Case Name: Bobbie Cox v. Seasons Hospice & Palliative Care of Northern California, et al.
Case No.: 17CV306742

I. Background

This is a lawsuit for negligence and abuse of a dependent adult brought by plaintiff Bobbie Cox (“Plaintiff”) against defendants Seasons Hospice & Palliative Care of Northern California, LLC and Seasons Hospice & Palliative Care of Northern California Holdings, Inc. (collectively, “Defendants”).

According to the allegations in the third amended complaint (“TAC”), Defendants provided palliative care for Plaintiff’s 19-year-old son in his final year of life. Plaintiff’s son had osteosarcoma with metastases to the lungs and abdomen, which prevented him from engaging in normal, day-to-day activities and caused him significant pain. Plaintiff alleges Defendants did not adequately administer her son’s oxygen and pain medication thereby causing him to experience a particularly painful death, which she witnessed.

Plaintiff asserts causes of action against Defendants for (1) negligent infliction of emotional distress and (2) abuse of a dependent adult. Currently before the Court is Defendants’ demurrer to the first and second causes of action on the ground of failure to state facts sufficient to constitute a cause of action. Defendants also move to strike the allegations in the second cause of action that Plaintiff is entitled to attorney’s fees and punitive damages. (See TAC, ¶¶ 39, 46.)

II. Demurrer

A. First Cause of Action

The first cause of action is for negligent infliction of emotional distress (“NIED”). Plaintiff alleges she “had to hold her 200 pound son in the throes of his death” while he was “panicking, flailing, struggling physically and emotionally, and after throwing himself about [ ].” (TAC, ¶ 20.) Plaintiff suffered emotional distress as a result of seeing her son die in this manner.

Defendants argue the demurrer is sustainable because Plaintiff no longer asserts “the underlying cause of action for medical negligence.” (Mem. of Pts. & Auth. at p. 2:26-28.) It is true that Plaintiff previously asserted a claim for medical negligence. The Court sustained Defendants’ demurrer to this claim because Plaintiff purported to assert the claim on her own behalf and for her own injuries, but did not actually allege they provided her with any medical care. Instead, Plaintiff alleged her son received negligent care. Although the Court gave her an opportunity to amend the pleading to assert a survivor claim for negligence as her son’s successor in interest, she chose not to do so. Thus, there is no medical negligence claim in the TAC. With that said, it is unclear how this circumstance demonstrates no cause of action has been stated. To the extent Defendants’ position is that a plaintiff cannot assert an NIED claim alone and must always plead a companion claim for negligence based on a physical injury, they cite no authority to support their position.

NIED is not an independent tort; it is simply a type of negligence claim consisting of the traditional elements of duty, breach, causation, and damages. (Burgess v. Super. Ct. (1992) 2 Cal.4th 1064, 1072.) In California, NIED claims are often categorized as being based on either a “direct victim” or “bystander” theory. (Ibid.) Here, Plaintiff relies on a bystander theory. “Under the bystander theory, the plaintiff seeks to recover damages for serious emotional distress suffered as a result of an injury to a close family member.” (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204.) “Recovery is limited as a matter of public policy to those cases where the plaintiff was present at the scene of the injury-producing event and was aware that the event was causing injury to the victim.” (Ibid.) Defendants do not articulate and it is not otherwise obvious how Plaintiff’s allegations are insufficient to state an NIED claim as a bystander.

For these reasons, Defendants do not substantiate their demurrer. The demurrer to the first cause of action is therefore OVERRULED.

B. Second Cause of Action

The second cause of action is for abuse of a dependent adult in violation of the Elder Abuse and Dependent Adult Protection Act (the “Act”). (See Welf. & Inst. Code, § 15657.) The Court previously sustained Defendants’ demurrer to this cause of action, and Defendants argue Plaintiff still does not allege all of the essential elements of her claim.

Welfare and Institutions Code section 15657 provides “heightened remedies for plaintiffs who successfully sue for dependent adult abuse.” (Sababin v. Super. Ct. (2006) 144 Cal.App.4th 81, 88.) Abuse within the meaning of the statute includes both neglect and physical abuse. (Ibid.)

The second cause of action is predicated solely on neglect, which may include “the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration.” (Ibid., citing Welf. & Inst. Code, § 15610.57.) Neglect “covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 783.) “As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of [ ] dependent adults, regardless of their professional standing, to carry out their custodial obligations.’” (Ibid., quoting Delaney v. Baker (1999) 20 Cal.4th 23, 34, italics added.)

To state a cause of action based on neglect, “[t]he plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the [ ] dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the [ ] 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 [ ] dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the [ ] 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, citing Delaney, supra, 20 Cal.4th at pp. 31-32.) “The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the [ ] dependent adult to suffer physical harm, pain or mental suffering.” (Carter, supra, 198 Cal.App.4th at p. 407.) “Finally, 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.” (Ibid., quoting Covenant Care, supra, 32 Cal.4th at p. 790.)

Defendants first argue Plaintiff does not adequately allege the existence of a caretaking and custodial relationship. To plead this first element, a plaintiff must allege facts showing “a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an [individual]’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158, 165.) Provision of outpatient medical services, without more, is not sufficient to establish such a relationship. (Id. at p. 165.)

In the second amended complaint (“SAC”), Plaintiff alleged Defendants were “care custodians” under Welfare and Institutions Code section 15610.17, and she now makes the same allegation in the TAC. That particular statute defines a care custodian as “an administrator or an employee of [the enumerated] public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff[.]” (Welf. & Inst. Code, § 15610.17.) But the California Supreme Court has explicitly stated the fact that an individual or entity qualifies as a care custodian does not establish the existence of a robust caretaking and custodial relationship. (Winn, supra, 63 Cal.4th at p. 164.) As in Winn, what Plaintiff “erroneously assumes is that the Act’s definition of care custodian in section 15610.17 will, as a matter of law, always satisfy the particular caretaking or custodial relationship required to show neglect under section 15610.57.” (Ibid.) In other words, Plaintiff’s allegation that Defendants were care custodians is not sufficient to plead the existence of a robust caretaking and custodial relationship.

Plaintiff does not otherwise allege new facts showing such a relationship existed. The allegations in the complaint still show Defendants provided palliative care services, and that Plaintiff, in fact, was her son’s custodian and caretaker. In Plaintiff’s opposition, she does not advance arguments, cite authority, or identify allegations supporting a contrary conclusion; instead, she rests on her mistaken assumption that alleging Defendants are care custodians is sufficient.

Because Plaintiff does not allege facts showing Defendants had a robust caretaking and custodial relationship with her son, she fails to state a cause of action for abuse of a dependent adult. Although this is a sufficient, independent basis for sustaining Defendants’ demurrer, the Court addresses their remaining arguments below.

Defendants argue Plaintiff still fails to allege conduct constituting neglect within the meaning of the Act. Neglect is defined as “the negligent failure of any person having the care or custody of [ ] a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).) Neglect is not the same as negligence, even though the term “negligent” appears in the definition. (Covenant Care, supra, 32 Cal.4th p. 783; Delaney, supra, 20 Cal.4th at p. 34.) Welfare and Institutions Code section 15657.2 specifically excludes negligence, and even gross negligence, by healthcare providers. (Sababin, supra, 144 Cal.App.4th at p. 88.) Thus, a plaintiff must allege more than the “substandard performance of medical care,” he or she must allege the custodian or caretaker responsible for meeting the needs of the dependent adult “fail[ed] to provide medical care.” (Covenant Care, supra, 32 Cal.4th at p. 783, original italics.)

Plaintiff previously alleged Defendants did not give her son enough oxygen and pain medication and did not adequately update his plan of care and medical records to reflect the amount he should have received. (SAC, ¶ 43.) In other words, Plaintiff alleged Defendants provided substandard medical care, which is not sufficient to support a claim for abuse of a dependent adult. (See, e.g., Carter, supra, 198 Cal.App.4th at p. 413 [failure to properly document condition and administer antibiotics was negligence, not neglect]; see also Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 337 [understaffing and inadequate training at nursing home constituted negligence, not neglect].)

Plaintiff still alleges there were problems with her son’s oxygen, pain medication, and plan of care. But as Defendants point out, Plaintiff has now simply eliminated factual allegations about the sufficiency of this care and characterized their conduct as a failure to provide care, without more. (Compare SAC, ¶ 23 with TAC, ¶ 25.) Put differently, although Plaintiff previously alleged Defendants provided substandard care, she now appears to be characterizing their conduct as a complete failure to provide any care. Defendants argue Plaintiff’s new allegations are inconsistent with the previous allegations and, thus, should not be accepted as true for purposes of the demurrer.

In general, the factual allegations in a complaint are accepted as true for purposes of a demurrer. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383.) “However, an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings.” (Id. at pp. 383-84.) Under those circumstances, “the policy against sham pleading permits the court to take judicial notice of the prior [complaint] and requires that the pleader explain the inconsistency.” (Id. at p. 384.) “If he [or she] fails to do so[,] the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.” (Ibid.)

Plaintiff has, indeed, attempted to avoid the defect identified previously by omitting facts and generically alleging, contrary to what was previously alleged, Defendants failed to provide medical care. In opposition, Plaintiff does not provide an explanation for the inconsistent factual allegations identified by Defendants. Instead, she states “[c]omplaints often contain inconsistent and alternative theories.” (Opp. at p. 11:19.) Plaintiff appears to be referring to the principle that inconsistent legal theories may be asserted as alternatives in the same pleading (see Manti v. Gunari (1970) 5 Cal.App.3d 442, 449), which is not responsive for two reasons. First, Defendants take issue with the consistency of Plaintiff’s factual allegations, not her theories of liability. “While inconsistent theories of recovery are permitted, a pleader cannot blow hot and cold as to the facts positively stated.” (Ibid.) Second, the issue before the Court is whether the amended pleading contradicts the superseded pleading, not whether a single pleading is internally inconsistent. For these reasons, the Court disregards Plaintiff’s inconsistent allegations and reads the previous allegations about the sufficiency and quality of the care provided into the TAC. In light thereof, the Court finds, as it did previously, that Plaintiff alleges substandard medical care and not neglect within the meaning of the Act.

Finally, Defendants argue Plaintiff fails to allege facts showing recklessness, malice, oppression, or fraud. Defendants do not adequately support this argument with analysis of the law and allegations in the pleading. Thus, this argument is not an additional basis for concluding no cause of action has been stated.

In conclusion, Plaintiff fails to allege all of the essential elements of her claim, particularly the existence of a robust caretaking and custodial relationship and neglect within the meaning of the Act. The demurrer to the second cause of action is therefore sustainable. When sustaining a demurrer, a court may deny leave to amend if the plaintiff cannot demonstrate there is any reasonable possibility of curing the pleading defect through amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Court previously gave Plaintiff an opportunity to amend the pleading to state a viable claim. She failed to do so. Plaintiff does not articulate how she could amend the pleading to cure the defects discussed above if given another opportunity to amend. Accordingly, the demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

III. Motion to Strike

Plaintiff seeks punitive damages and attorney’s fees solely in connection with the second cause of action. (TAC, ¶¶ 39, 46.) Defendants move to strike Plaintiff’s allegations that she is entitled to punitive damages and attorney’s fees in the second cause of action. In light of the Court’s ruling on the demurrer, the motion to strike the allegations in the second cause of action is MOOT.