Judge: Walter P. Schwarm, Case: 30-2020-01142006, Date: 2022-08-09 Tentative Ruling
Motion No. 1:
Defendant’s (Laguna Treatment Hospital, LLC) Demurrer to Plaintiffs’ Second Amended Complaint (Demurrer), filed on 3-11-22 under ROA No. 158, is OVERRULED. (The Notice of Demurrer was filed on 3-11-22 under ROA No. 183.)
The court GRANTS Defendant’s Request for Judicial Notice (RJN), filed on 3-11-22 under ROA No. 168, as to Exhibits B and C pursuant to Evidence Code section 452, subdivision (d). The court DENIES the Request for Judicial Notice as Exhibit E because it is not the proper subject of judicial notice. The court DENIES the Request for Judicial Notice as to Exhibits A and D because the court can consider the complaints filed in this action without taking judicial notice of them. The court takes not action on Defendant’s Request for Judicial Notice, filed on 3-11-22 under ROA No. 164, because it appears duplicative of the Defendant’s Request for Judicial Notice filed under ROA No. 168.
“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint.[Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”
The Demurrer challenges the first cause of action contained in Plaintiffs’ (Michael Bongar, Beth Bongar, and The Estate of Bradley Bongar) Second Amended Complaint (SAC), filed 2-9-22 under ROA No. 149, pursuant to Code of Civil Procedure section 430.10, subdivisions (a) and (e).
Defendant assert that Plaintiffs’ “. . . pleadings . . . remain insufficient to establish a viable claim for Dependent Adult Abuse; allegations amounting to inadequate medical care do not amount to an absence of medical care.” (Demurrer; 5:9-11; Emphasis and underscore in Demurrer.)
Welfare and Institutions Code section 15610.57 states in part, “(a) ‘Neglect’ means either of the following: [¶] (1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. [¶] (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. [¶] (b) Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. [¶] (2) Failure to provide medical care for physical and mental health needs. A person shall not be deemed neglected or abused for the sole reason that the person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment. [¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration. [¶] (5) Substantial inability or failure of an elder or dependent adult to manage their own finances. [¶] (6) Failure of an elder or dependent adult to satisfy any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.”
CACI No. 3103 sets forth the elements necessary to establish a cause of action for neglect under Welfare and Institutions Code section 15610.57.
Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 (Covenant Care), states, “It is true that statutory elder abuse includes ‘neglect as defined in Section 15610.57’ (Welf. & Inst.Code, § 15657), which in turn includes negligent failure of an elder custodian ‘to provide medical care for [the elder's] physical and mental health needs’ (id., § 15610.57, subd. (b)(2)). But as we explained in Delaney, ‘neglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’ As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’ [Citation.] Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care. [Citation.] Notably, the other forms of abuse, as defined in the Act—physical abuse and fiduciary abuse (Welf. & Inst.Code, § 15657)—are forms of intentional wrongdoing also distinct from ‘professional negligence.’ [Citation.] [¶] As we determined in Delaney, if the neglect (or other abuse) is reckless or done with oppression, fraud, or malice, ‘then the action falls within the scope of [Welfare and Institution Code] section 15657 and as such cannot be considered simply “based on . . . professional negligence” . . . . That only these egregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened “clear and convincing evidence” standard.’ [Citation.]” (Italics in Covenant Care.)
Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (Carter), provides, “From the statutes and cases discussed above, we distill several factors that 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 [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 (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. [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. [Citation.]”
Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 (Sababin), explains, “Covina contends that under Covenant Care, a care facility cannot be held liable for dependent abuse unless there is a total absence of care. We disagree. If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability. For example, if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.”
Here, the SAC includes the following allegations that were not in the First Amended Complaint (FAC), filed on 9-29-20 under ROA No. 20, regarding Defendant’s alleged failure to provide care: (1) “. . . Indeed, during his short stay at LTH, there were at least three different instances where LTH left Brad for nine hours without personally monitoring him every 15 to 30 minutes—in violation of its own policy and procedure on monitoring patients, and in violation of regulations governing chemical dependency recovery hospitals such as LTH. In fact, LTH has a significant pattern of withholding this type of care, and on at least two other occasions, LTH patients died because of its failure to monitor. In all three instances, the California Department of Public Health found that LTH violated the same regulation.” (SAC, ¶ 4.); (2) After an incident where decedent’s monitoring alarm was triggered shortly after 5 a.m. on 5-1-19, Defendant “. . . did not personally monitor . . .” decedent “. . . until 2:07 PM—almost nine hours later, when a nurse noted he was experiencing anxiety at a level 7/10. . . .” (SAC, ¶¶ 32-35.); (3) “The next time Brad was personally monitored was not until that evening, at 11:19 PM—nine hours later. The nurse noted that Brad ‘presents anxious and restless’ and complained of ‘chills, sweating, generalized body aches, anxiety 7/10.’ The nurse neglected to take Brad’s vital signs as he should have, knowing that his neglect could compromise Brad’s health and safety.” (SAC, ¶ 36.); (4) “Thereafter, Brad was no longer merely neglected but completely abandoned by the LTH staff, which failed to monitor him throughout the entire night.” (SAC, ¶ 37.); (5) “Had the LTH staff not abandoned Brad during the night, they would have known that around 3:00 AM Brad started to go into distress, with his vital signs increasing steadily over the next five hours until 8:00 AM, when according to the EarlySense log, the vital signs reversed course. (SAC, ¶ 38.); (6) “At 8:00 AM the next morning, Brad did not come out of his room for his morning medications, as he had been since entering LTH. A patient note from that morning states that Brad was checked on by a nurse and was snoring. But that note was not created and signed until May 8, 2019, six days after Brad’s death.” (SAC, ¶ 39; Footnote 1 omitted.); (7) “In fact, after having been abandoned since 11:19 PM the night before and failing to appear for his morning medications, Brad again went unmonitored for at least nine hours, and his vital signs were still not taken. His total abandonment by the LTH thus continued.” (SAC, ¶ 40.); (8) Decedent was found unresponsive at approximately 9:45 a.m. and could not be revived. (¶¶ 45-47.); (9) The California Department of Public Health investigated the death and issued a report stating Defendant failed to monitor decedent in violation of its own policy and procedure and violated applicable regulations. (¶¶ 48-50.)
These allegations are sufficient to allege a “significant pattern of withholding portions or types of care” under Sababin. Based on Sababin, the court OVERRULES the Demurrer to the extent it relied on Code of Civil Procedure section 430.10, subdivision (e).
Code of Civil Procedure section 430.10, subdivision (a), states, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: [¶] (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.” People v. National Automobile and Casualty Insurance Company (2000) 82 Cal.App.4th 120, 125 (People), states, “Just as ‘jurisdiction’ has different meanings [citation], a ‘lack of jurisdiction’ can take different forms and have different consequences. ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] [¶] ‘But in its ordinary usage the phrase “lack of jurisdiction” is not limited to these fundamental situations.’ [Citation.] It is also applied more broadly ‘to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ [Citation.] ‘Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction. . . .’ [Citations.]”
Defendant contends, “Plaintiffs are precluded by the doctrines of judicial estoppel and res judicata from asserting any claim other than those related to negligence because any claim not related to negligence would be contrary to their position before the Bankruptcy Court, the Bankruptcy Court’s determination as to Plaintiffs’ Motion for Modification of the Stay, and circumvent the intended policy of bankruptcy laws in limiting the costs of litigation and discovery of claims barred by the bankruptcy action and orders.” (Motion; 18:5-10.) Although res judicata or judicial estoppel may apply based on the order from the bankruptcy court (RJN, Exhibit C), the court still has jurisdiction over the subject matter of this case within the meaning of Code of Civil Procedure section 430.10, subdivision (a). Whether the court has the authority or jurisdiction to award the relief requested is a different issue than whether the court has jurisdiction over the subject matter. The court is not making any finding as to whether res judicata or judicial apply at this stage of the proceedings.
Based on the above, the court OVERRULES Defendant’s (Laguna Treatment Hospital, LLC) Demurrer to Plaintiffs’ Second Amended Complaint filed on 3-11-22 under ROA No. 158.
Plaintiffs are to give notice.
Motion No. 2:
Defendant’s (Laguna Treatment Hospital, LLC) Motion to Strike to Plaintiff’s Second Amended Complaint (Motion), filed on 3-11-22 under ROA No. 173, is GRANTED in part and DENIED in part. (The Notice of this Motion (Notice) was filed on 3-11-22 under ROA No. 187.)
The court GRANTS Defendant’s Request for Judicial Notice (RJN), filed on 3-11-22 under ROA No. 175, as to Exhibits B, C, and F pursuant to Evidence Code section 452, subdivision (d). The court DENIES the Request for Judicial Notice as Exhibit D because it is not the proper subject of judicial notice. The court DENIES the Request for Judicial Notice as to Exhibits A and E because the court can consider the complaints filed in this action without taking judicial notice of them. The court takes no action on Defendant’s Request for Judicial Notice, filed on 3-11-22 under ROA No. 164, because it appears duplicative of the Defendant’s Request for Judicial Notice filed under ROA No. 168.
The court DENIES Defendant’s Request for Judicial Notice, filed on 8-2-22 under ROA No. 337, because Defendant submitted this evidence with its Reply, and Plaintiff did not have an opportunity to respond to it. Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.
Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out 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.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”
The Notice seeks to strike Item Nos. 1-7. (Notice; 2:2:1-24.)
The court DENIES the Motion as to Item No. 1 because the allegations in Item No. 1 are relevant to Plaintiffs’ (Michael Bongar, Beth Bongar, and The Estate of Bradley Bongar) first cause of action for Neglect and Abandonment.
The court DENIES the Motion as to Item No. 2 because the allegations in Item No. 2 are relevant to Plaintiffs’ (Michael Bongar, Beth Bongar, and The Estate of Bradley Bongar) first cause of action for Neglect and Abandonment.
The court DENIES the Motion as to Item No. 3 because the allegations in Item No. 3 are relevant to Plaintiffs’ (Michael Bongar, Beth Bongar, and The Estate of Bradley Bongar) first cause of action for Neglect and Abandonment.
The court DENIES the Motion as to Item No. 4 because the allegations in Item No. 4 are relevant to Plaintiffs’ (Michael Bongar, Beth Bongar, and The Estate of Bradley Bongar) first cause of action for Neglect and Abandonment.
The court DENIES the Motion as to Item No. 5 because the allegations in Item No. 5 are relevant to Plaintiffs’ (Michael Bongar, Beth Bongar, and The Estate of Bradley Bongar) first cause of action for Neglect and Abandonment. As to Item No. 5, Defendant appears to use this Motion to contend that the allegations in the SAC are insufficient to support relief. The court addressed this contention in Motion No. 1.
The court DENIES the Motion as to Item No. 6 because the allegations in Item No. 6 are relevant to Plaintiffs’ (Michael Bongar, Beth Bongar, and The Estate of Bradley Bongar) first cause of action for Neglect and Abandonment in terms of the requested compensatory damages.
The court GRANTS the Motion as to Item No. 7. Welfare and Institutions Code section 15657 provides, “Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: [¶] (a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article. [¶] (b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. [¶] (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.”
Civil Code section 3294, subdivision (b), states, “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless 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.”
Here, Plaintiffs allege neglect by Defendant’s “staff” including a “nurse” and “vocational nurse.” (SAC, ¶¶ 31-45.) Plaintiffs have failed to plead “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice . . . on the part of an officer, director, or managing agent of the corporation” under Civil Code section 3294, subdivision (b). Therefore, the motion is granted with leave to amend as to the allegations seeking punitive damages and attorney fees. Thus, the court GRANTS the Motion as to Item No. 7.
In summary, the court GRANTS Defendant’s (Laguna Treatment Hospital, LLC) Motion to Strike to Plaintiff’s Second Amended Complaint, filed on 3-11-22 under ROA No. 173, as to Item No. 7 with 14 days leave to amend from the date of service of the notice of the court’s order. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.) The court DENIES the Motion as to the remaining items.
Plaintiffs are to give notice.