Judge Walter P. Schwarm, Case 30-2021-01236966 2022-09-06 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01236966, Date: 2022-09-06 Tentative Ruling

Motion No. 1:

Defendants’ (The Rehabilitation Center of Orange County and Renew Health Group, LLC) Demurer to Plaintiff’s First Amended Complaint (Demurrer), filed on 3-24-22 under ROA No. 27, is SUSTAINED in part and OVERRULED in part as set forth below.

“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, third, and fourth causes of action in Plaintiff’s (Luis Feruglio) First Amended Complaint (FAC), filed on 2-7-22 under ROA No. 9) pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Demurrer; 2:11-22.)

First Cause of Action—Dependent Adult Neglect:

The Demurrer contends, “Here, the FAC alleges Defendants withheld care from Plaintiff by failing to turn and reposition Plaintiff at least every two hours; failing to provide pressure relieving measures; failing to provide wound assessment and care; failing to execute interventions to prevent the development or worsening of pressure sores; and failing to provide adequate assistance with personal hygiene. These general allegations, however, are unsupported by any specific facts.” (Demurrer; 12:20-24 (Emphasis 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.)

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.”

In terms of whether the FAC adequately alleges the statutory remedies under Welfare and Institutions Code section 15657 and CACI No. 3104, Welfare and Institutions Code section 15657 states, “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.”

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.]”

Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1350-1351 (Fenimore), explains, “The trial court relied on Worsham to hold the understaffing allegations did not amount to reckless neglect under the Act, but we do not find Worsham controlling. In that case, the elder suffered a fall while recovering from hip surgery at a hospital's rehabilitative care unit. [Citation.] The plaintiff alleged the hospital knew the elder was a fall risk; the hospital was ‘chronically understaffed’ and undertrained the staff it did have; and the lack of sufficiently well-trained staff caused the decedent's fall. [Citation.] The trial court sustained the hospital's demurrer to the operative complaint, holding that, although the plaintiff alleged the hospital acted recklessly by deliberately understaffing and undertraining, he had not sufficiently supported the allegations with particular facts. [Citation.] The appellate court affirmed and held the allegations of failure to provide adequate staffing constituted nothing more than ‘negligence in the undertaking of medical services, not a “fundamental ‘[f]ailure to provide medical care for physical and mental health needs.’ ” ’ [Citations.] [¶] Worsham's determination that understaffing constitutes no more than negligence may be true, absent further allegations showing recklessness. But the Fenimores have alleged more than a simple understaffing here. The 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. [¶] In addition, while Worsham focused on a ‘ “fundamental ‘[f]ailure to provide medical care’ ” ’ as the way to show neglect under the Act, that is not the only way to prove neglect. [Citation.] The Act defines neglect generally as the negligent failure of custodians or care providers to exercise the degree of care a similarly situated reasonable person would exercise, and then provides examples of neglect, including but not limited to the ‘[f]ailure to provide medical care for physical and mental health needs.’ (§ 15610.57, subds. (a), (b)(2).) As Norman and Gregory teach, violations of standards of care set by health facility regulations may provide a basis for finding the requisite negligent failure. Reckless understaffing might be neglectful under the Act even if it is not a fundamental failure to provide medical care.” (Italics in Fenimore.)

As to Defendant—The Rehabilitation Center of Orange County, paragraphs 13, 14, 15, 16, and 17 of the FAC adequately plead neglect under Welfare and Institutions Code section 15610.57 and CACI No. 3103. Under Sababin, paragraphs 13, 14, 15, 16, and 17 of the FAC sufficiently allege a significant pattern of withholding portions or types of care by Defendant—The Rehabilitation Center of Orange County. The FAC also pleads that there was a “. . . practice and pattern of staffing with an insufficient number of service personnel . . . The understaffing and lack of training was designed as a mechanism as to reduce labor costs and predictably and foreseeably resulted in the neglect of many patients, and most specifically, Mr. Feruglio.” (FAC, ¶ 23.) Paragraph 23 of the FAC sufficiently alleges recklessness as to Defendant—The Rehabilitation Center of Orange County because it alleges conduct by Defendant—The Rehabilitation Center of Orange County beyond mere understaffing. Similar to Fenimore, a jury could view a pattern and practice of reducing costs as qualitatively different than negligence. Further, paragraph 24 of the FAC sufficiently alleges ratification as to Defendant—The Rehabilitation Center of Orange County.

As to Defendant—Renew Health Group, LLC, Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (Winn) states, “What we conclude is 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.”

The FAC pleads, “Defendant RENEW HEALTH GROUP, LLC (hereinafter referred to as ‘RHG’), at all times relevant to this matter, was the owner, operator, parent company, and/or management company of HCOC and actively participated and controlled the business of HCOC and thus provided long-term professional and custodial care as a skilled nursing facility.” (FAC, ¶ 5.) This allegation does not sufficiently plead that Defendant—Renew Health Group had a substantial caretaking or custodial relationship with Plaintiff. Although Defendant—Renew Health Group may have owned Defendant—The Rehabilitation Center of Orange County, Defendant—The Rehabilitation Center of Orange County has the substantial caretaking or custodial relationship with Plaintiff.

Therefore, as to the first cause of action, the court OVERRULES the Demurrer as to Defendant—The Rehabilitation Center of Orange County and SUSTAINS the Demurrer as to Defendant—Renew Health Group.

Third Cause of Action—Negligent Hiring and Supervision:

CACI No. 426 sets forth the elements necessary to establish a cause of action for negligent hiring and supervision. The FAC does not identify the employee that Defendants allegedly negligently hired. Therefore, the court SUSTAINS the Demurrer to the third cause of action as brought by both Defendants.

Fourth Cause of Action—Violation of Patient’s Rights:

The FAC alleges this cause of action only against Defendant—The Rehabilitation Center of Orange County.

Health and Safety Code section 1430, states in part, “(a) Except when the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class ‘A’ or ‘B’ violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. An action for injunction or civil damages, or both, may be prosecuted by the Attorney General in the name of the people of the State of California upon the Attorney General's own complaint or upon the complaint of a board, officer, person, corporation, or association, or by a person acting for the interests of itself, its members, or the general public. The amount of civil damages that may be recovered in an action brought pursuant to this section may not exceed the maximum amount of civil penalties that could be assessed on account of the violation or violations. [¶] (b)(1) A current or former resident or patient, or the legal representative, personal representative, or successor in interest of a current or former resident or patient, of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in Section 72527 or 73523 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees. . . .”

The cause of action also relies on the patient rights under Title 22 of the Code of Regulations. Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 384 (Jarman), explains, “In addition to protective standards of care designed to provide quality health care (see Health Facilities, supra, 16 Cal.4th at p. 295, 65 Cal.Rptr.2d 872, 940 P.2d 323), nursing care patients are entitled to ‘fundamental human rights’ set out in the Patients Bill of Rights. (Cal. Code Regs., tit. 22, § 72527 [regulatory version]; § 1599.1 [statutory version].) These rights include the right ‘[t]o be free from discrimination’ and the right ‘[t]o be free from mental and physical abuse.’ (Cal. Code Regs., tit. 22, § 72527, subd. (a)(8), (10).) A nursing care patient is ‘[t]o be fully informed’ of the rights governing patient conduct, of all services available in the facility and related charges, and of his or her total health status. (Id., subd. (a)(1), (2), (3).) A patient must also receive material information related to any proposed treatment or procedure (id., subd. (a)(5)), and be encouraged to voice grievances and suggest any changes to policies and services (id., subd. (a)(7)). Certain rights in the Patients Bill of Rights are also ‘expressed as aggregate, facility-wide obligations.’ (Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609, 620, 145 Cal.Rptr.3d 709 (Shuts), citing § 1599.1.) For instance, a facility must employ an adequate staff, provide residents appropriate food, support an activity program to encourage residents’ self-care, and maintain an operating nurses’ call system. (§ 1599.1, subds. (a), (c), (d), (f); see Shuts, at p. 620, 145 Cal.Rptr.3d 709.)”

Health and Safety Code section 1599.1 states in part, “Written policies regarding the rights of patients shall be established and shall be made available to the patient, to any guardian, next of kin, sponsoring agency or representative payee, and to the public. Those policies and procedures shall ensure that each patient admitted to the facility has the following rights and is notified of the following facility obligations, in addition to those specified by regulation: [¶] (a) The facility shall employ an adequate number of qualified personnel to carry out all of the functions of the facility. [¶] (b) Each patient shall show evidence of good personal hygiene and be given care to prevent bedsores, and measures shall be used to prevent and reduce incontinence for each patient. . . .”

Based on paragraph 39 of the FAC, Plaintiff has sufficiently alleged a violation of Health and Safety Code section 1599.1, subdivisions (a) and (b), to support a cause of action under Health and Safety Code section 1430. Therefore, the court OVERRULES the Demurrer as to the fourth cause of action.

To the extent that the Demurrer relies on Code of Civil Procedure section 430.10, subdivision (f), the court OVERRULES the Demurrer because it is not so uncertain as to prevent Defendants from providing an informed response. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Based on the above, the court SUSTAINS Defendants’ (The Rehabilitation Center of Orange County and Renew Health Group, LLC) Demurer to Plaintiff’s First Amended Complaint, filed on 3-24-22 under ROA No. 27, as to Defendant—Renew Health Group, LLC in its entirety with 15-days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) The court OVERRULES the Demurrer as to the first and fourth causes of action as to Defendant—The Rehabilitation Center of Orange County as to the first and fourth causes of action. The court SUSTAINS the Demurrer as to the third cause of action as to Defendant—The Rehabilitation Center of Orange County with 15 days leave to amend from the date of service of the notice of the court’s ruling.

Defendants are to give notice.

Motion No. 2:

Defendants’ (The Rehabilitation Center of Orange County and Renew Health Group, LLC) Motion to Strike Portions of Plaintiff’s First Amended Complaint (Motion), filed on 3-24-22 under ROA No. 26, is GRANTED as MOOT as to Defendant—Renew Health Group, LLC based on the court’s ruling as to Motion No. 1. As to Defendant—The Rehabilitation Center of Orange County, the court DENIES the Motion.

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 Motion seeks to strike allegations regarding “general damages” (Item No. 1), “punitive and exemplary damages” (Item No. 2), “attorney’s fees and costs” (Item No. 3), and “costs of suit” (Item No. 4). (Motion; 2:1-13.)

As to Item No. 2, Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, states, “ ‘In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.’ [Citation.] [¶] In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) ‘ “Malice” ’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ [Citation.] ‘ “Fraud” ’ is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ [Citation.]”

Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159 (Butte), states, “ ‘Despicable conduct’ is conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by most ordinary decent people.” ’ [Citation.]”

Paragraph 23 of the First Amended Complaint (FAC), filed on 2-7-22 under ROA No. 9, pleads in part a “. . . practice and pattern of staffing with an insufficient number of service personnel . . . The understaffing and lack of training was designed as a mechanism as to reduce labor costs and predictably and foreseeably resulted in the neglect of many patients, and most specifically, Mr. Feruglio.” (FAC, ¶ 23.) This allegation is sufficient to plead despicable malicious or oppressive conduct because a jury could determine that neglect resulting from a care facility’s design to reduce costs is despicable. Therefore, the court DENIES the Motion as to Item No. 2. Since the FAC sufficiently alleges recklessness, the court DENIES the Motion as to Item Nos. 1, 3, and 4.

Based on the above, the court GRANTS Defendants’ (The Rehabilitation Center of Orange County and Renew Health Group, LLC) Motion to Strike Portions of Plaintiff’s First Amended Complaint, filed on 3-24-22 under ROA No. 26, as MOOT as to Defendant—Renew Health Group, LLC with 15-days leave to amend from the date of service of the notice of the court’s ruling. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.) As to Defendant—The Rehabilitation Center of Orange County Defendant, the court DENIES the Motion.

Defendants are to give notice.

Motion No. 3:

Defendant’s (Maxlife Hospice Care, Inc. dba Acacia Hospice and Palliative Services) Demurer to Plaintiff’s First Amended Complaint (Demurrer), filed on 6-10-22 under ROA No. 103, is SUSTAINED in part and OVERRULED in part as set forth below.

The Demurrer challenges the first and third causes of action in Plaintiff’s (Luis Feruglio) First Amended Complaint (FAC), filed on 2-7-22 under ROA No. 9) pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Demurrer; 3:1-15.)

First Cause of Action—Dependent Adult Neglect:

CACI No. 3103 sets forth the elements necessary to establish a cause of action for neglect under Welfare and Institutions Code section 15610.57.

Here, paragraph 11 of the FAC adequately pleads neglect under Welfare and Institutions Code section 15610.57 and CACI No. 3103. Under Sababin, paragraph 11 of the FAC sufficiently alleges a significant pattern of withholding portions or types of care by Defendant. Therefore, the court OVERRULES the Demurrer as to the first cause of action.

Therefore, as to the first cause of action, the court OVERRULES the Demurrer.

Third Cause of Action—Negligent Hiring and Supervision:

To the extent that the Demurrer relies on Code of Civil Procedure section 430.10, subdivision (f), the court OVERRULES the Demurrer because it is not so uncertain as to prevent Defendant from providing an informed response. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Based on the above, the court SUSTAINS Defendant’s (Maxlife Hospice Care, Inc. dba Acacia Hospice and Palliative Services) Demurer to Plaintiff’s First Amended Complaint, filed on 6-10-22 under ROA No. 103, as to the third cause of action with 15-days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) The court OVERRULES the Demurrer as to the first cause of action.

Defendant is to give notice.