Judge: Shirley K. Watkins, Case: 22STCV04823, Date: 2022-10-25 Tentative Ruling

Case Number: 22STCV04823    Hearing Date: October 25, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendant Eisenberg Village of the Los Angeles Jewish Home for the Aging’s Motion for Summary Judgment and Adjudication are DENIED.  Objections to the Decl. of Pamela Sharkey, RN are overruled.  The court cannot weigh the evidence or assess credibility at the time of an MSJ.  The declaration sets forth facts to establish her ability to render her opinions.

Introduction

Defendant Eisenberg Village of the Los Angeles Jewish Home for the Aging (Defendant) moved for summary judgment (MSJ) and alternatively for summary adjudication (MSA) against Plaintiff Dorothy Kaplan’s (Plaintiff) First Amended Complaint (FAC.)  Defendant’s MSA Issues are against the first cause of action (COA) for elder abuse and the request for punitive damages. 

The Reply was due October 20, 2022. 

Procedure  

            As to Defendant’s MSJ, Defendant must show that no triable issue of material fact exists as to the entire action.  Plaintiff’s FAC alleged elder abuse, negligence, and violation of Health and Safety Code section 1430(b).  (The fourth COA for willful misconduct was previously dismissed.)  The Court notes that the arguments in Defendant’s Points and Authorities do not present any facts, legal authority, or application of law to facts as to the second and third COA for negligence and violation of statute.  On this defect, there is grounds to deny the MSJ.

            Discussion 

            As to the first COA for elder abuse, Defendant asserted that there is no triable issue of fact as to the element of recklessness, oppression, fraud, or malicious conduct.  Defendant argued that their nursing staff complied with the standard of care by timely and appropriately treating Plaintiff.  However, as asserted in the Opposition, Defendant did not submit admissible evidence to support the contention.  Compliance with or breach of the medical standard of care is established by way of expert medical testimony.  (Selden v Dinner (1993) 17 Cal.App.4th 166, 173.)  Defendant merely submitted Plaintiff’s medical records and a declaration from Kathleen Glass, Defendant’s Executive Director.  Ms. Glass presented no testimony as to her qualifications to testify as a medical expert.  Without medical expert testimony, Defendant failed to meet their initial burden on the MSA Issue 1 or even the MSJ. 

            Even if Defendant could belatedly present expert testimony to support their contention and meet their initial burden, Plaintiff presented facts showing a triable issue as to recklessness/deliberate disregard of Plaintiff’s rights and potentially even fraud or malice.  Plaintiff provided that on February 15, 2021, when Plaintiff complained of her knee being broken by a female staff member, the staffer did not assess or treat her knee complaint, nor did the staffer record the incident in Plaintiff’s records.  (Plaintiff’s Additional Material Facts (PAMF) 66-73.)  These facts, at minimum, show a deliberate disregard of Plaintiff’s rights because of the staffer’s failure to treat.  At most, Plaintiff presented facts of a cover up of Plaintiff’s injuries/complaint due to the failure to document.  Plaintiff provides that it was not until the next day that another staffer addressed her knee complaint.  (PAMF 74.)  This is sufficient to show reckless neglect, fraud, or malice.  Because triable issues of fact exist, there is grounds to deny the MSJ and MSA Issue 1.

The MSJ and MSA Issue 1 is DENIED.

As to MSA Issue 2, Defendant asserted that there is no triable issue of fact as to a managing agent having advanced knowledge of an employee’s unfitness or ratification of misconduct and as to conduct being malicious, oppressive, or fraudulent.  As to Defendant’s second argument, the analysis above as to the fraud and malice elements of elder abuse applies here.  The staffer’s failure to treat when Plaintiff complained of her knee injury and failure to record the complaint sufficiently presents triable issues as to the fraud and malice elements under punitive damages.  Defendant’s secondary argument is not persuasive.

As to prior knowledge by a managing agent or ratification, Defendant relies upon the declaration of Ms. Glass to show that she was unaware of any staff member’s unfitness or ratification of misconduct.  (Defendant’s Material Fact (DMF) 52-54.)  However, Plaintiff presents additional facts to show Defendant’s failure in investigating the matter, despite being notified of the incident.  (PAMF 118-120, 130-134.)  With these additional facts, Plaintiff shows a triable issue of fact as to ratification of the misconduct because Defendant did not investigate or reprimand the staffer that failed to assess, treat, or record the incident upon hearing Plaintiff’s complaints of her knee. 

The MSA Issue 2 is DENIED.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.