Judge Teresa A. Beaudet, Case 20STCV30336 2023-02-07 Tentative Ruling

Plaintiff Christopher Conner filed this action on August 11, 2020 against Defendants Del Amo Hospital, Inc. (“Del Amo”) and Universal Health Services, Inc. On November 18, 2020, Plaintiff filed an amendment to the Complaint substituting UHS of Delaware, Inc. (“UHS of Delaware”) in place of “Doe 51.”

On July 15, 2021, the Court “received” a First Amended Consolidated Complaint for Damages (“FACC”). On July 22, 2021, a Stipulation Regarding Consolidated Complaint and Order Thereupon (the “Stipulation”) was filed. The Stipulation provides that “on May 19, 2021, the Court ordered Plaintiff to file and serve the Consolidated Complaint by June 16, 2021 should the parties agree to a Consolidated Complaint.” The Stipulation further provides that the “parties agreed to a Consolidated Complaint and Plaintiff attempted to file the Consolidated Complaint by June 16, 2021…the Consolidated Complaint was rejected due to a Complaint already being on file in…Case Number 20STCV30336 and…Case Number 20STCV36065.” The Stipulation then provides that “Plaintiff has now filed a ‘First Amended Consolidated Complaint’”.

The first cause of action alleged in the FACC is for dependent adult abuse by Dawn Kraemer-Conner against all defendants. The second cause of action is for negligent hiring and supervision by Dawn Kraemer-Conner against all defendants. The third cause of action is for wrongful death by Christopher Conner against all defendants. Christopher Conner and Dawn Kraemer-Conner are jointly referred to herein as “Plaintiffs.”

In the FACC, Plaintiffs allege, inter alia, that on or about August 26, 2019, Dawn Kraemer-Conner entered Del Amo after transfer from Kaiser Permanente Woodland Hills.

(FACC, ¶¶ 3, 17.) Plaintiff alleges that on August 27, 2019, Ms. Conner was placed on 1:1 supervision by her physician due to her increased propensity for self-harm and self-injurious behavior. (FACC, ¶ 18.) On August 29, 2019, Dawn Kraemer-Conner’s physician reaffirmed his order that Ms. Conner was to be on 1:1 supervision, but the staff at Del Amo failed to carry out her physician’s order and routinely failed to provide Ms. Conner with 1:1 supervision. (FACC, ¶ 20.) Later that afternoon, Ms. Conner was left unattended in the courtyard of Del Amo for nearly 45 minutes and was found lying on her stomach in the grass of the courtyard, unresponsive. (Ibid.) She was pronounced dead at the scene. (Ibid.) Plaintiffs further allege that Del Amo’s staff’s failure to properly address Ms. Conner’s risk as a threat to herself and her risk of potential seizure was the result of insufficiency of staff in both number and training, and led to an overall failure to put in place required interventions to protect Ms. Conner’s health and safety. (FACC, ¶ 23.)

Del Amo now moves for summary judgment or in the alternative, summary adjudication. UHS of Delaware joins in the motion. No opposition to the motion or joinder was filed.

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc.,¿ § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)¿¿

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)¿

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(p)(2).)

Del Amo first asserts that Plaintiffs’ cause of action for dependent adult abuse fails as a matter of law because Plaintiffs cannot present any admissible evidence that would constitute withholding medical care by Del Amo. In the first cause of action, Plaintiffs allege that Del Amo “‘neglected’ DAWN KRAEMER-CONNER as that term is defined in Welfare and Institutions Code §15610.57 in that the Defendants themselves, as well as their employees, failed to exercise the degree of care that reasonable persons in a like position would exercise as is more fully alleged herein.” (FACC, ¶ 15.)

Del Amo cites to Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, where the Court of Appeal “distill[ed] several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) 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.” (Internal citations omitted.)

Del Amo asserts that here, there is no evidence that Del Amo denied or withheld goods or services to Ms. Conner that were necessary to meet her basic needs. Del Amo contends that to the contrary, there is evidence that Ms. Conner was closely monitored at all times at Del Amo, that she had three separate physical assessments at the time of her hospital admission and was cleared each time, and that she was provided her anti-seizure medication consistently. In support of this assertion, Del Amo cites to its Undisputed Material Facts (“UMF”) Nos. 2, 9, 19, 22, 50, 56, 57, and 74. (Mot. at p. 10:8-9.)

As a threshold matter, the Court notes that the foregoing Undisputed Material Facts (and the remaining UMFs in Del Amo’s Separate Statement) reference Exhibits attached to Del Amo’s Notice of Lodgment. The Court notes that none of the Exhibits referenced in Notice of Lodgment were attached to the Notice filed with the Court. No additional evidence appears to have been filed in connection with Del Amo’s motion.[1]

In connection with the first cause of action, Del Amo also asserts that Plaintiff cannot present any admissible evidence that would constitute egregious conduct by Del Amo; that Plaintiff cannot set forth clear and convincing evidence justifying dependent adult abuse; and that no triable issue of material fact exists demonstrating by clear and convincing evidence that an officer, director, or managing agent authorized or ratified any wrongful conduct. However, as set forth above, Del Amo failed to file any evidence in connection with the motion to support such arguments.

Based on the foregoing, the Court finds that Del Amo has failed to meet its initial burden of demonstrating that one or more elements of the first cause of action cannot be established, or that there is a complete defense to this cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

In support of the second cause of action for negligent hiring and supervision, Plaintiffs allege that “DEFENDANTS negligently hired, supervised and/or retained employees including HOSPTIAL Administrator Steven Hytry, Dena Greene, Lisa Montes, Bob Deney, Peter Hirsch, Kenneth Abjelina, Matthew Wong, Tina Clark, Helen Medina, Dena Nishimura, and many certified nursing assistants, registered nurses, licensed vocational nurses and others whose names are presently not known to DAWN KRAEMER-CONNER but will be sought via discovery.” (FACC, ¶ 50.)

Del Amo cites to Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139, where the Court of Appeal noted that “[a]n employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. Liability for negligent hiring … is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. Negligence liability will be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Internal quotations and citations omitted.)

As to the second cause of action, Del Amo asserts that “Plaintiff can present no evidence that any employee at Del Amo was unfit to perform his or her duties in administration or direct patient care of Ms. Conner. To the contrary, the evidence presented by Del Amo indicates the staff performed their professional duties competently.” (Mot. at p. 14:24-26.) Del Amo also asserts that “plaintiff cannot present any admissible evidence that would establish Del Amo deviated from the standards of care or breached a duty to Ms. Conner. Plaintiff can present no evidence of understaffing and that this alleged deficiency caused harm to Ms. Conner.” (Mot. at p. 15:11-13.) Del Amo further contends that “[a]bsent evidence that a Del Amo employee was unqualified or was unfit to perform his or her duties as an administrator or caregiver and that Del Amo was aware of some deficiency in his or her abilities, plaintiff’s claim must fail as a matter of law.” (Mot. at p. 15:20-22.)

As set forth above, Del Amo did not file any evidence in connection with the motion, as the Exhibits referenced in the Notice of Lodgment were not filed. Thus, the Court finds that Del Amo has failed to meet its burden of demonstrating that one or more elements of the second cause of action cannot be established, or that there is a complete defense to this cause of action.

Del Amo notes that “the plaintiff in a wrongful death action must prove the defendant’s conduct was a substantial factor in causing the decedent’s death.” (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 791.) Del Amo asserts that “[t]here is no evidence that the staff failed to recognize a seizure and the staff closely monitored the patient throughout her stay to prevent self-harm…[t]here was no action the Del Amo Hospital staff that did not adhere to the standard of care with respect to the care and treatment of Dawn Kraemer-Conner.” (Mot. at pp. 16:25-26; 17:3-4.) However, as discussed, Del Amo did not file any evidence in connection with the motion to support the foregoing assertions.

Thus, the Court finds that Del Amo has failed to meet its burden of demonstrating that one or more elements of the third cause of action cannot be established, or that there is a complete defense to this cause of action.

Lastly, Del Amo asserts that Plaintiffs cannot establish the element of causation as to each of their causes of action.

Del Amo indicates that “Defendant’s physician expert, Edwin C. Amos, III, M.D., opines that no acts or omissions by Del Amo caused harm to Ms. Conner or led to her death. (UMF ##85, 177, 264; Amos Decl. 7:8-10.) Rather, the hospital personnel competently and diligently addressed the potential for seizures and Dawn Kraemer-Conner was properly monitored after receiving medications. The ‘Haldol cocktail’ (Haldol, Ativan, and Benadryl) the patient received on three occasions would not predispose her to experience increased seizure activity. (UMF ##64, 152, 239; Amos Decl. para. 16.).” (Mot. at p. 18:4-10.) As set forth above, Del Amo did not file any evidence in support of their motion as the subject Exhibits were not attached to Del Amo’s Notice of Lodgment.

In its Joinder, UHS of Delaware asserts that it is “entitled to relief based upon the same arguments, authorities and evidence presented by defendant Del Amo Hospital, Inc. in its Motion for Summary Judgment because the allegations against USH of Delaware, Inc. in plaintiff’s First Amended Consolidated Complaint are identical for both defendants.” (Joinder at p. 4:2-5.) UHS of Delaware’s Separate Statement in support of its joinder cites to Del Amo’s evidence. As set forth above, Del Amo failed to file any evidence in support of its motion. Accordingly, the Court denies UHS of Delaware’s joinder.

Based on the foregoing, Del Amo’s motion for summary judgment or in the alternative, summary adjudication, is denied. UHS of Delaware’s Joinder is likewise denied.

[1] A courtesy copy of the Notice of Lodgment with documents attached was received in Department 50 along with the requisite binder of MSJ-related documents; however, it is improper to provide “courtesy copies” of documents that have not been filed. Moreover, merely “lodging” documents does not put them in evidence.

CHRISTOPHER CONNER, Plaintiff, vs. DEL AMO HOSPITAL, INC., et al., Defendants.	Case No.:	20STCV30336 [c/w 20STCV36065]
	Hearing Date:	February 7, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEL AMO HOSPITAL, INC.’S MOTION FOR SUMMARY JUDGEMENT [SIC]/ SUMMARY ADJUDICATION DEFENDANT UHS OF DELAWARE, INC.’S JOINDER TO DEL AMO HOSPITAL, INC.’S MOTION FOR SUMMARY JUDGEMENT [SIC]/ SUMMARY ADJUDICATION

Superior Court of California

County of Los Angeles

Department 50