Judge: William A. Crowfoot, Case: 22STCV15684, Date: 2022-12-06 Tentative Ruling

Case Number: 22STCV15684    Hearing Date: December 6, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 11, 2022, plaintiffs Eric Browning (“Browning”) and Terri Hayes (collectively, “Plaintiffs”) filed this action for dependent abuse and neglect, negligence, and loss of consortium against Kaiser Foundation Hospitals (“Kaiser”) and Southern California Permanent Medical Group (“Medical Group”) (collectively, “Defendants”).  On August 16, 2022, Defendants jointly filed a demurrer to Plaintiffs’ elder abuse cause of action.  Defendants also filed a motion to strike Plaintiffs’ prayer for punitive and exemplary damages. 

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

Meet and Confer

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).)  

          David J. Ozeran, counsel for Defendants, declares that on July 25, 2022, he emailed a meet and confer letter to Plaintiff’s counsel.  Later that same day, he and Plaintiff’s counsel met and conferred telephonically regarding the issues raised in the demurrer and motion to strike.  The Court finds that the meet and confer requirement is satisfied. 

          Demurrer

Defendants demur to the first cause of action for dependent adult abuse and neglect.  To plead dependent adult 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.)  There must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants.  (See Civ. Code, § 3294; Cal. Welf. & Inst. Code, § 15657(c).)

As background, Plaintiffs allege that Kaiser is a managed care organization that contracts with Kaiser Foundation Health Plans to provide hospital services to enrollees of Kaiser Foundation Health Plans.  (Compl., ¶ 4.)  Similarly, Medical Group is alleged to be a managed care organization that exclusively provides physicians services to Kaiser Foundation Health Plan enrollees.  (Compl., ¶ 3.)  Browning was hospitalized at Kaiser’s Woodland Hills Medical Center from December 6, 2020, through February 12, 2021 to treat severe sepsis and acute organ dysfunction.  (Compl., ¶¶ 15-16.)  Browning received 24-hour care and was allegedly dependent on Kaiser for hygiene, grooming, medical attention, and protection while he was intubated and sedated for nearly a month.  (Compl., ¶ 17.)  Plaintiffs allege that Browning required physical assistance with bed mobility to avoid developing pressure wounds, but that Defendants failed to implement care plans and interventions such as a turning schedule or pressure-relieving medical devices to protect Browning.  (Compl., ¶ 17.)  As a result, Browning was allegedly forced to lay in his bed without being repositioned for prolonged periods of time and developed a pressure ulcer to his coccyx while hospitalized.  (Compl., ¶ 17.)  Plaintiffs allege that Defendants failed to continually assess and monitor Browning for skin breakdown, failed to keep him clean and dry, failed to turn and reposition him every two hours, and failed to develop an adequate plan of care.  (Compl., ¶ 18.) 

Plaintiffs allege that Browning was a dependent adult who presented on December 6, 2020, with severe sepsis and acute organ dysfunction, with a history of diabetes type two, hyperlipidemia, acute kidney injury, and a kidney transplant in July 2014.  (Compl., ¶ 23.)  On December 18, 2020, Browning was placed on a ventilator due to persistent hypoxia on high flow oxygen, labored breathing, and lethargy.  (Compl., ¶ 24.)  He remained on a ventilator for approximately 6 weeks and was sedated for nearly a month.  (Ibid.)  While admitted, Browning was allegedly dependent on Defendants for activities of daily living including nutrition, hydration, hygiene care, wound care, continent care, medication management, and protection from known health and safety hazards including skin breakdown.  (Ibid.) 

On December 21, 2020, Elie Zouein, M.D. (“Dr. Zouein”) noted that Browning had developed a sacral decubitus ulcer, but there were no orders, assessment, or staging of the wound.  (Compl., ¶ 25.)  The pressure wound was documented every day between December 21, 2020, until January 4, 2021, with no orders relative to wound care.  (Ibid.)  On January 5, 2021, Raymond Machi, M.D. noted that Browning had a sacral decubitus ulcer.  (Compl., ¶ 26.)  Browning was provided with wound care to his right and left ear, but not to his sacrum.  (Ibid.)  After more than two weeks after Browning developed ulcers, general nursing interventions were implemented.  (Compl., ¶ 27.)  On January 9, 2021, several providers noted that Browning had a sacral decubitus ulcer and a nurse noted “moisture associated skin damage” to his scrotum, but no orders were issued.  (Compl., ¶ 28.)  On January 10, 2021, Browning’s ulcer was documented as a Stage III pressure wound.  (Compl., ¶ 29.)  Wound assessments were performed on January 15, January 23, January 29, February 4, and February 9, 2021.  (Compl., ¶¶ 30-34.)  On February 12, 2021, Browning was discharged from the hospital to a skilled nursing facility. 

Defendants argue that Plaintiffs fail to plead a cause of action for elder abuse because the facts pled do not amount to the type of acts of egregious misconduct needed to maintain an elder abuse claim and there are no facts of authorization or ratification on the part of an officer, director, or managing agent.  Defendants contend that Plaintiffs have alleged a claim for medical negligence, but not dependent adult abuse.  Defendants claim that alleging substandard medical care resulted in the development of pressure ulcers is no different than alleging substandard care resulted in other medical conditions such as an infection, which would fall under a claim for medical negligence.

          In their reply brief, Defendants cite to the recent case of Estate of Nick Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109 and argues that their alleged actions do not constitute “neglect.”  In Kruthanooch, the Second District of the Court of Appeal found that the failure to properly screen a patient and before conducting magnetic resonance imaging (“MRI”) did not constitute “neglect.”  (Id. at pp. 1134-1135.)  The Kruthanooch court noted that the harm – second degree burns to the abdomen after electrocardiogram pads were not removed prior to the MRI – came from the negligent undertaking of medical service, not the failure to provide medical care or attend to the patient’s basic needs and comforts.  (Ibid.)  Further, the court noted that an MRI scan is not a basic need.  (Id. at p. 1136.) 

          Here, the failure to prevent the development of pressure ulcers and provide adequate wound care is different from the alleged harm in Kruthanooch.  Unlike an MRI, attending to a patient’s repositioning and continence needs, especially while the patient is intubated and sedated, is part of attending to that patient’s needs and comforts.  Accordingly, the Court finds that Plaintiffs’ allegations are sufficient to allege reckless neglect.  (See Delaney v. Baker (1999) 20 Cal.4th 23, 27, 41 [finding neglect when an elderly resident died with Stage III and Stage IV pressure ulcers, and the defendants “failed, over an extended period of time, to attend to her advanced bedsores”]; see also Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [finding that a significant pattern—i.e., a repeated withholding of care—of failing to follow a care plan may constitute recklessness].)

          However, without specific factual allegations of corporate ratification, Plaintiffs’ elder abuse claim cannot proceed.  Plaintiffs only assert conclusory allegations that the neglectful conduct was ratified by Defendants’ managing agents, including “Defendants [sic] Administrator, Director of Nursing, and Director of Quality Assurance.”  (Compl., ¶ 38.)  Plaintiffs also broadly allege that Defendants operated the facility with insufficient staff and knew or should have known that “reduc[ing] staff, supervision, care, and supplies to dangerously low levels” would result in patient injury or death.  (Compl., ¶¶ 39-41.)  However, Plaintiffs do not specifically allege how Defendants’ failure to provide staff or supplies caused Browning’s injuries.  Accordingly, Defendants’ demurrer to the First Cause of Action is SUSTAINED with 20 days’ leave to amend. 

          Motion to Strike

          Defendants move to strike paragraph 44 of the Complaint, which is part of the First Cause of Action for dependent adult abuse, and Plaintiffs’ prayer for punitive and exemplary damages as to the First Cause of Action. 

          Because the Court sustains the demurrer to the first cause of action, the motion to strike is moot.   

IV.     CONCLUSION

Defendants’ demurrer is SUSTAINED with 20 days’ leave to amend. 

Defendants’ motion to strike is 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.