Judge: Sandy N. Leal, Case: 2022-01240681, Date: 2023-08-10 Tentative Ruling
Motion for Judgement on the Pleadings
Defendants Viewpoint Ambulance, Inc., Carolina Prado, Chandini Patel, and Rainer Latap Motion for Judgment on the Pleadings is GRANTED with 15 days leave to amend.
1. General Authority Regarding Motions for Judgment on the Pleadings
Eckler v. Neutragena Corporation (2015) 238 Cal.App.4th 433, 439, states, “ ‘ “A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.’ [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.’ [Citation.]” “A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addition, it gives them a liberal construction.” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.”
Code Civ. Proc. § 438 states in relevant part: “(b)(1) A party may move for judgment on the pleadings. … (B) If the moving party is a defendant, that either of the following conditions exist: ¶ (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. ¶ (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. ¶ (2) The motion provided for in this section may be made as to either of the following: ¶ (A) The entire complaint or cross-complaint or as to any of the causes of action stated therein. ¶ (B) The entire answer or one or more of the affirmative defenses set forth in the answer. … ¶ (d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.”
2. Meet and Confer
Code Civ. Proc. § 439 states: “(a) Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion for judgment on the pleadings against the amended pleading.”
Here, moving party sufficiently met and confer by telephone.
3. Merits
The elements of a cause of action for Elder Abuse based upon neglect are: (i) Defendant had a substantial caretaking or custodial relationship with plaintiff/decedent, involving ongoing responsibility for plaintiff’s basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance; (ii) That plaintiff/decedent was 65 years of age or older or fully dependent while in defendant's care or custody; (iii) That defendant failed to use the degree of care that a reasonable person in the same situation would have used in providing for plaintiff/decedent’s basic needs; (iv) That plaintiff/decedent was harmed; and (v) Defendant's conduct was a substantial factor in causing plaintiff/decedent's harm. (Welf & Inst. Code §§ 15610, et seq.; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; CACI 3103.)
“[I]n assessing defendants’ potential liability under the Elder Abuse Act, our focus must be on the specific relationship developed between defendants and decedent. Defendants’ provision of in-home nursing for wound care on a number of occasions is more analogous to the outpatient visits the decedent had with physicians in Winn than it is the situation where a defendant has ‘assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.’ (Winn, supra, 63 Cal.4th at pp. 155, 158, 202 Cal.Rptr.3d 447, 370 P.3d 1011.) That decedent was dependent and vulnerable as a general matter does not mean that anyone who entered into her orbit and provided her with a service would have entered into a caretaking or custodial relationship with her.” (Oroville Hosp. v. Superior Ct., (2022) 74 Cal. App. 5th 382, 406, 289.)
The First Amended Complaint alleges:
• “RAFAEL at all times mentioned herein sought medical transportation services from the VIEWPOINT DEFENDANTS and was transported by VIEWPOINT DEFENDANTS. At the time RAFAEL sought transportation services from the VIEWPOINT DEFENDANTS, the VIEWPOINT DEFENDANTS were aware of RAFAEL’s medical condition including his amputated leg, chronic kidney disease and diabetes. The VIEWPOINT DEFENDANTS transported RAFAEL from his home to DAVITA ANAHEIM SPRINGS and back to his home.” (First Amended Complaint, (FAC) ¶ 55.)
• The First Amended Complaint alleges “PLAINTIFFS are informed and believe and on this basis allege that the VIEWPOINT DEFENDANTS transported RAFAEL from his home to DAVITA ANAHEIM SPRINGS and back to his home, approximately three times each week during the three years leading up to March 23, 2021.” (FAC ¶ 76.)
• “At all relevant times, RAFAEL was over the age of 65 and thus was an “elder” adult as that term is defined in Welfare and Institutions Code §15610.27. RAFAEL was born on December 17, 1933 and was 87 years of age at the time of the events alleged herein. At the time of the alleged events herein, RAFAEL was in the care or custody of the VIEWPOINT DEFENDANTS due to their caretaking obligations of RAFAEL. The VIEWPOINT DEFENDANTS had an ongoing responsibility of attending to RAFAEL’s basic need of regularly being transported safely from his home to DAVITA ANAHEIM SPRINGS and back to his home and therefore the VIEWPOINT DEFENDANTS were responsible for RAFAEL’s health and well-being.” (FAC ¶ 77.)
• “The VIEWPOINT DEFENDANTS failed to implement and follow policies and procedures to ensure that RAFAEL was not exposed to unnecessary health and safety hazards during the VIEWPOINT DEFENDANTS transportation of RAFAEL from his home to DAVITA ANAHEIM SPRINGS and back to his home.” (FAC ¶ 79.)
Here, the FAC sufficiently alleges enough to shows a custodial relationship. Decedent was not able-bodied and fully competent. He required an ambulance to transport him three times each week to a dialysis center to receive dialysis treatment on a normal basis. He also appears to need help with the basic need of moving.
Defendant further contends that the cause of action sounds in professional negligence. Defendant also argues that in Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784 the California Supreme Court held that recovery against a health care provider under the Act was intended only for “egregious acts of misconduct distinct from professional negligence . . .”
Welf. & Inst. Code § 15657.2 states: “Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.”
Defendant cites Lopez v. Am. Med. Response W., (2023) 89 Cal. App. 5th 336, 345 (Lopez) which provided: “as a matter of law, ... the act of operating an ambulance to transport a patient to or from a medical facility is encompassed within the term ‘professional negligence.’ ” (Id. at p. 404, 72 Cal.Rptr.3d 792.) Canister also held that under section 340.5’s definition of “ ‘professional negligence,’ ” “[t]he relevant test is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed.” (Canister, at p. 404, 72 Cal.Rptr.3d 792.) Canister further found that “[a]n integral part of the duties of an EMT includes transporting patients and driving or operating an ambulance.” (Id. at p. 407, 72 Cal.Rptr.3d 792.) Here, plaintiffs were passengers in the ambulance—Leobardo as the patient and Ubaldo as the patient's companion, similar to the police officer in Canister—while the ambulance was transporting a patient. This case falls squarely within the holding of Canister.”
The Court in Lopez further stated: “Plaintiffs’ injuries resulted from AMR's alleged negligence in the “use or maintenance of equipment [the ambulance] integrally related to [plaintiff Leobardo's] medical diagnosis and treatment” and therefore was professional negligence for the purposes of section 340.5. (Flores, supra, 63 Cal.4th at p.89, 201 Cal.Rptr.3d 449, 369 P.3d 229.)” (Id. at 347.)
The FAC alleges: “On or about March 23, 2021, VIEWPOINT DEFENDANTS attempted to transport RAFAEL from DAVITA ANAHEIM SPRINGS back to the ambulance vehicle so he could be taken back to his home. It was VIEWPOINT DEFENDANTS’ responsibility to employ a consistent, organized and structured transport plan, including properly strapping RAFAEL, properly positioning the stretcher/gurney so that the stretcher/gurney were securely handled to prevent the same from tipping, and consistently using the safest pathway from the medical transport vehicle to the DAVITA ANAHEIM SPRINGS facility and from the DAVITA ANAHEIM SPRINGS facility to the medical transport vehicle. The VIEWPOINT DEFENDANTS secured RAFAEL and pushed the gurney/stretcher and RAFAEL with such negligence that they caused the gurney/stretcher tip over causing RAFAEL to fall to the ground and suffer injury as set forth herein. At that time and place, each of the VIEWPOINT DEFENDANTS so negligently and carelessly entrusted, operated, controlled, managed, supervised, unloaded, and maintained the gurney/stretcher so as to cause it to tip over, causing RAFAEL to fall onto ground and suffer serious injuries, as hereinafter stated.” (Complaint, ¶ 62.)
The Court agrees that Plaintiff’s theory is clearly a professional negligence claim under Lopez, and should not be permitted against Defendant unless egregious acts of misconduct have been alleged.
Based on the foregoing, the Court GRANTS the Motion for Judgment on the Pleadings with 15 days leave to amend.
Defendants to give notice.