Judge Upinder S. Kalra, Case Number: 21STCV26787, Date: 2023-08-17 Tentative Ruling

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CASE NAME: Yanett Alfredo, As Successor-in-Interest on Behalf of Alfredo Miranca, Deceased, et al. v. Country Villa Nursing Center Inc., et al.

On July 21, 2021, Plaintiffs Yanett Alfredo As Successor-in-Interest on Behalf of Alfredo Miranca, deceased, and Yanett Miranda (“Plaintiffs”) filed a complaint against Defendants Country Villa Nursing Center, Inc., and Jo Ann Pullen, M.D., (“Defendants.”) The complaint alleged six causes of action: (1) Statutory Elder Abuse/Neglect, (2) Violation of Patient’s Bill of Rights and Health and Safety Code 1430(b), (3) Wrongful Death, (4) Negligent Hiring, Training, and Supervision, (5) Negligence, and (6) Unfair Business Practices. The complaint alleges that Alfredo was admitted to Country Villa and was under the care of Dr. Pullen. However, while under Defendants’ care, Alfredo became dehydrated and malnourished, had scabies and bruises, and stated that he was abusive and failed to clean his room, including soiled sheets.

On September 9, 2021, Petitioner filed an Amendment to the Complaint, adding Los Angeles Rehabilitation & Wellness Centre, LP.

On October 12, 2021, Defendant Jo Ann Pullen, M.D., filed a Demurrer with Motion to Strike.

On October 29, 2021, Defendant Los Angeles Rehabilitation & Wellness Centre, LP filed an Answer.

On November 18, 2021, Defendant Los Angeles Rehabilitation & Wellness Centre, LP filed a Motion to Compel Arbitration.

On April 21, 2023, Defendants Los Angeles Rehabilitation & Wellness Centre, LP and Country Villa Nursing Center filed a Notice of Settlement.

On June 2, 2023, Plaintiff’s attorney filed a Motion to be Relieved as Counsel, which the court GRANTED on August 17, 2023.

On August 7, 2023, Dr. Pullen filed the instant demurrer and motion to strike, originally set for hearing on October 17, 2023.

On August 17, 2023, the court continued the hearing on the instant demurrer and motion to strike to November 14, 2023.

Plaintiff’s opposition was due on or before October 31, 2023. As of November 7, 2023, Plaintiff has not filed an opposition.

A demurrer for sufficiency tests 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 context.¿In a demurrer proceeding, the 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. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn¿147 Cal.App.4th at 747.)

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.)

Here, the Declaration of David P. Pruett submitted with the demurrer indicates that Defendant sent Plaintiff’s prior counsel a meet and confer letter on June 14, 2023 and spoke on the phone with counsel on June 26, 2023. (Pruett Decl. ¶ 4, 5.) Mr. Pruett indicates that the parties could not resolve the matter. (Ibid.) Accordingly, the meet and confer requirement is met.

Dr. Pullen contends that the First Cause of Action for Statutory Elder Abuse/Neglect fails to state facts sufficient to constitute a cause of action and that Plaintiff failed to assert facts constituting the neglect and establishing the causal link between the neglect and the injury. In particular, Dr. Pullen contends that she is a physician who provided medical services (subject to professional negligence claims) to Decedent and not a custodial caretaker (subject to theory of abuse). Plaintiff did not file an opposition.

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) provides for steep penalties against those who abuse an elder or a dependent adult. Dependent adult abuse includes physical abuse, neglect, isolation, deprivation by a care custodian of necessary goods or services, and financial abuse. (Welf. & Inst. Code, § 15610.07, subd. (a).) Neglect includes failure to assist in personal hygiene, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards. (Welf. & Inst. Code, § 15610.57, subd. (b).)

[S]everal 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). 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.4th 396, 406-407, citations omitted.) The “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. 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.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152, emphasis added.) Such a caretaking relationship exists when “a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Id. at pp. 157-158.) Such a relationship requires more than medical treatment. (See, e.g., Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 102-104 [finding defendant medical provider assumed custodial relationship because decedent could not care for basic need as evidenced by: (1) displaying confusion and sleepiness at the time of admission; (2) communicating by grunting and requiring a feeding tube after admission; and (3) being denied the right of autonomy in making medical decisions by the facility]; Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405 [finding no custodial relationship because decedent was entirely dependent on her granddaughter for her basic needs such as dressing, feeding, furnishing medications, assisting her to the restroom, and transporting to medical appointments]; Kruthanooch v. Glendale Adventist Med. Ctr. (2022) 83 Cal.App.5th 1109, 1128 [finding no substantial evidence of caretaking relationship because decedent’s basic needs were incidental to the circumscribed medical care provided.])

Upon reviewing the FAC, the court agrees with Dr. Pullen that Plaintiff has not sufficiently alleged facts supporting her claim for elder abuse against Dr. Pullen. First, the FAC alleges that Dr. Pullen “by virtue of her relationship with COUNTRY VILLA and PLAINTIFF, had a substantial caretaking relationship with ALFREDO” consisting of “consultations, examinations, communications with COUNTRY VILLA and orders for PLAINTIFF’S care and treatment” which made her “responsible for ALFREDO’s basic needs of health care, including the direction of medical treatment and the preservation of ALFREDO’s health.” (FAC ¶18.) Additionally, the FAC alleges that Dr. Pullen was responsible for directly supervising “all medical care” provided by a nurse practitioner. (FAC ¶ 19.) These allegations do not rise to the level of “substantial evidence of caretaking relationship” that our precedents require. Indeed, as phrased, the FAC attempts to impute a co-defendant’s alleged caretaking relationship on Dr. Pullen by virtue of her employment by the facility (FAC ¶ 18) and otherwise alleges that Dr. Pullen’s medical care became care for Decedent’s “basic needs (FAC ¶ 19). However, there are no allegations that Dr. Pullen assumed care for Decedent’s basic needs outside of his medical treatment, unlike in Stewart, where the facility did assume such care because of the decedent’s incapacity.[1] Second, Plaintiff’s allegations against Dr. Pullen, as phrased, describe medical malpractice. (See, e.g., FAC ¶ 50 [failing to maintain proper, accurate, and/or adequate medical reporting, charting, and documentation], ¶ 53 [improper training/qualification], ¶ 59 [directing and managing medical care].)

Accordingly, the court SUSTAINS Dr. Pullen’s demurrer to the first cause of action with 20 days leave to amend.

2. Plaintiff’s prayer for relief, page 37, lines 24-25 (requesting attorney’s fees); and

3. Plaintiff’s prayer for relief, page 37, lines 26-27 (requesting punitive damages).

Dr. Pullen contends that Plaintiff’s claims for punitive damages and attorney’s fees fail because they depend on a viable elder abuse claim, which, as discussed above, also failed. Plaintiff did not file an opposition.

In light of the court’s ruling on the demurrer, the court DENIES Dr. Pullen’s motion to strike as moot.

[1] It appears that the FAC alleges that co-defendant Country Villa assumed care for Decedent’s basic needs. (FAC ¶ 31.) Additionally, to the extent that paragraph 51 alleges Dr. Pullen took a substantial caretaking role because Decedent was impaired and unable to communicate his needs, the court reads this allegation as conclusory and not as assertions of fact.