Judge: Timothy Patrick Dillon, Case: 22STCV01705, Date: 2023-02-22 Tentative Ruling
Case Number: 22STCV01705 Hearing Date: February 22, 2023 Dept: 73
ESTATE OF NORA VASQUEZ ACEBES, et al., v. THE RESIDENCES AT ROYAL BELLINGHAM INC., et al.
Counsel for Plaintiffs/opposing
party: Robert D. Jarchi, Ivan Puchalt (Greene
Broillet & Wheeler, LLP)
Counsel for Defendant/moving
party: Jeremy L. Vitug, Esq. (Vitug Law
Group)
Demurrer to FIRST AMENDED complaint (filed 11/21/2022)
Defendant’s demurrer is SUSTAINED with leave to
amend.
Discussion
On January 14, 2022, Plaintiffs Estate Of Nora Vasquez Acebes, By And Through Its
Successor-In-Interest Arlene Elamparo, Arlene Elamparo, Edgar Acebes, Jocelyn
Acebes, Arnold Acebes, and Anna Deshong (“Plaintiffs”) filed this action against Defendants The Residences
At Royal Bellingham Inc. and Glenda Seachon (“Defendants”). In the operative First Amended Complaint (“FAC”), Plaintiffs
allege causes of action for:
C/A
1: Breach of implied warranty of habitability;
C/A
2: Elder Abuse and Neglect (Welfare and Institutions Code §15600, et seq.);
C/A
3: Negligence/Negligence Per Se;
C/A
4: Wrongful Death; and
C/A
5: Concealment.
Decedent Nora Acebes Vasquez was a resident at
Defendant’s facility. Plaintiffs allege that Decedent was provided substandard
care with respect to her nourishment and general treatment at the facility and
Defendant knew or should have known that Covid-19 was present in the facility.
On January 6, 2021, Decedent tested positive for Covid-19 and was transferred
to Providence St. Joseph Medical Center for treatment. While in treatment, her
condition deteriorated, and she passed away on January 18, 2021.
On November 21, 2022, Defendant The Residences at Royal Bellingham Inc.
(“Royal Bellingham” or “Defendant”) filed a demurrer to Plaintiff’s FAC on the
following grounds:
·
Plaintiffs’ allegations regarding the
danger and presence of active Covid-19 infections does not support a claim for
breach of implied warranty of habitability.
·
Plaintiffs have not alleged sufficient
facts, with sufficient particularity, to allege statutory Elder Abuse.
On February 7, 2023, Plaintiffs filed an opposition, refuting Defendant’s
claims and arguing that Plaintiffs sufficiently pled the subject causes of
action in the FAC.
On February 14, 2023, Defendant filed a reply.
I.
Legal Standard for Demurrer
A demurrer tests the sufficiency of whether the complaint
states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in contest--any defects must be apparent on the face
of the pleading or via proper judicial notice. (Donabedian v.
Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902,
905.) Therefore, it lies only where the defects appear on the face of the
pleading or are judicially noticed. (Cal. Civ. Proc. Code §§ 430.30,
430.70.) The only issue a demurrer is concerned with is whether the
complaint, as it stands, states a cause of action. (Hahn 147
Cal.App.4th at 747.)
II.
First Cause of Action: Breach of Implied Warranty of Habitability
Civil Code
section 1941 provides that “[t]he lessor of a building intended for the
occupation of human beings must, in the absence of an agreement to the
contrary, put it into a condition fit for such occupation, and repair all
subsequent dilapidations thereof, which render it untenantable…”
A dwelling is
“deemed untenantable” for purposes of Civil Code section 1941 if it “lacks any
of the following affirmative standard characteristics”:
(Civ. Code, §
1941.1(a).)
A tenant may
bring suit against a landlord for damages resulting from a landlord’s breach of
the warranty of habitability. (Erlach v. Sierra Asset Servicing, LLC
(2014) 226 Cal.App.4th 1281,1297.) “The elements of such an affirmative claim
are 1) the existence of a material defective condition affecting the premises'
habitability; 2) notice to the landlord of the
condition within a reasonable time after the tenant's discovery of the
condition; 3) the landlord was given a reasonable time to correct the deficiency,
and 4) resulting damages.” (Ibid.; numbering added)
The implied
warranty of habitability is implied by law in residential leases in California.
(Green v. Superior Court (1974) 10 Cal.3d 616, 637.) “This implied
warranty of habitability does not require that a landlord ensure that leased
premises are in perfect, aesthetically pleasing condition, but it does mean
that ‘bare living requirements' must be maintained.” (Id.) In most cases
substantial compliance with those applicable building and housing code
standards which materially affect health and safety will suffice to meet the
landlord's obligations under the common law implied warranty of habitability we
now recognize. . . ‘(m)inor housing code violations standing alone which do not
affect habitability must be considered de minimis and will not entitle the
tenant to reduction in rent. . . .’” (Id. at 637-38.)
Here,
Plaintiffs allege that: “Defendants, including DOES 1-100, and each of them
were made aware of the dangerous conditions on the subject property as alleged
herein, including but not limited to the following: (a) The danger and presence
of active COVID-19 infections on the premises; (b) The fact that staffing shortages
contributed to staff spreading the Covid disease between infected and
non-infected residents; (c) The failure to separate and isolate staff and
residents who were infected with Covid-19 from each other; (d) The failure to
use sanitary PPE, especially by staff who came into decedent’s room after being
in other parts of the facility where they were in contact with the Covid-19
virus; (e) The lack of an effective plan or protocol to isolate residents who
were infected with Covid-19; (f) The lack of testing to ensure that staff were
not working while infected with Covid-19; (g) Allowing unsafe contact to occur
between staff and decedent Ms. Acebes. For example, on one occasion the family
was on a zoom call with Ms. Acebes and witnessed a nurse wearing a yellow
isolation gown, who had been in other parts of the facility presumably
contaminated with Covid, go up to Ms. Acebes and give her a hug. (h) Plaintiff
Arlene Elamparo, prior to the Covid pandemic, complained on more than one
occasion about the facility’s failure to clean her mother’s room properly,
thereby neglecting to provide a safe and sanitary environment.” (FAC, ¶34.)
The Court
finds that these allegations are insufficient to support this claim. As
Defendant points out, examples of breaches usually include physical
deficiencies such as structural issues, wiring, plumbing, garbage, etc. These
conditions appear to still meet the “bare living requirements.” Plaintiffs have
failed to provide any authority showing that failure to provide adequate cleanliness
and protocols in the presence of Covid-19 infections to be a breach of the
implied warrant of habitability.
Moreover,
Plaintiffs have also failed to allege that Defendant was given notice of the
condition within a reasonable time after the tenant's discovery of the
condition and that the landlord was given a reasonable time to correct the
deficiency.
Accordingly, the demurrer to the first cause of action is
SUSTAINED with leave to amend.
III.
Second Cause of Action: Elder Abuse
Welfare and Institutions Code section 15600 et seq. (“Elder Abuse
Act”) govern elder abuse claims. (Worsham v. O’Connor Hospital (2014)
226 Cal.App.4th 331, 336.) “‘The Elder Abuse Act makes certain enhanced
remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person
residing in this state, 65 years of age or older.’” (Ibid. (quoting
Welf. & Inst. Code, § 15610.27.) Abuse is defined, in part, as “[p]hysical
abuse, neglect, abandonment, isolation, abduction, or other treatment with
resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code,
§ 15610.07(a)(1); see also Worsham, supra, 226 Cal.App.4th at 336.)
Plaintiff must also establish that the defendant committed the abuse with
recklessness, oppression, fraud, or malice. (Welf. & Inst. Code, § 15657; Winn
v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156.)
Case law is clear that, “‘neglect’ within the meaning of Welfare
and Institutions Code section 15610.57 covers an area of misconduct distinct
from ‘professional negligence.’” (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 783.) “As used in the Act, neglect 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.’” (Ibid.)
In order to distinguish Dependent Adult Abuse from Professional
Negligence, there must be a showing of recklessness, fraud, malice, or
oppression. (See Covenant Care, Inc., supra, 32 Cal.4th at 783.)
“Oppression, fraud, and malice involve intentional, willful, or conscious
wrongdoing of a despicable or injurious nature.” (Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (internal quotation
marks omitted).) Recklessness requires deliberate disregard of a high degree of
probability an injury will occur. (Id.) The enhanced remedies for Elder
Abuse are only available for “acts of egregious abuse against elder and
dependent adults.” (Ibid.) 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).)
To plead elder abuse, the plaintiff must allege “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 [citations]; (2) knew of conditions that made the elder or
dependent adult unable to provide for his or her own basic needs [citations];
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)
[citations].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the
neglect caused the elder or dependent adult to suffer physical harm, pain or
mental suffering.” (Id. at 407.) “[T]he 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.” (Ibid. (quoting Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 790).)
Here, Plaintiffs allege that: “[T]he following actions and
failures were reckless and contributed to decedent’s untimely death: (a)
Defendants failed to provide Decedent the Covid-19 vaccine in December 2020,
even though other assisted living facilities were able to obtain the vaccine at
the time, and had Decedent received the vaccine she most likely would have
survived her Covid infection. (b) Defendants allowed nursing staff to wear
isolation gowns, which were meant to be disposed of after entering a resident’s
room, throughout the day without changing and thereby reckless spreading the
virus throughout the facility. On one occasion, on Ms. Acebes’ 88th birthday on
December 9, 2020, during a zoom visit with Decedent, Plaintiffs witnessed a
nurse come into Decedent’s room wearing a yellow isolation gown meant to
prevent contamination between different parts of the facility. Yet, this nurse
came in and out of Ms. Acebes’ room, never changing her isolation gown, and
even hugged Decedent, in reckless disregard for her safety. (c) Plaintiff
Arlene Elamparo, prior to the Covid pandemic, complained on more than one
occasion about the facility’s failure to clean her mother’s room properly,
thereby neglecting to provide a safe and sanitary environment. (d) Plaintiffs
further allege that because Ms. Acebes was blind, she essentially never left
her room and her exposure to Covid must have been as a result of Defendant’s
reckless and/or negligent conduct in allowing staff to bring the Covid virus into
her room.” (FAC, ¶42.)
The Court finds that these actions rise only to negligence, and
not to recklessness, oppression, fraud, or malice. Further, as Defendants point
out, Plaintiffs also failed to allege authorization or ratification on the part
of a managing agent.
The demurrer to the second cause of action is SUSTAINED with leave
to amend.