Judge: Walter P. Schwarm, Case: 30-2022-01247225, Date: 2022-09-06 Tentative Ruling
Motion No. 1:
Defendant’s (Fountain Valley Regional Hospital and Medical Center) Demurrer to Plaintiffs’ Complaint (Demurrer), filed on 5-2-22 under ROA No. 28, is OVERRULED.
“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 in Plaintiffs’ (Luis Gallegos, by and through his Successor-in-Interest, Carmen Gallegos, Carmen Gallegos, Luis Gallegos, Jr., Jose Gallegos, and Lucia Gallegos) First Amended Complaint (FAC), filed on 2-25-22 under ROA No. 2) pursuant to Code of Civil Procedure section 430.10, subdivisions (e). (Notice of Demurrer; 3:1-10.)
The Demurrer states, “The Complaint alleges that Luis Gallegos was admitted to Fountain Valley Regional Hospital and Medical Center ("Defendant”) on September 9, 2020, and remained there through October 13, 2020, during which time he allegedly developed a single pressure injury. [Complaint at ¶¶20, 21.] The Complaint alleges no further facts, but rather includes allegations of understaffing. Such allegations form the basis of a professional negligence claim, as opposed to Dependent Adult Abuse. As such, Defendant brings the instant demurrer against the Dependent Adult Abuse cause of action.” (Demurrer; 1:4-10.)
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.”
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.)
Here, the paragraphs 16, 21, and 22 of the Complaint adequately plead neglect under Welfare and Institutions Code section 15610.57 and CACI No. 3103. For example, paragraph 22 of the Complaint pleads, “FVRHMC neglected to provide medical care for GALLEGOS’ physical and mental health needs by failing to take all the necessary steps to properly care for him. FVRHMC failed to adequately inform GALLEGOS’ physician of the nature and extent of his pressure injuries, and failed to adequately and completely carry out doctor’s orders for their treatment and failed to adequately and appropriately document GALLEGOS’ plan of care.” (See, Welfare and Institution Code, § 15610.57, subdivision (b)(2) and (3); Uppercase in Complaint.) Under Fenimore, the Complaint sufficiently alleges recklessness. (Complaint, ¶¶ 9, 14, 25, and 31.) Specifically, paragraph 25 identifies the staffing regulations that Defendant allegedly violated. (See also, Complaint at ¶¶ 34, 36, and 39.
Based on the above, the court, OVERRULES Defendant’s (Fountain Valley Regional Hospital and Medical Center) Demurrer to Plaintiffs’ Complaint filed on 5-2-22 under ROA No. 28. The court ORDERS Defendant to file an answer to the Complaint no later than 9-13-22
Plaintiff is to give notice.
Motion No. 2:
Defendant’s (Fountain Valley Regional Hospital and Medical Center) Motion to Strike Portions of Plaintiffs’ Complaint (Motion), filed on 5-2-22 under ROA No. 32, is DENIED.
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 “Paragraph 4 of prayer, page 14, lines 16-17: ‘For exemplary and punitive damages pursuant to Civil Code §3294 . . .” contained in Plaintiff’s (Luis Gallegos, by and through his Successor-in-Interest, Carmen Gallegos, Carmen Gallegos, Luis Gallegos, Jr., Jose Gallegos, and Lucia Gallegos) First Amended Complaint (FAC) filed on 2-25-22 under ROA No. 2. (Notice of Motion; 1:25-2:9 (Emphasis in Notice of Motion.).)
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.]”
Here, the Complaint sufficiently pleads despicable malicious or oppressive conduct. The Complaint pleads, “. . . decisions by DEFENDANTS as to staffing and census were made irrespective of patient and resident population needs within DEFENDANTS’ facilities, but rather, were determined by the financial needs of the company.” (Complaint, ¶ 34; Uppercase in Complaint.) The Complaint also alleges, “The injuries suffered by GALLEGOS were the result of the DEFENDANTS’ illegal and reckless plan and effort to cut costs in the operation of their facilities and in other ways as alleged, to usurp the sole legal responsibility of the facility Administrator and governing body in the planning and operation of the facilities, and thereby in the undertaking assumed all of the responsibilities of the facilities, including the duty of due care and compliance with all legal standards applicable to general acute care hospitals. In doing so, the DEFENDANTS knew or should have known that their staff would be unable to comply with the standards for care set forth above, and other legal standards, all at the expense of their residents such as GALLEGOS. 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 to reduce labor costs and predictably and foreseeably resulted in the abuse and neglect of many residents and patients and most specifically, GALLEGOS.” (Complaint, ¶ 36; Uppercase in Complaint.) These allegations are 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.
The Motion also contends, “The Plaintiff in the instant action has failed to meet the requirement to allege any factual support to demonstrate intent of any corporate leader of Defendant.” (Motion; 3:22-23.) Paragraphs 9, 11, 14, and 20-49 sufficiently alleges employer liability under Welfare and Institutions Code section 15657, subdivision (c), and Civil Code section 3294, subdivision (b).
Based on the above, the court DENIES Defendant’s (Fountain Valley Regional Hospital and Medical Center) Motion to Strike Portions of Plaintiffs’ Complaint filed on 5-2-22 under ROA No. 32. The court ORDERS Defendant to file an answer to the Complaint no later than 9-13-22.
Plaintiff is to give notice.