Judge Teresa A. Beaudet, Case 22STCV00664 2022-09-19 Tentative Ruling

Plaintiff Valarie Burks, on behalf of her husband, Gregory Burks (“Mr. Burks”), as Power of Attorney (“Plaintiff”) filed this action on January 6, 2022 against Defendants Providence Little Company of Mary Foundation and Providence Health & Services.

On April 25, 2022, Plaintiff filed an Amendment to the Complaint substituting the true name of Providence Health System - Southern California, dba Providence Little Company of Mary Medical Center Torrance (“Providence Health System”) for the incorrect name Providence Little Company of Mary Foundation.

On April 27, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) elder abuse and neglect, (2) willful misconduct, and (3) negligence.

Providence Health System - Southern California, dba Providence Little Company of Mary Medical Center Torrance (“Little Company of Mary”) and Providence Health & Services (jointly, “Defendants”) now demur to the first and second causes of action of the FAC. Defendants also move to strike portions of the FAC. Plaintiff opposes both.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

Plaintiff alleges that Mr. Burks was admitted as a patient to Little Company of Mary on July 3, 2021 and was seventy-two years old at the time of his admission. (FAC, ¶ 32.) Providence Health & Services is the owner, operator and manager of Little Company of Mary. (FAC, ¶ 5.)

Mr. Burks suffered from cerebral infarction, hemiplegia, acute kidney failure, aphasia, dysphagia, hypertension, and type 2 diabetes and was admitted to Little Company of Mary for care, treatment and supervision in light of his mental and physical condition. (FAC, ¶ 33.)

Plaintiff alleges that Defendants knew of Mr. Burks’s vulnerable condition, including that he had a diagnosis of bilateral strokes, and that he thus required the care, assistance, and supervision necessary to protect him from health and safety hazards. (FAC, ¶ 34.) Rather than adequately provide the care and treatment that Mr. Burks needed, Defendants willingly neglected his needs and left him unsupervised and unmonitored for extended periods of time for their own convenience. (FAC, ¶ 35.) Plaintiff alleges that this was due to the fact that Defendants intentionally understaffed Little Company of Mary to cut expenses and generate more profits in operation of their hospital. (FAC, ¶ 35.)

As a result of being left alone in one position for hours at a time, Mr. Burks developed a sacral pressure sore, which eventually developed into a stage III sacral decubitus ulcer 10 days after his admission. (FAC, ¶ 36.) In addition, as a result of Defendants’ perpetual understaffing and consciously leaving Mr. Burks alone for hours at a time, Mr. Burks suffered severe weight loss after his admission to Little Company of Mary. (FAC, ¶ 38.) On or about July 24, 2021, Mr. Burks was discharged from Little Company of Mary. (FAC, ¶ 39.)

Defendants argue that Plaintiff’s elder abuse cause of action must fail because “[t]he factual allegations, as they are stated in the FAC, fail to establish that this is anything

Defendants note that pursuant to Welfare and Institutions Code section 15657.2, “[n]otwithstanding this article, any cause of action for injury or damage against a health care provider…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.” In Delaney v. Baker (1999) 20 Cal.4th 23, 32, the California Supreme Court held that “[s]ection 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.”

Welfare and Institutions Code section 15657, contained in the Elder Abuse and Dependent Adult Civil Protection Act, provides, inter alia, that “[w]here 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,” certain remedies shall apply, “in addition to all other remedies otherwise provided by law.” The Delaney Court noted that “[i]n order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature. 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 v. Baker, supra, 20 Cal.4th 23, 31-32 [internal quotations and citations omitted].) Defendants also argue that Plaintiff’s elder abuse cause of action is defective because Plaintiff has failed to adequately plead facts demonstrating that Defendants were reckless, oppressive, fraudulent, or malicious in the commission of the alleged abuse, as required by Welfare and Institutions Code section 15657.

Plaintiff counters that the alleged conduct in this case constitutes more than “mere medical negligence,” and that Plaintiff has sufficiently alleged malicious, oppressive, and reckless conduct. Plaintiff points to allegations that Defendants knew of Mr. Burks’s vulnerable condition, and that rather than adequately provide the care and treatment that Mr. Burks needed, Defendants willingly neglected his needs and left him unsupervised and unmonitored for extended periods of time for their own convenience. (FAC, ¶¶ 34, 35.) Plaintiff alleges that “[t]his was due to the fact that Defendants intentionally understaffed [Little Company of Mary] to cut expenses and generate more profits in operation of their hospital. Because [Little Company of Mary] did not have enough staff to care for [Mr. Burks] as medically necessary, Defendant egregiously and unlawfully abandoned [Mr. Burks] and left him unsupervised for hours at a time for their own convenience and benefit, despite knowing that such practice is both a form of abuse and was a foreseeable consequence of the chronic understaffing at [Little Company of Mary].” (FAC, ¶ 35.) Plaintiff also alleges that “[a]lthough Defendants knew [Mr. Burks] was unable to turn, shift, or reposition himself due to his severely limited physical abilities, the overworked and undertrained staff at [Little Company of Mary] routinely failed to turn and reposition [Mr. Burks] as was necessary given his delicate skin and high risk for developing pressure ulcers. Defendants corresponding failure to provide proper nutrition, hydration, transfer assistance and incontinence care to [Mr. Burks] culminated in the withholding of necessary care and treatment to [Mr. Burks]. These conscious failures further and substantially contributed to the development of his wound.” (FAC, ¶ 37.) In addition, Plaintiff alleges that as a result of Defendants’ perpetual understaffing and consciously leaving Mr. Burks alone for hours at a time, Mr. Burks suffered severe weight loss after his admission to Little Company of Mary. (FAC, ¶ 38.)

The Court agrees with Plaintiff that she has sufficiently alleged facts of malicious, oppressive, and/or reckless conduct on the part of Defendants that involve more than mere negligent misconduct. Based on the foregoing, the Court overrules Defendants’ demurrer to the first cause of action for elder abuse and neglect.

Defendants argue that it is improper for Plaintiff to plead willful misconduct as a separate cause of action, and that this cause of action accordingly must fail. Defendants cite to Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526, where the Court of Appeal found that willful misconduct is “not a separate tort, but simply an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. Its pleading requirements are similar to negligence but stricter.” (Internal quotations and citations omitted.)

Plaintiff counters that California courts recognize a cause of action for willful misconduct. Plaintiff cites to Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1122, where the plaintiff filed an action alleging causes of action for negligence and willful misconduct. The Doe Court cited to Berkley v. Dowds, supra, 152 Cal.App.4th 518, 526, for the proposition that “[w]illful misconduct is not a separate tort from negligence,” but did not find that the plaintiff’s willful misconduct cause of action had to be dismissed for that reason. Rather, the Court in Doe noted that “[i]n order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [W]illful misconduct is not marked by a mere absence of care. Rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.” (Doe v. United States Youth Soccer Assn., Inc., supra, 8 Cal.App.5th 1118, 1140 [internal quotations and citations omitted].)
Defendants also argue that “Plaintiff has failed to please[sic] sufficient facts to establish that Providence[1] had actual or constructive knowledge that Mr. Burks was likely to suffer injury, and that they consciously ignored that danger.” (Demurrer at p. 12:24-26.) But as Plaintiff notes, she alleges that Defendants knew or should have known that Mr. Burks was vulnerable and at a heightened risk for developing pressure ulcers. (FAC, ¶ 53.) In addition, Plaintiff alleges that partly in recognition that patients of their hospitals suffered from conditions which left them prone to suffering avoidable pressure ulcers and other injuries, Defendants adopted policies to supervise the health status of patients, to assist with necessary daily activities such as those ensuring skin integrity, and to prevent unnecessary harm and other injuries. (FAC, ¶ 54.) Plaintiff alleges that despite this, Little Company of Mary’s policies were not implemented to prevent or treat the injuries suffered by Mr. Burks. (FAC, ¶ 54.) Plaintiff alleges that Defendants failed to properly educate their employees on how best to prevent their patients from suffering injuries, including pressure ulcers suffered by Mr. Burks. (FAC, ¶ 55.) Plaintiff further alleges that Defendants knew that their failure to hire sufficient numbers of adequately trained personnel posed the high probability that they would be unable to prevent the injuries suffered by Mr. Burks, and despite this knowledge, Defendants continued with their practices. (FAC, ¶ 56.)

The Court finds that Plaintiff has adequately alleged “actual or constructive knowledge of the peril to be apprehended,” and “conscious failure to act to avoid the peril,” and thus overrules the demurrer to the second cause of action for willful misconduct.

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” ((Code Civ. Proc., § 436.)

Defendants move to strike Plaintiff’s request for “attorney’s fees and costs under Welf & IC § 15657(a)” in connection with Plaintiff’s second cause of action for willful misconduct. (FAC, p. 14:7.) Defendants assert there is no statutory or contractual basis for the recovery of attorneys’ fees against Defendants under the willful misconduct cause of action. (Citing to Jen-Mar Constr. Co. v. Brown (1967) 247 Cal.App.2d 564, 573, “attorney fees cannot be allowed a successful litigant without pleading and proof that there is a statute or contract provision covering them.” [emphasis in original].)

In the opposition, Plaintiff asserts that “[b]ecause the gravamen of Plaintiff’s claims, including his willful misconduct cause of action, is based on the custodial abuse and neglect of Ms. Burks, a prayer for attorneys’ fees and costs authorized by the Elder Abuse Act in Welfare and Institutions Code § 15657 is appropriate for Plaintiff’s willful misconduct claim.” (Opp’n at p. 4:17-20.) But unlike Plaintiff’s first cause of action for elder abuse and neglect, Plaintiff’s “willful misconduct” cause of action was not brought under the Elder Abuse and Dependent Adult Civil Protection Act (Welfare and Institutions Code section 15600, et seq.).

Plaintiff also contends that attorney’s fees are available in this case under Code of Civil Procedure section 1021.5, which provides in pertinent part that “a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (Code Civ. Proc., § 1021.5.) Plaintiff argues that the successful pursuit of a cause of action concerning alleged elder abuse violations confers a benefit on the general population. Plaintiff also notes that under Welfare and Institutions Code section 15600, “[t]he Legislature…finds and declares that infirm elderly persons and dependent adults are a disadvantaged class…” (Welf. & Inst. Code, § 15600, subd. (h).) Defendants do not address Plaintiff’s arguments concerning Code of Civil Procedure section 1021.5 attorneys’ fees in the reply, which the Court construes as a concession of the merits of the arguments for purposes of this motion to strike only.

Based on the foregoing, Defendants’ demurrer is overruled. Defendants’ motion to strike is denied. The Court orders Defendants to file and serve an answer to the FAC within 10 days of the date of this Order.

[1]Defendants define Providence Health System – Southern California dba Providence Little Company of Mary Medical Center as “Providence.” (Demurrer at p. 4:7-8.)

VALARIE BURKS, on behalf of her husband, GREGORY BURKS, as Power of Attorney, Plaintiff, vs. PROVIDENCE LITTLE COMPANY OF MARY FOUNDATION, et al., Defendants.	Case No.:	22STCV00664
	Hearing Date:	September 19, 2022
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFORNIA dba PROVIDENCE LITTLE COMPANY OF MARY MEDICAL CENTER TORRANCE AND PROVIDENCE HEALTH & SERVICES DEMURRER TO PLAINTIFF’S COMPLAINT; DEFENDANT PROVIDENCE HEALTH SYSTEM SOUTHERN CALIFORNIA dba PROVIDENCE LITTLE COMPANY OF MARY MEDICAL CENTER TORRANCE AND PROVIDENCE HEALTH & SERVICES MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

Superior Court of California

County of Los Angeles

Department 50