Judge Salvatore Sirna, Case 22STCV17775 2023-03-07 Tentative Ruling

Judge: Salvatore Sirna, Case: 22STCV17775, Date: 2023-03-07 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22STCV17775 Hearing Date: March 7, 2023 Dept: G

Defendant Pomona Valley Hospital Medical Center’s Demurrer to Plaintiffs’ Second Amended Complaint

Respondent: Plaintiffs Simau Fealofai, Akeripa Fealofai, Ashley Alama, and Ariana Fealofai

TENTATIVE RULING

Defendant Pomona Valley Hospital Medical Center’s Demurrer to Plaintiffs’ Second Amended Complaint is SUSTAINED IN PART with twenty (20) days leave to amend and OVERRULED IN PART.

BACKGROUND

This is a personal injury action arising from an automobile accident and subsequent medical treatment. On May 6, 2021, Simau Fealofai was involved in an automobile collision with Danny Rodriguez Gonzalez (Rodriguez Gonzalez). Following the accident, Simau Fealofai was admitted to Pomona Valley Hospital Medical Center (Defendant) for treatment. While under Defendant’s care, Simau Fealofai claims to have suffered additional injuries, including pressure wounds, as a result of negligence by Defendant’s staff.

On May 27, 2022, Simau Fealofai, Akeripa Fealofai, Ashley Alama (Alama), and Ariana Fealofai (collectively, Plaintiffs) filed a personal injury complaint against Rodriguez Gonzalez, Defendant, and Does 1-50. On July 26, Plaintiffs submitted a First Amended Complaint (FAC). Subsequently, Defendant demurred to Plaintiff’s FAC and the court sustained the demurrer on November 28.

On December 27, 2022, Plaintiffs filed a Second Amended Complaint (SAC) against the same defendants, alleging the following causes of action: (1) assault, (2) battery, (3) negligence, (4) negligence per se, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) elder abuse, and (8) loss of consortium.

On January 24, 2023, Defendant filed the present demurrer. Prior to filing on January 20, Defendant’s counsel met and conferred telephonically with Plaintiff’s counsel and was unable to reach a resolution. (Dik Decl., ¶ 2.)

A hearing on the demurrer is set for March 7, 2023. A case management conference is also set for March 13 with a final status conference on November 13, a non-jury trial on November 27, and an OSC Re: Dismissal on May 24, 2024.

ANALYSIS

Defendant demurs to Plaintiffs’ fifth cause of action (intentional infliction of emotional distress), sixth cause of action (negligent infliction of emotional distress), and seventh cause of action (elder abuse). For the following reasons, the court SUSTAINS Defendant’s demurrer to Plaintiffs’ sixth cause of action with leave to amend and OVERRULES Defendant’s demurrer to Plaintiffs’ fifth and seventh causes of action.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)¿

Intentional Infliction of Emotional Distress (Fifth Cause of Action)

Defendant argues Plaintiffs’ fifth cause of action for intentional infliction of emotional distress (IIED) fails to plead sufficient facts to state a claim. The court disagrees.

To establish a claim of IIED, one must show “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, quoting Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.) Extreme and outrageous conduct is defined as exceeding “all bounds of decency usually tolerated by a decent society” and intending to cause mental distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

In this case, Plaintiffs allege Defendant’s neglect of Simau Fealofai that led to the development of pressure wounds was outrageous conduct. (SAC, ¶ 53.) In arguing Plaintiffs’ allegations fail to rise to the level of outrageous, Defendant relies on Cochran v. Cochran (1998) 65 Cal.App.4th 488 (Cochran) and Berkley v. Dowds (2007) 152 Cal.App.4th 518 (Berkley). However, the court finds these cases involved speech, not treatment or the lack thereof. (Cochran, supra, 65 Cal.App.4th at p. 498-499 [an alleged death threat not outrageous where no evidence of actionable threat or menace]; Berkley, supra, 152 Cal.App.4th at p. 534-535 [comments by caregivers that wife should take husband off of life support were not outrageous].)

Here, Plaintiffs allege that Defendant’s staff egregiously and recklessly neglected to care for Simau Fealofai. (SAC, ¶ 19, 20.) In doing so, Plaintiffs allege Defendant also acted with reckless disregard to the possibility that Simau Fealofai’s injuries would cause emotional distress to the Plaintiffs. (SAC, ¶ 54-55.) Thus, Plaintiffs have pled sufficient allegations to establish an IIED claim.

Accordingly, Defendant’s demurrer to Plaintiffs’ fifth cause of action is OVERRULED.

Negligent Infliction of Emotional Distress (Sixth Cause of Action)

Defendant maintains Plaintiffs’ sixth cause of action for negligent infliction of emotional distress (NIED) is duplicative of Plaintiffs’ cause of action for negligence. In response, Plaintiffs concede the NIED claim should be removed and merged with the negligence cause of action. Accordingly, Defendant’s demurrer to the sixth cause of action is SUSTAINED with leave to amend.

Elder Abuse (Seventh Cause of Action)

Defendant contends Plaintiffs’ seventh cause of action for elder abuse fails to plead sufficient facts to state a claim. The court disagrees.

Legal Standard

Pursuant to the Elder and Dependent Adult Civil Protection Act (EDACPA), a “dependent adult” is defined as any person “regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.” (Welf. & Inst. Code, §15610.23, subd. (a).) “Abuse of an elder or a dependent adult” includes (1) “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or (2) “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1), (2).

Neglect is defined as the “[t]he 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.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).) It includes but is not limited to:

“(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. A person shall not be deemed neglected or abused for the sole reason that the person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Substantial inability or failure of an elder or dependent adult to manage their own finances.

(6) Failure of an elder or dependent adult to satisfy any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.” (Welf. & Inst. Code, § 15610.57, subd. (b).)

For heightened remedies under EDACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 (Covenant Care).) “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-405, quoting Covenant Care, supra, 32 Cal.4th at p. 783.)

“To obtain the remedies provided by [EDACPA] pursuant to section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ [Citation.] Recklessness refers ‘to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur.’ Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88–89, quoting Delaney v. Baker (1999) 20 Cal.4th 23, 31.)

Discussion

In this case, the court finds that the SAC alleges sufficient facts supporting an inference of wrongdoing that is “more than negligence” as to Defendant’s obligations. Specifically, the SAC alleges Simau Fealofai developed pressure wounds and was malnourished and dehydrated because Defendant neglected Plaintiff. (SAC, ¶ 62, 65.) Simau Fealofai also alleges that Defendant’s actions went beyond simple negligence as Defendant’s neglect caused Plaintiff to suffer from a condition that nearly became fatal. (SAC, ¶ 66.) In alleging Defendant’s neglect was reckless, Plaintiffs allege the contributing factors to Simau Fealofai’s pressure wounds were well known by Defendant’s staff and despite this knowledge, Defendant’s staff failed to take any action, including failing to reposition and turn Plaintiff and failing to provide appropriate padding or a special mattress. (SAC, ¶ 19) Further, Plaintiff’s allege Defendant’s staff failed to care for the wounds caused by their neglect which resulted in Simau Fealofai’s condition worsening. (SAC, ¶ 20.)

Because Plaintiffs’ allegations go beyond a failure to provide the proper standard of care and suggest Defendant’s staff were reckless in neglecting to treat or care for Simau Fealofai, the court finds Plaintiffs have alleged sufficient facts to establish a cause of action for elder abuse. Accordingly, Defendant’s demurrer to Plaintiffs’ seventh cause of action is OVERRULED.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiffs’ SAC is SUSTAINED with twenty (20) days leave to amend as to the sixth cause of action.

The demurrer is OVERRULED as to the fifth and seventh causes of action.