Judge Wesley L. Hsu, Case 21STCV35442 2023-03-30 Tentative Ruling

1. Defendant Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center’s Demurrer to Plaintiffs’ Third Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

2. Defendant Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center’s Motion to Strike Portions of Plaintiffs’ Third Amended Complaint is DENIED as MOOT.

Plaintiffs Tammy Denney and Dyanna Denney, as heirs and successors-in-interest to Janice Larcom, decedent (“Plaintiffs”) allege as follows: On April 15, 2020, Janice Larcom (“Larcom”) was discharged from Kaiser’s Fontana Medical Center to Inland Valley Care and Rehabilitation Center. Larcom died on September 26, 2020 as a result of deficiencies in care.

On February 16, 2022, this case was transferred from Department 29 of the Personal Injury Court to this instant department.

On December 21, 2022, Plaintiffs filed a Third Amended Complaint (“TAC”), asserting causes of action against Defendants Inland Valley Care and Rehabilitation Center, Inland Valley Partners, LLC, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Inc., Kaiser Foundation Health Plan and Does 1-50 for:

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Defendant Inland Valley Partners, LLC dba Inland Valley Care and Rehabilitation Center (“Inland Valley”) demurs, per Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the second cause of action in Plaintiffs’ TAC, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”). (Welf. & Inst. Code § 15600 et seq.)

At the outset, the EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers. (Delaney v. Baker (1999) 20 Cal.4^th 23, 32; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4^th 771, 785.) Several factors “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; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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). 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. 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4^th 396, 406-407 [quotation marks and citations omitted].)

Neglect under the EADACPA “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. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4^th 81, 89 [quotation marks and citation omitted].)

Moreover, “[i]n order to obtain the [EADACPA’s] heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf & Inst. Code, § 15657 [requiring ‘clear and convincing evidence that a defendant is liable for’ elder abuse and ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse’] with Civ. Code, § 3294, subd. (a) [requiring ‘clear and convincing evidence’ that the defendant has been guilty of oppression, fraud or malice].)” (Covenant Care, supra, 32 Cal.4^th at 789.) When an elder abuse claim is brought against a corporate defendant, the plaintiff must further show that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welf & Inst. Code, § 15657, subd. (c); Civ. Code, § 3294.)

The court determines that Plaintiffs have failed to plead a cause of action for elder abuse.

Plaintiffs have alleged that decedent was hospitalized at Kaiser; no specified time or reason for said hospitalization is given, although it was said to be a “lengthy stay.” (TAC, ¶¶ 10 and 23.) On April 15, 2020, decedent was discharged from Kaiser’s Fontana Medical Center to Inland Valley. (Id.) Decedent was 69 years old, morbidly obese, ventilator-dependent and required full assistance with her activities of daily living. (Id.) Decedent was admitted to Inland Valley for treatment, care, and therapy required to wean her off the ventilator. (Id.) Decedent had “existing” wounds in the sacral area and around her abdomen. (Id., ¶¶ 12 and 36.) Inland Valley staff left decedent to lie for hours in her own feces, did not bathe or shower her and did not turn and re-position her as required. (Id.) No information is alleged as to when these alleged failures occurred or the frequency with which they occurred. Decedent’s pressure sores became worse, with one becoming unstageable. (Id., ¶ 12.) It is not specified when decedent’s pressure sores are alleged to have worsened. Decedent’s pressure sores became infected at some unspecified time, which led to sepsis and resulted in decedent’s September 26, 2020 death. (Id.)

Plaintiffs have further generically alleged that “on numerous occasions during her admission and residency at Defendant INLAND VALLEY’s facility, Ms. Larcom suffered from abuse, neglect and other preventable complications and injuries. Moreover, on numerous occasions during her admission, Defendant INLAND VALLEY, and its managing agents, officers, directors and others that direct corporate affairs, failed to provide Ms. Larcom medically necessary care, medication, nutrition, hydration, physical therapy, occupational therapy and other rehabilitative services. In addition, on numerous occasions during her admission and residency at Defendant INLAND VALLEY’s facility, Defendant INLAND VALLEY, and its managing agents, officers, directors and others that direct corporate affairs, failed to monitor Ms. Larcom for changes in her condition, failed to properly document and report changes in her condition, and otherwise failed to supervise and prevent harm to Ms. Larcom.” (TAC, ¶ 33.)

Plaintiffs urge that they have now adequately pled this cause of action via new allegations contained in Paragraph 38. At Paragraph 38, Plaintiffs allege that on or about June 30, 2022 (at the latest) through and up to the time of her death, decedent “was supposed to be” provided care by three specifically identified nurses (i.e., Sonya Santos, RN, Mila Malabanan, RN, and Anita Infante, RN) “and others,” that these individuals and “other nurses/employees,” were aware from the records that decedent required turning and prepositioning, as well as cleaning/bathing services, that despite this knowledge, these individuals at unspecified “aforementioned times (and other times by other nurses)” skipped the repositioning and cleansing care required “because they were busy with taking care of too many patients/residents (due to overstaffing[1] underfunding. . .) and because they felt that decedent would likely succumb, from her other medical conditions soon anyway.” The former allegation is conclusory and not factually supported. Again, as noted by the court previously, this latter allegation is not factually supported and based on conjecture of multiple individuals’ state of mind.

Although Plaintiffs set forth dates and times[2] Santos, Malabanan and Infante allegedly “intentionally chose not to provide this care,” they still fail to allege any ratification or authorization by the named defendants in the lawsuit. As pointed out by the court in its rejection of the previous complaint, this is fatally defective.

With respect to the issue of understaffing, Plaintiffs again allege that an unspecified investigation was conducted at an unspecified time by the Department of Public Health and that, during this time, “the above-referenced nurses (and others)” advised investigators that “residents’ physicians orders [for certain physician ordered care, such as exercises or application of special devices to prevent skin breakdown] were not done” when only one RNA worked in the subacute unit. (Id.)

Plaintiffs have not alleged dates, if any, when only one RNA worked in the subacute unit or that decedent was in the subacute unit or that only an RNA could perform repositioning and cleansing care.

Plaintiffs allege that additionally, “investigators found no evidence that physician-ordered care was provided to decedent on 9/5, 9/6, 9/7, 9/8, 9/11, 9/12, 9/13, 9/15, 9/18, 9/20, 9/24, 9/26 and 9/29 of 2020,” yet they fail to identify what specific “physician-ordered care” was in place as to decedent. Further, September 29, 2020 was three days after decedent’s death, which suggests that this allegation pertains to an investigation of all residents in general and not to decedent in particular. It is unclear if this allegation involves to the same or a different investigation by the Department of Public Health.

Plaintiffs conclude that “nurses could have requested help or worked longer hours to provide life saving care, but deliberately chose not to—resulting in decedent’s death,” but fail to factually support said statement. (Id., ¶ 38.)

Plaintiffs have failed to plead with specificity facts demonstrating that Inland Valley failed to provide care to Plaintiffs’ decedent “either with knowledge that injury was substantially certain to befall the elder or dependent adult . . . or with conscious disregard of the high probability of such injury. . .” (Carter, supra, 198 Cal.App.4^th at 407.) Plaintiffs have otherwise made generic allegations of “underfunding” and “ignor[ing] laws,” “disregard” for decedent’s “care plan(s),” “disregard[ ] [of] orders,” and “disregard[ ] [of] its own policies and procedures,” without providing any specific facts regarding same. Further, Plaintiffs have failed to plead any causal link with specificity. Plaintiffs have failed to plead with specificity facts demonstrating the alleged corporate authorization or ratification of any wrongful conduct.

Accordingly, Inland Valley’s demurrer to the second cause of action of the TAC is sustained.

Inland Valley‘s motion to strike is denied as moot, based upon the ruling made on the demurrer.

[1] Plaintiffs’ reference to “overstaffing” appears to be a clerical error.

[2] One of the dates listed, September 29, 2020, is three days after decedent’s date of death.