Judge: Salvatore Sirna, Case: 23PSCV01767, Date: 2023-11-30 Tentative Ruling

Case Number: 23PSCV01767    Hearing Date: November 30, 2023    Dept: G

Defendant Emanate Health Inter-Community Hospital’s Demurrer to Plaintiff Thomas Weeber’s Complaint

Respondent: Plaintiff Thomas Weeber

Defendant Emanate Health Inter-Community Hospital’s Motion to Strike Plaintiff Thomas Weeber’s Complaint

Respondent: Plaintiff Thomas Weeber

TENTATIVE RULING

Defendant Emanate Health Inter-Community Hospital’s Demurrer to Plaintiff Thomas Weeber’s Complaint is SUSTAINED without leave to amend.

Defendant Emanate Health Inter-Community Hospital’s Motion to Strike Plaintiff Thomas Weeber’s Complaint is deemed MOOT.

BACKGROUND

This is an action for elder abuse and neglect. In July 2021, Plaintiff Thomas Weeber went to the emergency room of Defendant Emanate Health Inter-Community Hospital (Emanate) after experiencing weakness, dizziness, and abdominal pains. Weeber was then discharged from the emergency room and returned later on the same day after experiencing increased symptoms. After Weeber was discharged for a second time, Weeber alleges hospital staff wheeled Weeber out of Emanate to wait for a taxicab and left Weeber unattended in a wheelchair. Weeber also alleges hospital staff failed to engage the wheelchair’s brakes. As a result, Weeber alleges the wheelchair moved out from underneath Weeber when Weeber attempted to get up and caused Weeber to fall to the ground. Weeber alleges the fall caused Weeber to suffer head injuries and a T6 vertebral fracture.

On June 14, 2023, Weeber filed a complaint against Emanate, Emanate Health Medical Care Foundation (Emanate Foundation), Diana Denio, Dr. Joshua Vasquez, Dr. Miguel Garcia, Dr. Sanjay N. Khedia, Dr. Kevin Hua, and Does 1-100, alleging a single cause of action for elder abuse and neglect.

On October 16, 2023, Emanate filed the present demurrer and motion to strike. Prior to filing on October 6, Emanate’s counsel attempted to meet and confer with Weeber’s counsel telephonically, but Weeber’s counsel refused to return the call. (Hayati Decl., ¶ 26-27.)

A hearing on the demurrer and motion to strike is set for November 29, 2023, along with a case management conference and OSC Re: Failure to File Proof of Service.

REQUEST FOR JUDICIAL NOTICE

Emanate’s request for judicial notice of filings in Case No. 22PSCV03044 is GRANTED pursuant to Evidence Code section 452, subdivision (d).

ANALYSIS

Emanate demurs to Weeber’s sole cause of action for elder abuse and neglect on the grounds that it is (1) barred by the doctrine of res judicata and (2) fails to plead sufficient facts to state a claim. For the following reasons, the court SUSTAINS Emanate’s demurrer without leave to amend.

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.)

Doctrine of Res Judicata

Emanate argues Weeber’s cause of action for elder abuse and neglect is barred by the court’s dismissal of Weeber’s previous action for medical negligence. The court disagrees.

Legal Standard

Courts “have frequently used ‘res judicata’ as an umbrella term encompassing both claim preclusion and issue preclusion, which [courts] described as two separate ‘aspects’ of an overarching doctrine.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823 (DKN Holdings).) But courts have also used “res judicata” to specifically describe claim preclusion while referring to issue preclusion as “collateral estoppel.” (Id., at p. 823-824.) “It is important to distinguish these two types of preclusion because they have different requirements.” (Id., at p. 824.)

Claim preclusion “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) It “arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit” and has the effect of barring the claim’s relitigation. (DKN Holdings, supra, 61 Cal.4th at p. 824.) Meanwhile, “[i]ssue preclusion¿prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action.” (Ibid.) “[I]ssue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Id., at p. 825.) But unlike claim preclusion, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues.” (Id., at p. 824.)

Discussion

In this case, it is unclear if Emanate is arguing for claim preclusion or issue preclusion. Thus, the court’s analysis will address both.

Same Cause of Action or Issue

For the purposes of claim preclusion, a cause of action is defined as “the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) “[T]he determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Ibid.)

In the previous action, Weeber’s operative Second Amended Complaint (SAC) alleged a single cause of action for medical malpractice based on the same July 2021 incident described in the present action. (RJN, p. 325, 329-330.) Because Weeber’s medical malpractice action and elder abuse action both arise from hospital staff’s alleged lack of supervision and failure to lock the brakes on Weeber’s wheelchair, the court finds they are based on the same harm and thus constitute the same cause of action. (Compare Complaint, ¶ 35, with RJN, p. 330-331.)

Same Parties

It is undisputed that Weeber and Emanate were parties to both actions. (Compare, Complaint, ¶ 1, with RJN, p. 325.) Thus, the second element of claim and issue preclusion is met.

Final Judgment on the Merits

“A judgment given after the sustaining of a general demurrer on a ground of substance, for example, that an absolute defense is disclosed by the allegations of the complaint, may be deemed a judgment on the merits, and conclusive in a subsequent suit; and the same is true where the demurrer sets up the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action.” (Goddard v. Security Title Ins. & Guarantee Co. (1939) 14 Cal.2d 47, 52 (Goddard).) But this only applies when “the same facts are pleaded in the second action” and Goddard goes on to say “even a judgment on general demurrer may not be on the merits, for the defects set up may be technical or formal, and the plaintiff may in such case by a different pleading eliminate them or correct the omissions and allege facts constituting a good cause of action, in proper form. Where such a new and sufficient complaint is filed, the prior judgment on demurrer will not be a bar.” (Id., at p. 52; see also Keidatz v. Albany (1952) 39 Cal.2d 826, 828 [“If . . . new or additional facts are alleged that cure the defects in the original pleading, it is settled that the former judgment is not a bar to the subsequent action whether or not plaintiff had an opportunity to amend [their] complaint.”].)

In the previous action, the court sustained Emanate’s demurrer without leave to amend on the grounds that Weeber’s cause of action for medical negligence was barred by the applicable statute of limitations. (Case No. 22PSCV03044, 9/27/2023 Ruling, p. 2-3.) But “a prior judgment based on the statute of limitations ordinarily is not on the merits” as courts consider this a procedural or technical ground. (Boyd v. Freeman (2017) 18 Cal.App.5th 847, 856.) Because the court’s judgment in the previous action was based on the procedural grounds of being time-barred, it was not a final judgment on the merits. Thus, Weeber’s cause of action is not barred by the doctrine of res judicata.

Sufficiency of Complaint

Emanate contends Weeber’s cause of action for elder abuse and neglect fails to plead sufficient facts to state a claim. The court agrees.

Legal Standard

Pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), 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 EADACPA, “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 [EADACPA] 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, Emanate contends that Weeber failed to allege the existence of a robust and substantial caretaking or custodial relationship between Weeber and Emanate. Our supreme court has held the EADACPA requires the defendant healthcare provider to have a “a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (Winn).) In Winn, our supreme court held an elder patient’s intermittent outpatient care did not meet such a requirement. (Id., at p. 165.)

In Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109 (Kruthanooch), the Second District Court of Appeal held a hospital did not have a substantial caretaking or custodial relationship with an elder patient. (Id., at p. 1115.) Like Weeber in the present action, the elder patient in Kruthanooch went to the hospital’s emergency room after experiencing generalized weakness and lightheadedness. (Id., at p. 1116.) While undergoing an MRI at the hospital, the elder patient received second degree burns after the hospital’s staff failed to remove an EKG patch that had been placed on the elder patient’s chest. (Id., at p. 1116-1118.)

The court in Kruthanooch noted that there was no evidence that the elder patient had been cognitively impaired and unable to attend to basic needs like eating, drinking, or toileting. (Id., at p. 1129.) While the elder patient argued a robust custodial or caretaking relationship existed because the elder patient received assistance with hydration and mobility while in the hospital, the court rejected this argument and noted “Winn does not state that the protections and heightened remedies available under the [EADACPA] are available to any inpatient who receives assistance, however briefly, with one or more basic needs.” (Id., at p. 1131-1132.) The court further noted that the hospital’s assistance with hydration and mobility needs “on a limited basis during its provision of medical treatment to [the elder patient] is not substantial evidence of the custodial or caretaking relationship required by Winn.” (Id., at p. 1132.)

In the present case, the court finds Kruthanooch highly instructive. Like the elder patient in Kruthanooch, Weeber failed to allege any cognitive impairment beyond feeling weak or dizzy. Weeber also failed to allege how Weeber had been unable to attend to basic needs. To the extent the Complaint suggests Weeber received limited mobility assistance from Emanate, that alone is insufficient as noted in Kruthanooch. Unlike the elder patient in Kruthanooch who was receiving in-patient treatment when the MRI accident occurred, Defendant Emanate discharged Weeber and Weeber had exited Emanate before the injury in question occurred. (Complaint, ¶ 28-29.)

While the court in Kruthanooch was “not persuaded that a hospital necessarily assumes a robust caretaking or custodial relationship and ongoing responsibility for the basic needs of every person admitted,” the court here finds that even more true when the elder patient has been discharged and left the hospital. (Id., at p. 1131.) While it is possible a custodial or caretaking relationship could have existed if Weeber was being transported by Emanate, Weeber has not alleged any facts to this effect. Instead, Weeber alleged the opposite by stating that Weeber was discharged and waiting for a taxicab. Thus, Weeber’s allegations established the lack of a custodian or caretaking relationship that is required for actional neglect pursuant to the EADACPA.

In opposition, Weeber argues a custodial or caretaking relationship is not required for “physical abuse” pursuant to Welfare and Institutions Code section 15610.63 and “other treatment” resulting in “physical harm or pain or mental suffering” pursuant to Welfare and Institutions Code section 15610.07, subdivision (a)(1). Welfare and Institutions Code section 15610.63 provides a list of conduct that qualifies as physical abuse including assault, battery, unreasonable physical restraint, sexual assault or battery, lewd or lascivious acts, and use of physical of chemical restraints. The court notes that Plaintiff did allege Emanate’s staff committed any of these acts.

Welfare and Institutions Code section 15610.07, subdivision (a) defines “abuse of an elder or a dependent adult” as “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” But while Weeber argues the actions of Emanate’s staff meet the last form of elder abuse defined here, the statute authorizing civil actions and damages for elder abuse only applies to physical abuse, neglect, or abandonment. (Welf. & Inst. Code, § 15657.) And while Weeber cites to Darrin v. Miller (2019) 32 Cal.App.5th 450, for the premise that “other treatment” does not require a custodial relationship, that case is inapposite as it did not deal with a civil damages action pursuant to Welfare and Institutions code section 15657 and instead dealt with whether an elder victim could obtain a restraining order for abusive conduct pursuant to Welfare and Institutions Code section 15657.03. (Id., at p. 452.)

Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

CONCLUSION

Based on the foregoing, Defendant Emanate’s demurrer to Plaintiff Weeber’s Complaint is SUSTAINED in its entirety without leave to amend.

Based on the analysis above, Defendant Emanate’s motion to strike portions of Plaintiff Weeber’s Complaint is deemed MOOT.