Judge: William A. Crowfoot, Case: 22STCV14024, Date: 2022-10-24 Tentative Ruling

Case Number: 22STCV14024    Hearing Date: October 24, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On April 27, 2022, plaintiff Adalberto Acevedo, Jr. (“Plaintiff”) filed this action against defendant PIH Health Hospital – Downey (“Defendant”) asserting causes of action for dependent adult abuse and professional negligence. 

          Defendant demurs to Plaintiff’s cause of action for dependent adult abuse and moves to strike Plaintiff’s request for punitive damages as to his first cause of action.      

II.     LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

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.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.    DISCUSSION

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

Michael K. Liu, counsel for Defendant, declares that he met and conferred to discuss the issues raised in this demurerr.  This declaration is insufficiently detailed to satisfy the meet and confer requirement because it does not identify the date that counsel met and conferred or the manner (i.e., in person or over the telephone).  Nevertheless, the Court proceeds to analyze the demurrer, though it cautions the parties that failure to meet and confer as required in the future may result in the motion being taken off calendar.

          Defendant demurs to Plaintiff’s dependent adult abuse claim on the grounds that (1) Plaintiff was not a dependent adult and (2) Plaintiff fails to state sufficient facts to satisfy the heightened pleading requirements for a dependent adult abuse claim. 

To plead elder abuse, the plaintiff must allege “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].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.”  (Id. at p. 407.)  “[T]he 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.”  (Ibid. [quoting Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790].)  “‘[N]eglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc., supra, 32 Cal.4th at p. 783.)  “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.’”  (Ibid.)  Furthermore, in order to distinguish Dependent Adult Abuse from Professional Negligence, there must be a showing of recklessness, fraud, malice, or oppression.  (Ibid.)  “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature” whereas recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Carter, supra, 198 Cal.App.4th at p. 405 [internal quotation marks omitted].)

In Carter, the court provided examples of cases involving conduct sufficiently egregious to warrant an award of enhanced remedies under the Elder Abuse Act. One such example was the following: “An 88–year–old woman with a broken ankle ‘was frequently left lying in her own urine and feces for extended periods¿of time’ and she developed¿pressure ulcers¿on her ankles, feet and buttocks that exposed bone, ‘despite plaintiff's persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman.’” (Carter, supra, 198 Cal.App.4th at p. 405, citing Delaney v. Baker (1999) 20 Cal.4th 23, 27, 41.)  Similarly, in Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89, the court held that a health care facility’s significant pattern of withholding portions of care may support an award of heightened remedies where the care facility knows it must provide a certain type of care on a daily basis but provides it sporadically, or is supposed to provide multiple types of care, but only provides some of those types of care.  (Sababin, supra, 144 Cal.App.4th at p. 90.)  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.”  (Id.) 

Defendant first argues that Plaintiff is not a “dependent adult.”  Welfare & Institutions Code (“WIC”) section 15610.23 defines a “dependent adult” in two ways.  First, a “dependent adult” means “a person, regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.”  (WIC, § 15610.23, subd. (a).)  Second, a “dependent adult” includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.  (Id., subd. (b).) 

Plaintiff alleges he relied on Defendant for care with his activities of daily living and was assessed by Defendant as a “Care Level 3 patient” which requires “above-average nursing assessment and/or intervention including partial to complete assistance by nursing staff required for hygiene, feeding, positioning, and/or mobility. The patient may have complicated dressing changes, and complex treatments and procedures, or vital signs that require intervention every 2-4 hours.”  (Compl., ¶ 9.) 

Defendant briefly argues, without any authority, that an individual only qualifies as a “dependent adult” if the dependency pre-exists the individual’s entrance to the hospital.  Defendant states that the adult must be dependent before admission because all hospital inpatient admissions involve dependency to some degree.  Defendant cites no authority for this proposition and the Court declines to adopt this unsupported and unsound assertion.  Next, Defendant cites to a lengthy portion of a district court case from the Eastern District of California to argue that the plaintiff, who only alleged that he was mentally ill and psychotic, was not a “dependent adult.”  (Motion, 5:17-22.)  Not only is this case inapposite, but Defendant minimizes Plaintiff’s allegations that he suffered from COVID, pneumonia, type II diabetes, hypertension, and morbid obesity, while omitting the allegation that Plaintiff became ventilator dependent and had an extended stay in the intensive care unit.  (Compl., ¶ 11.)  The Court concludes that Plaintiff has sufficiently alleged that he is a “dependent adult” for purposes of bringing a claim under the Elder Abuse and Dependent Adult Civil Protection Act. 

Second, Defendant argues that Plaintiff’s allegations do not rise to the level of dependent adult abuse because the allegations are limited to a failure to reposition, provide hygiene, and treat pressure ulcers.  While the Court notes that Plaintiff alleges more, specifically that Defendant failed to keep his skin clean and dry and free from urine, feces, and moisture to prevent pressure ulcers from forming.  However, to recover against a corporate defendant for elder abuse, a plaintiff must allege that an officer, director, or managing agent of the corporation personally engaged in wrongful conduct, or else had advance knowledge of the conduct, authorized it, or ratified it. (Civ. Code, § 3294, subd. Welf. & Inst. Code, § 15657, subd. (c).)  Here, Plaintiff does not allege specific facts to show that an officer, director, or managing agent of Defendant personally engaged in the wrongful conduct, or else had advance knowledge of the conduct, authorized it, or ratified it.  Plaintiff’s general allegations of agency in Paragraphs 6 are not specific enough. 

Defendant’s demurrer to the First Cause of Action for Dependent Adult Abuse is SUSTAINED with 20 days’ leave to amend. 

As the Court sustains Defendant’s demurrer, the Court denies the motion to strike as moot.

IV.    CONCLUSION

Defendant’s demurrer is SUSTAINED with 20 days’ leave to amend. 

Defendant’s motion to strike is DENIED as moot.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.