Judge: Thomas Falls, Case: KC070396, Date: 2023-04-10 Tentative Ruling

Case Number: KC070396    Hearing Date: April 10, 2023    Dept: O

Hearing date:                          Monday, April 10, 2023

RE:                                          BARBARA GIESE VS MATTYE FEGAN-PERRY (KC070396)

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MOTION FOR SUMMARY JUDGMENT (“MSJ”) BY CROSSDEFENDANTS[1] BARBARA GIESE, ALFRED GIESE, ANN KOECKRITZ, Trustees of the CLARA BALDWIN STOCKER HOME TRUST AND CLARA BALDWIN STOCKER HOME FOR WOMEN

            Responding Party: UNOPPOSED as of Tues. 4/4 @ 11:10 AM [due 9 court days before hearing, 3/27/23][2]

Tentative Ruling

MOTION FOR SUMMARY JUDGMENT (“MSJ”) BY CROSSDEFENDANTS BARBARA GIESE, ALFRED GIESE, ANN KOECKRITZ, Trustees of the CLARA BALDWIN STOCKER HOME TRUST AND CLARA BALDWIN STOCKER HOME FOR WOMEN is DENIED because of inadequate evidence.

Background[3]

Plaintiffs BARBARA GIESE, ALFRED GIESE, and ANN KOECKRITZ, Trustees of the CLARA BALDWIN STOCKER HOME TRUST, a nonprofit charitable trust, doing business as CLARA BALDWIN STOCKER HOME (the “Facility”) (collectively, “Plaintiffs”) are the licensees of Clara Baldwin Stocker Home, a skilled nursing facility. Plaintiffs allege that on or about 6/1/17, Mattye Fegan-Perry aka MATTYE P. FEGAN-PERRY, individually, and as Trustee of the Mattye P. Fegan-Perry Trust, Under Declaration of the Trust Dated May 26, 1993 (“Defendant Fegan-Perry”) entered into a written contract (“Contract”) with Plaintiffs, wherein Plaintiffs agreed to provide care and services to Defendant Fegan-Perry in exchange for payment. The Contract was signed by Defendant Fegan-Perry’s daughter, Candice McIntosh (“Mclntosh”), as Fegan-Perry’s agent and resident representative. Plaintiffs allege that they are owed $89,531.12 for care and treatment provided to Fegan-Perry through 6/30/18.

On 6/22/18, Plaintiffs filed suit against Defendants Fegan-Perry and McIntosh and Does 1-20 for: 1. Breach of Written Contract 2. Common Counts 3. Quantum Meruit.

On 12/26/2018, McIntosh and Fegan-Perry filed a First Amended Cross-Complaint for 1. Willful Misconduct 2. Neglect 3. Intentional Infliction of Emotional Distress (“IIED”) 4. Tort Per Se (Elder Abuse) 5. Fraud (Misrepresentation) 6. Fraud (Concealment) 7. Fraud (Licensure) 8. Constructive Fraud 9. Unfair Business Practice 10. Negligent Infliction of Emotional Distress.

On January 31, 2019, Alfred Giese, Trustees of the Clara Baldwin Stocker, Ann Koeckritz, Barbara Giese filed a demurrer, which the court sustained in part on 02/28/2019, leaving only one (1) cause of action for IIED, which is the subject of the instant MSJ.

On March 10, 2023, Trustees of the Clara Baldwin Stocker filed a Substitution of Attorney wherein Kathleen M. Walker of Lewis Brisbois Bisgaard & Smith LLP replaced William C. Wilson as counsel.

Legal Standard

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).)

Discussion

Plaintiffs move for summary judgment as to the sole remaining cause of action for IIED.

IIED

The elements of a cause of action for IIED are as follows: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160) (emphasis added).

Here, the cross-complaint alleges the following facts in its IIED cause of action: (i) Plaintiffs recklessly disregarded Fegan-Perry’s advanced dementia; (ii) Plaintiffs left Fegan-Perry unsupervised for extended periods of time, resulting in her elopement for their facility; (iii) Plaintiffs failed to treat and monitor Fegan-Perry, notably for “unusual and suspicious tears and cuts in her skin surrounding her rectum”; (iv) Plaintiffs ignored “pleas for assistance from [Fegan-Perry’s] family”; (v) Plaintiffs’ conduct amounted to violations of the Elder Abuse Act; and (vi) As a result, of “personally observ[ing]” the reckless care and resulting injuries,” Plaintiffs suffered severe emotional distress. (Amended Cross-Complaint p. 15 of 2.)

In sum, the basis of the IIED claim is that Plaintiffs provided reckless care. To be clear, the cross-complaint does not allege that Plaintiffs provided negligent care but “reckless care.” (Amended Cross-Complaint ¶¶56, 57 [Plaintiffs personally observed the reckless care and resulting injuries to Mattye . . . The conduct [] was fraudulent, malicious, oppressive and /or reckless.] (emphasis added).

Accordingly, as the pleadings frame the issues, Plaintiffs’ evidence must demonstrate that they did not provide reckless care to Fegan-Perry. And as the gravamen of the allegations sound in medical negligence, as is here,[4] the use of expert testimony is required to establish the standard of care. (Stephenson v. Kaiser Foundation Hospital (1961) 203 Cal.App.2d 631, 635.)[5]

Moving Party’s Evidentiary Burden

The crux of Plaintiffs’ argument is that Fegan-Perry’s medical records reflect that she was properly assessed, monitored, and treated throughout her admission. (Motion p. 10.) In support of their contention, Plaintiffs solely rely on the expert evidence of Anna Soliven DNP, APRN, CNS, CLNC (“Soliven”).

Soliven is a licensed Registered Nurse, who is currently employed full-time as a Quality Services Nurse Consultant, and who is “familiar with the standard of care for nursing staff in Southern California.” (Soliven Decl., ¶1) (emphasis added). Additionally, her opinion is based upon review of the facility chart for Mattye Fegan-Perry. (Soliven Decl., ¶3.)[6]

Here, however, Soliven’s declaration is inadequate for two reasons.

First, her declaration does not point to specific facts in the facility chart (to lay the foundation) nor provide a medical reasoning or explanation that supports her medical conclusion.[7] For example, the declaration conclusively states:

Based on my review of the records, as well as my education, training, and experience, it is my opinion that the entirety of the care rendered by Clara Baldwin Stocker Home through its nursing staff complied with and was within the appropriate standard of care. The Facility complied with the standard of care in that it appropriately assessed Ms. Fegan-Perry, appropriately developed and implemented care plans to manage those assessments, and followed appropriate protocols prior to and following Ms. Fegan-Perry’s elopement on June 18, 2017.[8] It is my opinion that the Facility’s care and treatment of Ms. Fegan-Perry was reasonable and appropriate because they followed protocols in that they performed proper and timely assessments and interventions, notified Ms. Fegan-Perry’s responsible party and physician, timely obtained labs and radiology pursuant to physician orders, and made appropriate recommendations to Ms. Fegan-Perry’s responsible party and physician regarding Ms. Fegan-Perry’s changes in condition. It is my opinion that Clara Baldwin Stocker Home nursing staff appropriately cared for Ms. Fegan-Perry related to her wandering behavior, assisting with her personal hygiene and care, monitoring the resident’s status regarding her behaviors, her nutrition and/or hydration status, gastrointestinal bleeding, skin issues including her perianal skin concerns, changes of condition, the administration of medications, carrying out physician orders and notifying the physician and family of the changes of condition. (Soliven Decl., ¶¶5, 6.)

However, the declaration does not explain:

i.                    What is the appropriate standard of care

ii.                  What is an appropriate care plan

iii.                What care plan did the Facility implement

iv.                What protocols are appropriate to prevent a patient’s elopement

v.                  What protocols were implemented to prevent Fegan-Perry’s elopement

vi.                What constitutes as timely requests for labs

vii.              When and how often did the Facility made requests for labs

viii.            What are appropriate recommendations to make to physicians

ix.                What recommendations did the staff make to physicians

x.                  What is the appropriate way to monitor gastrointestinal bleeding 

xi.                How did the staff monitor Fegan-Perry’s gastrointestinal bleeding

All in all, there are numerous unanswered questions left by the declaration regarding the standard of care. Absent the establishment of the standard of care, the court cannot determine whether the care was in fact not reckless for purposes of the Elder Abuse and Dependent Adult Civil Protection Act (the “Act”).[9]

Second, the court is uncertain whether Soliven is qualified as expert on this matter because her declaration only speaks to the treatment of nurses but neither the cross-complaint nor motion make it clear that only nurses provided care. The mere fact that Clara Baldwin Stocker Home is a nursing facility does not unequivocally mean that only nurses provided care for patients. In fact, the motion itself makes general references to the facility’s “staff,” but does not state that the only staff were nurses. This is of import because generally nursing facilities provide care via an inter-disciplinary team that may include a doctor, nurse, physical therapists, as well as other professionals. And if other professionals provided care—not just nurses—then the moving party did not meet its evidentiary burden to indicate that its staff (as alleged in the cross-complaint) provided inadequate care to Fegan-Perry.

Accordingly, as the moving party relies upon Soliven’s declaration to conclude that its care was not reckless, its evidence is insufficient.

Therefore, as the party moving for summary judgment causes a shift in the burden of production only once he carries his initial burden of production to show the nonexistence of any triable issue of material fact,[10] but here Plaintiffs have not met said burden, then the burden does not shift to McIntosh.

Conclusion

Based on the foregoing—notably that the moving party did set forth adequate evidence to support their premise that the “[a]t all relevant times [the Facility] provided appropriate care and treatment to Mattye Fegan-Perry”[11]—then there remains a triable issue of material fact as to the quality of care that Fegan-Perry received, which precludes entry of summary judgment or adjudication.