Judge William A. Crowfoot, Case Number: 23AHCV00415, Date: 2023-08-17 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00415, Date: 2023-08-17 Tentative Ruling

This action was filed on February 27, 2023. It asserts claims for dependent adult abuse/neglect, negligence, and wrongful death. The action was filed by plaintiffs Rose Lee Chun Huang (“Rose”), individually and as successor in interest to David Huang (“David”) and guardian ad litem for co-plaintiff Evelyn Huang (“Evelyn”), and Michael Huang (“Michael”). The complaint names Aurora Las Encinas LLC (“ALE”), Signature Healthcare Services, LLC (“Signature”), and Ali Mir-Khan, M.D. (“Dr. Mir-Khan”) as defendants. The Court notes that the plaintiffs share a last name; therefore, for purposes of clarity, it refers to the plaintiffs by their first names with no intended disrespect.

On September 6, 2023, Rose, Evelyn, and Michael (collectively, “Plaintiffs”) filed the operative Second Amended Complaint (“SAC”). Plaintiffs allege that ALE operates a psychiatric hospital that provides 24-hour care. (SAC, ¶ 7.) Plaintiffs allege that Signature Healthcare is the owner, licensee, and manager of ALE’s hospital and contracted with ALE to provide day-to-day management and operational services. (SAC, ¶¶ 7, 9.) Dr. Mir-Khan was David’s attending psychiatrist and worked for ALE and Signature Healthcare. (SAC, ¶¶ 8, 34.)

This action arose when David, a 53-year-old man, died while on an involuntary psychiatric hold at ALE’s psychiatric hospital. (SAC, ¶ 1.) Plaintiffs claim that David’s attending physician, Dr. Mir-Khan, ordered a sitter for David but ALE’s staff left David unattended in his room for more than an hour. (SAC, ¶¶ 1, 3.) Plaintiffs allege that during this time, David’s vitals were not monitored and he did not get necessary medical care, resulting in his death. (SAC, ¶ 1.) Plaintiffs additionally allege that the California Department of Health (“CDPH”) subsequently investigated David’s death and cited ALE for falsifying records to fraudulently state that they checked in on him every fifteen minutes. (SAC, ¶ 2.)

On September 11, 2023, ALE and Signature Healthcare (collectively, “Defendants”) filed this demurrer and motion to strike. Plaintiffs filed opposition briefs on December 6, 2023. On December 13, 2023, Defendants filed a combined reply brief.

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.) 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”].) Like a demurrer, 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.)

The allegations of the SAC are largely identical to those previously alleged in the FAC. Plaintiffs allege that a few days before March 21, 2022, David was noted to have insomnia, episodes of severe crying, screaming, hallucinations, delirium, and delusions. (SAC, ¶ 25.) David had no history of psychiatric problems. (Ibid.) By March 20, 2022, his condition worsened, and on March 21, 2022, his sister called Los Angeles County Department of Mental Health Psychiatric Mobile Response Team (“PMRT”) for assistance. (Id., ¶¶ 26-27.) Two clinicians from PMRT assessed David and determined that he met the criteria for an involuntary psychiatric hold under Welfare and Institutions Code section 5150. (Id., ¶ 27.) After his psychiatric assessment, David was taken to Pomona Valley Hospital Medical Center for emergency psychiatric care. (Id., ¶ 28.) He was given several sedatives and antipsychotic medication including Benadryl, Ativan, and Zyprexa; he was diagnosed with suicidal ideations and chest pain and placed on a 5150 hold. (Ibid.) Because Pomona Valley Hospital Medical Center was not a county-designated psychiatric hospital, David was transferred to ALE’s hospital. (Id., ¶ 29.)

Around 3:00 a.m. on March 22, 2022, David was admitted to ALE’s hospital under an involuntary 5150 hold and placed in a locked room. (SAC, ¶ 33.) Given his condition, Dr. Mir-Khan, David’s attending psychiatrist, ordered 15-minute observations with suicide precautions. (Id., ¶ 34.) Dr. Mir-Khan did not examine David and did not communicate to ALE’s staff that they should be carefully checking David’s respirations, even though the medication David had taken could cause drowsiness and respiratory depression. (Ibid.)

Plaintiffs allege that between 10:30 a.m. and 12:00 p.m., ALE’s staff failed to check on David every 15 minutes and falsified records documenting that they did so. (Id., ¶¶ 35-42.) At 10:49 a.m., David left his room and walked towards the nursing station. (SAC, ¶ 37.) At 10:52 a.m., a social worker took David back to his room. (Ibid.) A minute later, the social worker left David’s room. (Ibid.) The social worker documented that David was disoriented and “fell asleep midway” through a psychosocial assessment. (Ibid.) David’s vitals were not checked. (Ibid.) ALE staff failed to check on David at 11:15 a.m. and 11:30 a.m. An unlicensed mental health worker, Devin Grant, documented that he checked on David and that David was sleeping, but video surveillance shows that he did not check on David and that his documentation is fraudulent. (SAC, ¶ 39.)

Around 11:40 a.m., David’s sister visited to give David some clothes and a note for David asking him to call her. (Id., ¶ 40.) At 12:00 p.m. ALE staff failed to check on David again. (SAC, ¶ 42.) Two minutes later a nurse walked into David’s room. (Ibid.) A nursing administrator later wrote that someone went into David’s room to wake him up to speak with his sister when he was discovered to be pale, unresponsive, not breathing, pulseless, and had urinated himself. (Ibid.) Within seconds of entering David’s room, the nurse rushed out. (Ibid.) ALE staff called a Code Blue at 12:06 p.m. but David was pronounced dead in his hospital room at 12:35 p.m. (Id., ¶ 43.)

Plaintiffs allege that “David suffered respiratory distress and/or a cardiopulmonary arrest and/or a hypoperfusion event during the prolonged period time when he was left unmonitored by [ALE’s] staff and confined to his locked room.” (SAC, ¶ 44.) Plaintiffs allege that ALE’s staff committed collective neglect and withheld care, by failing to monitor David, failing to recognize his respiratory distress and/or cardiopulmonary arrest, failing to check his vital signs, failing to check on him every 15 minutes, and failing to monitor his respirations. (SAC, ¶ 44.) Plaintiffs further allege that ALE’s mental health worker who falsified the observation record believed it was appropriate to check on a patient without entering their room, which violated ALE’s rounding policy that required staff to be within 2 feet of sleeping patients to check 3 respirations through the rise and fall of the chest. (SAC, ¶ 47.) Plaintiffs claim the mental health worker did not know about this policy and that the failure to provide fundamental and basic medical care was a failure in staffing and/or training, which Defendants authorized, created, and/or ratified. (SAC, ¶ 47.) In response to the Court’s previous ruling which sustained Defendants’ demurrer with leave to amend, Plaintiffs have amended their complaint to identify the officers, directors, and managing agents who allegedly were involved, authorized, or ratified any employee’s abuse and neglect. (SAC, ¶¶ 69-71.)

“The [Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)] provides for heightened remedies to afford extra protection to the vulnerable population of infirm elders and dependent adults. Specifically, when the plaintiff proves by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of neglect, the plaintiff may recover attorney fees and costs.” (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1347.) “The EADACPA’s heightened remedies do not apply to acts of professional negligence. Hence, the [EADACPA] does not provide liability for simple or gross negligence by health care providers. Plaintiffs must plead and prove something more than negligence—that is, reckless, oppressive, fraudulent, or malicious conduct.” (Fenimore, supra, 245 Cal.App.4th at p. 1347 [internal citations omitted].

As before, Defendants argue that the Second Amended Complaint sounds in professional negligence and is not a failure to attend to a patient’s nutrition, hydration, hygiene, or medical care. (Demurrer, p. 8.) Defendants argue that the alleged conduct was inadvertent and incidental to the 72-hours of psychiatric care for which David was admitted and therefore was not the “robust caretaking or custodial relationship” required. (Ibid.) Defendants argue that the SAC has nothing to do with failing to provide custodial care, but alleges professional negligence because the issues involve whether the healthcare providers acted below the standard of care by failing to use the skill and technique required for monitoring patients. (Demurrer, p. 12.)

Defendants also argue that no custodial care was given because Plaintiff was only admitted on a 72-hour hold to be treated for a psychotic break and “was not there to have hygiene, nutritional, or other custodial care.” (Demurrer, p. 16.) Defendants primarily rely on Winn v. Pioneer Meical Group, Inc. (20160 63 Cal.4th 148, in which the California Supreme Court found that a “robust caretaking or custodial relationship” is necessary for an EADACPA claim and is contrasted with a “casual or temporally limited affiliation.” (Id. at p. 158.) Defendants also cite to Kruthanooch v. Glendale Adventist Med. Ctr. (2022) 83 Cal.App.5th 1109, in which the appellate court applied Winn and reiterated that a “substantial relationship” required “ongoing responsibility for one or more basic needs.” (Id. at p. 1129.)

The language of W&I Code section 5150 undercuts Defendants’ claim that David was not at their facility for custodial care. Pursuant to section 5150, a person is taken into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility, if they are considered “a danger to others, or to themselves, or gravely disabled” as the result of a mental health disorder. Therefore, the custodial care was not merely incidental to the psychiatric care, but part and parcel of the determination which led to his hospitalization in the first place. Also, the fact that David was only in Defendant’s custody for 13 hours does not persuade the court that the relationship was “temporally limited.” David’s stay was limited to 13 hours because he died shortly after his admission when Defendants allegedly failed to provide care.

Defendants claim that the SAC impermissibly includes a prayer for punitive damages and attorneys’ fees. Defendants argue that Plaintiffs are required to file a motion under Code of Civil Procedure section 425.13 and seek leave before claiming attorneys’ fees. (Motion to Strike, p. 3.)

Because the Court overrules Defendants’ demurrer to the cause of action under EADACPA, the motion to strike Plaintiffs’ prayer for punitive damages and attorneys’ fees is DENIED.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.