Judge Robert B. Broadbelt, Case Number: 22STCV27609, Date: 2023-12-01 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV27609, Date: 2023-12-01 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court rules on plaintiff Mansoureh Aghayan’s evidentiary objections, filed on January 3, 2024, as follows:

The court rules on defendant Beverly Hills Rehabilitation Centre, LLC’s evidentiary objections, [1] filed on January 25, 2024, as follows:

The court overrules Objections Nos. 1, 6-8, 10-11, 13, 15-25, 30, 30 (as set forth on page 30, lines 13-28 and page 31, lines 1-8), 31, 32, 34-40, 42, 43, 44, and 47.

The court notes that defendant Beverly Hills Rehabilitation Center, LLC has objected to much of the declaration of Pamela Sharkey, RN, BSHS, MHA (“Sharkey”), on the ground that it is not accompanied by the evidence on which Sharkey relied to form her opinion. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743 [“An expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value”].) The court further acknowledges that the medical records on which Sharkey relied are not attached to her declaration, nor have they been submitted by Plaintiff elsewhere. (Sharkey Decl., ¶ 10.) However, it appears that the medical records relied on by Sharkey have been properly authenticated and placed before the court by moving defendant on February 20, 2024.

For example, Sharkey referenced her review of the “post-fall reviews,” which were submitted to the court by defendant Beverly Hills Rehabilitation Center, LLC. (Def. Feb. 20, 2024 Notice of Lodging, Ex. C, PDF pp. 808-815.) Further, Sharkey referenced a page of the “mini-mental” examination, which was also placed before the court by the moving defendant. (Def. Feb. 20, 2024 Notice of Lodging, Ex. F, PDF p. 2946.) Thus, the court finds that the foundational facts set forth by Sharkey in her declaration are “before the court to support [her] expert opinion.” (Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 506; Ibid. [“The Garibay case does not require a party opposing summary judgment to file duplicate copies of the medical records on which the opposing expert relied in forming a disputed expert opinion if they are already before the court in support of the motion”].)

The court, however, acknowledges that plaintiff Mansoureh Aghayan did not file with the court (1) the patient records indicating the number of patients at the facility during May 2022, (2) the staffing records indicating the number of CNA nursing hours for the period of May 2022 through July 2022, or (3) the reports by the DHC concerning audits done at the facility, on which Sharkey relied in forming some of the opinions set forth in her declaration. (Sharkey Decl., ¶ 10.) The court has therefore sustained the objections to those opinions. (Objection Nos. 26-29, 45-46.)

The court grants defendant Beverly Hills Rehabilitation Centre, LLC’s request for judicial notice. (Evid. Code, § 452, subd. (c).)

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendant Beverly Hills Rehabilitation Centre, LLC (“Defendant”) moves the court for an order granting summary judgment in its favor and against plaintiff Mansoureh Aghayan (“Plaintiff”) on the Second Amended Complaint or, in the alternative, granting summary adjudication in its favor and against Plaintiff on each cause of action alleged therein.

The court notes that Defendant has first addressed the third cause of action for elder abuse in its motion. However, the court has addressed the causes of action in numerical order.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

The court finds that Defendant has met its burden of showing that the first cause of action for negligence has no merit because Defendant has shown that an element of the cause of action (Defendant’s breach of duty) cannot be established.

Defendant has submitted the declaration of physician Sonja Rosen, M.D. (“Dr. Rosen”)[2], in which Dr. Rosen has concluded that Defendant and its staff met the standard of care in rendering treatment to Plaintiff regarding her fall risk by (1) appropriately assessing, monitoring, supervising, and assisting Plaintiff, (2) implementing and carrying out care plan interventions for Plaintiff’s fall risk, including by placing an alarm on Plaintiff’s bed after her initial fall on the day of her admission, and (3) notifying Plaintiff’s physician of each of her falls. (Dr. Rosen Decl., ¶ 5.) Dr. Rosen further states that Plaintiff’s falls “were unavoidable due to her ambulating and functional ability combined with her pre-existing medical conditions and comorbidities.” (Ibid.) In reviewing Plaintiff’s medical records, Dr. Rosen also concluded that Plaintiff “was able to obtain nutrition and did not have malnutrition following July 20, 2022 when she claims her dentures were thrown away.” (Dr. Rosen Decl., ¶ 9.)

The court finds that this evidence is sufficient to show that Defendant did not breach its duty of care to Plaintiff as alleged in the Second Amended Complaint. (SAC ¶¶ 12 [alleging that Defendant failed to prevent six falling incidents], 13 [alleging that Plaintiff lost 17 pounds as a result of Defendant throwing away her dentures and failing to replace them], 14; Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542 [“As a general rule, the testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff’s damages”].)

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to the element of Defendant’s breach of duty.

Plaintiff has submitted the declaration of Sharkey, a registered nurse and consulting expert in the field of nursing with experience working in facilities offering a skilled nursing level of care. (Sharkey Decl., ¶ 1.) Sharkey states that, in reviewing Plaintiff’s post-fall reports, she concluded that Defendant breached its duty of care to Plaintiff because (1) those reports were incorrectly (or inadequately) completed since (i) Plaintiff suffered many falls by going to the bathroom but (ii) the boxes “Would resident benefit from Toileting Motivation and Preference Evaluation?” were unchecked; (2) the forms were untimely signed on September 8, 2022 and September 9, 2022—after Plaintiff was discharged—which therefore did not affect the way Plaintiff was treated to help prevent further falls; and (3) although there were several interdisciplinary team meetings following her falls, Sharkey did not observe that the new interventions were put into place. (Sharkey Decl., ¶¶ 32, 38, 41, 43, 44.)

The court finds that Plaintiff’s evidence is sufficient to show the existence of a triable issue of material fact as to whether Defendant breached its duty of care to Plaintiff by failing to (1) complete the post-fall forms correctly (i.e., since Defendant opted not to implement toileting motivation and preference evaluation), (2) timely complete the post-fall forms before Plaintiff was discharged so that Defendant had the opportunity to change the ways in which it was providing care to Plaintiff and its fall-prevention efforts, and (3) implement new interventions following the interdisciplinary team meetings. (Sharkey Decl., ¶¶ 32, 38, 41, 43, 44; SAC ¶¶ 12, 15.)

Defendant has submitted the declarations of Dr. Rosen and Kevin Ehrhart, MD (“Dr. Ehrhart”), a physician board certified in orthopedic surgery. Dr. Rosen states her opinion that, upon her review of the records, Defendant did not cause or contribute to Plaintiff’s injuries because her injuries were instead “the result of the natural course of her pre-existing medical conditions and comorbidities, or were the natural or expected result of reasonable treatment rendered for the disease or condition, and were otherwise unavoidable.” (Dr. Rosen Decl., ¶ 16.) Dr. Ehrhart similarly states, based on his review of the medical records and the independent medical examination of Plaintiff that he conducted, that it is his professional opinion “that the care and treatment provided to [P]laintiff by [Defendant] and its staff did not in any way cause or contribute to [Plaintiff’s] claimed injuries.” (Dr. Ehrhart Decl., ¶¶ 4-5.)

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to the element of causation.

As set forth above, Plaintiff has submitted the declaration of Sharkey, in which she stated that Defendant breached its duty of care by failing to, inter alia, timely complete the post-fall reports so that it could address Plaintiff’s risk of falls and implement new interventions after Plaintiff’s falls. (Sharkey Decl., ¶¶ 43, 45.) The court finds that this evidence is sufficient to support a reasonable inference, and to show the existence of a triable issue of material fact, that Defendant’s failure to adequately address Plaintiff’s falls and implement new interventions thereafter caused Plaintiff to suffer subsequent falls and injury. (Ibid.; Kaney v. Custance (2022) 74 Cal.App.5th 201, 212 [“‘ “[C]ausation . . . is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion” ’”], 213 [courts “‘draw from the evidence all reasonable inferences in the light most favorable to the party opposing summary judgment’”].)

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for negligence.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia, supra, 25 Cal.App.5th at p. 687.)

As a threshold matter, the court notes that it appears that Plaintiff has, in alleging the second cause of action for failure to render aid, alleged this cause of action based on a theory of negligence. Specifically, Plaintiff has alleged that (1) Defendant had a duty to alleviate Plaintiff’s pain and obtain medical care upon causing her injuries, and (2) Defendant breached that duty by failing to provide timely medical care to Plaintiff (i.e., by failing to call an ambulance or to timely schedule an ambulance to take Plaintiff to the emergency room). (SAC ¶¶ 18, 20-21.) The court notes that Plaintiff has also alleged that Defendant “blindly outsourced to a staffing agency” to provide its nurses without inquiring whether they were able to provide proper care. (SAC ¶ 24.) However, Plaintiff does not appear to have expressly alleged that the failure to properly staff its facility constituted a breach of care or failure to render aid. (SAC ¶¶ 24-25, 21 [“As an actual and proximate result of Defendants’ breach of their duties to provide timely medical care, Plaintiff’s pain, suffering, and mental anguish intensified” and suffered damages] [emphasis added].)

The court finds that Defendant has met its burden of showing that the second cause of action for failure to render aid has no merit because Defendant has shown that an element of the cause of action (Defendant’s breach of duty) cannot be established.

Defendant has submitted the declaration of Dr. Rosen, in which Dr. Rosen states that, “[a]fter each of [Plaintiff’s] falls at Beverly Hills Rehabilitation Centre, [Defendant’s] staff timely and appropriately evaluated and assisted [Plaintiff], notified her physician or her physician’s nurse practitioner of her fall, followed her physician’s orders, timely transferred [Plaintiff] to the acute care hospital when appropriate, and documented a change of condition evaluation.” (Dr. Rosen Decl., ¶ 6.) Dr. Rosen further stated, based on her review of the records, that “[w]hen there was a need to transfer [P]laintiff to the acute care hospital, [Defendant] timely did so.” (Dr. Rosen Decl., ¶ 11.) Although not expressly cited by Defendant in its moving papers, the court notes that Dr. Rosen set forth two instances in which Defendant’s staff transferred Plaintiff to the emergency room. (Dr. Rosen Decl., ¶ 4, subds. (I) [the staff carried out the physician’s order to transfer Plaintiff to the ER], (L) [on May 9, 2022, staff notified doctor and recommended her transfer to hospital], (M) [on May 10, 2022, the emergency department note stated that Plaintiff was dizzy, which caused her to fall].) The court finds that this evidence is sufficient to show that Defendant did not breach its duty of care by failing to timely and properly provide medical care to Plaintiff.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to the element of Defendant’s breach of duty based on the allegation that it did not provide timely medical care to Plaintiff.

First, Plaintiff did not submit admissible evidence showing that Defendant failed to timely call an ambulance for Plaintiff as alleged. (SAC ¶¶ 21-22.)

Second, Plaintiff did not cite to any portion of the declaration of her expert (i.e., Sharkey) in which Sharkey set forth her opinion that Defendant failed to timely provide to Plaintiff medical care and therefore breached its duty of care to Plaintiff. (Scott, supra, 185 Cal.App.5th at p. 1542 [an expert witness’s testimony is required in a professional negligence cause of action to establish whether the standard of care was met or breached by the defendant]; Pl. Response to Material Fact No. 9, p. 14:4-9 [citing only to the declaration of Behnam Khani in support of assertion that Defendant did not call the ambulance or took upwards of 12 hours to do so].)

Third, the court acknowledges that Plaintiff has argued that the “‘systematic understaffing’ issue . . . is the very heart of Plaintiff’s case.” (Opp., p. 6:7-10.) As to the second cause of action, the court disagrees. As set forth above, the court recognizes that Plaintiff alleged, in support of this cause of action, that Defendant, “[i]nstead of actually taking measures to ensure that they were sufficiently staffed,” “blindly outsourced to a staffing agency called Starbright Staffing Agency, Inc. . . ., to provide all of the nurses without even inquiring whether the staff and nurses provided [by the staffing agency] were sufficient in number and even qualified to provide Defendant’s vulnerable and elderly residents with the proper care.” (SAC ¶ 24 [emphasis added].) However, Plaintiff did not allege that the understaffing described in that allegation is the breach on which Plaintiff has based the second cause of action; instead, this allegation appears to support Plaintiff’s claim for punitive damages. (SAC ¶¶ 24 [Defendant outsourced its nurses “to systematically cut costs”], 26 [“By placing profits ahead of the wellbeing and comfort of the elderly patients, Defendants acted maliciously and with a conscious disregard to Plaintiff’s wellbeing and safety”].) Rather, Plaintiff has described Defendant’s breach to be the failure to timely provide medical care. (SAC ¶ 21 [“As an actual and proximate result of Defendants’ breach of their duties to provide timely medical care[,]” Plaintiff was injured] [emphasis added].)

Thus, the court finds that Plaintiff has not met her burden to show the existence of a triable issue of material fact as to whether Defendant failed to provide timely medical care and therefore breached its duty of care.

The court therefore grants Defendant’s motion for summary adjudication as to the second cause of action for failure to render aid.

“‘[N]eglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’ As used in the [Elder Abuse and Dependent Adult Civil Protection Act (the “Elder Abuse Act”)], neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)

To successfully bring an action for neglect pursuant to the Elder Abuse Act, “[t]he 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 [citation]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; 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) [citations]. The plaintiff must also allege (and ultimately prove by clear and convenience evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 [internal citations omitted].)

The court finds that Defendant has met its burden of showing that the third cause of action for elder abuse (neglect) has no merit because Defendant has shown that an element of the cause of action (that Defendant neglected Plaintiff within the meaning of the Elder Abuse Act) cannot be established.

Defendant has submitted the declaration of Dr. Rosen, in which Dr. Rosen states, based on her review of the medical records, that (1) “[t]here is no evidence of [Plaintiff] having prolonged exposure to urine and/or excrement[;]” (2) Plaintiff was able to obtain nutrition and did not have malnutrition following July 20, 2022 (i.e., the date on which Plaintiff alleges that her dentures were thrown away by Defendant’s staff); and (3) it is her opinion that Defendant did not neglect or abuse Plaintiff, which is supported by the acute care hospital medical records that “provide that [Plaintiff] exhibited no signs of abuse or neglect.” (Rosen Decl., ¶¶ 8-9, 12; Def. Material Fact Nos. 11-12.)

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to the element of neglect. Plaintiff has submitted the declaration of her son, Behnam Khani, in which he states that “[o]n at least [four] separate occasions, [he] discovered that [Plaintiff] had been allowed to remain in her feces and urine and that they failed to change [Plaintiff’s] adult diapers for at least 10 hours.” (Khani Decl., ¶ 10.) For example, on or around July 20, 2020, Plaintiff’s “sheets were discovered filled with feces, so much that the entire room smelled of feces . . . . Even the pillows had urine on them.” (Ibid. [emphasis in original omitted].) When asked why Plaintiff’s pillows and blankets were filled with urine and excrement, Defendant’s nurse informed Khani that the nurse was busy and that, because it was Plaintiff’s “‘shower day[,]’” they did not find it necessary to change Plaintiff’s sheets. (Ibid.) Khani further stated that, although Plaintiff was provided a call light, the nurses would often not respond. (Khani Decl., ¶ 9.) On one occasion, Khani “rang the call light” and observed that “nobody appeared even after [40] minutes.” (Ibid.)

The court finds, taking into consideration the clear and convincing standard for a cause of action alleged under the Elder Abuse Act, that this evidence is sufficient to show that a triable issue of material fact exists as to whether Defendant neglected Plaintiff by failing to assist in her personal hygiene and failing to provide services in response to Plaintiff’s ringing her call light. (Wel. & Inst. Code, § 15610.57, subds. (b)(1) [“Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist in personal hygiene”], (b)(2) [neglect includes failure to provide medical care]; Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724 [“When a motion for summary judgment is made in a case where the plaintiff’s claim carries a clear and convincing burden of proof, the evidence and all inferences which can reasonably be drawn therefrom must meet that higher standard”]; Carter, supra, 198 Cal.App.4th at p. 407.) The court further finds that this evidence is sufficient to show a triable issue of material fact as to whether Defendant, in withholding these services and failing to assist in Plaintiff’s personal hygiene, acted with conscious disregard of the high probability of such injury and therefore acted recklessly. (Carter, supra, 198 Cal.App.4th at p. 407; SAC ¶ 41 [alleging recklessness].)

The court finds that Defendant has not met its burden of showing that the third cause of action for elder abuse (neglect) has no merit because Defendant has not shown that the element of causation cannot be established. (Carter, supra, 198 Cal.App.4th at p. 407 [“the neglect [must have] caused the elder or dependent adult to suffer physical harm, pain or mental suffering”].)

Defendant relies on the declarations of Dr. Rosen and Dr. Ehrhart, in which they have concluded that Defendant did not cause Plaintiff’s claimed injuries. (Dr. Rosen Decl., ¶ 16; Dr. Ehrhart Decl., ¶¶ 4-5.) The court finds that these declarations are insufficient to negate the element of causation as to this cause of action.

First, it appears that Defendant’s experts have concluded that Defendant did not contribute to or cause injuries to Plaintiff as a result of her falls. Dr. Rosen concluded that Defendant did not cause Plaintiff’s injuries because her injuries were instead “the result of the natural course of her pre-existing medical conditions and comorbidities, or were the natural or expected result of reasonable treatment rendered for the disease or condition, and were otherwise unavoidable.” (Dr. Rosen Decl., ¶ 16; Mot., p. 12:7-15 [citing Dr. Rosen Decl., ¶ 16].) However, the injuries alluded to in this conclusion appear to be those suffered as a result of Plaintiff’s falls, not as a result of any alleged neglect on the part of Defendant as described in her complaint (i.e., Defendant’s alleged failure to respond to call lights and permitting her to remain in urine and excrement for prolonged periods). (Dr. Rosen Decl., ¶ 5 [asserting that Plaintiff’s “falls . . . were unavoidable due to her ambulating and functional ability combined with her pre-existing medical conditions and comorbidities”]; SAC ¶¶ 29-30.) Similarly, Dr. Ehrhart concluded that Defendant “did not in any way cause or contribute to [Plaintiff]’s claimed injuries.” (Dr. Ehrhart Decl., ¶ 5.) However, his declaration also appears to have focused solely on the injuries suffered by Plaintiff as a result of her falling, and not the neglect alleged in her complaint. (Dr. Ehrhart Decl., ¶ 4 [Plaintiff “suffered no acute injury from her falls in April through August 2022”] [emphasis added].)

Thus, the court finds that the conclusions in Dr. Rosen and Dr. Ehrhart’s declarations are insufficient to show that Defendant’s neglect (i.e., its failure to respond to Plaintiff’s call lights and assist in personal hygiene) did not cause Plaintiff to suffer harm, pain, or mental suffering.

Second, the court also notes that Defendant did not present evidence showing that Plaintiff cannot prove the element of mental suffering as a result of the alleged neglect. (SAC ¶¶ 32 [alleging that Plaintiff was subjected to mental abuse], 33 [Plaintiff “had to suffer day in and day out” and suffered “four months of abuse and torture”], 40 [Plaintiff suffered “the loss of her dignity as a human being”]; Carter, supra, 198 Cal.App.4th at p. 407 [plaintiff must prove that the neglect caused “physical harm, pain or mental suffering”].)

The court finds that Defendant has not met its burden of showing that the third cause of action for elder abuse (neglect) has no merit because Defendant has not shown that an officer, director, or managing agent did not ratify or authorize the wrongful conduct constituting neglect.

“Where it is proven by clear and convincing evidence that a defendant is liable for . . . 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 following shall apply: [¶¶] (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.” (Wel. & Inst. Code, § 15657, subd. (c).) Under Civil Code section 3294, “[a]n employer shall not be liable for [punitive damages], based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or 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, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

In support of its argument, Defendant has only cited the declaration of Dr. Rosen. (Def. Material Fact No. 20 [citing page 11, lines 11-16 of Dr. Rosen’s declaration].) In her declaration, Dr. Rosen states as follows: “Based upon my review of the aforementioned records, as well as my education, training and experience, it is my professional opinion to a reasonable degree of medical probability that there is no evidence in the record that [Defendant’s] officer, director or managing agent engaged in, authorized or ratified any negligent or neglectful or abusive act or omission on the part of [Defendant’s] staff as it relates to care, treatment and services provided to” Plaintiff. (Dr. Rosen Decl., ¶ 15.) The court finds that this evidence is insufficient.

First, Dr. Rosen does not appear to have described any records in which she could conclude which acts were or were not authorized or ratified by Defendant’s officers, directors, or managing agents. (Dr. Rosen Decl., ¶ 4 [stating that the opinions set forth in her declaration are based on her review of the described medical records].) Second, Dr. Rosen has not set forth any facts to lay the foundation for her assertion that Defendant’s officers, directors, or managing agents did not take, ratify, or authorize the conduct described in Civil Code section 3294. (Ibid.) Third, the court notes that Defendant has not cited or submitted any other evidence, such as a declaration from one of Defendant’s officers, directors, or managing agents, to show that it did not authorize or ratify an act of oppression, fraud, or malice.

Thus, the court finds that Defendant has not met its burden to show that Plaintiff cannot establish the element of authorization or ratification of an act of oppression, fraud, or malice by an officer, director, or managing agent of Defendant. (Civ. Code, § 3294, subd. (b); Wel. & Inst. Code, § 15657, subd. (c).)

The court therefore denies Defendant’s motion for summary adjudication as to the third cause of action for elder abuse (neglect).

“An employer shall not be liable for [punitive damages], based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or 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, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

“[O]n a motion for summary adjudication with respect to a punitive damages claim, the higher evidentiary standard applies. If the plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence.” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.) “Under the clear and convincing evidence standard, the evidence must be ‘ “ ‘ “so clear as to leave no substantial doubt” ’ ” ’ and ‘ “ ‘ “sufficiently strong to command the unhesitating assent of every reasonable mind. ” ’ ” ’ [Citation.] Although the clear and convincing evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment [or summary adjudication].’” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158 [internal citations omitted].) However, the court must take this higher standard of proof into account in ruling on a motion for summary judgment. (Ibid.)

The court finds that Defendant has met its burden of showing that the claim for damages has no merit because Defendant has shown that an element of the claim (an act of oppression, fraud, or malice on the part of Defendant) cannot be established. Defendant has submitted evidence showing that (1) “[t]here is no evidence of [Plaintiff] having prolonged exposure to urine and/or excrement[,]” and (2) Plaintiff was able to obtain nutrition and did not have malnutrition following July 20, 2022 (i.e., the date on which Plaintiff alleges that her dentures were thrown away by Defendant’s staff). (Dr. Rosen Decl., ¶¶ 8-9.) Thus, the court finds that Defendant has shown that it did not engage in conduct that constitutes malice, oppression, or fraud. (Civ. Code, § 3294, subds. (a), (c).)

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to the element of Defendant’s act of oppression, fraud, or malice by submitting evidence, as set forth above, showing that (1) Plaintiff was forced to remain in soiled bedding for many hours; (2) when asked why Plaintiff was permitted to remain in soiled bedding, Defendant’s nurse stated it was unnecessary since it was Plaintiff’s “‘shower day[;]’” and (3) Defendant’s nurses often did not respond to Plaintiff’s call light. (Khani Decl., ¶¶ 9-10.) The court therefore finds, in considering the heightened standard for a claim of punitive damages, that Plaintiff has submitted evidence showing the existence of a triable issue of material fact as to whether Defendant acted with oppression in committing the acts described above. (Civ. Code, § 3294, subds. (a), (c)(2) [“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights”]; Butte Fire Cases, supra, 24 Cal.App.5th at p. 1158.)

The court finds that Defendant has not met its burden of showing that the claim for punitive damages has no merit because Defendant has not shown that the element of authorization or ratification of an act of oppression, fraud, or malice by an officer, director, or managing agent of Defendant cannot be established for the same reasons set forth above in the court’s the ruling on the third cause of action for elder abuse (neglect).

The court therefore denies Defendant’s motion for summary adjudication as to Plaintiff’s claim for punitive damages.

The court denies defendant Beverly Hills Rehabilitation Centre, LLC’s motion for summary judgment on plaintiff Mansoureh Aghayan’s Second Amended Complaint.

The court denies defendant Beverly Hills Rehabilitation Centre, LLC’s motion for summary adjudication as to plaintiff Mansoureh Aghayan’s (1) first and third causes of action, and (2) claim for punitive damages.

The court grants defendant Beverly Hills Rehabilitation Centre, LLC’s motion for summary adjudication as to plaintiff Mansoureh Aghayan’s second cause of action for failure to render aid.

[1] The court notes that the objections filed by defendant Beverly Hills Rehabilitation Centre, LLC erroneously list two objections with the number 30. The objections also erroneously skip objections number 33 and 41. (Def. Objections, pp. 32:9-33:8 [setting forth objection number 32 and, next, 34], 39:1-28 [setting forth objections 40 and 42].)

[2] The court notes that, in opposition, Plaintiff contends that Dr. Rosen is not qualified to opine on the relevant standard of care since her experience is limited to internal medicine and geriatric medicine at the Department of Veteran’s Affairs. But Dr. Rosen has explained, in her declaration, that she has “experience providing care and treatment to skilled nursing facility patients” and therefore is “familiar with the applicable standard of care as it applies to skilled nursing facilities, in the community, such as [Defendant] and its staff, who provide care and service to patients, such as” Plaintiff. (Dr. Rosen Decl., ¶ 2.)

mansoureh aghayan ; Plaintiff, vs. beverly hills rehabilitation centre, llc , et al.; Defendants.	Case No.:	22STCV27609

	Hearing Date:	March 6, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: defendant’s motion for summary judgment or, in the alternative, summary adjudication