Judge: Upinder S. Kalra, Case: 22STCV02244, Date: 2023-08-11 Tentative Ruling

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Case Number: 22STCV02244    Hearing Date: August 11, 2023    Dept: 51

Tentative Ruling

 

Judge Upinder S. Kalra, Department 51

 

HEARING DATE:   August 11, 2023                                             

 

CASE NAME:           Ester Benyamin v. RRT Enterprises, L.P., et al.

 

CASE NO.:                22STCV02244

 

DEMURRER WITH MOTION TO STRIKE

 

MOVING PARTY: Defendants Sharon Care Center, LLC, Genesis Administrative Services LLC, Genesis HealthCare LLC, Summit Care, LLC, and Genesis Healthcare, Inc

 

RESPONDING PARTY(S): Petitioner/Successor-in-Interest Sharon Ourian

 

REQUESTED RELIEF:

 

1.      An order sustaining the demurrer as to the 1st and 3rd causes of action.

2.      An order striking the request for punitive damages, attorneys’ fees, and violation penalties.

TENTATIVE RULING:

 

1.      Demurrer as to the 1st Cause of Action is OVERRULED.

2.      Demurrer as to the 3rd Cause of Action is SUSTAINED, without leave to amend.

3.      Motion to Strike is DENIED, in its entirety.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On January 19, 2022, Plaintiff Ester Benyamin (“Plaintiff”) filed a complaint against Defendants RRT Enterprises, L.P. dba Country Villa Wilshire Convalescent Center, Country Villa Service Corp dba Country Villa Health Services (“Defendants.”) the complaint alleged four causes of action: (1) Elder Abuse and Neglect, (2) Violation of Health & Safety Code § 1430(b), (3) Negligence, and (4) Negligent Hiring, Supervision and Retention. Plaintiff, an 86-year-old woman, was admitted into Defendant’s custody in June 2020. While there, Plaintiff suffered an arm fracture that required surgery. Despite knowing of Plaintiff’s risk for fall, Defendants failed to implement any fall prevention interventions, such as a low bed, call lights, and floor mats. While Plaintiff stayed at the facility, care was substandard.

 

On June 20, 2022, Defendant RRT Enterprises, LP dba Country Villa Wilshire Convalescent Center and Rockport Administrative Services, LLC filed an Answer.

 

On July 22, 2022, Defendant Boardwalk Financial West Services, LLC.

 

On May 17, 2023, Petitioner Sharon Ourian filed a Second Amended Complaint.

 

On June 20, 2023, Defendants Sharon Care Center, LLC, Genesis Administrative Services LLC, Genesis HealthCare LLC, Summit Care, LLC, and Genesis Healthcare, Inc., filed a Demurrer with a Motion to Strike. Plaintiff’s Successor-in-Interest/Petitioner filed an Opposition on July 31, 2023. Defendants’ Reply was filed on August 4, 2023.

 

LEGAL STANDARD

 

Demurrer

 

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.)

 

Motion to Strike

 

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. (Code Civ. Proc., § 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.)

 

Meet and Confer:

 

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Michael D. Laughlin indicates that a meet and confer letter was mailed to Plaintiff’s counsel on May 24, 2023. However, the parties have failed to resolve the issues.

 

ANALYSIS:

 

First Cause of Action: Elder Abuse

 

Defendants Sharon Care Center, LLC, Genesis Administrative Services LLC, Genesis HealthCare LLC, Summit Care, LLC, and Genesis Healthcare, Inc., demur on the grounds that the first cause of action fails to state facts to constitute a cause of action for elder abuse. The allegations in the SAC do not rise to the level required under the Elder Abuse Act, which requires clear and convincing evidence. Here, the allegations surround one fall by the decedent in a skilled nursing facility. This does not rise to the “level of egregious abuse beyond the level of even gross negligence.” (Demurrer 3: 19-21.) Additionally, the SAC does not plead any facts that an “an officer, director, or managing agent of demurring defendants employed any employee who allegedly abused plaintiff's decedent, knowing in advance that the employee was likely to commit the acts and employed him or her with conscious disregard of the rights and safety of others, or actually authorized or ratified the employee's acts.” (Demurrer 5: 10-13.)

 

Plaintiff argues that the SAC contains sufficient facts to constitute a cause of action for Elder Abuse. Specifically, the SAC states that Defendants assumed responsibility for Ester Benyamin. Additionally, the SAC alleges that Defendants were aware of

 

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.’ (Welf. & Inst. Code, § 15610.27.)” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404 (Carter).) “The Elder Abuse Act's heightened remedies are available only in limited circumstances. A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with ‘recklessness, oppression, fraud, or malice.’ (§ 15657.)” (Winn v. Pioneer Medical Group, Inc.  (2016) 63 Cal.4th 148, 156.) In other words, “to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789.) Furthermore, “to recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.” (Carter, supra, 198 Cal.App.4th at 405.) 

 

“[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 … 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]. The plaintiff must also allege … that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. [Citations] 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, supra, 198 Cal.App.4th at 406-407.)  

 

After a review of the SAC, the Court finds that Plaintiff has sufficiently alleged a cause of action for Elder Abuse. Here, decedent was a resident of a skilled nursing facility, and was dependent on Defendants’ staff’s assistance for daily living. (SAC ¶ 53.) Additionally, the staff was made aware of medical condition, including having a high risk of falling. (SAC ¶ 54.) In July 2021, decedent developed pressure injuries on her buttocks and shoulder. These bed sores result from patients not being able to reposition themselves. Decedent’s pressure sores progressed to Stage IV, which is considered a “never event,” meaning it should never happen. (SAC ¶ 58-59.) Additionally, decedent sustained a hip fracture after she fell September 2, 2021, which went undetected. (SAC 60.) While the SAC describes only two events, the Stage IV pressure injuries and a hip fracture, coupled with the fact that decedent’s propensity to fall was known, demonstrates recklessness. Moreover, Lastly, the complaint sufficiently provides particularity as to the causal link between the neglect and the injury: failure to implement fall protections resulted in the decedent sustaining a hip fracture. Another causal link between the neglect and the injury is the failure to reposition a frail lady to the point where she sustained Stage IV bed sores. Thus, the SAC sufficiently alleges a Cause of Action for Elder Abuse.

 

Demurrer as to the First Cause of Action is OVERRULED.

 

Third Cause of Action: Medical Negligence

 

            Defendants demur to the third cause of action on the grounds that it is barred by the one-year statute of limitation under Code of Civil Procedure § 340.5. Code of Civil Procedure § 340.5 states: “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three 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 occurs first.” Here, the original complaint does not contain any allegations against Sharon Care Center defendants or Genesis defendants. Therefore, the facts do not exist to conclude the allegations against the Sharon Care Center and Genesis defendants are based on the same facts raised in the original complaint; the amendments do not relate back to the original complaint.

 

            Plaintiff argues that the cause of action for medical negligence is timely as Ester Benyamin’s claims were tolled due to insanity. Code of Civil Procedure § 352 states “if a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time the cause of action accrued either under the age of majority or lacking the legal capacity to make decisions, the time of the disability is not part of the time limited for the commencement of the action.

            “The elements of Plaintiff's medical negligence cause of action allege “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238.)

 

            The Court finds that the third cause of action fails as it is barred by the statute of limitation. Specifically, the allegations in the 3rd cause of action do not relate back to the original complaint. “An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar against named parties substituted for fictitious defendants, if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint.” (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 151.) The original complaint raised a cause of action for elder abuse and negligence as it relates to Country Villa Facility, where decedent had a large bruise on her arm, and it was later determined she had sustained an arm fracture. However, the allegations of medical negligence as it relates to the current Sharon Care Center and Genesis defendants relate to an entirely different set of facts. The allegations related to the current defendants relate to bed sores and a fall resulting in a hip fracture. Thus, the cause of action does not relate back and thus is outside of the statute of limitation.

 

            Demurrer as to the 3rd cause of action is SUSTAINED.  

 

Motion to Strike:

 

Defendants move to strike all portions of the complaint that concern punitive and exemplary damages and request for attorneys’ fees.

 

1.      At page 17, line 4, in its entirety, as follows: "3. For punitive and exemplary damages (as to the first cause of action only)."

2.      At page 17, lines 5-6, in their entirety, as follows: "4. For attorneys' fees and costs as allowed by law according to proof at the time of trial (as to the first and second causes of action only)."

3.      At page 17, lines 7-8, in their entirety, as follows: "6 [sic]. For five hundred dollars ($500.00) for each violation of rights (as to the second cause of action only)."

Punitive Damages:

 

Defendants argue that claim for punitive damages are not allowed as punitive damages cannot be maintained against health care providers absent a court order, as seen in CCP § 425.13. CCP § 425.13 states “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.”

 

However, as the Court has indicated above, the SAC sufficiently alleges facts to support punitive damages. As stated above, “to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789.) Moreover, Plaintiff has plead allegations that comply with Civil Code 3294. (SAC ¶¶18-21, 34-51.)

 

      Motion to Strike Punitive Damages is DENIED.

 

Attorneys’ Fees:

 

            Defendants argue that attorneys’ fees are not recoverable unless expressly authorized either via statute or contract. Plaintiff argues that there is no prohibition on awarding attorneys’ fees for an elder abuse action.

 

            The Court finds that attorneys’ fees are allowable. “We conclude that section 15657, including the attorney fees and costs recovery provided therein, was enacted to carry out an important public purpose: that of protecting an especially vulnerable portion of our population—elders and dependent adults—by creating civil incentives for attorneys to represent victims of egregious abuse and neglect.” (Bickel v. Sunrise Assisted Living (2012) 206 Cal.App.4th 1, 12.) Striking out attorneys’ fees at this time is improper.

 

            Motion to Strike Attorneys’ Fees is DENIED.

           

Violation of Rights

 

            Defendants argue that the $500 for each purported violation of rights is incorrect; the $500 is per civil action. However, the Court finds this argument incorrect.

 

            According to Health and Safety Code § 1430(b)(1)(B), For violations that occur on or after March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) for each violation, and for costs and attorney's fees, and may be enjoined from permitting the violation or violations to continue.” Here, the SAC indicates that decedent entered the Sharon Care Center on March 10, 2021. (SAC 53.)

 

            Motion to Strike Violation of Rights is DENIED.

 

Leave to Amend:

 

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.  (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)  The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) As to the medical negligence cause of action, Plaintiff cannot amend the complaint to sufficiently have the facts relate back to the original complaint.

 

Leave to Amend is DENIED.

 

CONCLUSION:

 

For the foregoing reasons, the Court decides the pending motion as follows:

 

            Demurrer as to the 1st Cause of Action is OVERRULED.

            Demurrer as to the 3rd Cause of Action is SUSTAINED, without leave to amend.

            Motion to Strike is DENIED, in its entirety.

 

Moving party is to give notice.

 

IT IS SO ORDERED.

 

Dated:             August 11, 2023                      _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court