Judge: Virginia Keeny, Case: 22STCV15684, Date: 2023-04-07 Tentative Ruling

Case Number: 22STCV15684    Hearing Date: April 7, 2023    Dept: W

ERIC BROWNING, et al. v. KAISER FOUNDATION HOSPITALS, et al.

demurrer to the first amended complaint

Date of Hearing:        April 7, 2023                                      Trial Date:       None set.

Department:              W                                                        Case No.:        22STCV15684

Moving Party:            Defendants Kaiser Foundation Hospitals and Southern California Permanent Medical Group

Responding Party:     Plaintiff Eric Browning

Meet and Confer:      Yes. (Ozeran Decl. ¶7.)

BACKGROUND

On May 11, 2022, plaintiffs Eric Browning (“Browning”) and Terri Hayes (collectively, “Plaintiffs”) filed this action for dependent abuse and neglect, negligence, and loss of consortium against Kaiser Foundation Hospitals (“Kaiser”) and Southern California Permanent Medical Group (“Medical Group”) (collectively, “Defendants”).  Plaintiffs filed an amended complaint on December 23, 2022 removing the loss of consortium cause of action.

[Tentative] Ruling

Defendants Kaiser Foundation Hospitals and Southern California Permanent Medical Group’s Demurrer to the First Cause of Action is OVERRULED.

REQUEST FOR JUDICIAL NOTICE

Defendants request this court take judicial notice of several documents obtained from the website of the California Department of Public Health (RJN Exhs. A, C, D).

The court grants Defendants’ request for judicial notice.

DISCUSSION

Defendants Kaiser Foundation Hospitals and Southern California Permanent Medical Group demur to the complaint on the grounds the first cause of action for dependent abuse and neglect fails to constitute a cause of action against Defendants. The demurrer focuses on ratification and authorization.

The Elder Abuse Act provides that a plaintiff seeking statutory remedies against an employer for an employee's elder neglect or financial abuse must satisfy the standards set forth in Civil Code section 3294, subdivision (b) regarding the imposition of punitive damages. (Welf. & Inst. Code, §§ 15657(c), 15657.5(b)(2).) The standards set forth in Civil Code section 3294, subdivision (b) require proof that “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Ratification is a fact question and may be proved by circumstantial evidence. (Siva v. General Tire & Rubber Co. (1983)146 Cal.App.3d 152, 159.)  In Elder Abuse cases ratification or authorization must be pled with a certain level of particularity. (Covenant Care, Inc v. Superior Court (2004) 32 Cal. 4th 771, 790.)

Defendants argue the newly added allegations in the first amended complaint focus almost entirely on reports made to the California Department of Public Health (“the Department”). Defendants contend the allegations regarding the reports do not in any way amount to authorization or ratification on the part of the Defendants. In their demurrer, Defendants go over the complaints filed with the Department, noting only three resulted in a finding of deficiencies by the Department. Out of those three incidents, Defendants argue none of them establish ratification or authorization of the alleged abuse to Plaintiff. Additionally, out of the 20 incidents of substantiated stage 3 or 4 ulcers that occurred during patients’ stay at the facility, Defendants argue it cannot be inferred the hospital therefore authorized or ratified conduct that gave rise to the plaintiff in this case developing an ulcer.

In opposition, Plaintiffs argue Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, is instructive to the case at hand. In Fenimore, the plaintiff alleged the hospital committed several regulatory violations, including requiring the hospital to “properly train its staff, have a written patient care plan, and have a sufficient number of staff on hand for the safety of patients.” (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1344.) In finding knowledge of alleged understaffing of the hospital could establish the recklessness required for elder abuse, the court noted “[t]he FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility's elderly and dependent patients, as qualitatively different than simple negligence.” (Id. at p. 1350.)

Defendants contend this action is not like Fenimore because here, Plaintiffs have not identified any regulatory violation and have certainly not pled a regulatory violation with factual allegations. There is no “knowing pattern of flouting staffing regulations” alleged.

The court concludes that the Plaintiffs have adequately plead a claim for elder abuse against Defendants for the purposes of a demurrer. Although the complaint does not identify specific staffing or training regulations the Defendants violated, the complaint alleges Defendants knew of 20 incidents of substantiated stage 3 or 4 ulcers reported by the facility. This knowledge could be seen by a jury as flouting staffing or training regulations.

Accordingly, Defendants’ demurrer to the cause of action is OVERRULED.