Judge: Ronald F. Frank, Case: 24TRCV00279, Date: 2024-06-25 Tentative Ruling
Case Number: 24TRCV00279 Hearing Date: June 25, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: June 25, 2024¿
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CASE NUMBER: 24TRCV00279
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CASE NAME: Isabelle
Clayton, et al. v. Torrance Memorial Medical Center, et al.
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MOVING PARTY: Defendants, Providence Health System –
Southern California dba Providence Little Company of Mary Medical Center and
Providence Health System – Southern California dba Providence Little Company of
Mary Transitional Care Center
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RESPONDING PARTY: Plaintiffs, Isabelle Clayton, by and through her
successor-in-interest, Norma Calhoun, Norma Calhoun, individually, Karmela
Calhoun, individually, Cedric Clayton, individually, and Sheryl Pearson,
individually.
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TRIAL DATE: None
set.
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MOTION:¿ Demurrer¿to the 1st cause of action, alleged Elder
Abuse
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Tentative Rulings: SUSTAINED with twenty (20) days leave to amend.
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I. BACKGROUND¿¿
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A. Factual¿¿
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On
January 26, 2024, Plaintiffs, Isabelle Clayton, by and through her successor-in-interest,
Norma Calhoun, Norma Calhoun, individually, Karmela Calhoun, individually,
Cedric Clayton, individually, and Sheryl Pearson, individually (collectively
“Plaintiffs”) filed a complaint against Defendants, Providence Health System – Southern
California dba Providence Little Company of Mary Medical Center and Providence
Health System – Southern California dba Providence Little Company of Mary
Transitional Care Center (collectively, “Defendants”) and DOES 1 through 200.
The
complaint alleges causes of action for: (1) Elder Abuse; (2) Negligence; (3)
Violation of Residents Rights; and (4) Wrongful Death. The complaint is based
on Plaintiffs’ allegations that on April 27, 2022, Plaintiff, Isabelle Clayton
was admitted to LCOM for right lower extremity weakness. On May 10, 2022,
Plaintiffs contend that Plaintiff, Isabelle Clayton was admitted to LCOM
Transitional where it was noted she had a coccyx pressure injury. Then, on June
17, 2022, Plaintiffs note that Plaintiff, Isabelle Clayton was admitted to TMMC
for left arm weakness and slurred speech, where admission records indicate she
had a stage two (2) sacral pressure injury. Further, on August 9, 2022,
Plaintiffs contend Isabelle Clayton was admitted to TMMC from LCOM Transitional
due to urinary obstruction, progressive fever and a urine culture positive for
E.coli. On August 31, 2022, Plaintiffs note that Isabelle Clayton was noted as
having a stage 4 pressure injury to her coccyx/sacrum was measured as
unstageable. Plaintiffs allege that while under the care and treatment of
Defendants, Isabelle Clayton developed pressure injuries to her sacrum/coccyx
which caused her to endure extreme pain and suffering and suffer an untimely
demise.
Defendants
file a Demurrer to Plaintiffs’ complaint.
B. Procedural¿¿
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On May 7, 2024, Defendants
filed this demurrer to Plaintiffs’ complaint. On June 11, 2024, Plaintiffs
filed an opposition brief. On June 17, 2024, Defendants filed a reply brief.
II. ANALYSIS¿
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A. Legal Standard
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A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack or from matters
outside the pleading that are judicially noticeable. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be alleged.” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
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A pleading is uncertain if it is
ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer
for uncertainty may lie if the failure to label the parties and claims renders
the complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
B. Meet and Confer
Before filing a demurrer, the demurring
party is required to meet and confer “in person, by telephone, or by video
conference with the party who filed the pleading that is subject to the
demurrer for the purposes of determining whether an agreement can be reached
through a filing of an amended pleading that would resolve the objections to be
raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).)
Pursuant to the declaration of David R. Tredway, Esq., counsel
for Defendants, on April 24, 2024, he emailed a meet and confer letter to
Plaintiffs; counsel in a good faith effort to meet and confer regarding their
believed deficiencies in the complaint. (Declaration of David R. Tredway, Esq.
(“Tredway Decl.”), ¶ 2.) Tredway further notes that he also had a
discussion with Plaintiffs’ counsel regarding this on May 3, 2023. Despite
their efforts, the parties were unable to reach an agreement resolving the
disputes at issue.
Plaintiffs’ opposition brief does not dispute Defendants’ meet
and confer efforts. As such, this Court finds that the parties met and
conferred in good faith prior to Defendants filing of the demurrer.
C. Discussion
Defendants demur to
Plaintiffs’ complaint on the grounds they argue the first cause of action for
elder abuse fails to state sufficient facts to constitute a cause of action
against Defendants and is uncertain, ambiguous, and unintelligible.
Elder Abuse
First, Defendants
argue that elder abuse is not an available cause of action where it is based on
the provider’s alleged professional negligence. The Elder Abuse and Dependent Adult Civil Protection Act (Welf.
& Inst. Code, § 15600 et seq.) provides for steep penalties against those
who abuse an elder or a dependent adult. Dependent adult abuse includes
physical abuse, neglect, isolation, deprivation by a care custodian of
necessary goods or services, and financial abuse. (Welf. & Inst. Code, §
15610.07, subd. (a).) Neglect includes failure to assist in personal hygiene,
failure to provide medical care for physical and mental health needs, and
failure to protect from health and safety hazards. (Welf. & Inst. Code, §
15610.57, subd. (b).)
As far as allegations for professional negligence are alleged,
case law is clear that
“‘neglect’ within the meaning of Welfare and Institutions Code section 15610.57
covers an area of misconduct distinct from ‘professional negligence.’” (Covenant
Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) “As used in
the 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.’” (Id.)
In order to distinguish Dependent Adult
Abuse from Professional Negligence, there must be a showing of recklessness,
fraud, malice, or oppression. (See Covenant Care, Inc., supra, 32
Cal.4th at 783.) “Oppression, fraud, and malice involve intentional, willful,
or conscious wrongdoing of a despicable or injurious nature.” (Carter v.
Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405
(internal quotation marks omitted).) Recklessness requires deliberate disregard
of a high degree of probability an injury will occur. (Id.) The enhanced
remedies for Elder Abuse are only available for “acts of egregious abuse
against elder and dependent adults.” (Id.) There must be an allegation
of authorization or ratification on the part of a managing agent in order to
recover damages for dependent adult abuse against corporate defendants. (See
Civ. Code, § 3294; Cal. Welf. & Inst. Code, § 15657(c).)
To plead elder abuse, the plaintiff must
allege “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 [citations]; (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].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the
neglect caused the elder or dependent adult to suffer physical harm, pain or
mental suffering.” (Id. at 407.) “[T]he facts constituting the neglect
and establishing the causal link between the neglect and the injury ‘must be
pleaded with particularity,’ in accordance with the pleading rules governing
statutory claims.” (Id. (quoting Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 790).)
Here, the Court finds that the complaint
does allege: (1) that Demurring Defendants had a responsibility for meeting the
basic needs of decedent by failing to take the necessary steps to properly care
for her pressure injuries (Complaint, ¶¶ 33, 38); (2) that Demurring Defendants
knew that taking the necessary precautions to prevent her from incurring
avoidable pressure injuries, was critical to her health, well-being, and
prognosis (Complaint, ¶¶ 34, 39); (3) that by failing to address the decedent’s
patient care issues, Demurring Defendants knew it was highly probable that she
would suffer pressure injuries and knowingly disregarded that risk (Complaint,
¶¶ 34, 39.) Plaintiff also alleges that as a result of the Demurring
Defendant’s wrongdoings, decedent suffered physical harm, pain and mental
suffering. (Complaint, ¶ 30.) Thus, the Complaint does contain facts which allege
the required elements of this cause of action.
The Court also finds that the Complaint alleges facts to
establish employer liability. Before any damages may be imposed against an
employer for an employee’s conduct, an officer, director, or managing agent of
the employer must have had advance knowledge of the employee’s unfitness and a
conscious disregard of the rights of others or authorized or ratified the
wrongful conduct. (See Welf. & Inst. Code, § 15657, subd. (c).); Civ. Code,
§ 3294, subd. (b).) The Complaint contains the allegation that “Defendants had advance knowledge
of the unfitness of their employees and employed them with a conscious
disregard of the rights or safety of others, “authorized or ratified the
wrongful conduct” and Defendant’s conduct was “on the part of an officer,
director, or managing agent of the corporation” (Complaint, ¶ 31.) This allegation is vague and conclusory, and
is insufficient to satisfy the heightened pleading requirements described in
the published precedents, including Carter
v. Prime Healthcare, supra, 198
Cal.App.4th at p. 407 which lists seven examples of particularized pleading which
had not been met in that case. The
Second District recently reversed and remanded a medical malpractice/Elder
Abuse jury verdict for a new trial on the issues of respondeat superior and
ratification in Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77
Cal.App.5th 85. While we are a long way
away from trial of this matter, the specificity of pleading entity
responsibility for allegedly intentional or reckless acts by staff members is
properly raised by Demurrer. Greater
detail is required, using Carter, Covenant Care, and Samantha
B as guideposts for the level of detail required.
Further, Plaintiff’s Complaint
alleges that Demurring Defendants acted with recklessness, oppression, and
malice in a conclusory way. (Complaint, ¶¶ 34, 39.) Such allegations do not
meet the pleading requirements required to allege statutory elder abuse versus
professional negligence. For example, how did Demurring Defendants act to rise
to the level of reckless, oppression, and malice? How did Demurring Defendants
authorize or ratify the conduct? Without more, Plaintiff may not maintain this
cause of action as against Demurring Defendants.
As such, the
Demurrer is SUSTAINED with twenty (20) days leave to amend.
IV. CONCLUSION¿¿
For the foregoing reasons, Demurring
Defendant’s demurrer is SUSTAINED with twenty (20) days leave to amend.
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Defendants are ordered to
give notice.¿¿¿¿
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