basis of the claim were caused by conduct that was “directly related to the rendition of the professional services provided by the healthcare provider.” Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192:

“We hold that whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one "arising out of the professional negligence of a health care provider," and the party must comply with section 425.13(a).”

Defendant argues that the allegations here fall within the Central Pathology definition as the allegations of wrongdoing here are directly related to the professional services rendered.

The causes of action are brought against moving defendant in its capacity as a healthcare provider for alleged injuries directly related to the services provided. Plaintiff has failed to obtain the order required under CCP section 425.13 prior to alleging entitlement to punitive damages.

Plaintiff does not address this argument in the opposition. This reaction may indicate that plaintiff does not currently intend to pursue the punitive damages claim other than in connection with the first cause of action for elder abuse. In any case, the motion to strike is granted and paragraphs 34, 44 and the request for punitive damages in paragraph 7 of the prayer will be stricken with prejudice from the SAC as to the moving defendant only to the extent they would apply to the second, third and fourth causes of action.

RULING:

Defendant San Gabriel Valley Medical Center’s Demurer to Plaintiff’s Second Amended Complaint is OVERRULED.

To the extent plaintiff appears to request that the court judicially notice materials in the opposition memorandum, the request is not made in a separate document, in violation of CRC Rule 3.1113(1), so the request for judicial notice is DENIED.

Defendant San Gabriel Valley Medical Center’s Motion to Strike Portions of Plaintiff’s Second Amended Complaint:

Motion is DENIED as to the punitive damages sought in connection with the first cause of action for elder abuse and neglect.

Motion is GRANTED as to the punitive damages apparently sought in connection with the second cause of action for wrongful death, third cause of action for medical malpractice, and fourth cause of action for violation of resident’s bill of rights, for failure to comply with CCP §425.13. The Court strikes from the SAC the allegations of paragraphs 34 and 44 and the prayer at paragraph 7 as to moving defendant San Gabriel Valley Medical Center, only in connection with the second cause of action for wrongful death, third cause of action for medical malpractice and fourth cause of action for violation of resident’s bill of rights. Motion is granted without leave to amend, but without prejudice to plaintiff bringing a motion under CCP section 425.13, should one be appropriate.

Ten days to answer.

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.