Judge Thomas Falls, Case 19STCV45995 2023-03-29 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

DEFENDANT, BEHAVIORAL HEALTH SERVICES, INC., BHS-AMERICAN RECOVERY CENTER, RAINER BANSUAN, M.D., SON LE, M.D. AND TUAN D. NGUYEN, M.D.’S AMENDED MOTION FOR SUMMARY ADJUDICATION[1]

DEFENDANT, BEHAVIORAL HEALTH SERVICES, INC., BHS-AMERICAN RECOVERY CENTER (“ARC”), RAINER BANSUAN, M.D., SON LE, M.D. AND TUAN D. NGUYEN, M.D.’S AMENDED MOTION FOR SUMMARY ADJUDICATION (“Motion”) is GRANTED in part (i.e., as to Dependent Adult Claim, General Negligence, and Premises Liability causes of action) and DENIED in part (i.e., as to Fraud cause of action).

This is a negligence case. Plaintiff Alvaro Garcia (“Plaintiff”) alleges that on December 24, 2018, Plaintiff fell from a second story window while as a resident through a drug detoxication program at BHS-American Recovery Center.

On December 19, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Behavioral health Services, Inc., BHS-American Recovery Center, Rainer Bansuan, M.D. (“Bansuan”), Son Le, M.D. (“Le”), Tuan D. Nguyen, M.D. (“Nguyen”) (collectively, “Defendants”) and Does 1-100 for:

On October 19, the court sustained in part and overruled in part Defendant’s Demurrer.

On September 9, 2021, Plaintiff filed its Third Amended Complaint (“TAC”), realleging the same causes of action.[2]

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The 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 moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

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; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”].) In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

Defendants move for summary adjudication as to all causes of action except the professional negligence cause of action. (See Proposed Order, see also Motion p. 2.)

As a prefatory matter, the court notes that Plaintiff’s opposition and Separate Statement suffer from substantial defects.

First, CCP section 473(b)(1)(3) requires that “[e]ach material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1)(3)) (emphasis added). Here, however, the opposition does not reference any evidence, leaving the court to determine what evidence in the separate statement supports what argument.

Second, as for the separate statement, the court agrees with Defendants that this document fails to comply with California Rules of Court, Rule 3.1350(d)(1)(A) and (h) because plaintiff has failed to provide separate headings for each cause of action, making it difficult to determine what evidence Plaintiff is offering in support of its causes of action.

With such defects, pursuant to CCP section 473(b)(1)(3), the court can exercise its discretion to grant the summary adjudication motion. That said, the court—aware of both parties’ laudable diligence on this case (as evidenced in the various hearings)—will not outright grant the motion (on actions wherein Defendant has met its burden) because of this statutory defect.

1. Second Cause of Action for Violations of the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”)

“The purpose of the [EADACPA was] essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4^th 771, 787.) The EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers. (Delaney v. Baker (1999) 20 Cal.4^th 23, 32; Covenant Care, Inc., supra, 32 Cal.4th at p. 785.) Several factors “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).

“Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’” (Delaney, supra, 20 Cal.4th at p. 31-32.) Put simply, recklessness “refers to a subjective state of culpability greater than simple negligence.” (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336-337.)

To better illustrate examples of conduct that sufficiently amounts to egregious conduct or recklessness, Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396 provided numerous examples include the following:

—A skilled nursing facility: (1) failed to provide an elderly man suffering from Parkinson’s disease with sufficient food and water and necessary medication; (2) left him unattended and unassisted for long periods of time; (3) left him in his own excrement so that ulcers exposing muscle and bone became infected; and (4) misrepresented and failed to inform his children of his true condition. (Covenant Care, supra).

—An 88-year-old woman with a broken ankle ‘was frequently left lying in her own urine and feces for extended periods of time’ and she developed pressure ulcers on her ankles, feet and buttocks that exposed bone, ‘despite plaintiff's persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman.’ (Delaney, supra).

—A facility caring for a dependent adult with a known condition causing progressive dementia; requiring nutrition and hydration through a gastronomy tube and subjecting her to skin deterioration, ignored a medical care plan requiring the facility to check the dependent adult's skin on a daily basis and failed to notify a physician when pressure ulcers and other skin lesions developed. (Sababin, supra).

—A 78–year–old man admitted to a skilled nursing facility ‘was abused, beaten, unlawfully restrained, and denied medical treatment.’ (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1512.)

—The staff of a nursing home: (1) failed to assist a 90-year-old, blind and demented woman with eating; (2) used physical and chemical restraints to punish the elder and prevent her from obtaining help; and (3) physically and emotionally abused the elder by bruising her, ‘withholding food and water, screaming at her, and threatening her.’ (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 116-117.)

—A skilled nursing facility (1) failed to provide adequate pressure relief to a 76-year-old woman with severe pain in her left leg and identified as at high risk for developing pressure ulcers; (2) dropped the patient; (3) left ‘her in filthy and unsanitary conditions’; and (4) failed to provide her the proper diet, monitor food intake and assist with eating. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 430.)

—A physician ‘conceal[ed] the existence of a serious bedsore on a nursing home patient under his care, oppose[d] her hospitalization where circumstances indicate[d] it [was] medically necessary, and then abandon[ed] the patient in her dying hour of need.’ (Mack v. Soung (2008) 80 Cal.App.4th 966, 973.)

Lastly, 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.” (Id. at pp. 406-407 [quotation marks and citations omitted].)

The pertinent allegations that support Plaintiff’s cause of action are as follows:

[Plaintiff] was a dependent adult . . . at all times . . . Defendants had care and/or custody of Plaintiff . . . Defendants knew that [Plaintiff] had attempted suicide within 60 days of his admission and that he suffered from bipolar disorder. Despite this knowledge of Defendants failed to provide [Plaintiff] with a psychiatric consult and failed to address his dual diagnosis. In addition, Defendants prescribed a detoxification protocol for [Plaintiff’s] opioid withdrawal that was outdated and below the standard of care, in breach of their duty to meet the physical and mental health needs of [Plaintiff]. Defendants further knew that the windows on the second floor were unsecured, improperly latched, and improperly maintained. Defendants knew that windows constituted a dangerous condition as a prior patient had fallen out of a second story window prior to [Plaintiff’s] admission. Despite this knowledge, Defendants placed [Plaintiff] in a room and subjected him to this dangerous condition.

The EADACPA does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship. (See Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148.) “That is a relationship a where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Id. at p. 158.) “Ultimately, the focus of the statutory language is on the nature and substance of the relationship between an individual and an elder or a dependent adult. This focus supports the conclusion that the distinctive a distinctive contemplated by the Act entails more than casual or limited interactions.” (Id) (emphasis added). Furthermore, the phrase ‘care or custody” evokes a bond that contrasts with a casual or temporally limited affiliation . . . It is difficult to imagine under what circumstances an individual could ‘abandon’ a [] dependent adult absent the existence of a caretaking or custodial relationship (e.g., a degree of dependence and reliance that would make abandonment possible).” (Id. at p. 161.)

Defendants argue that the parties never had a custodial relationship with Plaintiff because:

i. Plaintiff lived independently and admitted himself voluntarily to ARC to receive treatment for a drug addiction.

ii. ARC did not assist Plaintiff with bathing, changing, or other basic needs as evidenced by Plaintiff’s own deposition testimony that he was able to take care of his own basic needs, such as doing dishes and laundry.

iii. Plaintiff was also able to exercise on his own by lifting weights and doing jiu-jitsu.

iv. While at ARC, Plaintiff was encouraged to eat and drink fluids on his own initiative.

vi. There are further no orders in the patient’s chart to provide him assistance with toileting, bathing, grooming, dressing or eating.

vii. Plaintiff was at ARC for a temporary period and had discussed transferring to an outpatient program after his stay.

viii. No assistance was provided beyond administering medications and providing Plaintiff with an environment to safely withdrawal from addictions to illicit substances.

Here, the court finds that Defendants’ evidence supports the lack of a custodial relationship because Defendants did not have the responsibility to provide Plaintiff’s basic needs. After all, Plaintiff could eat on his own, drink on his own, leave the facility at any time on his own, and even workout on his own. Accordingly, the evidence indicates that Plaintiff was very independent and did everything (aside from administering medication) on his own. (See also Motion p. 15, citing Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109 [wherein appellate court held that there was no evidence that the patient—who was not cognitively impaired, incapable of expressing his wishes, or unable to make his own medical decisions—had a robust custodial care relationship with the hospital].)[3] All in all, the evidence establishes that the interaction and engagement between the parties was limited to either minutes a day (for medication) or at most a couple of hours if counseling was involved.

Therefore, as this interaction amounts to “limited interactions” or “circumscribed engagement,” which the Supreme Court in Winn rejected as sufficient to establish the caretaking relationship required under the law, the court finds that Defendants have met their evidentiary burden. (Winn, supra, 63 Cal.4th at p. 158.)

In opposition, Plaintiff argues that “Defendants assumed a caretaking and custodial role when they accepted Alvaro Garcia into their chemical dependency hospital. It is evident that Defendants exercised control whether to provide medical care to plaintiff, as evidenced by Defendants' own policies and procedures and their conduct relative to Plaintiffs care. Defendants were responsible for making determinations as to the medical care that should be provided to Plaintiff during detox, including whether Plaintiff needed medication management and medical monitoring for withdrawal symptoms. Defendants were also responsible for making decisions as to whether Plaintiff needed to be referred to a higher level of care for his medical conditions, and in fact, made those decisions on behalf of Plaintiff. Defendants further assumed a responsibility to protect Plaintiff from health and safety hazards from acute withdrawal symptoms. As such, the Defendants clearly had a caretaking and custodial role as defined by Welfare and Institutions Code.” (Opp. p. 7) (emphasis added).

Here, the court finds that Plaintiff has not met its burden because it does offer evidence (nor arguments) that Defendants had the responsibility to provide for Plaintiff’s basic needs. Rather, as Plaintiff itself concedes, Defendants’ role was seemingly limited to medical care pertaining to Plaintiff’s addiction.

Accordingly, as Plaintiff—an able-bodies and fully competent adult—did not meet its evidentiary burden to establish that Defendants were responsible for his basic needs, Plaintiff did not meet its evidentiary burden.

In sum, the court determines that the evidence, viewed in its totality, does not permit the conclusion that a robust and substantial caretaking or custodial relationship with ongoing responsibilities existed between Plaintiff and Defendants because it was nothing more than that of a patient and healthcare provider.

The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Civil Code §1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) “The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)”

Defendants represented to Plaintiff and his family/representatives that they had proper qualifications and staffing and level of care to treat and are for a patient with this dual diagnosis. Defendants also represented that they had the experience in addressing the needs of Plaintiff ALVARO GARCIA. [Defendants] concealed from Plaintiff that they had no licensed or trained medical personnel who would be involved in the intake and immediate care of Plaintiff, and were not qualified to treat him. . . Defendants made these representations because they knew they would receive subsidies from the State of California if Plaintiff entered the inpatient program and that they would lose money if Plaintiff ALVARO GARCIA was transferred to a different facility.

Defendants’ predominant argument is that “the evidence demonstrates the contrary, which is that Mr. Garcia voluntarily, and on his own accord, checked himself into ARC on December 17, 2018.” (Motion p. 17.)

Here, however, the court finds that Defendants have not met their evidentiary burden because they offer no evidence to address the crux of the fraud cause of action: Defendants represented that their facility included detoxification for individuals with a dual diagnosis or a co-existing psychiatric problem, such as Plaintiff, when in fact Defendants were not certified to provide that required level of care.

To the extent that Defendants argue there is a lack of specificity as to the cause of action, that is not so. Plaintiff provides the names of individuals they spoke to (Brenda Brown, L.P.T and Zakiyyah Hargrave 9 L.P.T (TAC ¶60) and if names were not provided, it is because Defendants did not identify themselves. (TAC ¶59.) Moreover, Plaintiff alleges the number of calls that were made (7-8 calls) (TAC ¶59) and the information that was given. As for the scienter requirement, Plaintiff alleges that using “aggressive marketing techniques,” Defendants made their misrepresentations for profit. (TAC ¶64.) Lastly, Plaintiff relied upon such misrepresentations by admitting himself to program. (TAC ¶65.)

Therefore, as Defendants have not offered evidence to rebut Plaintiff’s allegation that Defendants were unlicensed to provide certain required care, Defendants have not met their burden such that the court DENIES the MSA as to the 4^th cause of action for fraud.[4]

Defendants argue that the two causes of action are duplicative of the professional negligence cause of action.

The court thoroughly addressed this issue in its ruling on the motion for judgment on the pleadings (“MJOP”). And as Plaintiff still (as it did not in its opposition to the MJOP) does not address the seminal cases on the issue of duplicative causes of action involving negligence (Flowers and Bellamy), the court will not restate what it has already discussed with the parties. The court asks the parties to refer to its December 6, 2022 Tentative Ruling for an analysis on the issue.

Based on the foregoing, the court GRANTS the MSA in part (as to Dependent Adult Claim, General negligence, and premises liability) and DENIES the MSA in part (as to fraud cause of action).

[1] All named Defendants in the action are moving for summary adjudication.

[2] The court granted Defendants’ motion to strike punitive damages from the operative TAC because, absent court permission, CCP section 425.13 precludes the imposition of punitive damages against health care providers and here, American Recovery Center is a licensed health care facility that has a license to operate as a Chemical Dependency Recovery Hospital, which was issued by the State of California Department of Public Health and was effective during the period of Plaintiff’s admittance in December 2018. (See March 23, 2022 Tentative Ruling.)

[3] Plaintiff’s opposition does not address Defendants’ citations to Winn and Kruthanooch.

[4] Though the court need not address Plaintiff’s evidence as the burden only shifts once the moving party satisfies its burden, Plaintiff explains that Defendants were certified for only ASAM 3.1-3.5 2 level of care and not certified for ASAM 3.7, which is the level of care offered to Plaintiff. Defendants also knew that they were not certified for 4.0 level of care, which is the level of care required by Plaintiff based on his dual diagnosis. (Opp. pp. 12-13, see also Plaintiff’s Separate Statement Nos. 6-16.)