Judge William A. Crowfoot, Case Number: 23AHCV02076, Date: 2024-02-27 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV02076, Date: 2024-02-27 Tentative Ruling

On September 8, 2023, plaintiffs Bernadette Galindo, individually and as successor in interest to Arthur Galindo (“Galindo”), and Amalia Galindo (collectively “Plaintiffs”) filed this complaint against defendants Daryl Banta, M.D. (“Dr. Banta”) and Huntington Health (erroneously sued as “Pasadena Hospital Association, Ltd.”).

On October 27, 2023, Huntington Health filed this demurrer. Huntington Health demurs to Plaintiffs’ Second Cause of Action for “Reckless Neglect in Violation of Elder Abuse and Dependent Adult Civil Production Act”, Third Cause of Action for “Physical Elder Abuse”, and Fourth Cause of Action for “Battery.” Huntington Health concurrently filed a motion to strike Plaintiffs’ prayer for punitive damages.

Plaintiffs dismissed Dr. Banta from the action on December 11, 2023, leaving Huntington Health as the remaining defendant.

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.)

1. Plaintiffs’ Second and Third Causes of Action for Elder/Dependent Adult Abuse

Defendant argues that Plaintiffs’ Second and Third Causes of Action fail because Galindo was not a “dependent adult” as defined by Welfare & Institutions Code section 15610.23 of the Elder Abuse and Dependent Adult Civil Production Act (“EADACPA”). Section 15610.23 of the EADACPA defines “dependent adult” as “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.”

"The Act [i.e. The Elder Abuse and Dependent Adult Civil Protection Act] does not create a cause of action as such, but provides for attorney fees, costs and punitive damages under certain conditions. (ARA Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1563-1564, 23 Cal.Rptr.2d 224; see Welf. & Inst.Code, § 15657.) Abuse of a dependent adult or elder will justify heightened remedies when the cause of action includes facts showing the following: “(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering[; or] [¶] (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst.Code, § 15610.07.)

In opposition, Plaintiffs argue that Galindo was not a dependent adult, but an elder. (Compl., ¶ 19.) Section 15610.27 defines an “elder” as “any person residing in this state, 65 years of age or older.” (W&I Code, § 15610.27.)

Regardless of whether Galindo is alleged to be a “dependent adult” or an “elder”, Plaintiffs fail to allege facts that rise to the level of conduct which is entitled to heightened remedies provided by the EADACPA. Acts of simple or even gross negligence will not justify the additional civil damage remedies. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783-785 (“Covenant Care”).) Where the elder or dependent adult has died, the neglect or abuse resulting in pain or mental suffering must amount to recklessness, oppression, fraud or malice, in order to justify the heightened remedies. (Mack v. Soung (2000) 80 Cal.App.4th 966, 972.) A claim under the Elder Abuse Act must be pled with particularity. (Covenant Care, supra, 32 Cal.4th at p. 790.

Here, Plaintiffs allege that Galindo was admitted to Huntington Hospital for a paracentesis, which was performed on September 8. 2022. (Compl., ¶¶ 23, 26.) By September 10, 2022, Galindo’s condition allegedly seemed improved and on September 11, 2022, his prescription for methadone was discontinued. (Compl., ¶¶ 26-27.) On September 12, 2022, “code was called for shortness of breach [sic] and decreased oxygen saturation.” (Compl., ¶ 27.) After he was stabilized and the code was called off, he allegedly became agitated and aggressive and began pulling on his lines and tubes. (Compl., ¶ 27.) Defendants allegedly began to restrain his arms and Plaintiffs, when informed of the restraints, allegedly insisted that the restraints be removed and suggested more frequent checks. (Compl., ¶ 27.) Defendants allegedly did not comply with their request. (Ibid.) Two days later, on September 14, 2022, Galindo began projectile vomiting black emesis all morning. (Compl., ¶ 28.) This continued for several days, as did his agitation. (Ibid.) Plaintiffs allege that nothing was given to Galindo to prevent the vomiting and Defendants continued to restrain him. (Ibid.) Plaintiffs allege that a nurse walked out of the room when Galindo was covered in vomit; some of which was dry and old and some of which was wet and new. (Ibid.) Galindo was allegedly thrashing and gasping and unable to breathe. (Ibid.) He was intubated and Plaintiffs were later informed that his lungs and stomachs were full of vomit that had to be pumped out. (Ibid.) On September 28, 2022, Galindo aspirated emesis and was intubated again. (Compl., ¶ 30.) He remained restrained. (Ibid.) Plaintiffs allege that Galindo never recovered and on October 8, 2022, he died. (Compl., ¶ 31.)

Based on the Complaint’s allegations, Plaintiffs only allege acts that give rise to a claim of professional negligence, without any allegations of “recklessness, oppression, fraud, or malice” or a significant pattern of withholding care. Also, Plaintiffs’ allegations of minimum staffing ratios, care plans, or policies are conclusory insofar as they are supposed to show that care was withheld. (Compl., ¶¶ 35-43; see Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) Furthermore, when an elder abuse claim is brought against a corporate defendant, the plaintiff must further allege that an officer, director or managing agent committed, authorized or ratified the abuse or neglect. (Welfare & Inst C § 15657(c); CC § 3294.) Plaintiffs do not allege that any officer, director, or managing agent of Defendants committed, authorized, or ratified the abuse or neglect.

Accordingly, the demurrer to the Second and Third Causes of Action is SUSTAINED.

The elements of medical battery are: (1) that defendant performed a medical procedure without the plaintiff's consent, or that plaintiff consented to one medical procedure but defendant performed a substantially different medical procedure; (2) the plaintiff was harmed; and (3) that defendant's conduct was a substantial factor in causing plaintiff's harm. (CACI No. 530A.) Battery may also be found if a substantially different procedure is performed: "Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.)

Defendant argues that the decision to use restraints was predicated on Galindo’s attempts to remove lines and tubes necessary for his continued care and that Plaintiffs fail to allege any facts that show a deliberate intent to deviate from any consent provided. In opposition, Plaintiffs allege, in relevant part, that “[c]onstraining [Galindo] was a willful and unlawful use of force upon [his person] and constituted a battery.” (Compl., ¶ 54.) Plaintiffs argue that they and Galindo did not consent to the use of restraints and that Defendant was instructed not to use them, therefore Defendant’s continued use of them constitutes deliberate intent and forms a basis for battery. At this stage in the pleadings, especially when Defendant fails to cite any case law in their moving or reply papers holding as a matter of law that using restraints in the course of providing general medical care precludes a battery claim, Plaintiffs have the better argument.

A claim for punitive damages cannot be alleged against a medical provider without leave of court. (Code Civ. Proc., § 425.13.) Plaintiffs argue that this prohibition does not apply to elder abuse claims. (Opp., pp. 2-3.) However, the Court sustains Defendant’s demurrer to Plaintiffs’ claims of elder abuse. Therefore, punitive damages can only be alleged after seeking leave of court.

Defendant’s demurrer to the Second and Third Causes of Action is SUSTAINED with 20 days’ leave to amend. Defendant’s demurrer to the Fourth Cause of Action is OVERRULED.

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.