Judge: Steven A. Ellis, Case: 21STCV41674, Date: 2023-11-20 Tentative Ruling
Case Number: 21STCV41674 Hearing Date: November 20, 2023 Dept: 29
TENTATIVE
Defendant South Pasadena Care Center LLC’s Demurrer to the First Amended Complaint is OVERRULED.
Defendant’s Motion to Strike is DENIED.
Background
Plaintiffs Holly Slocum Reyes and Robert Slocum are the adult children of Decedent Robert Slocum, Jr. Plaintiffs are the personal representatives of Decedent’s estate.
From March 2020 through about August 14, 2020, Decedent Robert Slocum, Sr. was placed into the custodial care and custody of Defendants at Defendant South Pasadena Care Center. When Decedent was admitted to South Pasadena Care Center, he was 78-years old, a known fall risk, suffered from dementia/cognition problems, diabetes and mobility impairment. Decedent also required prescription glasses to see, and Defendants assured Plaintiffs that they obtain glasses for him during his short-term rehabilitative stay. Decedent was entirely dependent on Defendants for daily life activities, including but not limited to feeding and dietary planning, skin care, hygiene, infection control/prevention, toileting, medical care, physical rehabilitation/exercise and basic ambulation. Plaintiffs also allege Defendants intentionally and knowing understaffed their facility, which contributed or caused their failure to provide proper care to Decedent.
Plaintiffs allege that Defendants failed to provide basic custodial care to Decedent during his stay at South Pasadena Care Center, resulting in his death. As a result of Defendants’ failure to provide basic care and negligence, Decedent (1) was never provided with prescription glasses despite being unable to see without them and a fall risk; (2) fell and hit his head in his room despite prior discussions, medical records, transfer orders regarding Decedent’s history of falls; (3) suffered a 40-50 pound weight loss during his 5 ½ month stay; (4) contracted COVID twice; and (5) developed sepsis.
Decedent ultimately died on August 15, 2020, from the injuries and infections he developed due to Defendants’ negligence and failure to provide basic custodial care.
On November 12, 2021, Plaintiffs filed this action. On July 31, 2023, the Court sustained with leave to amend Defendant South Pasadena Care Center’s demurrer to the first, second and third causes of action for wrongful death, violations of the Elder Abuse Act and violations of Health & Safety Code §1430(b).
On September 1, 2023, Plaintiffs filed their First Amended Complaint alleging (1) wrongful death (Elder Abuse WIC §15600, et seq.); (2) violations of the Elder Abuse Act (WIC §15600, et seq. Survival Claim); (3) violations of Health & Safety Code §1430(b)(Survival Claim); and (4) wrongful death (negligence).
On October 13, 2023, Defendant South Pasadena Care Center, LLC d/b/a South Pasadena Care Center (“SPCC”) filed the instant demurrer and motion to strike. On November 6, 2023, Plaintiffs filed an opposition to the demurrer and motion to strike. On November 13, 2023, Defendant SPCC filed replies to Plaintiffs’ oppositions.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirada (2007) 147 Cal.App.4th 740, 747.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, the defects must be apparent on the face of the pleading or via proper judicial notice. (Code Civ. Proc., §§ 430.30, 430.70; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)
In contrast to common law causes of action, statutory causes of action – including, but not limited to, causes of action brought under the Elder Abuse Act – require some particularity in pleading. (Covenant Care v. Superior Court (2004) 32 Cal.4th 771, 790.)
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) The allegations of a pleading are read as a whole, all parts in their context, with all allegations taken as true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; see also Code Civ. Proc., § 452 [pleadings are liberally construed].)
Discussion
I. Demurrer to First and Second Causes of Action
A. Applicable Law
Under the Elder Abuse and Dependent Adult Civil Protection Act, “[a]buse of an elder or a dependent adult means any of the following: (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. C. §15610.07(a)(1)-(3).)
“Neglect” is defined as “(1) The 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. (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.” (Welf. & Inst. C. §15610.57(a).)
“‘Neglect’ includes, but is not limited to, all of the following: (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…(3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration…” (Welf. & Inst. C. §15610.57(b)(1)-(4).)
“Thus, neglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from ‘professional negligence’ in section 15657.2: ‘neglect’ as defined in former section 15610.57 and used in section 15657 does not refer to the performance of medical services in a manner inferior to the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing, but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1999) 20 Cal.4th 23, 34.)
“As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Supr. Ct. (2004) 32 Cal.4th 771, 783 (“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs”).)
“The difficulty in distinguishing between ‘neglect’ and ‘professional negligence’ lies in the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care.” (Delaney, supra, 20 Cal.4th at 34.) “Section 15657 provides the way out of this ambiguity: if the neglect is ‘reckless,’ or done with ‘oppression, fraud or malice,’ then the action falls within the scope of section 15657 and as such cannot be considered simply based on professional negligence within the meaning of section 15657.2.” (Id. at 35; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (recovery of enhanced remedies under Elder Abuse Act requires plaintiff to prove “by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the neglect”).)
“‘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. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.’” (Delaney, supra, 20 Cal.4th at 31-32.)
In Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, the Court of Appeals set forth several factors that must be present for conduct to constitute neglect under Welf. & Inst. C. §15610.57(a):
“The plaintiff must allege facts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.” (Carter, supra, 198 Cal.App.4th at 406-407.)
The Court of Appeals further clarified in Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1347-1348 what is necessary to allege negligence under the Elder Abuse Act:
“Here, the FAC alleged the Hospital committed neglgect by allowing George to fall minutes after entering the facility, failing to treat George’s fractured hip for four days, and violating certain state regulations for acute psychiatric hospitals. [¶] If the Fenimores alleged only these first two things, we might agree that the trial court correctly sustained the demurrer. According to the FAC, George fell within minutes of entering the Hospital, either because he was trying to follow a nurse, or when staff was changing his adult diaper. Alone, the fact that staff allowed him to fall suggest perhaps incompetence or unskillfulness. Recklessness, by contrast, lies in a ‘conscious choice of action…The same can be said for the allegations relating to the treatment of his hip. It is not as though the Hospital did nothing at all, even according to the FAC. The nurses inquired about his pain, they gave him acetaminophen for it and the occupational therapist noted his need for an X-ray. The X-ray did not take place for several days. But there are no factual allegations showing this delay in diagnosis and proper treatment was more than mere incompetence or unskillfulness, i.e. negligence.” (Fenimore, supra, 245 Cal.App.4th at 1348.)
Thus, under Fenimore, allegations of the fall or the failure to diagnose and treat the hip alone “might” not have been enough to allege elder neglect under Welf. & Inst. C. §15600, et al. However, combined with the allegations that the Hospital was understaffed in violation of applicable regulations, specifically 22 CCR §71215(c)(2), the plaintiffs had clearly alleged reckless elder neglect. (Id. at 1348–1349.)
B. Application to Facts
Plaintiffs allege with sufficient particularity elder neglect in support of the First and Second Causes of Action for violation of Welf. & Inst. C. §15600, et seq. Plaintiffs allege Decedent was 78 years old when he was admitted to Defendant’s facility for short term rehabilitation treatment and care for symptoms of dementia/cognition problems, diabetes, mobility impairment and other conditions following a fall at home. (FAC, ¶27.) Plaintiffs allege Defendants were charged with providing for Decedent’s basic needs, including feeding and dietary planning, skin care, hygiene, infection control/prevention, toileting, medical care, physical rehabilitation/exercise and basic ambulation. (FAC, ¶31.) Plaintiffs allege Defendants knew that Decedent (1) was a fall risk (FAC, ¶36); (2) was critically dependent on Defendants for his basic needs (FAC, ¶32); (3) could not really move, feed himself, or care for himself (FAC, ¶29); and (4) “required prescription eyeglasses to see, i.e. for a basic human necessary function.”
Plaintiffs allege that (1) Defendants “withheld and did not provide Decedent with a pair of prescription eyeglasses,” which increased decedent’s already high risk of falling (FAC, ¶36); (2) Defendants failed to provide decedent with glasses despite Plaintiffs repeatedly asking that they do so and Defendants repeatedly stating they would look into the matter (FAC, ¶38); (3) Defendants “failed to provide and implement all necessary diets and nutrition requirements and also consistently and repeatedly withheld assistance with eating, which caused, contributed to and/or exacerbated significant weight loss and malnutrition” (FAC, ¶48); and (4) Defendants failed to protect Decedent from contracting multiple infections, including two COVID infections and sepsis (FAC, ¶52).
Plaintiffs allege that as a result of Defendants’ failure to provide basic care, including feeding decedent, monitoring him for fall risk, providing him glasses he required to see and providing basic hygiene and basic infection prevention measures, Decedent (1) fell in his room and hit his head (FAC, ¶37); (2) lost 40-50 pounds in approximately 5 months (FAC, ¶49); and (3) developed two COVID infections and sepsis. Plaintiffs allege Decedent died as a result of his weakened state, which caused or contributed to the cardiac arrest that caused his death. (FAC, ¶¶58-60.)
Plaintiffs also allege that decedent’s lack of care was the result of Defendants’ knowing understaffing of the facility and the facility’s high turnover rate, which led to undertraining and poor continuity of care. (FAC, ¶¶63.) Plaintiffs allege Defendants “repeatedly and consistently understaffed the Facility to maximize profits ignoring the risk of serious bodily injury.” (FAC, ¶79(ww).)
These allegations are sufficient to plead conduct beyond mere medical malpractice. Accepting these allegations as true (as the Court must at this stage of the proceedings), and drawing all reasonable inferences in favor of the pleader, Defendant knew decedent was dependent on it for provision of his basic necessities, including feeding him, providing him with prescription eyeglasses in order so that he could see and ambulate safely and maintaining a hygienic environment for him so that he would not develop infections, and it knowingly failed to provide these basic necessities, despite family members repeatedly inquiring as to his glasses, his rapid weight loss and obviously weakened state. Decedent also allegedly suffered direct injury, pain and suffering as a result of Defendant’s deprivation of these basic necessities, including severe weight loss, a head injury from falling in his room and multiple infections, including sepsis.
Finally, Plaintiffs sufficiently allege that Defendant’s failure to provide for these basic needs was the result of a policy of consistent, repeated and knowing understaffing intended to prioritize profit over patient care. (FAC, ¶¶66, 79(ww).) While understaffing alone without allegations of recklessness may constitute no more than negligence, where the plaintiff alleges more than “simple understaffing,” a jury could see such action as reckless: “the [plaintiffs] have alleged more than a simple understaffing here. The FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility's elderly and dependent patients, as qualitatively different than simple negligence.” (Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1350.)
While Plaintiffs do not identify a specific staffing regulation violated by Defendant, Plaintiffs do allege that Defendant knowingly, intentionally and consistently understaffed for the sake of prioritizing profit over patient care, resulting in improperly trained staff. (FAC, ¶79(ww).) Plaintiffs allege they did so repeatedly and consistently. (Id. at ¶¶63, 79(ww).)
These facts are sufficient to allege that Defendant’s denial or failure to provide Decedent prescription glasses, assistance with feeding, supervision and care to address his high fall risk and infection prevention measures was at the very least reckless. If the allegations are supported by admissible evidence, a jury could find that Defendant acted with conscious disregard of the high probability of the injury decedent ultimately suffered—a head injury from at least one fall and inability to see for lack of prescription glasses, severely weakened health and immunity due to drastic weight loss and repeated infections due Defendant’s failure to implement infection prevention measures.
Plaintiffs’ complaint is also factually distinguishable from Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 337-338. In Worsham, the plaintiff alleged defendant was chronically understaffed, did not adequately train the staff it had, knew that plaintiff was at risk of falling and failed to prevent her fall by having proper staff in place. (Worsham, supra, 226 Cal.App.4th at 338.) The plaintiff allegedly suffered a fall that resulted in a broken arm and a rebreak of her right hip. (Id.) The Court of Appeals found these allegations only stated a claim for medical negligence, not elder neglect or abuse. (Id.)
Here, Plaintiffs allege that Defendant knowingly increased the risk of decedent failing by denying him a basic necessity for a little over 5 months—prescription glasses that he needed to be able to see and ambulate safely. Plaintiffs also allege Defendant intentionally and consistently understaffed in order to maximize profit. In addition, Plaintiffs are not alleging elder neglect based solely on a single fall. Plaintiffs are alleging Defendant’s prolonged failure and denial of feeding assistance that resulted in a 40-50 pound weigh loss over a short period of time, 5 months. Finally, Plaintiffs are also alleging repeated infections with COVID and development of sepsis as a result of Defendant’s failure to implement infection protection measures. None of these facts were alleged in Worsham. As demonstrated by Fenimore, which involved allegations that were nearly the same as those in Worsham, there is a fine line between those allegations that sufficiently state a claim for elder abuse and those that do not.
Plaintiffs’ allegations sufficiently state a claim for elder neglect under Welfare & Institutions Code §15600, et seq. Defendant’s Demurrer to the First and Second Causes of Action is OVERRRULED.
II. Demurrer to Third Cause of Action
Health & Safety Code section 1430(b) expressly authorizes a current or former resident or patient of a skilled nursing facility to bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patient’s Bill of Rights in 22 C.C.R. § 72527, or any other right provided for by federal or state law or regulation. Defendant argues the Third Cause of Action fails for the same reasons the First and Second Causes of Action fail to state a claim for elder abuse or neglect. For the same reasons stated in connection with the First and Second Causes of Action for elder abuse, Plaintiffs’ Third Cause of Action sufficiently states a cause of action for violation of Health & Safety Code § 1430(b).
Defendant’s Demurrer to the Third Cause of Action is OVERRULED.
III. Motion to Strike
Welf. & Inst.C. § 15657 provides:
“Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.” (Welf. & Inst. C. §15657.)
Defendant argues there are insufficient allegations of elder abuse or neglect to support a claim for the enhanced remedies under Welfare & Institutions Code §15657, which include attorney’s fees and costs. As discussed above, Plaintiffs allege conduct that qualifies as elder neglect committed recklessly and maliciously under Welf. & Inst. C. §§ 15610.07 and 15610.57.
However, Defendant also argues that it is a corporate defendant, and there are insufficient facts that would make it liable for the enhanced remedies under Welf. & Inst. C. § 15657 and Civil Code § 3294(c), which is incorporated into Welf. & Inst. C. § 15657(c). Pursuant to Civil Code § 3294(c):
“[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code §3294(c).)
“Ratification may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee's actions by the corporate agent. Such ratification may be inferred from the fact that the employer, after being informed of the employee's actions, does not fully investigate and fails to repudiate the employee's conduct by redressing the harm done and punishing or discharging the employee.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621 (in order to plead sexual harassment against employer based on doctor’s conduct, nurse would be required to plead facts in support of employer’s ratification).) “Ratification” occurs when the employer “demonstrates an intent to adopt or approve” the employee’s wrongful acts, including in failing to intercede in known patterns or to discipline once the misconduct becomes known. (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 726; CACI 3710; C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110 (ratification may be demonstrated based on employer’s failure to discharge employee who has committed and failure to investigate or respond to charges that an employee committed an intentional tort).)
Plaintiffs allege that “Defendants” intentionally and knowingly understaffed the facility, knew that decedent required prescription glasses to see and for his health and safety, reassured Plaintiffs they would provide decedent with glasses, withheld those glasses depriving decedent of the ability to see or safely ambulate, failed to provide any ambulation assistance, failed to provide decedent with necessary diets and nutrition requirements and consistently and repeatedly withheld assistance with eating, knew decedent fell in his room in March 2020 but still failed to provide any mobility assistance or glasses, and failed to implement infection prevention interventions. (FAC, ¶¶ 27-59, 63, 77ww.) “Defendants” include “Administrator Defendants,” who are identified as Julie Miller, the administrator of Defendant’s facility, and Elaine Santos, the director of nursing of Defendant’s facility. (FAC, ¶¶6-7.)
Defendants allegedly took no action to remediate the understaffing, the lack of properly trained employees, decedent’s inability to see or ambulate for lack of prescription glasses, decedent’s extreme weight loss due to lack of proper feeding assistance and decedent’s repeated exposure and development of COVID infections and sepsis. These allegations of acquiescence and failure to remediate are sufficient to establish ratification.
Moreover, based on these allegations, Administrator Defendants Julie Miller and Elaine Santos knew of, ratified and carried out the alleged neglect. As the administrator and director of nursing, Plaintiffs allege sufficient basis for a trier of fact to find Miller and Santos “managing agents” of Defendant SPCC. A “managing agent” is one who has substantial discretionary authority over significant aspects of the Facility. (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 361 (question of fact existed as to whether defendant’s highest ranking employee on a construction site qualified as a managing agent to hold defendant liable for employee’s acts per CC 3294(b)); White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566–567 (in employment action, zone manager who was in charge of 85 stores and had significant discretionary authority on how those stores were run on a daily basis qualified as a “managing agent”).) Plaintiffs also includes a general allegation of agency, which must be accepted as true on a motion to strike. (Skopp v. Weaver (1976) 16 Cal.3d 432, 439 (allegation of agency is a statement of ultimate fact and further allegations explaining how the fact o agency originated are unnecessary to survive demurrer).)
Defendant’s motion to strike is DENIED.
Conclusion
Defendant South Pasadena Care Center LLC’s Demurrer to the FAC is OVERRULED.
Defendant’s Motion to Strike is DENIED.
Defendant is ordered to file and serve an answer to the FAC within 21 days.
Trial Setting Conference is continued to 03/15/2023 at 08:30 AM in Department 29 at Spring
Street Courthouse.
Moving party is ordered to give notice.