Judge Theresa M. Traber, Case Number: 19STCV43469, Date: 2023-11-13 Tentative Ruling

Judge: Theresa M. Traber, Case: 19STCV43469, Date: 2023-11-13 Tentative Ruling

Case Number: 19STCV43469 Hearing Date: March 22, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 22, 2024 JUDGMENT: January 22, 2024

CASE: Robert E. Thacker, et al. v. Southland Living, et al.

CASE NO.: 19STCV43469

(1) MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT;

(2) MOTION FOR NEW TRIAL

MOVING PARTY: Defendants Southland Living, Southland Management LLC, and the Ensign Group, Inc.

RESPONDING PARTY(S): Plaintiff Juliana Garcia, individually and as successor in interest to Robert E. Thacker

CASE HISTORY:

· 12/04/19: Complaint filed.

· 12/11/19: The Ensign Group, Inc. substituted for The Flagstone Group, Inc.

· 02/21/20: Third cause of action for willful misconduct dismissed with prejudice.

· 12/04/20: First Amended Complaint filed.

· 01/06/21: Second Amended Complaint filed.

· 08/03/21: Third Amended Complaint filed.

· 01/22/24: Judgment on special verdict entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a wrongful death and survivor action. Plaintiff alleges that the decedent, Robert Thacker, suffered neglect while he was a resident at Southland Living and died because of Defendant’s negligence and elder neglect.

Defendants move for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

TENTATIVE RULING:

Defendants’ Motion for Judgment Notwithstanding the Verdict is DENIED.

Defendants’ Motion for New Trial is DENIED.

DISCUSSION:

Motion for Judgment Notwithstanding the Verdict

Defendants move for judgment notwithstanding the verdict on the ground that Plaintiffs offered no competent expert testimony that Defendants breached any standard of care, or that any breach was responsible for the fall which caused the decedent’s death.

Legal Standard

Code of Civil Procedure section 629 states that “[t]he court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc. § 629.)

A JNOV motion ordinarily challenges whether the evidence was sufficient to prove the claims or defenses asserted by the opposing party and now embodied in the jury’s verdict. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733-34; see Martin v. Ideal Packing Co. (1957) 156 Cal.App.2d 232, 235 [a JNOV motion is “in the nature of a demurrer to the evidence”].) It thus has the same function as a motion for nonsuit or directed verdict, the only difference being that the JNOV motion lies after a verdict for the opposing party has been rendered. (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 327; CC-California Plaza Assocs. v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1050.)

All evidence supporting the verdict is presumed true, so the issue is whether the facts constitute a prima facie case or defense as a matter of law. (Fountain Valley Chateau Blanc Homeowner's Ass’n v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750.) “The court may not weigh evidence, draw inferences contrary to the verdict, or assess the credibility of witnesses. The court must deny the motion if there is any substantial evidence to support the verdict.” (Begnal v. Canfield & Assocs., Inc. (2000) 78 Cal.App.4th 66, 72.

A JNOV motion is governed by the same rules that govern a motion for directed verdict or nonsuit. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 417 [disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738].) Further, a JNOV motion “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1137-38.) A JNOV in favor of a defendant is proper “only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.” (See Reynolds v. Wilson (1958) 51 Cal.2d 94, 99.)

Jurisdiction to Rule on Motion

The purpose of a JNOV motion “is to allow a party to prevail as a matter of law where the relevant evidence is already in.” (DLI Properties LLC v. Hill (2018) 29 Cal.App.5th Supp. 1, 6; see Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 743 [“The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.”].) Nonetheless, a trial court's discretion in granting a JNOV motion is severely limited. (Garretson v. Harold I. Miller (2002) 99 Cal.App.4th 563, 568.)

A motion for JNOV must be decided by the trial court within 75 days after the clerk’s service of notice of entry of the judgment. (Code Civ. Proc. §§ 629(b), 659, 660(c); see Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1277.)

[Code of Civil Procedure section 629] specifically limits a trial court’s power to rule on the motion in the following ways: First, the trial court must enter j. n. o. v. ‘before . . . expiration of its power to rule on a motion for a new trial,’ otherwise the judgment is invalid. Section 660 indicates that ‘the power of the court to rule on a motion for a new trial shall expire [75] days from and after the mailing of notice of entry of judgment by the clerk of the court . . .’ Second, on the trial court's own motion it can grant j. n. o. v., but only after giving five days notice to the parties and only in accordance with the procedure just noted. Third, the trial court is precluded from ruling on a motion for j. n. o. v. ‘until the expiration of the time within which a motion for a new trial must be served and filed . . .’ which according to section 659 is 15 days ‘of the date of mailing notice of entry of judgment . . .’

(Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 963 [decided before January 1, 2019, amendment extending time period for court to rule on new trial motion to 75-day period].) Thus, a trial court “can grant j. n. o. v. so long as it acts before expiration of its power to rule on a motion for a new trial, [75] days, and¿after expiration of the time within which a motion for a new trial must be served and filed, 15 days.” (Id. at 964.)

Judgment was entered in this case on January 22, 2024 on a jury verdict. Notice of entry of judgment was mailed that same day. (Certificate of Mailing.) The Court therefore has jurisdiction to rule on these motions at any time before April 8, 2024. Thus, the Court may hear this motion at the currently scheduled hearing on March 22, 2024.

Scope of Claims

Plaintiffs brought claims for elder neglect, professional negligence, and wrongful death arising from a fall at an assisted living facility operated by Defendants. A jury found the Defendants liable on all causes of action on January 22, 2024. (Special Verdict.) Defendants seek judgment notwithstanding the verdict arguing that Plaintiffs’ expert did not offer competent testimony on the standard of care or Defendants’ breaches thereof, and did not demonstrate that those breaches caused the decedent’s fall.

The elements of a cause of action under the Elder Abuse and Dependent Adults Act “are statutory, and reflect the Legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “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 plaintiff may recover the enhanced remedies under the Act. (Welf. & Inst. Code § 15657.)

Here, Plaintiffs alleged elder neglect, which is defined as follows:

(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. Code § 15610.57(a) [emphasis added].) Plaintiffs also alleged professional negligence, the elements for which are “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) These claims are not identical. (Delaney v. Baker (1999) 20 Cal.4th 23, 23-24.) Expert testimony is required to establish the standard of care in a professional negligence claim. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) Plaintiffs offered expert testimony from Dr. Christina Flores to establish the standard of care, identify Defendants’ conduct that breached that standard, and demonstrate the causal connection between those breaches and the decedent’s fall.

Adequacy of Expert Opinion

Defendants contend that Dr. Flores’s testimony was inadequate to establish the standard of care, or that Defendants breached that standard, or that the breaches caused the decedent’s fall.

Expert opinion testimony is admissible when that opinion is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

(Evid. Code § 801.) The Court must, upon objection, “exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” (Evid. Code § 803.) “[T]he trial court acts as a gatekeeper to exclude expert testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Sargon Enterprises Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-72.) An expert may not opine on questions of law, such as, for example, whether conduct is illegal or violates rules or regulations. (See Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 122.)

1. Standard of Care Testimony

Defendants argue that Dr. Flores offered inadmissible legal conclusions interpreting regulations and asserting violations, rather than testifying to the standard of care. First, Defendants state that Dr. Flores testified that “she ‘thought’ Mr. Thacker had fallen a lot, that Southland did not have a way to monitor his whereabouts, that ‘it was not documented like to keep an eye on him all the time,’ and this was ‘egregious.'” (Memorandum of Ps. & As. p.10:9-11; see Defendants’ Exh. 6 [November 21, 2023 Rough Transcript] p. 92:10-19.) Defendants claim that this testimony was based on Dr. Flores’s interpretation of Health and Safety Code section 1569.312, but do not cite any portion in the record to show the basis for that conclusion.

Defendants also claim that Dr. Flores’s testimony identifying California regulations which “applied” to this case was an improper legal conclusion. (Defendants. Exh. 6. pp.100-105.) Defendants are incorrect. None of the testimony cited offers any opinion on whether Defendants violated those regulations, only whether those regulations are relevant to the circumstances of this case, and that they form the baseline for the standard of care, which is further informed by the facility’s policies and procedures or other responsibilities. (Exh. 6. p.105:10-20.) Defendants have failed to demonstrate that Dr. Flores’s testimony regarding the standard of care was improper.

2. Defendants’ Breach

Defendants next argue that Dr. Flores’ testimony regarding Defendants’ breaches of the standard of care had no factual basis.

First, Defendants challenge Dr. Flores’s testimony that Defendants breached the standard of care by allowing the decedent to go outside the building unattended. As stated by Dr. Flores, the 2015 Physician Assessment form indicates that the decedent should not be allowed to be outside of the building unassisted. (Defendants’ Exh. 6. p.105:7-9, Exh. 19 p.51-783.) Defendants contend that Dr. Flores misstated the evidence because the assessment also stated that the decedent was “ambulatory,” meaning not “unable to leave a building unassisted under emergency conditions.” (Id. Exh. 19 at 51-784.) According to Defendants, the meaning of the term “facility” in the assessment form should be read as aligned with the term “residential facility” as defined by Health and Safety Code section 1502. Defendants thus contend that this assessment stated that the decedent could step out of the building and onto the grounds of the facility under his own power, but should not be allowed off the grounds of the facility unattended. Plaintiffs stand on Dr. Flores’ testimony as adequate. The Court agrees with Plaintiffs. Dr. Flores construed the 2015 Physical Assessment form as a restriction on Mr. Thacker’s safety outside the confines of the facility’s buildings and enclosed grounds and rendered her opinion based on that construction. While Defendants’ witnesses testified that the bench adjacent to the parking lot and nearby street was technically part of the “facility,” the jury was entitled to construe the 2015 Physician Assessment as a restriction on Mr. Thacker’s ability to perambulate on his own beyond the facility’s enclosed grounds and building. Construing the facts in favor of the jury’s verdict in Plaintiffs’ favor, the Court cannot find there is no substantial evidence to support Dr. Flores’s opinion that Defendants committed a breach of their duty of care in letting Mr. Thacker visit the bench without supervision.

Defendants next argue that Dr. Flores’s testimony that the decedent should never have been admitted because of his major depression and psychosis was “not tied to the regulations at issue” (Memo p. 14:14-15) and not apparent from the 2015 assessment, notwithstanding the assessments’ identification of the decedent’s condition. (Exh. 19. pp. 51-781 through 51-785.) A cursory review of the record provides Dr. Flores’s justification for her opinion: that an assisted living facility is not equipped to serve the needs of a patient with psychosis. (Exh. 6. pp. 107:12-108:7.) Dr. Flores’s opinion was grounded on a standard of care arising from the applicable regulations, including Title 22, regulation 87705, subdivision (k)(9), which provides specific requirements for a facility to admit a person with a primary diagnosis of a mental disorder unrelated to dementia, and regulation 87464 requiring that assisted living facilities must be able to provide the services needed by their residents, as well as Health and Safety Code § 1569.312, regarding the need to monitor residents’ activities to ensure their safety. (RT 11/21/23, pp. 100-102.) Her opinion was also tethered to specific facts in the record about the emergency character of Mr. Thacker’s mental health stay just before his admission to Defendants’ facility, the facility director’s knowledge of the particulars of Mr. Thacker’s stay in the mental health hospital, the nature of Mr. Thacker’s psychotic episodes, and the non-medical training and job duties of staff in an assisted-living facility. (Exh. 6. pp. 107:12-108:7.) Again, the Court cannot find that Dr. Flores’ opinion is inadmissible or that it is so insubstantial as to provide an insufficient evidentiary foundation for the jury’s verdict.

Defendants also challenge Dr. Flores’s testimony that Defendants breached the standard of care by allowing the decedent to wander outside in the absence of a secured perimeter or plan for monitoring residents. (See Exh. 6 pp.110:5-21, 114:1-10.) Defendants again argue that this testimony is defective because Dr. Flores did not cite a specific regulation that was violated, and, in fact, residents are not to be locked inside the facility under California regulations. (See 22 Cal. Code Regs. § 87468.1.) Defendants misstate the testimony. As noted above, Dr. Flores identified several legal standards that apply to Defendants’ duty to monitor residents’ activities and to provide the services needed to keep them safe. Moreover, Dr. Flores testified that secured perimeters or delayed egress systems exist to notify facility staff that a resident is leaving the facility. (Exh. 6. p.110:22-24.) Although Defendants claim that the “system” of keeping track of the decedent’s whereabouts was that “when Mr. Thacker passed the front door, they would ask where he was going and he would tell them” (see Exh. 9 p.47:1-13), Dr. Flores’s testimony indicates that a minimum standard would be a formal sign-in/sign-out system. (Exh. 6. p.114:9-14.) Dr. Flores saw no evidence of any such system. (Id.)

Fourth, Defendants assert that Dr. Flores’s testimony regarding the decedent’s psychotic episodes in 2016 was insufficient because there was no evidence that his condition recurred or that further reassessment would have been warranted. (Exh. 6. Pp.116:1-117:11.) This argument is illogical: the purpose of reassessment on its face is to determine whether the condition is recurrent and would require additional steps. Moreover, Dr. Flores again explained her reasoning: that an assisted living facility is not equipped to treat a resident with psychosis and that, given the number of psychotic episodes in 2016, Defendants were remiss in making no effort to assess their ability to provide the kind of oversight and care Mr. Thacker needed.

Fifth, Defendants challenge Dr. Flores’s testimony that Defendants breached the standard of care by failing to investigate whether the decedent had dementia. But this opinion of breach was plainly supported by the substantial evidence. The record includes evidence that Mr. Thacker suffered a series of hallucinations and psychotic episodes just six months before his fall, that he was taken to Lakewood Regional for emergency treatment, and that he returned with a diagnosis of Dementia with Psychosis. (RT 11/21/23, 41:6-43:14, Exh. 2; Trial Exh. 51-807 to 51-811, Exh. 9.) Despite these developments, Defendants did not investigate the validity of the Dementia diagnosis or create a plan for care based on such a diagnosis, which Dr. Flores described as yet another breach of the standard of care. (RT 11/21/23, 45:27-46:15, Exh. 2.)

Defendants also protest that there was no evidence that Dementia was related to Mr. Thacker’s fatal fall, but this is not a relevant argument in challenging an opinion on whether Defendants breached the standard of care. On that issue, Dr. Flores testified that the failure to investigate the decedent’s condition, monitor his health and whereabouts, and have plans to prevent further incidents was a breach of the standard of care, and that these failures occurred on multiple occasions, including, as discussed here, where Defendants had no plan to prevent falls despite the decedent having a history of falls. (Exh. 6. p.124:6-24.)

In sum, Defendants’ arguments concerning the breach of the standard of care either misstate Dr. Flores’s testimony or fail to properly consider the appropriate scope of issues, and do not demonstrate that they are entitled to judgment on this basis.

3. Causation

Defendants argue that Plaintiffs offered no competent evidence that any breach of the standard of care by Defendants caused the decedent’s fall. The undisputed facts are that the decedent fell while trying to move away from a fast-moving vehicle in the parking lot that appeared to be coming toward him. (See, e.g., Exh. 6. pp. 44:8-45:19.) Dr. Flores testified that if the decedent had been attended by a member of facility staff, he would not have fallen because that person could have gotten him to safety without tripping or falling. (Exh. 6. pp. 131:17-132:15.) Defendants claim that this testimony is inadmissible speculation. (See Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110 [“An expert’s opinion which rests upon guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence.”].) Defendants ignore, however, Dr. Flores’ other testimony about causation to the effect that the decedent should not have been placed or remained at the facility, “should not have been there” outside the facility’s building or enclosed space, “was not being monitored or supervised,” was “unattended,” “was out of the line of sight of the facility,” and Defendants “did not even know where he was until he was in the back of the ambulance.” (Exh. 6. p.129:8-12.) Put differently, Dr. Flores testified that if Defendants had complied with the standard of care, Mr. Thacker’s injury and death would not have occurred, either because he would never have been put in harm’s way or because Defendants would have implemented a plan to prevent the injury. The Court is not persuaded that this testimony is speculative. Defendants have therefore not shown that Plaintiffs failed to establish causation.

Conclusion

As Defendants have not shown that Plaintiffs failed to present evidence regarding the standard of care, Defendants’ breach, or causation, the Court finds that Defendants are not entitled to judgment notwithstanding the verdict.

Accordingly, Defendants’ Motion for Judgment Notwithstanding the Verdict is DENIED.

Motion for New Trial

Legal Standard

Code of Civil Procedure section 657 provides, in pertinent part, as follows:

The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated.

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.

(Code Civ. Proc. § 657.) A motion for new trial is a creature of statute and the Court may grant a new trial only by conforming to the statutory procedures.¿ (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899-900.)¿ Further, under Article VI, section 13, of the California Constitution, no judgment shall be set aside or new trial granted unless, after an examination of the entire cause, including the evidence, the Court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.¿ (In re Marriage of Steiner & Hosseini (2004) 117 Cal. App. 4th 519, 526.)¿

Timing of Motion

A motion for new trial must be served and filed either “(1) After the decision is rendered and before the entry of judgment” or “(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” (Code Civ Proc. § 659.) However, the Court’s authority to rule on a motion for new trial expires “75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial.” (Code Civ. Proc. § 660.)

For the same reasons discussed above with respect to the JNOV motion, the Court has the authority to rule on the pending motion at the hearing on March 22, 2024, or at any time on or before April 6, 2024.

Francisco Madrid’s Liability

Defendants first argue that the jury’s finding of zero percent fault as to Francisco Madrid was not supported by substantial evidence. The record shows that Madrid struck witness Raquel Cloutier’s car, then a building, then a tree, and then Cloutier’s car again before getting out of the vehicle. (Defendants Exh 12. [December 5 Rough Transcript] pp. 128:24-129:8.) The decedent attempted to get away from Madrid’s vehicle as these events transpired, and, in so doing, tripped, fell, and struck his head. (See, e.g., Defendants’ Exh. 11 [December 4 Rough Transcript] p.48:2-4.)

At trial, Defendants argued that Madrid was a superseding cause of the decedent’s death because of his poor driving. As this is an affirmative defense, Defendants bore the burden of proof to establish its validity. (E.g Maupin v. Widling (1987) 192 Cal.App.3d 568, 578.) Defendants assert that Madrid’s driving is itself evidence of Madrid’s negligence under a res ipsa loquitur theory. No instruction on this doctrine was given to the jury. Moreover, the authorities Defendants cite do not support their position.

As our Supreme Court stated in Newing v. Cheatham:

It is settled law in this state that the “doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.” [Citations.] According to the classic and oft-repeated statement, there are three conditions for the application of the doctrine: "'(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”

(Newing v. Cheatham (1975) 15 Cal.3d 351, 359.) Newing was concerned with an accident involving a passenger aircraft where the plane crashed in clear weather and traffic conditions. (Id. at 361-62.) In that context, the California Supreme Court concluded that the first factor of the res ipsa loquitur test was established as a matter of law. (Id.) Further Godfrey v. Brown, although concerned with res ipsa loquiur liability for an automobile rather than a plane, only addresses the liability of the driver of the vehicle for injuries to passengers in that vehicle from an accident. (Godfrey v. Brown (1934) 220 Cal. 57, 64.) Here, however, Madrid was not operating a plane, the decedent was not a passenger in Madrid’s vehicle.

Of greater import, there was no evidence introduced by Defendants, who bear the burden of proof, to establish that the absence of any other externalities that could have caused Madrid’s erratic driving. They offered no evidence of negligent conduct by Madrid nor any proof that he was not experiencing a medical emergency or contending with a vehicle with serious mechanical problems. Based on this record, the evidence of Madrid’s legal negligence was virtually non-existent and does not persuade the Court, sitting as the thirteenth juror, that Defendants met their burden of showing that some share of fault should have been attributed to Madrid.

Admission of Department of Social Services Report

Defendants next argue that the Court’s decision to admit a Complaint Investigation Report prepared by Juan Miramontes in July 2019 was a prejudicial error of law. This report assessed two deficiencies against Southland. (Defendants’ Exh. 17 p.3.) Defendants claim that Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC holds that this admission is reversible error.

The Court considered this argument when it was raised at the July 7, 2021 Final Status Conference in regard to Defendants’ Motion in Limine No. 10. As the Court stated:

In this case, the 2019 citation asserts that Defendants’ employees committed several violations of the governing regulations by failing to monitor Plaintiff Thacker and by failing to update his preadmission appraisal to take into account any significant changes by including a fall risk plan in light of his multiple falls. Coupled with evidence that Defendants failed to discipline the employees who violated the regulations, the 2019 citation is admissible for the non-hearsay purpose of giving Defendants’ notice of their employees’ alleged misconduct.

Counsel for Defendants offered vigorous argument that such a ruling would be an abuse of discretion under the holding of Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2014) 221 Cal. App. 4th 102. In Nevarrez, the Second District Court of Appeal held that the trial court’s decision to admit a Department of Public Health citation to establish negligence per se was an abuse of discretion that had a prejudicial impact on the jury verdicts on Plaintiff’s claims for negligence and elder abuse.

The Court disagrees with Defendants about the force of Nevarrez in the context of this case. The plaintiff in Nevarrez moved for admission of the DPH citation for the truth of the matters stated therein to establish negligence per se, contended it was admissible under the hearsay exception for official records (Evidence Code § 1280), and used it extensively to argue in favor of Defendants’ liability on all claims presented to the jury. In stark contrast, Plaintiffs here do not seek to admit the 2019 citation for the truth but rather for the non-hearsay purpose of establishing Defendants’ knowledge of the alleged violations. Thus, the ruling in Nevarrez reversing the trial court’s decision to admit the citation for all purposes is markedly different from the issue presented in this case. One significant difference is that the Nevarrez ruling that a citation does not fall within the hearsay exception for official records under Evidence Code § 1280 is irrelevant to the issue here. Plaintiffs seek to offer the 2019 citation solely for a non-hearsay purpose.

Second, the Nevarrez court pegged its decision to the specific considerations voiced by the trial court and avoided making broader rulings that might be applicable in other actions. Thus, the Nevarrez court noted that the trial court relied on Norman v. Life Care Centers of America, Inc. (2003) 107 Cal. App. 4th 1233, to admit the citation at issue, but critiqued this reliance because the Norman court did not rule on the admissibility of such a citation nor of the DHS investigator’s underlying conclusions – neither of which were challenged by objections in Norman. The appellate court thus concluded that, by relying on an inapposite case, the trial court had sidestepped its duty to rule on the admissibility issues.

. . .

In the end, the appellate court concluded that the trial court abused its discretion but sidestepped many of the key evidentiary issues that Defendants claim to have been resolved in Nevarrez. The Court concludes that Defendants’ strong reliance on Nevarrez is misplaced largely because Plaintiffs here offer the 2019 citation purely for a non-hearsay purpose, but also because much of its analysis is sui generis and focuses specifically on the trial court’s analysis and waived objections, rather than on more broadly applicable principles.

(July 7, 2021 Minute Order [emphasis added].) To ensure the limited purpose for which the DSS report was admitted, the Court ordered it redacted of any findings or plans of correction and instructed the jury to consider the report solely as evidence of “notice in connection with Plaintiffs’ contention that Defendants ratified the conduct of their employees,” and not as evidence that “Defendants were negligent or reckless or engaged in elder neglect or abuse or as proof that Defendants violated any of the regulations mentioned in the exhibit." (RT 11/21/23, 29:24-30:25, Exh. 1.)

Defendants contend that the jury, notwithstanding the Court’s instructions, was prejudiced against Defendants by the closing arguments of Plaintiff’s counsel, which they contend suggested that the DSS report was evidence of wrongdoing. (Defendants Exh. 14 pp. 38:18-27; 59:18-20; 18:22-19:2.) Leaving aside that the Court already considered these issues in the Motion in Limine and rejected Defendants’ contentions, the arguments of counsel are not evidence. Moreover, the context of these references shows that they were not stating that the report was proof of wrongdoing, but rather identifying the regulations and procedures relevant to the DSS report (p. 38:18-27; 59:18-20) and showing that Defendants were on notice that their conduct was considered substandard by a regulatory body and did not act on that notification in any way. (p. 18:22-19:2.) These arguments and the admission of the DSS report for notice purposes were properly focused on Plaintiffs’ contention that Defendants ratified the prior elder neglect after the fact. Defendants’ concern about certain phrases from closing argument taken out of context is simply not enough to demonstrate that a different verdict should have been reached if the Court had ruled differently on the admission of the DSS report. Further, the Court disagrees that its evidentiary ruling admitting the report for a limited purpose along with an explicit limiting instruction constituted error.

Dr. Tan’s Testimony

Defendants also argue that it was prejudicial error to permit Dr. Joanna Tan, who treated the decedent during a hospital visit, to testify that the decedent had dementia, because her testimony was based on the diagnosis of another physician, and because Plaintiffs offered no testimony that the decedent had dementia to a medical certainty. The Court considered this argument in the context of Defendants’ Motion for Nonsuit heard on December 5, 2023. As the Court stated:

There is ample evidence in the record that would support a jury finding that Plaintiff had dementia and that Defendant had notice of that diagnosis. As to evidence of the diagnosis, the Court admitted Exhibit 38 which is the Discharge Summary from Lakewood Regional Medical Center, which states that one of Mr. Thacker’s diagnoses is “Dementia with psychosis.” (Exh. 38-1.) The doctor who composed this Discharge Summary, Joanna Tan, M.D., testified that, based on her customary practices, this document would have been given to the Southland staff person who accompanied Mr. Thacker to the Medical Center. Dr. Tan explained that she included this diagnosis in her report based on her consultation with the psychiatrist who admitted Mr. Thacker, a review of his medical records, her interactions with Mr. Thacker over his approximately 36-hour stay at the Medical Center, the CT results showing he had a slightly shrunken brain, and the facts that he was taking medication prescribed for Dementia patients and living in an assisted living facility because he could not function safely on his own. While acknowledging that she did not do a full mental status exam, Dr. Tan confirmed her diagnosis based on the underlying source information on which she relied. Without more, this evidence is sufficient to support a judgment in Plaintiffs’ favor on the issues of whether Mr. Thacker had dementia and whether Defendant had notice of that diagnosis.

Defendant argues that Dr. Tan did not make an independent diagnosis of dementia, instead “simply repeat[ing] what some other person had written in the record.” [citation]. As is clear from the trial testimony examined above, this is not the case. While Mr. Thacker’s psychosis, not his dementia, was Dr. Tan’s primary concern, she relied on the tools available to all doctors in the same situation – consultation with specialists, review of medical records and prescriptions, diagnostic testing, and interaction with the patient -- to reaffirm the previous diagnosis of dementia. Defendant contends that Dr. Tan’s evidence would only be probative of Mr. Thacker’s mental status if she did a full mental examination and came to a conclusion to a reasonable medical probability. But the cases relied on by Defendant deal with the medical question in a medical malpractice case of whether identified medicines or alleged medical malpractice caused a particular physical condition or illness. Defendant has not cited a single case showing that this standard is applicable in this elder neglect case alleging inadequate supervision and care by an assisted living facility as the cause of Mr. Thacker’s fall.

In a medical malpractice case, the plaintiff must demonstrate the alleged malpractice caused the plaintiff’s injury to “a reasonable medical probability based upon competent expert testimony. (Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.) The issue in Jones was whether a birth control drug called Ortho-Novum caused the plaintiff’s precancerous condition. (Id.) The Jones Court held that evidence of causation in such a case had to be based on expert testimony to a reasonable medical probability, because “[t]here can be many possible “causes,” indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Id., at p. 403.) In another oftquoted medical malpractice case addressing causation, Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498–99, the plaintiff was charged with showing that the decedent’s death was “’caused by’ defendant's medical negligence . . ., by “establish[ing] a ‘reasonable medical probability’ that the negligence was sufficient of itself to bring about the death, i.e., the death was ‘more likely than not’ the result of the negligence.” (Id., at pp. 1498-1499.) “[T]he reference to ‘medical probability’ in medical malpractice cases is no more than a recognition the case involves the use of medical evidence.” (Uriell v. Regents of Univ. of California (2015) 234 Cal.App.4th 735, 746 [dealing with expert testimony that the decedent would have survived 10 additional years if a timely diagnosis had been made]; see also Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416 n.2 [reference to medical probability is simply a recognition that is medical malpractice and asbestos injury cases, medical evidence is necessary to prove causation.) Defendant has cited no cases holding that a plaintiff in an elder abuse case must offer medical opinion to establish causation between the alleged elder neglect and the decedent’s death.

(December 5, 2023 Minute Order.) Although Defendants attempt to escape the impact of the Court’s prior ruling by arguing that Webster v. Claremont Yoga contradicts the Court’s view, Defendants overstate the effect of that case. (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 290-291.) Webster merely restates the general proposition that expert testimony is required for matters beyond the experience of a layperson, and found that, in the context of a case involving a back injury at a yoga studio, medical evidence was required to establish that the Defendant was the cause of the plaintiff’s injury, rather than another medical condition. (Id. at 291.) Defendants have failed to demonstrate that the Court should depart from its prior ruling on this issue.

Award of Damages

Defendants’ final argument is that the award of $2,000,000 in damages to the surviving Plaintiff Juliana Garcia for loss of companionship is excessive.

Courts are empowered to overturn awards that are so grossly disproportionate as to suggest passion, prejudice, or corruption. (See, e.g. Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.) However, as the Supreme Court has stated:

While a reviewing court, in passing upon the question involved here, may consider amounts awarded in similar cases [citations omitted], in the final analysis the question in each case must be determined from its own peculiar facts and circumstances citation omitted] and it cannot be held as a matter of law that a verdict is excessive simply because the amount may be larger than is ordinarily allowed in such cases. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages.

(Daggett v. Atchison, Topeka & Santa Fe Railway Co. (1957) 48 Cal.2d 655, 666.) “In measuring the damages suffered . . . the jury . . . [is] entitled to consider the loss of society and comfort suffered . . . . There is no fixed and absolute yardstick by which a court on appeal can measure the value of these elements of damage, it being sufficient if the amount awarded appears to bear a reasonable relation to the elements of loss entitled to be considered by the jury, and the fixing of the amount is committed first to the sound discretion of the jury and second to the like discretion of the trial judge in passing on a motion for new trial.” (Fagerquist v. Western Sun Aviation (1987) 191 Cal.App.3d 709, 728 citing Lasater v. Oakland Scavenger Co. (1945) 71 Cal.App.2d 217, 220.) “Factors such as the closeness of a family unit, the depth of their love and affection, and the character of the decedent as kind, attentive, and loving are proper considerations for a jury assessing noneconomic damages . . . .” (Soto v. Borgwarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 201.)

Defendants assert that an award of $2,000,000 in damages to an adult child is excessive where Plaintiffs argued that the decedent was suffering from dementia. According to Defendants, the onset of Mr. Thacker’s dementia constituted an independent loss of companionship for which Defendants were not responsible. Defendants’ claims are specious at best. As Defendants themselves suggest, Plaintiffs produced testimony showing a close relationship between Ms. Garcia and her father dating back to her childhood. (Defendants’ Exh. 9 p.141:2.) Moreover, Plaintiffs identify substantial evidence in their opposition showing that the relationship between parent and child persisted despite his cognitive impairment. (Plaintiffs’ Exh. 5 p.139:26-142:20.) Defendants do not meaningfully respond to this evidence, instead repeating their unfounded assertion that Ms. Garcia could not reasonably expect a benefit from the continuation of Mr. Thacker’s life. The Court is not persuaded.

Conclusion

The record shows that there was substantial evidence supporting the jury’s apportionment of liability and its valuation of the loss of Mr. Thacker’s companionship on his surviving child. Defendants have not established that the jury’s finding was unsupported or based on improper prejudice from the admission of certain evidence. Defendants have not demonstrated that they are entitled to a new trial.

Accordingly, Defendants’ Motion for New Trial is DENIED.

CONCLUSION:

Accordingly, Defendants’ Motion for Judgment Notwithstanding the Verdict is DENIED.

Defendants’ Motion for New Trial is DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: March 22, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 22, 2024 JUDGMENT:
January 22, 2024

CASE: Robert E. Thacker, et al. v. Southland Living, et al.

CASE NO.: 19STCV43469

MOTION
TO TAX COSTS

MOVING PARTY: Defendants Southland Living, Southland Management LLC,
and the Ensign Group, Inc.

RESPONDING PARTY(S): Plaintiff Juliana
Garcia, individually and as successor in interest to Robert E. Thacker

CASE
HISTORY:

·
12/04/19: Complaint
filed.

·
12/11/19: The Ensign
Group, Inc. substituted for The Flagstone Group, Inc.

·
02/21/20: Third cause
of action for willful misconduct dismissed with prejudice.

·
12/04/20: First
Amended Complaint filed.

·
01/06/21:
Second Amended Complaint filed.

·
08/03/21: Third Amended
Complaint filed.

·
01/22/24: Judgment on special
verdict entered.

STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a wrongful death and survivor action. Plaintiff alleges that the decedent, Robert
Thacker, suffered neglect while he was a resident at Southland Living and died
because of Defendant’s negligence and elder neglect.

Defendants move to tax certain
costs in the memorandum of costs.

TENTATIVE RULING:

Defendants’ Motion to Tax Costs is
GRANTED IN PART. Item 8b in Plaintiffs’ memorandum of costs is ordered reduced
by $3,850 in expert witness fees predating the June 11, 2021 offer to
compromise. Plaintiffs are, thus,
entitled to recover a total of $73,894.94 in costs.

DISCUSSION:

Defendants
move to tax certain costs in the memorandum of costs filed by Plaintiffs on
January 25, 2024.

Legal Standard

In general, the “prevailing party” is entitled as a matter
of right to recover costs for suit in any action or proceeding. (Code Civ.
Proc. §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co.
Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the
“prevailing party” requirements are met, the trial court has no discretion to
order each party to bear his or her own costs of suit. (Michell v.
Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72
Cal.App.4th 111, 129.) A defendant who is dismissed from the action is the
“prevailing party.” (Code Civ. Proc. §1032(a)(4).) This is so whether the
dismissal is voluntary or involuntary. (Santisas, 17 Cal.4th at 606.)

Allowable costs under Section 1033.5 must be reasonably
necessary to the conduct of the litigation, rather than merely convenient or
beneficial to its preparation, and must be reasonable in amount. An item
not specifically allowable under Section 1033.5(a) nor prohibited under
subdivision (b) may nevertheless be recoverable in the discretion of the court
if they meet the above requirements (i.e., reasonably necessary and reasonable
in amount). If the items appearing in a cost bill appear to be proper
charges, the burden is on the party seeking to tax costs to show that they were
not reasonable or necessary. (Ladas v. California State Automotive Assoc.
(1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are
properly objected to, they are put in issue and the burden of proof is on the
party claiming them as costs. (Ibid.) Whether a cost item was
reasonably necessary to the litigation presents a question of fact for the
trial court and its decision is reviewed for abuse of discretion. (Ibid.)
However, because the right to costs is governed strictly by statute, a court
has no discretion to award costs not statutorily authorized. (Id.)
Discretion is abused only when, in its exercise, the court “exceeds the bounds
of reason, all of the circumstances being considered.” (Ibid.)

Timeliness of Motion

“Any notice of motion to strike or to tax costs must be
served and filed 15 days after service of the cost memorandum. If the cost
memorandum was served by mail or email, the period is extended as provided in
Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule
3.1700(b)(1).) Here,
Plaintiffs served the memorandum of costs by electronic service on January 25,
2024. (Memorandum of Costs POS.) This motion was filed and served on February
5, 2024, 11 days later. The motion is therefore timely.

Challenged
Costs

Defendants challenge Plaintiffs’
request for $30,966.58 in expert fees (Item 8b) and $23,305.67 in court
reporter fees (Item 11).

1.
Expert Fees.

Defendants first challenge Item 8b’s
request for expert witness fees in the amount of $30,966.58.

Expert witness fees not ordered by
the Court typically may not be recovered after trial. (Code Civ. Proc. §
1033.5(b)(1).) However, expert witness costs may be recovered notwithstanding
this provision when a plaintiff makes an offer to compromise pursuant to Code
of Civil Procedure section 998 which is rejected and the defendant thereafter
fails to obtain a more favorable judgment or award. (Code Civ. Proc. § 998(d).)
Where multiple settlement offers are made, only the most recent offer controls.
(Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382, 391.)

Plaintiffs presented several offers
to compromise over the course of this litigation. The undisputed facts show
that the most recent offer to compromise was presented on January 11, 2022, and
demanded $589,500 to settle all claims brought on behalf of the decedent.
(Declaration of Megan P. Best ISO Mot. Exh. E.) Defendants contend this offer
was extended by Robert Thacker only, not Juliana Garcia in her individual
capacity, and therefore must be measured against the award on decedent’s claims
only. The Court entered judgment on a special verdict on the decedent’s claims
in the amount of $41,367.21 in economic damages and $250,000 in non-economic
damages. (Special Verdict.)

In opposition, Plaintiffs argue that
Defendants are mistaken insofar as Juliana Garcia also extended an offer to
compromise on June 11, 2021 in the amount of $447,749.00. (See Declaration of
Lisa Trinh Flint ISO Opp. Exh. 6.) Defendants, to their credit, concede the
point. As this amount is greatly exceeded by the award on Ms. Garcia’s claims,
Plaintiffs are entitled to recoup their expert fees.

Plaintiffs concede that expert fees
prior to June 11, 2021 must be stricken as improper pre-offer costs, reducing
this cost item by $3,850. Defendants do not dispute this assessment, except to
argue in their reply that Plaintiffs have not justified the remaining claimed
costs for the expert witnesses. However, Defendants did not challenge the
reasonableness of these costs beyond arguing they are not permitted under
section 998. As Plaintiffs have demonstrated their permissibility and no other
defect is apparent on the face of the memorandum, the Court finds that these
costs are reasonable except for the pre-offer fees identified by Plaintiffs.

Accordingly, the Court orders that
Item 8b be reduced by $3,850.

2. Court Reporter Fees

Defendants also argue that Item 11,
which seeks $23,305.67 in court reporter fees, is improper. Defendants are conflating transcript fees, which are covered
by section 1033.5(a)(9), with court reporter fees, which are covered by
1033.5(a)(11). As stated by the Court of Appeal in ruling on exactly this issue
in Chaaban v. Wet Seal, Inc, “These charges are not for
transcripts. They are for court reporter fees, an entirely different expense.
The parties have to pay the court reporter regardless of whether anyone orders
transcripts.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58.)

Defendants
have not demonstrated that this item should be taxed.

CONCLUSION:

Accordingly, Defendants’ Motion to
Tax Costs is GRANTED IN PART. Item 8b in Plaintiffs’ memorandum of costs is
ordered reduced by $3,850 in expert witness fees predating the June 11, 2021
offer to compromise. Plaintiffs are,
thus, entitled to recover a total of $73,894.94 in costs.

Moving
Parties to give notice.

IT IS SO ORDERED.

Dated: March 22, 2024 ___________________________________

Theresa
M. Traber

Judge
of the Superior Court

Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.