Judge Thomas Falls, Case 23PSCV00045 2023-04-05 Tentative Ruling

RE: SHARMILA W. CHAND, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO SUSHILA W. SINGH, DECEASED. vs INLAND VALLEY PARTNERS, LLC et al (23PSCV00045)

Defendant INLAND VALLEY PARTNERS, LLC dba INLAND VALLEY CARE AND REHABILITATION CENTER’s DEMURRER TO PLAINTIFFS’ COMPLAINT

Defendant INLAND VALLEY PARTNERS, LLC dba INLAND VALLEY CARE AND REHABILITATION CENTER’s DEMURRER TO PLAINTIFFS’ COMPLAINT is SUSTAINED in its entirety with leave to amend.

On January 6, 2023, Plaintiff filed the instant action against INLAND VALLEY PARTNERS, LLC dba INLAND VALLEY CARE AND REHABILITATION CENTER and INLAND VALLEY CARE AND REHABILITATION CENTER for: 1. ELDER AND DEPENDENT ADULT ABUSE AND NEGLECT [CAL. WELF & INST. CODE § 15600 et seq.] 2. SURVIVAL (Based on Negligence) [C.C.P. §§ 377.30, 377.34 et seq.] 3. WRONGFUL DEATH (Based on Negligence) [C.C.P. §§ 377.60, 377.61] 4. NEGLIGENT HIRING, SUPERVISION, AND RETENTION [C.C.P. §§ 377.30, 377.34 et seq.] 5. VIOLATION OF HEALTH AND SAFETY CODE § 1430(b).

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 demurs to the 1^st, 4^th, and 5^th causes of action on the grounds that all fail to state facts sufficient to constitute this cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

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

“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) (emphasis added).

“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). 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[1] 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’[2] 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[3] 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]) (emphasis and underline added).

Plaintiff alleges, in pertinent part, that Defendant’s recklessness and neglect violates the Elder Abuse Act based upon the following conduct:

- failed to provide appropriate wound care and wound prevention care to DECEDENT

- allowed DECEDENT to lay in her bed completely immobile and in the same position for hours

- engaged in a significant pattern and practice of understaffing, failing to timely turn and reposition residents, failing to provide pressure-reducing modalities such as an air loss mattress, and hiring unqualified staff to cut costs.

Of import, Plaintiff appears to allege that these failures occurred when was placed in isolation because she tested positive for COVID-19 such that “[d]uring this ‘isolation’ period at [the center], from January 3, 2022 to January 17, 2022, there is not a single notation of DECEDENT’s skin, including her right ankle, being assessed / checked, or adjusted in terms of position. Obviously, it was not done.” (Complaint ¶41) (emphasis added).

First, even when reading the complaint in the light most favorable to the plaintiff and assuming the truth of all factual allegations, Plaintiff makes contradictory allegations such that is unclear whether Plaintiff was left abandoned for two weeks or for hours. For example, Plaintiff makes a leap from the lack of notations or Plaintiff’s placement in COVID-19 isolation to the conclusion that Plaintiff was left abandoned for nearly two weeks. (See Complaint ¶40 [The nurses “did not touch her with a ten-foot pole – i.e. the nurses did not touch DECEDENT at all . . . Clearly, during the ‘isolation’ period, the nurses were staying as far away from DECEDENT as possible.”)] (emphasis added). However, if decedent was not cared for, then did she not eat for two weeks? Was decedent’s diaper not changed for two weeks? Did decedent not receive any care for two weeks? Was decedent not repositioned for two weeks? Those allegations are not alleged (i.e., no allegation that decedent did not receive any food, no allegation that her diaper was not changed, nor an allegation that decedent was left completely unmonitored). Rather, a holistic reading of the complaint provides that the decedent was left unmonitored for hours, but not days or weeks as other parts of the complaint allege. And even if decedent was left unmonitored for hours, Plaintiff does not provide specifics about the time frame nor specifics as to how often decedent should have been monitored.

Second, not only does Plaintiff cast broad, generic allegations regarding certain alleged failures but also Plaintiff fails to allege a specific harm caused by Defendant’s alleged recklessness. As noted above, a general allegation that as a result of certain conduct the victim sustained harm will not suffice. Without a natural inference of causation from the allegations of duty and breach, specific facts affording such an inference that the breach caused injury or harm must be alleged. (See also Berkely v. Dowds (2007) 152 Cal.App.4th 518, 528.) Here, however, Plaintiff states that Decedent’s conduct “cause[d] other injuries (as alleged in detail above),” (Complaint ¶68, 69, 81, 93, 98) but the court is uncertain what these “other injuries” are. Rather, the only specific harm caused (and repeatedly mentioned) was that Decedent’s recklessness “caused DECEDENT’s right ankle pressure ulcer to increase in size by 37 times and turn into a horrible Stage 3 pressure injury.” (Complaint ¶47, 48, 60, 68, 93) (emphasis added and underline added). Not only is there is inapparent causal connection between the numerous failures and the alleged injury of an enlarged pressure injury, but the ultimate harm alleged is the death of the decedent, which was allegedly caused by Defendant’s “failure to follow proper infection-control protocols” which led to the development of “multifocal pneumonia, as well as sepsis and respiratory distress due to the multifocal pneumonia.” (Complaint ¶58) (emphasis added and underline added). Accordingly, while none of the failures alleged pertained to COVID-19 infection protocols, Plaintiff has not met the requisite showing that Defendant’s failures caused decedent’s death/harm.

Third, and as noted above, 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). Here, however, there are no allegations that Defendant made conscious actions with the knowledge of the harm it would case Plaintiff (e.g., a medical professional told staff that if decedent was not given a gel cushion that she would develop a stage 3 pressure injury on her right lateral ankle. Rather, Plaintiff conclusively alleges that Defendant’s alleged misconduct was “obviously reckless – since they knew and ignored the high likelihood of DECEDENT developing and worsening pressure ulcers / pressure injuries.” (Complaint ¶84.) The court does not find the allegation to “obviously” show recklessness.

Therefore, absent facts that constitute as reckless conduct and absent facts as to how any failures caused decedent’s death/harm, the court SUSTAINS the demurrer as to the 1^st cause of action with leave to amend.

Plaintiff should also use the opportunity of leave to amend to plead facts to show involvement by an officer, director, or managing agent of the corporate defendant as Plaintiff has not done so, which is also fatal to the cause of action.

The complaint concedes that the names of unfit employees are presently not known to Plaintiff. (Complaint p. 40.) In addition to the complaint failing to set forth facts demonstrating who was unfit or incompetent to perform the work for which they were hired, the complaint also fails to set forth facts as to how these employees were unfit.

To the extent that Plaintiff relies upon Hahn v. Mirda (2007) 147 Cal.App.4th to support its position that “[u]nder California law, there is no requirement that negligence must be alleged with any degree of specificity – i.e. negligence may be alleged in general terms,” that does not accurately state the facts of Hahn. (Opp. p. 13.) In Hahn, the court’s analysis addressed the issue of medical negligence whereas here, the cause of action is not general negligence but Negligent Hiring, Supervision, and Retention.

Therefore, absent case law supporting that Negligent Hiring, Supervision, and Retention may be pleaded generally, the court SUSTAINS the demurrer with leave to amend as to this cause of action.

Here, the only pertinent allegation relating to this cause of action is that Defendant violated the Patient Bill of Rights as codified at 22 C.C.R. § 72527 as well as 22 C.C.R. §§ 72515, 72311, 72329, and 72517. However, as stated by Defendant, Section 72527 provides a list of 26 very specific rights, but here, there are no specific rights alleged.

To the extent that Plaintiff alleges that the right it refers to understaffing as the means of which Plaintiff’s rights were violated,[4] that allegation is still conclusory. Plaintiff alleges that Defendant “consistently provided less than 3.2 nursing hours per patient day and had a pattern of providing less than 3.2 nursing hours per patient day” (Complaint ¶ 75) but Plaintiff’s complaint does not set forth with particularity how Defendant violated this requirement.

Therefore, the court sustains the demurrer with leave to amend as to the 5^th cause of action.

Based on the foregoing—notably that the complaint fails to set forth conduct that amounts to recklessness—the entirety of the demurrer is sustained, with leave to amend.

[1] Plaintiff alleges that a notation in decedent’s chart—that decedent had Stage 4 pressure ulcer on her right ankle—was falsely made (or a typographical error). (Complaint ¶34.) However, Plaintiff does not allege how this purported misrepresentation caused any harm. Therefore, this allegation, unlike Covenant Care, is insufficient.

[2] While Plaintiff alleges that the decedent’s diapers were not timely changed, there is no particular allegation as to the hours that went by without the appropriate change. Therefore, as specificity for an elder abuse claim is required, Plaintiff’s allegation is again insufficient.

[3] While Plaintiff alleges that the decedent was not given a foot cradle, gel cushion, or a boot, Plaintiff has not alleged that it was required by a doctor. In fact, based on the allegation, it appears the “approaches/plan” to decedent’s care was to not provide her with a pressure reduction mattress nor heel protectors. (Complaint ¶26-28.) Therefore, unlike Sababin, Plaintiff’s allegation is insufficient because there is no showing that the cradle, cushion or boot “were essential to make sure her right ankle pressure ulcer would not worsen and deteriorate.” (Complaint ¶32.)

[4] On this point, Plaintiff incorporates the entirety of the complaint by reference, but it is not the court’s duty to refer to the numerous allegations to determine what constitutes as a violation of the Bill of Rights. A demurrer tests the sufficiency of the pleadings, not arguments raised in opposition.