Judge: Yolanda Orozco, Case: 22STCV25765, Date: 2023-03-15 Tentative Ruling
Case Number: 22STCV25765 Hearing Date: March 15, 2023 Dept: 31
DEMURRER WITH MOTION TO STRIKE
TENTATIVE RULING
Kaiser Defendants’ demurrer to Plaintiff’s Complaint is
SUSTAINED WITH 30 DAYS LEAVE TO AMEND.
Defendants’ Motion to Strike is also GRANTED WITH 30 DAYS LEAVE TO AMEND.
Background
On August 95, 2022, Plaintiff George Fuller by and
through Marjorie Grant—Fuller filed a Complaint against Defendants Beverly Hills Rehabilitation Centre (“BHRC”); Kaiser Foundation Hospitals; Southern
California Permanente Medical Group; Kaiser Foundation Health Plaint; and Does
1 to 200 for:
1) Elder Abuse;
2) Negligence; and
3) Violation of Residents’ Rights.
On February 24, 2023, the Court granted Defendant Beverly
Hills Rehabilitation Centre’s Motion to Compel Arbitration and Stay
Proceedings. (Min. Or. 02/24/23.)
On October 11, 2022, Defendants Kaiser Foundation Health
Plan, Inc.; Kaiser Foundation Hospitals; and Southern California Permanente
Medical Group (collectively “Kaiser Defendants”) filed a Demurrer to Plaintiff’s
Complaint.
On October 12, 2022, Kaiser Defendants also filed a Motion
to Strike.
Plaintiff filed opposing papers on March 01, 2023.
Kaiser Defendants submitted a reply to the opposition to
the Demurrer and Motion to Strike on March 03, 2023.
MEET AND CONFER
Before filing
a demurrer or motion to strike, the moving party must meet and confer in person
or by telephone with the party who filed the pleading to attempt to reach an
agreement that would resolve the objections to the pleading. (Code Civ. Proc.,
§§ 430.41, 435.5.) “Any determination by the court that the meet and confer
process was insufficient shall not be grounds to overrule or sustain a
demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)
Defense counsel asserts he initiated the meet and confer
process on August 27, 2022, and on August 31, 2022. (Ozernan Decl. ¶ 3.) Plaintiff’s counsel
represented that a first amended complaint would be filed. (Id.) Having
not received a first amended complaint by the agreed-upon deadline, Defense
counsel proceeded to file this demurrer. (Id.) Thus, the meet and confer
requirement has been met.
Legal Standard
A. Demurrer¿¿¿
¿¿
A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the
pleading that are judicially noticeable.¿ (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)¿ “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff’s proof need not be alleged.”¿ (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
872.)¿ For the purpose of testing the sufficiency of the cause of action, the
demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿ A demurrer
“does not admit contentions, deductions or conclusions of fact or law.”¿ (Daar
v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿
¿
B. Motion to Strike¿¿
¿
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 of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter inserted
in any pleading; or (2) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the court. (Code of Civ. Proc., § 436, subds. (a)-(b); 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”].)¿¿¿
¿¿
C. Leave to Amend¿¿¿
¿¿
“Where the defect raised by a motion to strike or by demurrer
is reasonably capable of cure, leave to amend is routinely and liberally
granted to give the plaintiff a chance to cure the defect in question.” (CLD
Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)
The burden is on the complainant to show the Court that a pleading can be
amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿
Discussion
I.
Demurrer
Allegations in
Complaint against Kaiser Defendants
Plaintiff alleges that he was admitted to Kaiser on February 16, 2022, for care due to “severe sepsis/MRSA Bacteremia.” (Compl. ¶ 22.) On the same day as admission, wounds were documented on the Plaintiff’s sacrum as a stage II, and on Plaintiff’s calf. (Comp. ¶ 23.) On February 24, 2022, Plaintiff was transferred from Kaiser to Beverly Hills Rehabilitation Center (“BRHC”) due to MRSA blood and bacteremia. (Compl. ¶ 24.)
The Complaint alleges that Kaiser Defendants neglected to provide medical care for Plaintiff’s physical and mental health needs by failing to take the necessary steps to properly care for Plaintiff. (Compl. ¶ 43.) Kaiser failed to adequately inform Plaintiff’s physician of the nature and extent of his injury and to carry out the doctor’s orders for his treatment and to adequately and appropriately document Plaintiff’s plan of care. (Compl ¶ 43.)
Plaintiff alleges that Defendant’s nursing staff failed to reposition Plaintiff at least every two hours and inspect his skin twice a shift as required by his care plan. (Compl. ¶ 36.) Consequently, Plaintiff developed multiple injuries to his sacrococcyx and heels and continues to suffer extreme pain and suffering. (Id.)
Plaintiff asserts that his injuries would not have occurred if Kaiser adhered to the applicable rules, laws, and regulations. (Compl. ¶ 45.) Chronic understaffing at Kaiser and deliberate violation of Title 22 §§ 70214 (staff training) and 702117 (staffing ratios), resulted in Kaiser failing to provide proper care (repositioning and skin inspections) to prevent skin breakdown due to Kaiser’s staff lack of adequate time and knowledge to provide the required care. (Compl. ¶ 46.)
Kaiser is alleged to have known of Plaintiff’s pressure injuries and knew of his neglect, but through its managing agent, failed to terminate, discipline, or repudiate the acts and omission of any employee that caused Plaintiff’s neglect. (Compl. ¶ 47.)
Kaiser’s knowledge is presumed based on Plaintiff’s prior medical history and assessment. (Compl. ¶ 49.) Kaiser failed to inform Plaintiff’s physician about the nature and extent of his medical issues and failed to adequately and completely carry out the doctor’s order for Plaintiff’s treatment and appropriately document Plaintiff’s plan of care. (Compl. ¶ 49.)
Due to Kaiser’s understaffing and training, Plaintiff did not receive proper care to prevent skin breakdown and infection and failed to ensure that Plaintiff received adequate hydration and nutrition to stave off infections and skin breakdowns and failed to timely react to Fuller’s emergent conditions by failing to prevent and treat infections and skin breakdown. (Compl. ¶¶ 54, 55.)
Demurrer to 1st COA: Elder Abuse
Kaiser Defendants now demurrer to Plaintiffs First Cause of Action for Elder Abuse on the basis that Plaintiff fails to state sufficient facts to support the cause of action.
The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15610, et seq.) was enacted to provide enhanced remedies “‘to encourage private, civil enforcement of laws against elder abuse and neglect. (Citation).” (Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, 981–982.) An elder is any person residing in California who is over the age of 65. (Welf. & Inst. Code, § 15610.27.)
To state a cause of action for Elder Abuse based on neglect, the plaintiff must plead facts showing two elements: (1) the defendant has subjected an elder to statutorily-define neglect under Welfare an Institution Code section 15610.58 and (2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (See Welf. & Inst. Code, § 15657; see Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.)
As to the first element, the Welfare and Institutions Code section 15610.57 subdivision (a) defines “neglect” as the following:
“(1) The negligent
failure of any person having the care or custody of an elder or a dependent
adult to exercise that degree of care that a reasonable person in a like
position would exercise.
(2) The negligent failure of an elder or dependent adult to
exercise that degree of self
care that a reasonable person in a like
position would exercise.”
(Id.)
Neglect also includes the failure to (1) assist in personal
hygiene or in the provision of food, closing or shelter, (2) provide medical
care for physical and mental health needs, (3) protect from health and safety
hazards, and (4) prevent malnutrition or dehydration. (Welf. & Inst. Code,
§ 15610.07 subd. (b).) Elder Abuse is different from professional negligence
and does not concern the undertaking of medical care, but the failure to
provide care. (See Covenant Care,
Inc. v. Superior Court (2004) 32 Cal.4th
771, 789.)
As to the second element, the Elder Abuse Act does not apply to simple or gross negligence by health care providers but requires that the plaintiff prove, by clear and convincing evidence, that the defendant is guilty of reckless, oppressive, fraudulent, or malicious conduct. (Delaney v. Baker (1999) 20 Cal.4th 23, 31.) Furthermore, when an elder abuse claim is brought against a corporate defendant, the plaintiff must further allege that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welfare & Inst Code, § 15657 subd. (c); Civil Code, § 3294.) Lastly, a claim for Elder Abuse must be pled with particularity. (Covenant Care, Inc., supra, 32 Cal.4th at 790.)
Plaintiff’s pleadings allege that
he was under the care of Kaiser Defendants for a limited time, from February
16, 2022, to February 24, 2022. (Compl. ¶¶ 22, 23.) In Worsham v. O'Connor
Hospital (2014) 226 Cal.App.4th 331, the Appeal Court held that as a
matter of law, the chronic understaffing and inadequate training that resulted
in the plaintiff’s fall and injury in that case was due to professional negligence
in the undertaking of medical services rather than in the failure to provide
services for physical and mental health needs. (Id. at 337-338.)
Accordingly, Plaintiff’s allegations that Kaiser was understaffed, and
inadequately trained staff support the finding that Plaintiff’s skin breakdown
and infection were due to the insufficient undertaking of medical services
rather than the failure to provide service.
(See Compl. ¶¶ 54, 55.)
Although Plaintiff cites Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339 to support the finding of recklessness due to understaffing, the plaintiff in Fenimore suffered a hip fracture that went untreated for four days and resulted in the plaintiff’s death. (Id. at 1349.) Here, the plaintiff fails to plead sufficient facts to show how understaffing by Kaiser Defendants resulted in the failure to provide medical services to the plaintiff while he was under Kaiser Defendants’ care. Moreover, Plaintiff fails to allege what specific injuries to Plaintiff’s sacrococcyx and heels developed under Kaiser Defendant’s care or that such injuries were exacerbated by the Kaiser Defendants prior to his transfer to BRHC.
Furthermore, Plaintiff fails to explain how the failure to reposition Plaintiff every two hours and inspect his skin twice a shift also constitutes the failure to provide care rather than negligence in the undertaking of medical care. (Compl. ¶ 36.) In Delaney, supra, 20 Cal.4th 23, the California Supreme Court found that the plaintiff had proven reckless neglect because there was evidence that defendant facility had failed over an extended period of time to attend to the resident’s bedsores, despite knowledge of the resident’s deteriorating condition and plaintiff’s repeated efforts to intervene on the resident’s behalf. (Id. at 41.)
Similarly, in Intrieri, supra, 117 Cal.App.4th 72, the plaintiff’s son had observed pressure sores developing on the plaintiff after her admission to the defendant’s facility. (Id. at 85.) The plaintiff’s son complained to the physician assigned by the defendant facility, but no changes were made to the plaintiff’s care. (Id.) The plaintiff’s son went as far as to hire an outside physician to develop a new care plan but the defendant facility’s staff continued to fail in following the new care plan; despite the plaintiff’s son confronting the staff again. (Id.) Consequently, the resident developed infected pressure sores in her right foot that eventually led to the amputation of her right toe and her right leg below the knee. (Id.) The Court of Appeal found that there was sufficient evidence that the defendant facility had acted with reckless neglect.
Here, Plaintiff’s Complaint lacks the requisite specificity to sustain a cause of action for Elder Abuse. (See Covenant Care, Inc., supra, 32 C.4th at 790 [finding that a claim for Elder Abuse must be pled with particularity].) Plaintiff fails to specify which Defendant failed to inform Plaintiff’s physician as to the nature and extent of Plaintiff’s injury and if the physician was the one provided by Kaiser or BRHC. (See Compl. 43.) Plaintiff also fails to specify which doctor’s order Kaiser Defendants are alleged to have failed to carry out. (Id.) Furthermore, in the opposing papers, Plaintiff fails to explain why the Kaiser Defendants would have superior knowledge of these facts such that Plaintiff’s lack of particularity should be excused. Plaintiff has alleged knowledge of a doctor’s order that was not followed by Kaiser Defendants and Plaintiff should be able to plead facts relating to the nature of the order.
The Court finds that the facts as pled fail to sufficiently allege reckless negligence in the failure to provide medical services sufficient to support a cause of action for Elder Abuse.
The demurrer to the first cause of
action is SUSTAINED WITH LEAVE TO AMEND.
II.
Motion to Strike
To state a claim for punitive
damages under Civil Code section 3294, a plaintiff must allege specific facts
showing that the defendant has been guilty of malice, oppression, or fraud. (Smith
v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)
The basis for punitive damages must be pled with specificity; conclusory
allegations devoid of any factual assertions are insufficient. (Id.)
“Malice” is defined in section 3294 subdivision (c)(1) as
“conduct which is intended by the defendant to cause injury” or “despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” (Id.) “Oppression” is
defined in section 3294 subdivision (c)(2) as “despicable conduct subjecting a
person to cruel and unjust hardship in conscious disregard of that person’s
rights.” The term “despicable” has been
defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products
Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) Fraud means
“an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury.” (Civ. Code, §
3294, subd. (c) (3).)
Kaiser Defendants move to strike the following from Plaintiff’s Complaint:
· Prayer, item no. 4, pages 21:27-22:1 – “For exemplary and punitive damages pursuant to Civil Code § 3294 (As to the First Cause of Action only.”
Kaiser Defendants assert that Plaintiff’s Complaint fails to allege facts showing oppression, fraud, or malice sufficient to sustain a claim for punitive damages. The Court agrees. The Complaint also only states legal conclusions devoid of facts to show how an officer, director, or managing agent of Kaiser Defendants authorized or ratified the abuse or neglect Plaintiff suffered that is sufficient to support a claim for punitive damages against a corporate defendant.
“We have no quarrel with the notion that an inference of corporate malice can be based on the existence of a company policy that willfully, consciously, and despicably disregards the rights and safety of others.” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1173.) Here, Plaintiff’s complaint fails to state what corporate policy Kaiser Defendants implement that willfully, consciously, and despicably disregarded the rights of Plaintiff. Plaintiff’s Complaint only makes conclusory allegations of “financial and control policies and practices dictated by and forced upon” Kaiser’s nursing facility “by and through corporate officers, directors, or others.” (Compl. ¶¶ 11, 12.) Moreover, Plaintiff fails to explain how the policy caused injury to Plaintiff while in the care of Kaiser.
Since the demurrer to the first cause of action was sustained, the Court GRANTS Kaiser Defendants’ Motion to Strike WITH LEAVE TO AMEND.
Conclusion
Kaiser Defendants’ demurrer to Plaintiff’s Complaint is SUSTAINED WITH 30 DAYS LEAVE TO AMEND. Defendants’ Motion to Strike is also GRANTED WITH 30 DAYS LEAVE TO AMEND.
Moving party to give notice.