Judge Upinder S. Kalra, Case Number: 22STCV15408, Date: 2024-01-18 Tentative Ruling

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CASE NAME: Irene Przebinda v. Windsor Gardens Convalescent Hospital, Inc., et al.

On May 9, 2022, Plaintiff Irene Przebinda (“Plaintiff”) filed a complaint against Defendants Windsor Gardens Convalescent Hospital, Inc., S & F Management Company, LLC, Doe Management Company 1-10, John T. Liu, M.D., Doe Physicians 1-50, SNP Pharmacy, LLC dba Skilled Nursing Pharmacy, Doe Pharmacy 1-50, and Doe Pharmacists 1-50 (“Defendants.”) The complaint alleges one cause of action for general negligence. The complaint alleges that Defendants caused the death of Plaintiff’s Mother, Sophia Gross, by abusing and neglecting her.

On May 10, 2022 Plaintiff Sophia Gross, deceased, by and through her Successor in Interest, Irene Przebinda (“Decedent”) filed a Complaint against the same defendants with six causes of action for: (1) Elder Abuse/Neglect Against Windsor Gardens, (2) Elder Abuse/Neglect Against Dr. Liu, (3) Elder Abuse/Neglect Against SNP, (4) Negligence, (5) Violation of Resident’s Rights, and (6) Elder Abuse/Financial (Wrongful Advantage).

On August 11, 2022, Defendants filed a Notice of Related Case as to Case No. 22STCV15487.

On September 8, 2022, Defendant Windsor Gardens Convalescent Hospital, Inc., S & F Management Company, LLC, filed an Answer.

On December 6, 2022, Defendant SNP Pharmacy filed a Motion for Determination of Good Faith Settlement.

On January 23, 2023 Plaintiff filed a request for dismissal as to defendant SNP Pharmacy, LLC dba Skilled Nursing Pharmacy only.

On February 16, 2023, Defendant Windsor Gardens Convalescent Hospital, Inc. and S&F Management Company, LLC filed an Answer.

On April 14, 2023, Plaintiff filed a request for dismissal as to Greystone Monticello Commercial Capital, LLC and Greystone Monticello Funding SH063, LLC only.

On August 25, 2023, Defendant Windsor Gardens Convalescent Hospital, Inc. filed Notice of Bankruptcy.

On October 4, 2023, the court lifted the bankruptcy stay as to all defendants except Windsor Gardens Convalescent Hospital, Inc.

On October 31, 2023, Defendant Liu (Liu) filed the instant motion for summary adjudication. On January 3, 2024, Plaintiff filed an opposition.[1] On January 10, 2024, Liu filed a reply.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). In analyzing such motions, courts must apply 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). Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741).

As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520). Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389). A motion for summary judgment or summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak. (See Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475; Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.

Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (CCP § 437c(o)(2)). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. (CCP § 437c(o)(1)-(2)).

The Court need not rule on these objections because they are not material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

Liu contends that summary adjudication is appropriate because he only rendered medical care to decedent, not custodial care. Plaintiff argues that Liu did not meet his initial burden because he did not provide an outside expert declaration and that Liu was responsible for decedent’s custodial care as an in-patient resident.[2] Liu replies that standard of care evidence pertains to the medical negligence claim, not to the elder abuse claim. As such, Liu contends that no outside expert opinion is needed to establish whether his conduct constitutes elder abuse under the Elder Abuse Act.[3]

California's Elder Abuse Act (“Act”), Welfare & Institutions Code section 15657, requires a plaintiff to show at trial, by clear and convincing evidence, that: (1) the defendant is liable for physical abuse, neglect, or financial abuse of an elderly or dependent adult; and (2) that such abuse or neglect was done with malice, oppression, fraud, or recklessness. Welfare & Institutions Code section 15610.57 limits liability to those persons who have the care or custody of an elder or dependent adult.” (italics added.)

In Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148 (Winn), the decedent’s heirs alleged that the decedent was provided substandard medical care by health care providers who treated decedent on an outpatient basis. The defendants’ demurrer was sustained without leave to amend. Thereafter, the Court of Appeal reversed the trial court’s order. The California Supreme Court granted review to consider the meaning of the phrase “care or custody” in the context of liability for health care providers under the Act. Ultimately, the Supreme Court concluded that “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.” (Id. at p. 152, emphasis added.) Recognizing that there is a significant difference between ordinary professional negligence committed by medical providers and reckless, oppressive, fraudulent, or evil acts perpetrated by caretakers or custodians of elders or dependent adults, the Court rejected the suggestion that intermittent, outpatient medical treatment elevated a provider to a caretaker or custodian. To be sure, the Court stressed that the Act “contemplates . . . the existence of a robust caretaking or custodial relationship—that is, a relationship where 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.)

There have only been three published decisions involving the Act that have applied Winn’s holding. In the first decision, an inpatient acute care facility admitted a 78-year-old patient who later died. (Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 91 (Stewart).) The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary adjudication. (Id. at p. 87.) The Stewart panel found that the defendant medical provider assumed a custodial relationship because the decedent could not care for basic needs 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. (Id. at pp. 102-104.) In the second decision, while the defendant medical provider provided in-home medical treatment to the decedent, the decedent was, otherwise, 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. (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 388, 392 (Oroville Hospital).) The Court of Appeal found that since the in-home nursing services’ provider’s treatment of decedent did not “give rise to a substantial caretaking or custodial relationship,” defendant was entitled to summary adjudication on the Elder Abuse cause of action. (Id. at p. 405.) In the third and most recent decision, decedent presented himself to a medical center’s emergency room where first an EKG was ordered and then an MRI. (Kruthanooch 83 Cal.App.5th 1109, 1117 (Kruthanooch).) During the MRI, the decedent sustained second degree burns because, “apparently the EKG electrode was not removed.” (Ibid.) Thereafter, the decedent was admitted as an inpatient for two days, following which, he received seven weeks of outpatient treatment. (Id. at pp. 1117-1118.) While the decedent’s estate prevailed at trial, the jury awarded no damages. (Id. at p. 1120.) After judgment was entered, the trial court granted a JNOV finding that the relationship between the defendant medical provider and the decedent was nothing more than that of a patient and provider and did not rise to the level of a custodial or caretaking relationship. (Ibid.) The Court of Appeal affirmed the trial court’s ruling concluding that there was no substantial evidence that the caretaking relationship between [the defendant and the decedent] was robust and ongoing” but rather was only of “limited duration and [defendant’s] attention to [decedent’s] basic needs was incidental to the circumscribed medical care it provided.” (Id. at p. 1128.) Notably, the Court reiterated that, following Winn, “the Act does not apply unless the caretaking relationship is ‘robust’ and the measure of responsibility assumed by the caretaker is ‘significant.’ ” (Id. at p. 1129.) The Court also emphasized that “the ‘substantial relationship’ must involve ‘ongoing responsibility for one or more basic needs . . . with the elder patient,’ that ‘a party with only circumscribed, intermittent, or episodic engagement’ is not among those who has ‘care or custody’ of a vulnerable person, and ‘that the distinctive relationship contemplated by the Act entails more than casual or limited interactions.’ ” (Ibid, citations omitted.) Finally, the Court rejected the notion that an admission into an inpatient treatment facility automatically meets the substantial relationship test. “We are not persuaded that a hospital necessarily assumes a robust caretaking or custodial relationship and ongoing responsibility for the basic needs of every person admitted.” (Id. at p. 1131.)[4]

Here, Liu met his initial burden of a prima facie showing that there was no custodial or caretaking relationship with decedent. Notably, just as in Kruthanooch and Stewart,[5] there is no evidence that during this inpatient medical treatment, Liu’s “attention to [decedent’s] basic needs was [anything more than] `incidental to the circumscribed medical care [he] provided.” (Kruthanooch, supra, at p. 1128.) First, Liu and decedent had a prior patient-physician relationship that preceded her care at Windsor Gardens. (Liu Decl. ¶ 5.) Second, once decedent was at Windsor Gardens, Liu performed monthly physical exams of decedent, reviewed medications, reviewed medical issues, reviewed complaints, and charted findings from those visits.[6] (Separate Statement of Undisputed Material Facts “SSUMF” Nos. 5, 13.) Third, Liu also issued medical orders, such as orders to check decedent’s TSH levels. (See, e.g., SSUMF Nos. 20, 22.) Liu expected his orders to be followed. (Liu Depo, 285:25-286:16.) Finally, Liu was not affiliated with, or paid by, Windsor Gardens. (SSUMF No. 1.) Taken together, while the skilled nursing facility may have acted as a care custodian for decedent, it is questionable that Liu, was a care custodian. Therefore, Liu met his prima facie burden in defeating the substantial caretaking or custodial relationship element for Elder Abuse under the Act.

Plaintiff failed to meet her burden demonstrating a triable issue of material fact on this issue. On the contrary, Plaintiff’s only offered evidence concerns Liu’s compliance with the applicable standard of care.[7] This is consistent with only one reasonable inference, Liu formed a health care provider relationship with decedent, not a caretaking or custodial relationship. Accordingly, from these undisputed facts, this court concludes, as a matter of law, that Liu did not assume ongoing responsibilities for one or more basic needs of decedent evincing a robust caretaking or custodial relationship with a significant level of responsibility that elevated their “circumscribed, intermittent , or episodic engagement” (Winn, supra, at p. 152) with decedent into a substantial relationship warranting liability under the Act.

Thus, the court GRANTS Liu’s motion for summary adjudication as to the second cause of action.

Liu contends that he did not violate Welfare & Institution Code § 15610.30 because he did not take money for a wrongful use or with intent to defraud or by undue influence and that decedent did not have a property interest in the Medicare payments to Liu. Plaintiff argues that she now needs to pay a Medicare lien for the privilege of being injured by Liu while he retains an economic benefit (i.e., being paid by Medicare). However, Plaintiff provides no authority interpreting the Welfare and Institutions Code sections in favor of this argument. Liu reiterates that he only billed for services rendered.

Under the Elder Abuse Act: “‘“Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following:

1. Takes … obtains, or retains real or personal property of an elder … for [1] a wrongful use or [2] with intent to defraud, or both.

2. Assists in taking … obtaining, or retaining real or personal property of an elder … for [1] a wrongful use or [2] with intent to defraud, or both.

3. Takes … obtains, or retains, or assists in taking … obtaining, or retaining, real or personal property of an elder … by undue influence, as defined in Section 15610.70.

(Welf. & Inst. Code, § 15610.30, subd. (a) [emphasis added]; see also Mahan v. Charles W. Chan Ins. Agency, Inc. 2017 14 Cal.App.5th 841, 856-867 (Mahan).)

“The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.)

Here, Liu met his initial burden showing no triable material facts as to Plaintiff’s financial abuse claim. In Mahan, the Court found wrongful use because the defendants maneuvered the subject transaction to get $100,000 commission they would not otherwise receive.[8] (Mahan, supra, at p. 865.) Here, in contrast, there was no “wrongful use” because Liu did not bill Medicare for services he did not perform. (SSUMF Nos. 29, 31.) In other words, Liu billed Medicare for services rendered. Therefore, Liu met his initial burden and the burden shifts to Plaintiff to demonstrate a triable issue of fact. Plaintiff has not done so. (See, e.g., SSUMF No. 27.)

Accordingly, the court GRANTS Liu’s motion for summary adjudication as to the sixth cause of action.

“To obtain the remedies provided by the Act pursuant to section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ [citation] Recklessness refers ‘to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur.’ Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal. App. 4th 81, 88–89 (quoting from Delaney v. Baker (1999) 20 Cal. 4th 23).)

Here, Plaintiff’s claim for punitive damages is tied to the second and sixth causes of action.

In light of the above ruling, the court GRANTS Liu’s motion for summary adjudication of Plaintiff’s claim for punitive damages.

[1] Reference to “Plaintiff” herein refers to the Plaintiff Irene Przebinda and Decedent/Plaintiff Sophia Gross.

[2] Plaintiff also argues that Liu’s records submitted in support of the motion have not been properly authenticated or shown to qualify for a hearsay exception (particularly, the business records exception).

[3] The court is unaware of, and the parties did not cite to, authority requiring Liu to provide such a declaration in relation to whether Liu is a care custodian. Liu would likely require such a declaration to support his argument that his conduct did not constitute abuse. However, since this is as an alternative argument to defeat the second cause of action, the court declines to develop the argument as to whether he met the standard of care.

[4]The Kruthanooch panel noted that Winn had earlier reached the same conclusion noting that even a facility that meets the definition of a “ ‘care custodian’ under Welfare & Institutions Code section 15610.17 , does not “as a matter of law, always satisfy the particular caretaking or custodial relationship required to show neglect under section 15610.57.”(Id. at p. 1131.)

[5]The court recognizes that in Kruthanooch, the Court of Appeal was reviewing the trial court’s granting of a JNOV under the substantial evidence standard.

[6] Liu’s monthly visits also appear more like Winn’s intermittent care rather than substantial custodial care.

[7] The court notes that Plaintiff provides argument but does not actually dispute any of Liu’s facts in the SSUMF.

[8] The court notes that while Mahan was on demurrer, the reasoning aptly applies here at the summary judgment/adjudication stage.