Case Number: BC668725 Hearing Date: January 12, 2018 Dept: NCB

9. BC668725

MAUD AMAR v HUNTINGTON DRIVE HEALTH AND REHABILITATION CENTER

Demurrer and Motion to Strike

Case Management Conference

The Plaintiff alleges she was a resident of and under the care of the Defendant for a substantial amount of time. Defendant routinely failed to provide adequate catheter care and hygiene care with the result that the Plaintiff suffered from multiple urinary tract infections and a renal infection. There is one cause of action for Elder Abuse.

This hearing concerns the demurrer and motion to strike of the Defendant, AG Arcadia, LLC, which was sued as Huntington Drive Health and Rehabilitation Center. It is the only named Defendant.

1. Demurrer to First Cause of Action for Elder Abuse

The Defendant argues that this cause of action lacks sufficient facts to plead an elder abuse cause of action and that it should be pleaded as a negligence claim.

A review of the Plaintiff’s First Amended Complaint reveals that the sole cause of action pleads that the Defendant engaged in elder abuse through neglect when it withheld care from the Plaintiff. To plead neglect within the meaning of the Elder Abuse Act a 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;

2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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.

Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406-407.

In addition, the plaintiff must allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Id. The 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. Id.

This is a statutory claim and the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 619.

A review of the first cause of action reveals that in paragraph 12, the Plaintiff alleges that the Defendant had responsibility for meeting the basic needs of the Plaintiff because it was providing care and services to the Plaintiff as her care custodian. In paragraph 3, the Plaintiff alleges that the Defendant is a licensed 24-hour skilled nursing facility that provides long-term custodial care. In paragraph 8, the Plaintiff alleges that she was a resident. These allegations, when read together, are

sufficient to plead that the Defendant had responsibility for meeting the Plaintiff’s basic needs because she was a resident under its care in a facility that provides long-term custodial care.

In paragraph 13, the Plaintiff alleges that the Defendant knew of conditions that made the Plaintiff unable to provide for her basic needs. There are no allegations that identify the “conditions” that prevented the Plaintiff from providing for her basic needs and no allegations that demonstrate that the Defendant had knowledge of these “conditions”. This is insufficient to plead the second element.

In paragraph 14, the Plaintiff alleges that the Defendant withheld goods or services such that it neglected the Plaintiff. In paragraph 8, the Plaintiff alleges that the Defendant routinely failed to provide adequate catheter care and hygiene care. There are no allegations that the Defendant “withheld” the catheter care and hygiene care with the knowledge that the lack of adequate catheter and hygiene care was likely to cause injury to the Plaintiff or with a conscious disregard for the high probability of injury to the Plaintiff. This is insufficient to plead the third element.

Finally, the Defendant is a business entity that acts through its employees or agents. Welfare and Institutions Code section 15657(c) requires that the standards identified in Civil Code section 3294 be satisfied before any damages or attorney’s fees may be imposed against an employer for the acts of an employee. This requires the plaintiff to plead the following:

1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized;

2) the employer ratified the wrongful conduct for which the damages are awarded, or

3) the employer was personally guilty of oppression, fraud, or malice.

With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

There are no specific factual allegations that satisfy any of these requirements, i.e., that an officer, director, or managing agent of the Defendant was personally involved in the unidentified neglect or that the following circumstances existed:

1) the officer, director, or managing agent had advance knowledge of the unfitness of the individuals providing care to the Plaintiff;

2) the officer, director, or managing agent ratified the neglect of the Plaintiff.

As a result, the pleadings do not contain sufficient facts to plead that the Defendant, as a business entity, is liable for the alleged elder abuse of its employees.

Therefore, the Court sustains the demurrer to the Elder Abuse cause of action.

The Plaintiff did not file any opposition papers and, as a result, there is no request for leave to amend. California law imposes the burden on the Plaintiff to demonstrate the manner in which she can amend her pleadings to state this claim against this Defendant. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff did not meet this burden and, since there is no opposition, the Plaintiff has not identified any basis to find that she can correct the defects identified above by amendment.

Accordingly, the Court does not grant leave to amend.

2. Motion to Strike

In light of the recommendation to sustain the demurrer to the first and only cause of action, the motion to strike is moot because there are no remaining causes of action directed at the Defendant. Therefore, the Court takes the Defendant’s motion to strike off calendar.