Judge Thomas Falls, Case 22STCV21045 2023-02-06 Tentative Ruling

RE: PHYLLIS BROST, et al. vs VITAS HEALTHCARE, A CALIFORNIA CORPORATION, et al. (22STCV21045)

(1) DEFENDANT VITAS HEALTHCARE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

(2) DEFENDANT VITAS HEALTHCARE’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT

(4) Defendant, WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS’s MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

(1) DEFENDANT VITAS HEALTHCARE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT is SUSTAINED in its entirety, with leave to amend.

(2) DEFENDANT VITAS HEALTHCARE’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT is MOOT.

(3) Defendant, WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS’s DEMURRER is CONTINUED for the failure to meet and confer.

(4) Defendant, WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS’s MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT is CONTINUED.

This is an alleged elder abuse case. Plaintiffs PHYLLIS BROST, as an individual and successor in interest JAMES ELMER BROST; JAMES S. BROST, an individual; and, ANGELIQUE BARNUM[1] allege the following against Defendants VITAS HEALTHCARE, a California Corporation; WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS; MICHAEL BOBADILLA, an individual; PARADISE TRANSPORTATION AND FUNERAL SERVICES, a California Corporation; JUAN REATIGA: On November 13, 2020, Decedent was admitted to Sunrise of Claremont (“Sunrise”) following a prior hospital stay and surgery for a fractured back. After a few days at Sunrise, Decedent suffered from a bed fall and was hospitalized. Thereafter, he returned to Sunrise and was placed in hospice. VITAS was the hospice assigned to decedent and Vitas would administer his medications, such as insulin. However, on or about November 26, 2020, VITAS notified Sunrise that “new orders” were to discontinue his hospice care and Sunrise would have to take over by 4:00 PM the same day. Perhaps due to miscommunication, decedent was not given his insulin, as indicated by a sugar level of about 400 as revealed in the early hours of November 27, 2020. Furthermore, Vitas also administered or had Sunrise administer decedent a dose of Xanax, which further complicated decedent’s respiratory distress as he already had a low heart rate/pulse and administered morphine, even though decedent was allergic. On November 27, 2020, at 5:40 PM, after no pulse was detected, decedent passed away.

On August 19, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) for 1. NEGLIGENCE/WRONGFUL DEATH 2. NEGLIGENCE/SURVIVAL 3. STATUTORY VIOLATION OF CALIFORNIA’S CIVIL ELDER ABUSE/NEGLECT PROTECTION ACT (Wel. & Inst. Code § 15600, et. seq) - SURVIVAL 4. WILLFUL MISCONDUCT 5. NEGLIGENT MISHANDLING AND WRONGFUL RETENTION OF A CORPSE 6. INTENTIONAL MISHANDLING AND RETENTION OF A CORPSE.

On SEPTEMBER 20, 2022, Defendant Vitas filed a Demurrer with a motion to strike.

On September 30, 2022, Defendant, WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS (hereinafter “All Caring Solutions Defendant”) filed a Demurrer with a motion to strike.

On October 6, 2022, Plaintiff filed its Opposition to Vitas’ Demurrer and Motion to Strike.

On October 18, 2022, Dept. 28 issues the following minute order: The Demurrer - with Motion to Strike (CCP 430.10) - to Plaintiff's First Amended Complaint filed by Vitas Healthcare, a California Corporation on 09/20/2022 is Off Calendar. The Motion to Strike (not initial pleading) - Portions of Plaintiffs' First Amended Complaint filed by Vitas Healthcare, a California Corporation on 09/20/2022 is Off Calendar.

On October 24, 2022, Plaintiffs filed their Opposition to DEFENDANT WIEFELS & SON, INC. dba ALL CARING SOLUTIONS’ DEMURRER TO THE FIRST AMENDED COMPLAINT.

On November 9, 2022, Dept. 28 issued the following minute order: This case was assigned to Department R at the Pomona Courthouse South, Judge Thomas C. Falls, presiding, on 10-26-2022. The matter is re-set in Department 28, Spring Street Courthouse, in error by Defendant Vita Healthcare.

On November 24, 2022, Defendant VITAS HEALTHCARE, INC. filed a NOTICE OF RESCHEDULING DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT such that it rescheduled their demurrer to February 6, 2023 at 10:00 a.m. in Department “R”.

On December 5, 2022, DEFENDANT WIEFELS & SON, INC., D/B/A ALL CARING SOLUTIONS filed a NOTICE OF RESCHEDULING DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT rescheduling the demurrer to February 6, 2023 at 10:00.

To date, as of 1/31 at 2:30 PM, no Reply has been received by Defendant WIEFELS & SON, INC., D/B/A ALL CARING SOLUTIONS [due 5 court days before hearing, 1/30].

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914

Defendant Vitas demurs to the 3^rd cause of action for Elder Abuse, 4^th Cause of Action for Willful Misconduct, and 5^th Cause of Action for Negligent Mishandling and Wrongful Retention of a Corpse on the grounds that they are uncertain and fail to state sufficient facts to constitute a cause of action under C.C.P. Section 430.10(e)(1).

“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).

As for the first requirement regarding the relationship between the parties, The Elder Abuse Act “does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152) (emphasis added). “It is the nature of the elder or dependent adult’s relationship with the defendant—not the defendant’s professional standing—that makes the defendant potentially liable for neglect.” (Id.)

As for the conduct, “[r]ecklessness, 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) (emphasis added). (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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4^th 396, 406-407 [quotation marks and citations omitted].)

Neglect under the EADACPA “refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4^th 81, 89 [quotation marks and citation omitted].)

Moreover, “[i]n order to obtain the [EADACPA’s] heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf & Inst. Code, § 15657 [requiring ‘clear and convincing evidence that a defendant is liable for’ elder abuse and ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse’] with Civ. Code, § 3294, subd. (a) [requiring ‘clear and convincing evidence’ that the defendant has been guilty of oppression, fraud or malice].)” (Covenant Care, supra, 32 Cal.4^th at 789.) Thus, “a health care provider sued for violating the [EADACPA] must defend against allegations of egregious conduct.” (Id. at p. 787.)

Plaintiffs’ pertinent allegation comprising this cause of action include the following allegations:

That Vitas had a responsibility of “monitoring [decedent’s] diabetes, checking his blood glucose, administering insulin, and notifying his doctors if his blood glucose was over 400 and remained that way after administering 12 units of insulin, and to follow all direct orders by his physician. However, [] VITAS did not follow orders or provide minimal care to Decedent [decedent] every day and in fact abandoned him . . . [and] taking with them some of [decedent’s] medication . . . After VITAS had abandoned [decedent] and were aware there were no persons at Sunrise of Claremont who were licensed to provide pain medication or insulin, they suggested that Sunrise of Claremont put [decedent] on oxygen in response to a call from the facility about his sustained 400 blood glucose and evidence of distress, and to give him a Xanax. Eventually a VITAS employee did return to the facility, but rather than administering insulin they opened his window, and did not call 911. VITAS further checked his vitals and was aware his heart rate was dangerously low, and still 911 was not called nor was Sunrise advised of the concerning vitals . . . the care or lack thereof, by Defendants, fell so far below the reasonable standard, that it can only be described as grossly negligent and with extreme indifference to the life and well-being of [decedent.]

Defendant Vitas argues that it was (1) not the caretaker nor custodian of decedent to invoke EADACPA nor (2) does Plaintiff alleged reckless, oppressive, fraudulent, or malicious conduct.

Here, as to Vitas’ first argument that Plaintiffs fail to allege that Vitas “failed to do for the decedent’s every day and basic care needs of food, water, and safety, or that VITAS had any responsibility for those basic needs,” the court disagrees. (Demurrer p. 6.) To the contrary, the FAC alleges that Decedent was under the care and custody of VITAS, who attended to his basic needs, including prescribing and administering required life-sustaining medications such as insulin, as well as assisting in bathing, feeding, and hygiene” and that Vitas did not provide insulin medication to Decedent for over twelve hours. (See FAC ¶¶58, 74, see also Opp. p. 14.) Effectively, that is not mere “tangential involvement in decedent’s care needs” as Vitas urges. (Demurrer p. 6.) And to the extent that Vitas focuses on its role as a “third-party service provider” or that Vitas only visited twice per week such that it precludes a custodial relationship, it has offered no authority to support this legal contention. Accordingly, Plaintiffs have met the requirements set forth in Winn because Vitas was involved in the ongoing responsibility for one or more basic needs (i.e., insulin administration and bathing, etc.).[2]

Next, regarding Vitas’ second argument that Plaintiffs have only alleged substandard medical care and treatment which falls short of allegations of intentional misconduct, the court also disagrees. When a care facility’s employees ignore a care plan, such conduct can show deliberate disregard for the high degree of probability that the inpatient would suffer injury.[3] Here, amongst other allegations, Plaintiffs have alleged that decedent needed insulin, but he was not given it for 12 hours. Therefore, as the allegation shows a failure to follow a care plan (i.e., administer insulin), Plaintiffs have alleged sufficient facts.[4]

Notwithstanding the foregoing, the court agrees with Vitas that Plaintiff’s FAC does not offer sufficient evidence of a corporate authorization and ratification of the alleged abuse. There must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (See Civ. Code, § 3294; Cal. Welf. & Inst. Code, § 15657(c).)

Here, however, the only allegation pertaining to ratification is found in paragraph 64 of the FAC which states in a conclusory fashion that “[t]he reckless, neglectful and willful misconduct alleged herein against Defendants, including DOE Defendants 1-50, was actually committed by managing agents of Defendants’ enterprises and was specifically ratified by defendants’ managing agents, including, but not limited to, defendants’ Officers, Directors, Administrators and/or Managing Agents of Defendant VITAS, including its employees/staff known as Kelly Finley, Dr. James. F. Reilly, Dr. James F. Reilly, and a night nurse known as “Joe”, who were acting on its behalf with authorization to do such acts or omissions.”

Therefore, as the FAC fails to make sufficient allegations against this corporate defendant (i.e., specific actions or reference to when and how the alleged wrongful acts were ratified), the court SUSTAINS the demurrer as to the 3^rd cause of action for Elder Abuse with leave to amend.

Willful misconduct is not a separate tort. (See Berkeley v. Dowds (2007) 152 Cal.App.4th 518, 526.) Rather, willful misconduct is “simply an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.” (Id. (internal quotation marks omitted).) “Its pleading requirements are similar to negligence but stricter.” (Id.) To raise a negligent act to the level of willful misconduct, a plaintiff must plead “(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.” (Id. at 528.) “No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury.” (Id. at 528.)

Here the allegations comprising this cause of action are found in paragraphs 69 through 75. Beside the fact that the cause of it action doesn’t delineate the specific facts to constitute the cause of action but rather merely incorporates aforementioned allegations, the opposition also does not provide an explanation as to how the purported failures (i.e., not administering insulin or calling 911 when decedent had a low heart rate) rise to the level of willful misconduct such that the choice not to take certain precautions or actions was a conscious. As explained above, a holistic reading of the FAC indicates that Plaintiffs are alleging Vitas acted with gross negligence; however, Plaintiffs have not alleged (nor explained) how gross negligence equates to aggravated negligence.[5]

Therefore, the court SUSTAINS the demurrer as to the 4^th cause of action with leave to amend.

Plaintiffs allege that “Defendant VITAS has a duty to contact Todd’s Memorial Chapel upon the death of JAMES SR, and breached that duty by contacting Defendant PARADISE TRANSPORTATION and/or Defendant REATIGA and/or Defendant BOBADILLA and/or Defendant ALL CARING SOLUTIONS instead.” (FAC ¶85.) Simply put, the allegation is that Vitas called the wrong funeral home and released Decedent’s body to it and this wrong funeral home (BOBADILLA). As more specifically alleged: During the transition, the corpse nearly fell to the ground in front of all family members. BOBADILLA requested help as he held Decedent’s corpse partially up between the bed and gurney. The son assisted BOBADILLA in helping place his father’s corpse on the gurney. Upon transferring Decedent into the vehicle, it appeared to the family that BOBADILLA did not know how to work the gurney. BOBADILLA started to ram the gurney into the back of the van with Decedent’s corpse going in headfirst. The gurney was violently rammed into the van approximately 6 or 7 times. Each time the body shook and fell off the gurney. BOBADILLA attempted to lower the gurney. Upon the release of a lever, the gurney suddenly dropped about 20 to 30 degrees, which caused Decedent’s body to slide forward nearly to the ground, but decedent’s son caught decedent’s body as it was falling off the gurney.

Negligent mishandling of human remains is a tort of negligence. The name is merely “convenient terminology descriptive of the context in which the negligent conduct occurred.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.)

In its demurrer, Vitas argues that while it “may have had a duty to call the mortuary, it was not foreseeable that calling another mortuary (or the allegedly correct mortuary) would result in the alleged mishandling of the decedent’s remains by one of the mortuaries employees.” (Demurrer p. 12) (emphasis added). More specifically, Vitas focuses on the allegation that Bobadilla allegedly lied that he worked for Todd’s Memorial Chapel (FAC ¶105) such that his lie is an intentional unforeseeable act that breaks the chain of causation required to sustain this cause of action.[6] If Bobadilla had been honest, the mis-transportation incident could have been avoided by VITAS personnel. (Demurrer p. 13, see also Reply p. 8.)[7]

For a well-explained discussion on superseding or supervening causes, the court turns to Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749. There, the appellate court explained the following:

Under traditional tort principles, once a defendant's conduct is found to have been a cause in fact of the plaintiff's injuries, the conduct of a third party will not bar liability unless it operated as a superseding or supervening cause, so as to break the chain of legal causation between the defendant's conduct and the plaintiff's injuries. [Citation]. The misconduct of a third party will not ordinarily have this effect if the misconduct itself was foreseeable to the defendant. [Citation] . . .

Even when a third party's intervening act is unforeseeable, the defendant's conduct may continue to be operate as a legal cause if the defendant could reasonably foresee the injury resulting from his own conduct . . . Where an injury was brought about by a later cause of independent origin ... [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused the injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff; if however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injuries.”

Here, Vitas argues that Bodabilla’s conduct operated as a superseding or supervening cause so as to break the chain of legal causation between Vitas’s conduct and Plaintiffs’ injuries because “dishonesty is not foreseeable.” (Demurrer p. 14.) And the results which it caused—brutely mishandling decedent’s body—could have been avoided because Bobadilla was “inadequately trained and did not know how to operate the gurney” such that the harm could have been presumably avoided had the body gone to Todd’s Memorial Chapel. (FAC ¶¶78, 83.) Though “foreseeability does not turn on whether the particular defendant as an individual would have in actuality foreseen the exact accident and loss,”[8] the court is persuaded that the series of events is so “bizarre” (Reply p. 8) that it is arguably not the natural and probable result of calling the wrong mortuary company. After all, one would think that the receiver of the call would inform the caller that they have reached the wrong mortuary rather than lie and take possession of a corpse. Or that at the very least even if the third party lied, it would not be so ill-equipped for the job to so brutely mishandle the body in front of family members and to even have the son assist in handling the body. Therefore, as the series intervening cause (Bobadilla’s alleged lying) was not anticipated (i.e., not foreseeable) and that the harm (mishandling of the body) is not within the range of probability as viewed by a reasonable person, then Vitas should be relieved from liability for Plaintiffs’ emotional injuries. However, that said, as (i) causation is generally an issue for a trier of fact, (ii) Vitas did not provide a robust analysis on the issue, and (iii) that the court must view all inferences in light most favorable to Plaintiffs,[9] the court declines to sustain the demurrer on this ground.

Next, Vitas argues that “Plaintiffs are alleging that Bobadilla’s negligence be imputed to VITAS” but that “[t]he general rule is that imputed liability for the negligence of another will not be recognized”[10] and that the exception to this rule, joint liability theory, which is rarely alleged outside an automobile accident context, does not apply here “Plaintiffs’ Complaint does not argue facts to support a mutual agency or a limited partnership.”[11] (Demurrer p. 13.) Indeed, a holistic reading of the FAC emphasizes that the tort involved is the alleged negligent mishandling of a corpse by the acts of a third party, the “Corpse Defendants.”[12] In fact, Plaintiffs allege that they “suffered severe emotional distress as a result of the mishandling of the [decedent’s] corpse having witnessed it fall of the bed to the gurney, slammed into the hearse multiple times like a shopping cart, fall off the gurney toward the ground striking JAMES JR, requiring the family to lift the corpse on two occasions, releasing the corpse to the wrong funeral home and/or taking the body to the wrong funeral home, requiring the family to pay $400 for the release of the body that was not authorized to be taken by the CORPSE DEFENDANTS, and the requirement that JAMES JR. drive an hour to view the body which was improperly being held for ransom by the CORPSE DEFENDANTS before they would release it.” (FAC ¶94) (Boldface and underline added).[13]

Therefore, as the FAC itself pleads that the Corpse Defendants mishandled the body and such mishandling was witnessed by Plaintiffs and that it was the witnessing of such mishandling that caused Plaintiffs’ emotion distress, the demurrer as to the 5^th cause of action, with leave to amend.

Based on the foregoing, Vitas’ demurrer is SUSTAINED IN ITS ENTIRETY with leave to amend. The motion to strike is MOOT.

II. Defendant, WIEFELS & SON, INC., d/b/a ALL CARING SOLUTIONS’s (“ACS”) DEMURRER

CCP Section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.)

Here, Plaintiffs state that ACS did not meet and confer. ACS has not filed a Reply to explain otherwise, and the court sees not meet and confer declaration in the demurrer itself.

[1] Phyllis is decedent’s wife, James Jr. is decedent’s son, and Angelique is decedent’s daughter.

[2] In fact, in the court’s view, considering that “there were no persons at Sunrise of Claremont who were licensed to provide pain medication or insulin,” Vitas had more than the requisite substantial caretaking position as it could be argued that decedent’s life was dependent on Vitas’ care. (See FAC ¶60.)

[3] (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 82 [“[I]t is reasonably deducible that Covina's employees neglected to follow the care plan by failing to check Renteria's skin condition on a daily basis and failing to notify a physician of the need for a treatment order . . . Moreover . . . we easily conclude that there is a triable issue as to whether Covina's employees acted with recklessness, oppression or malice. A trier of fact could find that when a care facility's employees ignore a care plan and fail to check the skin condition of a resident with Huntington's Chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury.”].)

[4] Vitas’ Reply does not address the Sababin holding regarding the failure to follow a care plan.

[5] To the extent that Plaintiffs cite a case, they only provide a citation to Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879. That case however is inapposite because in its discussion of willful misconduct, the court stated there was a triable issue of material fact when the defendant brought the plaintiff “to the cliffside when she knew he was intoxicated and waiting several hours to call 911 or otherwise summon aid after the fall.” Here, however, there are no allegations that Vitas waited hours to render aid. In fact, the FAC alleges that despite leaving, a Vitas employee returned after a concerning call about decedent’s health, perhaps undermining allegations of consciously depriving care.

[6] Vitas does not provide legal authority nor a robust analysis as to its contention.

[7] Plaintiffs do not address this argument regarding foreseeability.

[8] See Dillon v. Legg (1968) 68 Cal.2d 728, 741.)

[9] See Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666 [Causation is generally a question of fact for the. Jury, unless reasonable minds could not dispute the absence of causation.”]

[10] Vitas inadvertently cites to Quesada, but Christensen discusses agency.

[11] Plaintiffs’ Opposition does not address this argument.

[12] (See FAC ¶11 [“Defendants ALL CARING SOLUTIONS, BOBADILLA, PARADISE TRANSPORATION, and REATIGA, are hereinafter collectively referred to as the CORPSE DEFENDANTS.”].)

[13] Plaintiffs also do not address the agency argument in their Opposition.