Judge: Stephen I. Goorvitch, Case: 20STCV38862, Date: 2023-02-07 Tentative Ruling

Case Number: 20STCV38862    Hearing Date: February 7, 2023    Dept: 39

Neva Ladion v. Royal Palms Post Acute, et al.

Case No. 20STCV38862

Order #1 of 2

Motion for Summary Judgment

            Plaintiff Neva Ladion, by and through her successor-in-interest, Shirley Ladion (“Plaintiff”) asserts causes of action for: (1) Elder abuse/neglect, (2) Negligence, (3) Violation of Health & Safety Code section 1430(B), and (4) Willful misconduct.  Plaintiff also asserts a wrongful death claim in her individual capacity under Code of Civil Procedure section 377.60.  Plaintiff alleges that Neva Ladion, who was 94 years old, was a resident of a skilled nursing facility.  (Complaint, ¶ 19.)  Neva Ladion (“Decedent”) had a history of dementia, hypertension, bladder cancer, and end-stage renal failure, requiring hemodialysis treatment.  (Ibid.)  Neva Ladion developed an AV fistula on her left arm, and on March 10, 2020, she was found unresponsive with profuse bleeding from the AV fistula.  (Id., ¶¶ 28-33.)  Plaintiff alleges that she died as a result of Defendants’ neglect in not checking her dialysis access site as required.  (Id., ¶ 30.)  Now, Defendants Royal Palms Post Acute, LLC dba Royal Palms Post Acute (“Royal Palms”) and Beecan Health, LLC (“Beecan”) (collectively, “Defendants”) move for summary judgment.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

Assuming Defendants satisfied their burden on summary judgment, Plaintiff proffers sufficient evidence to give rise to triable issues in this case.  Plaintiff relies upon the declaration of Pamela Sharkey, R.N. (“Sharkey”).  Sharkey opines that Defendant breached the standard of care because Defendant’s LVN Charge Nurse, Dainesha Brown (“Brown”) did not assess Decedent’s dialysis access cite at the start of her shift.  (Declaration of Pamela Sharkey, R.N., ¶ 6.)  Sharkey further states that Defendant breached the standard of care by failing to provide oxygen to Decedent before the paramedics arrived.  (Ibid.)  

Plaintiff also relies upon the declaration of Vincent L. Rowe, M.D. (“Rowe”), who is a vascular surgeon.  Dr. Rowe notes that Decedent’s skin was “thin” at the dialysis site, and Defendants’ staff should have noticed this issue and increased monitoring.  (Declaration of Vincent L. Rowe, M.D., ¶ 7(a).  Dr. Rowe opines that Decedent’s death was caused, in whole or in part, by Defendants’ lack of monitoring care.  (Declaration of Vincent L. Rowe, M.D., ¶ 7(b).)  Dr. Rowe opines that it is more likely than not that Decedent started to bleed on the morning of March 10, 2020, as a result of a compromise to the upper portion of the dialysis access site.  (Declaration of Vincent L. Rowe, M.D., ¶ 7(c).)  Dr. Rowe opines the nursing staff erred in addressing this issue and that Decedent “would have been saved if the nursing staff used a proper tourniquet, with proper placement and technique, to stop the arterial bleed.”  (Declaration of Vincent L. Rowe, M.D., ¶ 7(d).)  Dr. Rowe opines that Defendants’ staff did not property administer CPR and give Decedent oxygen, and this lack of oxygen contributed to her death.  (Declaration of Vincent L. Rowe, M.D., ¶ 7(e).)     

Defendants do not sufficiently address these issues in the reply brief.  They argue that Decedent “had a severe heart attack and died,” which was likely caused by “the access site rupture and was an unforeseeable event.”  Plaintiff’s evidence suggests otherwise, that the bleeding and lack of oxygen caused or contributed to Decedent’s death, and that Defendants’ breached the standard of care. 

Based upon the foregoing, the Court orders as follows:

1.         Defendants’ motion for summary judgment is denied. 

2.         Defendants shall provide notice and file proof of such with the Court.

Order #2 of 2

Motion to Compel

            Plaintiff Shirley Ladion, individually and as successor-in-interest to Neva Ladion (“Plaintiff”) moves to compel Deponent Dainesha Brown, LVN (“Deponent”) to appear for deposition.  Deponent is a former employee of Defendant Royal Palms Post Acute LLC. (“Royal Palms”).  Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”  (Code Civ. Proc., § 1987.1.)

Plaintiff personally served Deponent with a subpoena to compel Deponent to appear for deposition.  Plaintiff personally served the motion on Deponent as required.  (Cal. Rules of Court, rule 3.1346.)  Deponent did not object to the subpoena or file a motion to quash.  Therefore, the motion is granted.

The Court orders as follows:

1.         Plaintiff’s motion to compel compliance with subpoena is granted. 

2.         The Court orders Dainesha Brown to appear for a deposition on _______, 2023, at 1:00  p.m. at the following location:

            Moran Law

            5 Hutton Centre Drive, Suite 1050

            Santa Ana, California 92707

The Court authorizes Plaintiff to change the date/time/location of this deposition if necessary without a further order from the Court.

            3.         The nature and scope of the deposition shall be as set forth in Exhibit #1 to the Declaration of David E. Ramirez.

            4.         If Plaintiff’s counsel requires a signed order from the Court, he may prepare and lodge a proposed order. 

            5.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.