Judge: Walter P. Schwarm, Case: 30-2021-01236966, Date: 2023-07-18 Tentative Ruling

Motion No. 1:

Defendants’ (The Rehabilitation Center of Orange County dba Healthcare Center of Orange (HCOC) and Renew Health Group, LLC (Renew)) Demurrer to Plaintiff’s Second Amended Complaint (Demurrer), filed on 11-1-22 under ROA No. 189, is SUSTAINED.

“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.]”

Both Defendants challenge the third cause of action contained in Plaintiff’s (Luis Feruglio) Second Amended Complaint (SAC), filed on 9-30-22 under ROA No. 177) pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Demurrer; 2:1-21.)  Renew challenges the second cause of action contained in the SAC pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Demurrer; 2:1:15.)  The court notes that the heading challenging the second cause of action states, “Plaintiff’s Second Cause of Action for Dependent Adult Neglect Fails to State Facts Sufficient to Constitute a Cause of Action as to Renew Healthcare.” (Demurrer; 10:15-17.)  Thus, the court construes the Demurrer as not challenging the Dependent Adult Neglect cause of action on behalf of HCOC.

The SAC pleads Dependent Adult Neglect as the first cause of action. The court assumes that the Demurrer mistakenly identified the Dependent Adult Neglect cause of action as the second cause of action. Therefore, the court construes Renew’s challenge as to the first cause of action rather than the second cause of action.

First Cause of Action (Dependent Adult Neglect):

The Demurrer states, “Plaintiff’s claim for defendant adult abuse/neglect simply fails to plead Facts sufficient to constitute a viable claim with sufficient specificity.” (Demurrer; 10:26-27.) The Demurrer further states, “In this case, the SAC conflates dependent adult neglect and professional negligence. Plaintiff’s claim for Dependent Neglect fails to demonstrate anything these Defendants did was something more than mere negligence, unskillfulness, or inadvertence.” (Demurrer; 12:3-5). The Demurrer provides, “For instance, the SAC does not allege when or how often any of these alleged wrongs occurred. It is further unclear from the SAC if Plaintiff is alleging Defendant Renew denied him the afore-referenced care, or performed the afore-referenced care in a substandard manner. Finally, the SAC does not set out any Facts to demonstrate any of the alleged wrongful conduct was carried out recklessly or intentionally, with malice, oppression, or fraud.” (Demurrer; 12:10-15.)

Plaintiff’s (Luis Feruglio) Consolidated Opposition (Opposition), filed on 3-22-23 under ROA No. 226, responds, “As such, Plaintiffs sufficiently pleaded joint venture against RHG-HCOC Defendants such that the Court should overrule RHG’s baseless demurrer.” (Opposition; 6:5-6.) It appears that Plaintiff is responding to whether Renew had a substantial caretaking or custodial relationship with Plaintiff. It also appears that the Demurrer does not contend that Renew did not have substantial caretaking or custodial relationship with Plaintiff. In other words, the Demurrer does not appear to challenge the first cause of based on whether the SAC sufficiently alleges that Renew had a substantial caretaking or custodial relationship with Plaintiff.  The court will address only the issues raised by the 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.)

Code of Civil Procedure section 3294, subdivision (b), states, “(b) 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.”

Davis v. Kiewit Pacific Company (2013) 220 Cal.App.4th 358, 366 (Davis), provides, “ ‘Managing agents’ are employees who ‘exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy.’ [Citation.]  White concluded: ‘[T]he Legislature intended the term ‘managing agent’ to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ [Citation.] ‘[T]o demonstrate that an employee is a true managing agent under [Civil Code] section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation's business.’ [Citation.] ‘The scope of a corporate employee's discretion and authority under our [managing agent] test is therefore a question of fact for decision on a case-by-case basis.’ [Citation.] If there exists a triable issue of fact regarding whether a corporate employee is a managing agent under the White test, that factual question must be determined by the trier of fact and not the court on a motion for summary adjudication. [Citations.]” (Italics in Davis.)

The SAC makes the following allegations: (1) “The injuries suffered by Mr. Feruglio was the result of Defendants’ plan to cut costs at the expense of their residents such as Mr. Feruglio. Integral to this plan was the practice and pattern of staffing with an insufficient number of service personnel, many of whom were not properly trained or qualified to care for the elders and/or dependent adults, whose lives were entrusted to them. The understaffing and lack of training plan 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. At all times herein mentioned Defendants had actual and/or constructive knowledge of the unlawful conduct and business practices alleged herein yet represented to the public and Mr. Feruglio that the Defendants would provide care which met legal standards.” (FAC, ¶ 34.); and (2) “RHG ratified and authorized wrongful conduct that HCOC committed against Mr. Feruglio. Upon information and belief, as the owner and manager of the HCOC, RHG controlled and were involved in the budget, staffing levels, training of employees, and implementation of policies and procedures of the HCOC. Upon information and belief, RHG ratified the wrongful conduct committed by the HCOC by failing to ensure there was adequate staff to protect the patients at the HCOC, including Mr. Feruglio from harm and neglect; failing to ensure the HCOC was adequately budgeted to ensure residents including Mr. Feruglio were not neglected; failing to investigate the circumstances surrounding the neglect of Mr. Feruglio; failing to discipline any employees for the neglect of Mr. Feruglio; and failing to ensure staff were properly trained to care for Mr. Feruglio.” (SAC, ¶ 37.)

As to Renew, the SAC does not sufficiently allege that Renew engaged in actions that constitute neglect under Welfare and Institutions Code section 15610.57.  Although paragraph 34 of the SAC refers to Defendants, it is vague as to the acts undertaken by Renew.  As to paragraph 37 of the SAC, paragraph 37, does not sufficiently allege ratification by an officer, director, or managing agent of Renew.  Further, paragraph 37’s allegations regarding “. . . the budget, staffing levels, training of employees, and implementation of policies and procedures . . .”  does not sufficiently show neglect under Fennimore.

Therefore, the court SUSTAINS the Demurrer as brought by Renew to the first cause of action.

Third Cause of Action (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. 

Paragraph 53 of the SAC pleads, “Upon information and belief, HCOC-RHG Defendants negligently hired, supervised and/or retained employees and certified nursing assistants, registered nurses, licensed vocational nurses and others whose names are presently not known to PLAINTIFFS. Said individuals were unfit to perform their job duties and HCOC-RHG Defendants knew, or should have known, that that they were unfit and that this unfitness created a risk to elder and infirm residents and/or patients such as Mr. Feruglio.” (Uppercase in SAC.)  The SAC does not identify the employee that Defendants allegedly negligently hired.  The SAC’s allegation that Defendants “. . . negligently hired . . . employees . . .” is to broad to adequately allege a cause of action for negligent hiring. (SAC, ¶ 53.)  Therefore, the court SUSTAINS the Demurrer to the third cause of action.

Based on the above, the court SUSTAINS Defendants’ (The Rehabilitation Center of Orange County dba Healthcare Center of Orange (HCOC) and Renew Health Group, LLC (Renew)) Demurrer to Plaintiff’s Second Amended Complaint, filed on 11-1-22 under ROA No. 189, with 14 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.)

Defendants are to give notice.

Motion No. 2:

Defendant’s (Renew Health Group, LLC (Renew) Motion to Strike Portions of Plaintiff’s Second Amended Complaint (Motion), filed on 11-1-22 under ROA No. 190, is OFF CALENDAR as MOOT based on the court’s ruling as to Motion No. 1.

Defendant is to give notice.