Judge: Theodore R. Howard, Case: 21-1220729, Date: 2022-09-01 Tentative Ruling

The Demurrer filed by Defendant Bartlett Care Center, LLC dba French Park Care Center (here “FP”), as to the First and Fourth Causes of Action (each a “COA”) in Plaintiffs’ First Amended Complaint, is SUSTAINED with 15 days leave to amend after service of notice of this ruling.

For COA 1, Plaintiffs fail to articulate what FP specifically did or failed to do in the care of decedent, instead “lumping” FP in with another defendant that allegedly provided care at a different time. (See FAC ¶¶ 6, 11-13.)  The factual basis for the claim as to this defendant is thus unclear as pled.

Nor is causation adequately alleged. The FAC asserts at ¶¶ 13 and 15 that “Staff repeatedly chose not to provide decedent with needed” care which resulted in injury. But it fails to articulate what injuries befell decedent at FP’s facility, how such injury was allegedly caused by FP’s conduct, and how and why that was so.  At most, the FAC seems to suggest that at some point the Decedent fell, but fails to state when and where and how that relates to the claims presented as to this defendant.  The FAC also fails to explain how FP failed “many times each day” to provide necessary care for the decedent when he allegedly stayed at MP’s facility for only one day. (Compare FAC ¶ 6 and ¶ 12.) Nor is ratification adequately alleged.

In addition, a “plaintiff prosecuting a claim for heightened civil remedies under the Elder Abuse Act is required… to plead and to prove by clear and convincing evidence “recklessness, oppression, fraud, or malice.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 788, citing Welf. & Inst.Code § 15657.) That requires more than general claims of understaffing. (Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1047-1048; Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 338.)

For COA 4, a “bystander” claim may be stated only if,  among other things, the plaintiff is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) Vague assertions in the FAC that one or more of the Plaintiffs intermittently visited the decedent at one or both facilities and observed the decedent in decline do not suffice to state the claim.  The Demurrer also correctly observes, although not sufficient to defeat the entire COA, that standing is not adequately pled for some of the Plaintiffs for this COA. (Id. at 668, fn. 10 [“Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.”].)

In light of the ruling on the Demurrer, the Motion to Strike is MOOT, as the allegations at issue are all premised on COA 1.

Counsel for FP to give notice.