Judge: Upinder S. Kalra, Case: 22STCV15487, Date: 2023-01-10 Tentative Ruling
Case Number: 22STCV15487 Hearing Date: January 10, 2023 Dept: 51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE: January 10, 2023
CASE NAME: Sophia Gross, deceased, by and through her Successor in Interest, Irene Przebinda v. Windsor Gardens Convalescent Hospital, Inc., et al.
CASE NO.: 22STCV15487
MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
MOVING PARTY: Defendant SNP Pharmacy, LLC
RESPONDING PARTY(S): None as of January 5, 2023
REQUESTED RELIEF:
1. An order determining that the settlement between the parties was entered in good faith
TENTATIVE RULING:
1. The Motion for Determination of Good Faith Settlement is Granted
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On May 10, 2022, Plaintiff Sophia Gross, deceased, by and through her Successor in Interest, Irene Przebind (“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 alleged six causes of action: (1) Elder Abuse/Neglect as to Windsor Gardens, (2) Elder Abuse/Neglect as to Dr. Liu, (3) Elder Abuse/Neglect as to SNP, (4) Negligence, (5) Violation of Resident’s Rights, and (6) Elder Abuse/Financial (Wrongful Advantage.) The complaint alleges that Ms. Gross was admitted to Windsor Gardens in 2019 and during her time there, was treated for various medical difficulties, including hypothyroidism, cardiac difficulties, respiratory difficulties, kidney failure, dysphagia, and dementia. The complain then alleges that Defendants failed to provide Ms. Gross with competent care, which resulted in Ms. Gross’s eventual death.
On May 25, 2022, Defendant Liu filed a Demurrer with Motion to Strike.
On June 10, 2022, Defendant SNP Pharmacy filed a Demurrer with Motion to Strike.
On August 2, 2022, Defendants filed a Notice of Related Case as to Case No. 22STCV15408.
On December 6, 2022, Defendant SNP Pharmacy filed a Motion for Determination of Good Faith Settlement. As of January 5, 2023, no opposition has been filed.
LEGAL STANDARD
California Code of Civil Procedure section 877.6, subdivision (a)(1), provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., § 877.6, subd. (c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (Code Civ. Proc., § 877, subd. (a).)
“The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., § 877.6, subd. (d).)
In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:
This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . .. That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.
If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.
(192 Cal.App.3d 1251, 1260-1261 [citation omitted].)
In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs’ total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”
The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, Inc., supra, 38 Cal.3d at p. 499.) “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” (Ibid.)
“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Id. at pp. 499-500.)
“[A] court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.)
ANALYSIS:
Defendant SNP Pharmacy, LLC dba Skilling Nursing Pharmacy move to have the court determine that the settlement agreement was entered in good faith.
1. Burden:
“The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., § 877.6, subd. (d).) Here, Plaintiff has the burden to prove that the good faith settlement should be denied. As of January 5, 2023, no opposition has been filed.
2. Factors:
To determine whether settlement has been in good faith, courts look at certain factors. In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs’ total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”
3. Analysis:
This matter concerns the treatment of Sophia Gross, Plaintiff’s mother, while residing in the skilled nursing facility, Windsor Gardens Convalescent Hospital. Defendant SNP is a licensed pharmacy that “rendered pharmacy services to Windsor Gardens Convalescent Hospital and its residents.” (Motion 2: 14-22.)
The first factor is the proportionate liability. Defendant argues that the proportion of liability and approximation of Plaintiff’s total recovery indicates that the settlement is in good faith. (Motion 7: 26-28; Dec. Hassell ¶¶ 8-12.) Here, Plaintiff’s potential special damages are limited: $1,192.00 for funeral costs, $18,147.78 for charges to Windsor Gardens, $9,836.10 for Medicare lien. Additionally, Defendant argues that general damages were limited to due Ms. Gross’s condition: she had dementia and was in a coma. (Motion 9: 1-3; Complaint ¶ 33 & 62.) Moreover, Defendant denies liability, asserts that it provided the requisite standard of care, and disputes causation due to Ms. Gross’s advanced age of 94. (Motion 9: 13-21.)
The second factor is the settlement amount. Here, the settlement amount is stated in the Unredacted Declaration of Jennifer Hassel. This value “is generous considering the weaknesses in Plaintiff’s case against Defendant, application of MICRA to Plaintiff’s claims, and limited potential general and special damages.” (Motion 10: 26-28.)
Another factor is a “recognition that a settlor should pay less in settlement than he would if he were found liable after trial.” (Tech-Bilt, supra, 38 Cal.3d 488 at pg. 499). Defendant argues that because the parties chose to settle rather than continue the litigation and incur additional fees and costs, this was done in good faith, especially given the weaknesses of Plaintiff’s claims. (Motion 11: 6-9.) The settlement is proportionate and within the “ball park range” of the share of liability. (Id. at 12-13.)
Lastly, another factor is that the settlement negotiations were done with a third-party neutral without fraud or collusion. Here, Defendant argues that there was no collusion, fraud, or other tortious conduct as the negotiations were completed at arm’s length, co-defendants were informed of the settlement, and the parties “are not aware of any harm which the settlement could cause to the non-settlement co-defendants.” (Motion 11: 23-28, Dec. Hassel ¶ 18.)
The Tech-Bilt factors have been satisfied. The parties engaged in a fair mediation, with no evidence of tortious conduct. The proposed settlement is fair. Defendant’s proportionate liability is low, given the condition of Ms. Gross and Defendant’s conduct during Ms. Gross’s time at Windsor Gardens. A trial would incur additional fees and costs. Lastly, Plaintiff has not filed an opposition.
Conclusion:
For the foregoing reasons, the Court decides the pending motion as follows:
Motion for Determination of Good Faith Settlement is Granted.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: January 10, 2023 __________________________________ Upinder S. Kalra
Judge of the Superior Court
DEMURRER WITH MOTION TO STRIKE
MOVING PARTY: Defendant John Liu, M.D.
RESPONDING PARTY(S): Plaintiff Sophia Gross, through her successor in interest, Irene Przebinda
REQUESTED RELIEF:
1. An order sustaining the demurrer as to the 2nd and 6th causes of action
2. An order striking portions of the complaint that seek punitive and exemplary damages
TENTATIVE RULING:
1. Demurrer is OVERRULED, as to the 2nd and 6th causes of action
2. Motion to Strike is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On May 10, 2022, Plaintiff Sophia Gross, deceased, by and through her Successor in Interest, Irene Przebind (“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 alleged six causes of action: (1) Elder Abuse/Neglect as to Windsor Gardens, (2) Elder Abuse/Neglect as to Dr. Liu, (3) Elder Abuse/Neglect as to SNP, (4) Negligence, (5) Violation of Resident’s Rights, and (6) Elder Abuse/Financial (Wrongful Advantage.) The complaint alleges that Ms. Gross was admitted to Windsor Gardens in 2019 and during her time there, was treated for various medical difficulties, including hypothyroidism, cardiac difficulties, respiratory difficulties, kidney failure, dysphagia, and dementia. The complaint then alleges that Defendants failed to provide Ms. Gross with competent care, which resulted in Ms. Gross’s eventual death.
On May 25, 2022, Defendant Liu filed a Demurrer with Motion to Strike. Plaintiff’s Opposition was filed on June 27, 2022. Defendant’s Reply was filed on July 6, 2022.
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 David J. Ozeran indicates that the meet and confer process began on May 19, 2022, and the parties spoke via telephone on May 20, 2022, but could not resolve the issues.
ANALYSIS:
Defendant John Liu, M.D. demurs on the grounds that the second and sixth causes of action fail to state facts sufficient to constitute a cause of action.
1. Elder Abuse/Neglect Cause of Action
Defendant argues that the second cause of action fails because the facts as alleged do not constitute egregious conduct and Dr. Liu was not a care custodian. First, Defendant argues that the conduct as alleged is not egregious, but rather amounts to “a basic claim for medical negligence.” (Demurrer 6: 27 – 7: 2.) Second, Defendant argues that the care rendered to Ms. Gross was “medical care” rather than “custodial care” and the factual allegations do not show that Dr. Liu “stepped outside his role as a medical care provider and rendered or was responsible for rendering custodial care.” (Demurrer 8: 22-24.)
Plaintiff argues that the complaint properly alleged reckless neglect. The demurrer sufficiently pleads that Dr. Liu’s “repeated with withholding of medical care,” his director orders left Ms. Gross without medication, and failed to check if certain tests were completed between August 2020 and May 2021. (Opp. 10: 3-10.) Additionally, the complaint sufficiently pleads that Dr. Liu had a custodial care relationship with Ms. Gross. The complaint states that Dr. Liu rendered care at Windsor Gardens and rendered “no professional service to her except for the service provided at Windsor Gardens” and based on both state and federal regulations, was obligated to “evaluate her custodial care at least every 30 days because she was an in-patient at Windsor Gardens.” (Opp. 11: 18-22; Comp. ¶ 76, 99, & 107.)
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 Complaint, the Court finds that the Plaintiff has sufficiently alleged a cause of action for elder abuse. Here, Dr. Liu was responsible for the decedent’s medical needs, who was an elder. Second, the complaint sufficiently alleges that Dr. Liu knew of the decedent’s medical conditions, specifically her hypothyroidism. (Comp. ¶ 77.) Third, Defendant neglected the decedent, in that he failed to provide the necessary medications. (Comp. ¶ 102.) Lastly, this neglect caused the decedent to be taken to the emergency room, where her TSH levels to be eight times about the normal range. (Comp. ¶ 61.) Additionally, the complaint sufficiently alleges that these actions – Dr. Liu’s failure to provide the correct medications for close to a year – were either reckless or malicious. (Comp. ¶¶ 103, 105-107.) Lastly, the complaint sufficiently provides particularity as to the causal link between the neglect and the injury: had the decedent’s Levothyroxine medication been prescribed and not discontinued in July 2020 or had the TSH labs been obtained from July 2020 until May 2021, decedent’s TSH levels would like not have been eight times above the high range for such levels. (Comp. ¶ 61.)
Demurrer as to the Second Cause of Action is OVERRULED.
2. Elder Abuse/Financial (Wrongful Advantage)
Defendant argues that the sixth cause of action fails to allege sufficient facts to constitute financial elder abuse. Specifically, Dr. Liu argues that there are no facts that he “took money for a wrongful use with intent to defraud or by undue influence.” (Demurrer 10: 1-2.) Moreover, there are no facts that indicate Dr. Liu obtained “any money improperly or did anything that falls within the definition of financial abuse.” (Demurrer 11: 4-6.)
Plaintiff argues that the complaint sufficient alleged a claim for financial elder abuse. First, Plaintiff has alleged property rights, specifically that Ms. Gross’ property was Medicare – a right for qualified persons “to have her healthcare needs met.” (Opp. 14: 21-22; citing 42 USCA §§ 1395c, 1395k & 1395o.) Paragraph 148 alleges that Dr. Liu took and retained Plaintiff’s property because “he is forcing her to repay Medicare for payments made to him despite the harm he caused.” (Opp. 16: 3-5.) Second, Plaintiff argues that this cause of action does not require a “taking.” Third, Plaintiff alleged that she will lose property, since she is obligated to reimburse Medicare. (Opp. 17: 12-17.) Lastly, Plaintiff argues that she is entitled to relief if no damages are awarded.
To establish financial elder abuse, the plaintiff must allege that the defendant took or retained the plaintiff’s property; that the plaintiff was 65 years of age or older at the time of the conduct; that the defendant took or retained the property for a wrongful use or with the intent to defraud; that the plaintiff was harmed; and that the defendant’s conduct was a substantial factor in cause the plaintiff’s harm. (See¿CACI, § 3100.)¿Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. (See¿Welf. & Inst. Code §¿15610.30(a).) A person is deemed to have taken the property when he or she has deprived an elder of any property right. (See¿id.¿§¿15610.30(c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley¿v. Litton Loan Servicing, LLP¿(2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person¿ . . . takes¿ . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder . .¿. .”¿(Id.¿§¿15610.30(b).)¿
A review of the complaint indicates that the Plaintiff has established a cause of action for financial elder abuse. The complaint sufficiently alleges that Medicare is property. “[T]he word “property” may be properly used to signify any valuable right or interest protected by law. But the meaning to be given to the word depends upon the sense in which it is used, as gathered from the context and the nature of the things which it was intended to refer to and include.’” (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 509.) Plaintiff must also plead that the person wrongful use the property if that person knows or would have known that the conduct “is likely to be harmful to the elder.” The complaint does sufficiently allege that Dr. Liu knew that this would likely cause: the increased cost for the care would then increase the costs claimed, thus taking unnecessary payments from the Medicare benefits.” (Comp. ¶ 148.) Additionally, the complaint sufficiently alleges that the defendants were substantial factors in doing so. (Comp. ¶ 148-151.)
Demurrer as to the Sixth Cause of Action is OVERRULED.
Motion to Strike:
Defendant moves to strike all portions of the complaint that concern punitive and exemplary damages.
1. Paragraph 108, page 25: 13-15 - "As a result of the malice and oppression committed by DR. LIU, SOPHIA is entitled to and should be awarded punitive damages in an amount appropriate to address the severity of his conduct."
2. Paragraph 109, page 25:18 - "and to an award of punitive damages pursuant to Civil Code §3294."
3. Paragraph 154, page 35:8-10 - "As a result of the malice, oppression, and fraud committed by defendants and each of them, plaintiff is entitled to and should be awarded punitive damages in an amount appropriate to address the severity of defendants', and each of their, conduct."
4. Paragraph 155, page 35:13 - "and to an award of punitive damages pursuant to Civil Code §3294."
5. Prayer, item no. 2(c), page 35:23 - "For exemplary and punitive damages pursuant to Civil Code §3294."
6. Prayer, item no. 6(c), page 36:12 - "For exemplary and punitive damages pursuant to Civil Code §3294."
7. Paragraph 122 to the extent that it incorporates the claim for punitive damages in paragraphs 108 and 109.
However, as the Court has indicated above, the Complaint 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.) Because of the heightened pleading requirement under the Elder Abuse Act, the Plaintiff has met the requirements for punitive damages.
Therefore, the Motion to Strike is DENIED, as to all portions.
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
Demurrer as to the 2nd and 6th Causes of Action is OVERRULED.
Motion to Strike is DENIED.
Defendant to file an ANSWER only within 10 days-notice of this order. (Rule of Court, rule 3.1320(g).)
Moving party is to give notice.
IT IS SO ORDERED.
Dated: January 10, 2023 __________________________________ Upinder S. Kalra
Judge of the Superior Court
JOINDER TO THE DEMURRER WITH MOTION TO STRIKE
MOVING PARTY: Defendants Windsor Gardens Convalescent Hospital, Inc..
RESPONDING PARTY(S): Plaintiff Sophia Gross, through her successor in interest, Irene Przebinda
REQUESTED RELIEF:
1. An order sustaining the demurrer as to the 6th cause of action
TENTATIVE RULING:
1. Demurrer is OVERRULED, as to the 6th Cause of Action.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On May 10, 2022, Plaintiff Sophia Gross, deceased, by and through her Successor in Interest, Irene Przebind (“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 alleged six causes of action: (1) Elder Abuse/Neglect as to Windsor Gardens, (2) Elder Abuse/Neglect as to Dr. Liu, (3) Elder Abuse/Neglect as to SNP, (4) Negligence, (5) Violation of Resident’s Rights, and (6) Elder Abuse/Financial (Wrongful Advantage.) The complaint alleges that Ms. Gross was admitted to Windsor Gardens in 2019 and during her time there, was treated for various medical difficulties, including hypothyroidism, cardiac difficulties, respiratory difficulties, kidney failure, dysphagia, and dementia. The complain then alleges that Defendants failed to provide Ms. Gross with competent care, which resulted in Ms. Gross’s eventual death.
On October 7, 2022, Defendants Windsor Gardens Convalescent Hospital, Inc., and S & F Management Company, LLC, filed a Joinder in Defendant’s Demurrer. Plaintiff’s Opposition was filed on December 19, 2022. Defendants’ Reply was filed on January 3, 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.)
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). There is no declaration that Defendants met and conferred.
ANALYSIS:
Defendants Windsor Gardens Convalescent Hospital, Inc and S & F Management Company demur on the grounds that the sixth cause of action fails to state fails that constitute a cause of action.
1. Elder Abuse/Financial (Wrongful Advantage)
Defendants argue that Plaintiff fails to assert the required elements for a financial elder abuse cause of action. Specifically, Defendants argue that the complaint fails to allege that Defendants “took, retained, withheld, secreted, or appropriated any real or personal property of the Plaintiff, nor assisted any other person or entity in doing so.” (Motion 3: 23-25.) Additionally, Plaintiff does not allege that Defendants intended to defraud Plaintiff.
Plaintiff argues that Legislature and public policy support claims for financial elder abuse. Here, the complaint sufficiently alleges that Plaintiff’s Medicare benefits were her property and were wrongfully obtained when Defendants increased the cost of her medical care, which resulted in an increase in Plaintiff’s Medicare payments. Plaintiff is not required to “reimburse Medicare…received not by Sophia, but by each of the defendants.” (Comp. ¶ 148.)
To establish financial elder abuse, the plaintiff must allege that the defendant took or retained the plaintiff’s property; that the plaintiff was 65 years of age or older at the time of the conduct; that the defendant took or retained the property for a wrongful use or with the intent to defraud; that the plaintiff was harmed; and that the defendant’s conduct was a substantial factor in cause the plaintiff’s harm. (See¿CACI, § 3100.)¿Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. (See¿Welf. & Inst. Code §¿15610.30(a).) A person is deemed to have taken the property when he or she has deprived an elder of any property right. (See¿id.¿§¿15610.30(c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley¿v. Litton Loan Servicing, LLP¿(2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person¿ . . . takes¿ . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder . .¿. .”¿(Id.¿§¿15610.30(b).)¿
A review of the complaint indicates that the Plaintiff has established a cause of action for financial elder abuse. The complaint sufficiently alleges that Medicare is property. “[T]he word “property” may be properly used to signify any valuable right or interest protected by law. But the meaning to be given to the word depends upon the sense in which it is used, as gathered from the context and the nature of the things which it was intended to refer to and include.’” (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 509.) Plaintiff must also plead that the person wrongful use the property if that person knows or would have known that the conduct “is likely to be harmful to the elder.” The complaint does sufficiently allege that the Defendants knew that this would likely cause: the increased cost for the care would then increase the costs claimed, thus taking unnecessary payments from the Medicare benefits.” (Comp. ¶ 148.) Additionally, the complaint sufficiently alleges that the defendants were substantial factors in doing so. (Comp. ¶ 148-151.)
Demurrer as to the Sixth Cause of Action is OVERRULED.
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
Demurrer as to the 6th Cause of Action is OVERRULED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: January 10, 2023 __________________________________ Upinder S. Kalra
Judge of the Superior Court