Judge Thomas Falls, Case 22STCV24253 2023-02-27 Tentative Ruling

(1) DEMURRER TO FIRST AMENDED COMPLAINT BY DEFENDANT AURORA CHARTER OAK - LOS ANGELES, LLC

(2) MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT BY DEFENDANT AURORA CHARTER OAK—LOS ANGELES, LLC (ERRONEOUSLY NAMED AND SUED AS AURORA CHARTER OAK HOSPITAL)

(1) DEMURRER TO FIRST AMENDED COMPLAINT BY DEFENDANT AURORA CHARTER OAK - LOS ANGELES, LLC is SUSTAINED with 30 days leave to amend.

(2) MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT BY DEFENDANT AURORA CHARTER OAK—LOS ANGELES, LLC (ERRONEOUSLY NAMED AND SUED AS AURORA CHARTER OAK HOSPITAL) is MOOT.

This is a wrongful death case. Plaintiffs OSCAR DENA, an individual; MARICELA DENA, an individual; OSCAR MATTHEW DENA, an individual; THOMAS DENA, an individual; and CHRISTINA SENDEJAS, an individual, allege the following against Defendants AURORA CHARTER OAK – LOS ANGELES, LLC, a California limited liability company; AURORA CHARTER OAK HOSPITAL (“Defendant”): On June 5, 2021, Decedent Richard Peter Dena (“decedent”) was involuntarily admitted to Defendant’s Hospital after he made suicidal statements. “Defendants had a duty to provide safe equipment and a safe environment to Richard to prevent him from committing suicide, but failed to do so in numerous ways, including but not limited to: i. Leaving his jacket on his persons ii. Placing him in a room with a vent that can be easily removed iii. Placing him in a room with easy access to the pipe that can withstand his body weight.” (First Amended Complaint (“FAC”) ¶24(l).) On June 5, 2021, the decedent was able remove a vent from the ceiling in the bathroom of his room and used his jacket to hang himself on the pipe behind the vent. (FAC ¶30.)

On January 17, 2023, Plaintiffs filed suit for: 1. SURVIVOR ACTION 2. WRONGFUL DEATH – WELFARE & INSTITUTIONS CODE, § 15600 ET SEQ.

On January 18, 2023, Defendant filed the instant Demurrer with a motion to strike.

On January 20, 2023, Plaintiffs dismissed Oscar Matthew Dena, Thomas Dena, and Christina Sendejas, leaving Maricela Dena as the sole Plaintiff.

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.

3. The survival claim fails for want of an estate, successor in interest, or personal representative.

The court will begin its analysis with the statute of limitations argument as it would render the complaint time barred.

Defendant argues that though the FAC is predicated upon alleged violations of the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”), the FAC sounds in professional negligence. The court agrees.

“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) (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.)

Here, Plaintiffs allege facts that are based on a seeming breach of the Defendant’s “standard of care.” (See FAC, ¶18, 19, 21, 22, 23, 27, 30 [All allegations alleging that “Defendants have safety rules, policies, procedures, guidelines, and directives which make up the standard of care, and must be strictly followed in order to prevent serious injury and death to patients in psychiatric facilities on a 5150 hold for harm to self and others” but that “Defendants chose not to strictly follow safety rules, policies, procedures, guidelines, and directives which make up the standard of care, which foreseeably caused serious injury.”]) (emphasis added). Further, Plaintiffs allege that Defendants, “based upon the interview and intake assessment,” determined that Decedent’s score for suicide was high such that he was placed on 15-minute safety checks and suicide precautions. (FAC ¶17.) As such, Plaintiffs’ repeated references to decisions made by “health care providers to strictly follow safety rules, polices, procedures, guidelines, and directives which make up the standard of care” inherently concedes that negligence is at issue, not egregious conduct that amounts to violations of the EADACPA.

In Opposition, Plaintiffs cite to allegations that provide a non-exhaustive lists of Defendant’s alleged “failures,” including the failure to provide “safe environment, contract for safety daily, monitor and provide observations every 15 minutes, observe and report behavioral changes indicating increased suicide risk, provide “one-to-one” supervision and intervention (FAC, ¶ 24), ensure that Richard was not subject to acts of abuse or neglect, provide Richard medical care for physical and mental health needs, protect Richard from health and safety hazards, operate Defendants’ facilities in accordance with federal and state statutes and regulations, employ[] sufficient number of staff and qualified personnel, supervise personnel to ensure the safety and well-being of residents and/or patients, and provide basic services. (FAC, ¶ 44.)” (Opp. p. 7.)

However, Plaintiffs’ reference to various allegations fails for two reasons.

First, and as noted by Defendant in its Reply, the gravamen of Plaintiffs’ complaint has nothing to with failing to provide their decedent with custodial care, i.e. nutrition, hydration, hygiene or medical care, or to attend to his basic needs. Therefore, the FAC sounds in professional negligence.

Second, and again as noted by Defendant, the FAC fails as a matter of law for lack of particularity in the pleadings. The FAC is brief and nothing more than boilerplate

EADACPA allegations such that even if the complaint sounds in violations of EADACPA, it does not adequately set forth the required allegations.

Next, considering the FAC sounds in professional negligence, the court turns to the statute of limitations in a professional negligence cause of action. CCP section 340.5 provides in relevant part that “in an action for injury or death against a physician or surgeon . . . based upon such person's alleged professional negligence . . . [the statute of limitations shall be] four years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever first occurs.” The California Supreme Court clarified that the term “injury” refers to death. (Larcher v. Wanless (1976) 18 Cal.3d 646, 659 [“We conclude that the word “injury” in section 340.5, as that statute applies to wrongful death actions, must be read to refer to the wrongfully caused death of the plaintiff's decedent.”].)

Here, one year from Decedent’s June 10, 2021 passing is June 10, 2022. However, Plaintiffs filed suit on July 27, 2022, which is 17 days late.

That said, in the event Plaintiffs can allege sufficient EADACPA violations rather than one sounding in professional negligence, the court SUSTAINS the demurrer WITH leave to amend.

The complaint fails to identify an estate, successor in interest, or personal representative in its caption, and in Opposition, Plaintiffs concede the error. (Opp. p. 11.)

As the court sustained the demurrer as to the EADACPA, the court allows for leave to amend as to this issue as well.

Based on the foregoing, the demurrer is SUSTAINED with leave to amend. The motion to strike is moot. With that, the court requires that the parties engage in substantial meet and confer efforts if Defendant seeks to demur to a second amended complaint[1]. The court grants 30 days Leave to Amend.

[1] As the court understands it, there were two meet and confer efforts wherein Defendant accurately delineated deficiencies. Notably, after the first meet and confer effort, rather than remedying the noted deficiencies, Plaintiffs waited to make the necessary amendments only after Defendant was forced to file its initial demurrer. Subsequently after Plaintiff filed its second Amended Complaint, the parties again met and conferred but came to no agreement. Yet rather than making the appropriate changes pointed out by the defense before Defendant was forced to file its second demurrer, Plaintiffs waited until after the second demurrer was filed before dismissing the three plaintiffs at issue even though the contention was raised during met and confer effort.