TENTATIVE RULING

Calendar:    10

Date:          04/04/2025 

Case No: 24 NNCV06812 Trial Date: None Set 

Case Name: Awakimian, et al. v. Los Feliz Residential Caare Center, Inc., et al.

DEMURRER

MOTION TO STRIKE

Moving Party:            Defendant Geriheal, P.C.       

Responding Party: Plaintiffs Nevart Awakimian, by her successor in interest, Mirna Awkimian and Souzi Salman      

RELIEF REQUESTED:

CAUSES OF ACTION: from Complaint  (from body of pleading, not caption) 

1) Elder Abuse and Neglect 

2) Negligence/Willful Misconduct 

3) Wrongful Death 

4) Breach of Contract 

SUMMARY OF FACTS:

The complaint alleges that in July of 2020, Nevart Awakimian was admitted to Los Feliz Gardens, a residential care facility for the elderly in Glendale, which was licensed and operated by defendant Los Feliz Residential Care Center, Inc. dba Los Feliz Gardens (Facility).  Defendant Los Feliz Care Center, LLC (Landlord) is alleged to be a management company that owns the subject property and rents it to Facility, and exercises control over the day-to-day operations of Facility.  Facility, Landlord and Does 1 through 50 are referred to as “Facility Defendants.”  The complaint alleges that at all relevant times, defendant Geriheal, P.C. (Geriheal) was a party to a contract with Facility whereby Geriheal agreed to provide physician services to its residents, which were the services of Dr. Brinley, and that Geriheal was responsible for attending to resident’s basic needs such as diet and nutrition orders, prescribing medication, wound care orders and ongoing assessments of residents, including ordering a resident’s transfer to a hospital, if necessary.  

Defendant New Dimension Home Care, Inc is alleged to have been a home health agency providing nursing services to plaintiff while a resident at Facility, responsible for custodial, nursing, wound care, physical therapy, occupational therapy and speech therapy services provided to plaintiff while she was a resident at Facility. This situation was due to the fact that Facility is a non-medical facility. 

The complaint alleges that when plaintiff was originally admitted to Facility, she had a previous history of broken right leg, diabetes, muscle weakness, and depression, and also had a recent prior bilateral knee replacement surgery. The complaint further alleges that at the time of admission, Facility Defendants and New Dimension knew that plaintiff was at a high risk of pressure sores and infections due to her surgically repaired knee and the resulting surgical wound. 

Plaintiffs allege that almost immediately after plaintiff’s admission, plaintiff developed a Stage 2 pressure ulcer to her buttock and a blister to her right ankle, and that the Facility Defendants and New Dimension failed to turn and reposition plaintiff, and failed to address the wounds once they developed, causing them to worsen.  In March of 2021, New Dimension documented that plaintiff had a Stage 3 wound to her left hip.  The complaint alleges that this rendered plaintiff inappropriate for Facility, but that nothing was done and Facility Defendants remained silent.  In March of 2021, plaintiff was admitted to the hospital, with Dr. Brinley identified as plaintiff’s attending physician, where plaintiff was diagnosed with dehydration as well.   

The complaint alleges that upon return to Facility, plaintiff’s wounds deteriorated, and she continued to develop additional wounds when the clear indication for the wounds was poor care and neglect.  The complaint alleges that Dr. Brinley was notified of the wounds yet took no steps to remove plaintiff from Facility, or question how these wounds developed, and knew or should have known that Facility Defendants were not providing appropriate custodial care and that plaintiff was no longer appropriate for Facility due to her wounds.   In September of 2023, a New Dimension nurse noticed a “hole” in plaintiff’s right knee, which appeared to be from an injury/trauma. The nurse in turn notified Dr. Brinley, who failed to order a transfer to the hospital, despite knowing that plaintiff’s potentially infected or injured knee was not being treated.   

Ultimately, plaintiff was ordered transferred to the hospital, where she was diagnosed as dehydrated and malnourished, and suffering from septic joint, and abscess in the knee and osteomyelitis, and was noted to have multiple pressure sores.  Doctors diagnosed her with metabolic encephalopathy, pneumonia, a urinary tract infection, and failure to thrive.  Due to the extent of the infection to plaintiff’s right knee, doctors advised the family that they needed to amputate her right leg above the knee, which was the only option to save her life considering the severity of her infection.  Plaintiff underwent the amputation, and upon transfer to a local skilled nursing facility developed respiratory distress and was transferred back to the hospital. The complaint alleges that due to the infections, surgery, malnutrition, dehydration and other conditions that developed as a proximate cause of defendants’ conduct, plaintiff died on December 27, 2023, with the stated causes of death including acute respiratory failure, septic shock and pneumonia.  

It is also alleged that to date Facility Defendants have refused to produce a complete copy of plaintiff’s chart, despite a deficiency and directive issued by the Department of Social Services. 

ANALYSIS:

Demurrer

Fourth Cause of Action—Breach of Contract 

First Cause of Action—Elder Abuse and Neglect

Defendant Geriheal, P.C. (Geriheal) argues that the complaint fails to sufficiently allege a cause of action for Elder Abuse, as the cause of action as to moving defendant, and its employee, Dr. Brinley, does not involve neglect, in essence, the failure to provide medical care, but the complaint takes issue with the way Dr. Brinley provided medical care, in effect, the undertaking of medical services.  

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

  (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.

(Emphasis added).

Defendant relies 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, including Covenant Care, and Delaney, and set forth the following factors which must be present for conduct to qualify as Elder Abuse:

Carter, at 406-407. 

“We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.Code § 15600 et seq.; the Elder Abuse Act or Act)1 applies when a health care provider—delivering care on an outpatient basis—fails to refer an elder patient to a specialist. What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult's relationship with the defendant—not the defendant's professional standing—that makes the defendant potentially liable for neglect. Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act.”

Winn, at 152, footnote omitted.

8.  Defendants GERIHEAL, P.C. and DOES 51-75 (hereinafter “GERIHEAL”) were at all relevant times the employer of PLAINTIFF’s attending physician, Brittany Brinley, D.O. and/or her nurse practitioners or physician assistants that Dr. Brinley was responsible for by operation of law. 

9.  At all relevant times, and based on information and belief, GERIHEAL was a party to a contract with FACILITY whereby GERIHEAL agreed to provide physician services to its residents, which were the services of Dr. Brinley. GERIHEAL was therefore responsible for the conduct of Dr. Brinley through principles of ostensible agency and vicarious liability as she was its employee. GERIHEAL was therefore responsible for attending to residents’, including PLAINTIFF’s, basic needs like diet orders, medications, etc. 

10.  FACILITY at all relevant times was a non-medical facility, which required GERIHEAL’s involvement as part of FACILITY’s care team responsible for PLAINTIFF’s basic and custodial needs. As part of this team, Dr. Brinley wrote orders that FACILITY staff were required to follow that included diet and nutrition orders, and wound care orders. Dr. Brinley was also responsible for ongoing assessments of PLAINTIFF while she was a resident at FACILITY. She was responsible for ordering PLAINTIFF’s transfer to the hospital if she believed it was necessary. Additionally, Dr. Brinley made ongoing treatment decisions for PLAINTIFF while she was a resident at FACILITY. This care team at FACILITY, including Dr. Brinley, took responsibility for and directed care for PLAINTIFF’s basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance….

27.  With respect to GERIHEAL and Dr. Brinley they too owed duties to PLAINTIFF and had care or custody of her at all relevant times. For example, residents, like PLAINTIFF, can only be admitted to FACILITY upon the evaluation and agreement of a physician. The physician must fill out and sign a “Physicians Report for Residential Care Facilities for the Elderly” that assesses a resident’s ability to perform basic tasks, like eating, identifies their medical history, their medications, any impairments they suffer, etc. (22 CCR §87458.) This form must include a description of a physical exam indicating the physician’s primary and secondary diagnoses of the patient, recent vital signs, and other assessments. Dr. Brinley signed PLAINTIFF’s Physicians Report for Residential Care Facilities for the Elderly” signifying that Dr. Brinley was PLAINTIFF’s attending physician at all relevant times and the physician responsible for PLAINTIFF’s assessment.

28. Further, FACILITY staff were required to contact Dr. Brinley for any significant changes in PLAINTIFF’s mental or physical condition. (22 CCR §87463(b).) FACILITY staff could not give medications or provide treatments to PLAINTIFF without first obtaining a doctor’s order, here Dr. Brinley. For example, as relevant here, Dr. Brinley was required to order wound care and nutrition support for PLAINTIFF before FACILITY staff or others could provide those services. This included PLAINTIFF’s dietary orders as well. Further, FACILITY staff relied on Dr. Brinley to determine when PLAINTIFF should be transferred to the hospital as evidenced by the fact that FACILITY staff contacted Dr. Brinley multiple times during PLAINTIFF’s admission to FACILITY regarding her condition and relied on Dr. Brinley to order transfer to the hospital. 

29.  At all relevant times PLAINTIFF was under the care of her attending physician, Dr. Brinley.  Dr. Brinley was responsible for PLAINTIFF’s continuing supervision while she was a resident at FACILITY. Both were responsible for PLAINTIFF’s overall care and her supervision while a resident at FACILITY. In fact, Dr. Brinley remained PLAINTIFF’s attending physician at the hospital when PLAINTIFF was transferred from FACILITY to the hospital as described more fully herein. Therefore, at all relevant times, PLAINTIFF was in the care or custody of GERIHEAL and Dr. Brinley.”

[Complaint, paras. 8-10, 27-29]. 

The Oroville case was decided on summary adjudication, not at the pleading stage. Also, as argued in the opposition, the complaint here is not based on the receipt of simple wound care from defendant, but rather the allegations, which must be taken as true for purposes of demurrer, that defendant Geriheal was responsible for coordinating, ordering and supervising plaintiff’s custodial care, including transferring plaintiff to a hospital should her condition warrant.   Plaintiffs argue that this is tantamount to the observation in Oroville that a basic custodial need would include, “taking decedent to her doctor’s appointments,” and that “Winn does not require that a defendant assume responsibility for all of the elder’s needs.”  Oroville, at 404. 

The allegations here are sufficient to withstand demurrer. The demurrer is overruled to this cause of action.  

Second Cause of Action—Negligence/Willful Misconduct 

 The demurrer argues that there is no such separate cause of action as “willful misconduct;” it is simply a variety of negligence.  In Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526, the Second District observed:

“The parties have argued extensively about whether a tort called ‘willful misconduct’ is recognized in California.   It is not a separate tort, but simply ‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care’”

Berkely, at 526. 

Moreover, as argued in the opposition, the cause of action is fashioned as a negligence/willful misconduct cause of action. The demurrer does not argue that a straight negligence claim has not been sufficiently stated.  A 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, 2nd Dist.) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.   As the negligence theory is not challenged, the demurrer must be overruled.  

 

 In any case, as argued in the opposition, there was a willful misconduct claim also stated in Carter, but the court of appeal did not determine whether the cause of action was appropriate as separately stated, but whether a demurrer to it had been appropriately sustained on the ground the action was barred by the applicable statute of limitations.   The court in determining the statute to apply observed, “As explained below, although labeled ‘willful misconduct,’ plaintiffs’ third cause of action is really one for personal injuries to Grant based on the Hospital’s alleged professional negligence and is barred by the statute of limitations.”   Carter, at 412. 

1)  actual or constructive knowledge of the peril to be apprehended;

2)  actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger; and 

3)  conscious failure to act to avoid the peril.

Olea v. Southern Pacific Co. (1969) 272 Cal.App.2d 261, 265. 

Motion to Strike

  (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.

 

RULING:

Defendant, Geriheal, P.C.’s Demurrer to Plaintiff’s Complaint:

Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND to the fourth cause of action for breach of contract as to moving defendant Geriheal, P.C. only, at the concession of plaintiffs in the opposition. 

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

Motion to Strike:  There has been no motion to strike filed with the Court, and evidently no separate reservation secured for the hearing of a separate motion to strike.  The motion is accordingly DENIED.  The Court also expects that any such motion to strike attorney’s fees and punitive damages would be denied on its merits, given the sufficiency of the pleading of the causes of action challenged by the demurrer above, and the availability of heightened remedies in connection with a sufficiently alleged cause of action for Elder Abuse based on neglect. 

Ten days to answer. 

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect offers free audio and video appearances.  Department D is now requiring either live or VIDEO appearances, not audio appearances.  Please note that in the case of video appearances, ADVANCE REGISTRATION IS REQUIRED.