2015-00179035-CU-PO

Robert Lee vs. Oakmont Senior Living

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Malone, Bryan L.

Defendants Oakmont of Folsom, LLC, Oakmont Management Group, LLC, Oakmont Senior Living, LLC (sued and served as Doe 1), and HCRI of Folsom Tenant, LLC (sued and served as Doe 2) (collectively, “Defendants”) motion for summary judgment is DENIED.

Defendants’ motion for summary adjudication is DENIED.

Defendants’ request for judicial notice is granted, except as to item 7. In taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590 [judicial notice of findings of fact does not mean that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121 [“[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.”]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1570.)

Objections to Evidence

The Court does not rule on Plaintiffs’ evidentiary objections to the declaration of Kevin Tyler filed in support of their opposition since they concern evidence deemed immaterial to decision on the motion. (Code Civ. Proc., § 437c, subd. (q).)

The Court does not rule on Plaintiffs’ evidentiary objections to the declaration of Bryan L. Malone, numbers 9-12, filed in support of their opposition since they concern evidence deemed immaterial to the decision on the motion. (Code Civ. Proc., § 437c, subd. (q).) The remainder of the objections to the declaration of Bryan L. Malone,

numbers 1-8, and 13-14 are overruled.

Defendants’ objections to the declaration of Edward P. Dudensing, numbers 1-43 and 46-48 are overruled. The Court does not rule on the remainder of the objections to the declaration as they concern evidence deemed immaterial to the decision. (Code Civ. Proc., § 437c, subd. (q).)

Defendants’ objections to the declaration of Kathryn Locatell, M.D., numbers 1, 2, 11, 12, 14, 15, and 20 are overruled. The Court does not rule on the remainder of the objections to the declaration as they concern evidence deemed immaterial to the decision. (Code Civ. Proc., § 437c, subd. (q).)

Factual and Procedural Background

This elder abuse and wrongful death action arises from decedent Robert Lee’s stay at Oakmont of Folsom from November 24, 2014, until December 19, 2014. Plaintiffs Robert Lee, Katie Y.T. Lee, individually and as successor in interest to Robert Lee, Edward Lee, Dale Lee, and Larry Lee (collectively “Plaintiffs”) allege Defendants failed to provide supervision and adequate care for Mr. Lee, including failing to ensure he received food and water, which Plaintiffs allege ultimately resulted in Mr. Lee’s death on January 6, 2015.

Plaintiffs’ First Amended Complaint alleges two causes of action for elder abuse and wrongful death.

Plaintiff alleges Oakmont Management Group, LLC, Oakmont Senior Living, LLC, and HCRI of Folsom Tenant, LLC (collectively, the “Corporate Defendants”) are liable for elder abuse pursuant to theories of direct liability (FAC ¶¶ 8-9), as well as theories of alter ego, joint venture, aider and abettor, and conspiracy liability. (FAC ¶¶ 10-15.)

Defendants Oakmont of Folsom, Oakmont Management, and Oakmont Senior Living move for summary adjudication as to the first cause of action for elder abuse on the grounds that: (1) no act or omission by Defendants caused any injury to Lee; (2) Defendants are not guilty of recklessness, malice, oppression, or fraud; and/or (3) no officer, director, or managing agent of Defendants authorized or ratified any allegedly wrongful conduct by their employees.

Defendant HCRI moves for summary adjudication as to the first cause of action for elder abuse on the ground that: (1) HCRI was never a care custodian of Lee; and (2) HCRI did not provide care to Lee.

All Defendants move for summary adjudication of the second cause of action for wrongful death on the grounds that: (1) no act or omission by Defendants caused or contributed to Mr. Lee’s death; (2) Defendants are not guilty of recklessness malice, oppression, or fraud; and/or (3) no officer, director, or managing agent of Defendants authorized or ratified any allegedly wrongful conduct by their employees.

Finally, all Defendants move for summary adjudication as to Plaintiffs’ claim for punitive damages on the grounds that: (1) Defendants are not guilty of recklessness malice, oppression, or fraud; and/or (2) no officer, director, or managing agent of Defendants authorized or ratified any allegedly wrongful conduct by their employees.

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal. App. 4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal. App. 4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal. 4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, at 853-855.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (C.C.P. § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

The Corporate Defendants’ Motion (Oakmont Management Group, LLC, Oakmont Senior Living, LLC, and HCRI of Folsom Tenant, LLC)

As to the Corporate Defendants, the motion for summary adjudication as to each cause of action must be denied. The Corporate Defendants contend summary adjudication of each cause of action is warranted because the evidence establishes no act or omission by Defendants caused any injury to Lee, Defendants are not guilty of recklessness, malice, oppression, or fraud, and no officer, director, or managing agent of Defendants authorized or ratified any allegedly wrongful conduct by their employees. These arguments only concern Plaintiffs’ direct theory of liability. However, Plaintiffs have also alleged the Corporate Defendants are liable based on

theories of alter ego, joint venture, aider and abetter, and conspiracy liability. Accordingly, even if the Court were to find that the Corporate Defendants are not directly liable for the alleged wrongdoing, four viable theories of liability remain. (See CACI 3712 [“Each of the members of a joint venture, and the joint venture itself, are responsible for the wrongful conduct of a member acting in furtherance of the venture.”]; CACI 3610 [if elements of aider and abettor relationship found aiders and abettors liable for harm even if they did not directly cause it]; CACI 3600 [if conspiracy found co-conspirators are all liable for harm even if they did not directly cause it].) Thus, the adjudication of direct liability would not dispose of the entire cause of action for either elder abuse or wrongful death. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)

When a defendant moves for summary judgment, the defendant has the burden to show it is entitled to judgment concerning all allegations and all theories of liability asserted by plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) A party is not entitled to a summary judgment if the undisputed material facts set forth are not dispositive of all the legal claims tendered by the pleadings. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117.)

Therefore, the Corporate Defendants’ motion for summary adjudication as to the first and second causes of action is DENIED. Based on the foregoing, the Court need not address the additional arguments raised as to the Corporate Defendants.

Generally, whether a party is liable under an alter ego theory is normally a question of fact. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1248.) “The conditions under which the corporate entity may be disregarded, or the corporation be regarded as the alter ego of the stockholders, necessarily vary according to the circumstances in each case inasmuch as the doctrine is essentially an equitable one and for that reason is particularly within the province of the trial court.” ( Stark v. Coker (1942) 20 Cal.2d 839, 846.)

Oakmont of Folsom – First Cause of Action for Elder Abuse

As to Oakmont of Folsom’s motion for summary adjudication of the first cause of action for elder abuse, the motion must also be denied.

Oakmont of Folsom contends it is not liable for elder abuse because: (1) no act or omission by it caused any injury to Mr. Lee; (2) it is not guilty of recklessness, malice, oppression, or fraud; and (3) no officer, director, or managing agent authorized or ratified any allegedly wrongful conduct by its employees. Indeed, Welfare and Institutions Code § 15657 requires that a plaintiff plead and ultimately prove that: 1) the defendant subjected an elder to statutorily-defined physical abuse, neglect or financial abuse; and (2) defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. When an elder abuse claim is brought against corporate defendants such as is the case here, the plaintiff must further establish that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welfare and Institutions Code § 15657(c); Civil Code §3294.)

In support of its contentions that Plaintiffs cannot establish any of the foregoing elements, Oakmont of Folsom cites to 15 UMFs. The first seven concern basic background facts regarding Mr. Lee and his diagnosis. Five of the other 15 UMFs concern Mr. Lee’s condition in December 2014 and whether it was consistent with the

end stages of dementia or neglect. Finally, the three main UMFs state ultimate conclusions that “there is no evidence of physical abuse,” Oakmont of Folsom did not act “with recklessness, malice, oppression, or fraud concerning the care and treatment of Lee,” and “no officer, director, or managing agent of Oakmont of Folsom, LLC authorized nor ratified any act of neglect or physical abuse toward Robert Lee.” (UMFs 10, 14, 15.)

On a motion for summary judgment or adjudication, the moving party is to present the Court with undisputed material “facts” that support the adjudication of an entire cause of action or claim for damages. Instead of presenting the Court with “facts,” Defendants have presented the Court with ultimate legal conclusions and then cited to the entirety of its evidence in support.

Oakmont of Folsom has not presented the Court with any “facts” that support the ultimate conclusions that it did not act with recklessness, malice, oppression, or fraud and that there was no authorization of neglect of physical abuse. By presenting its motion in this fashion, Oakmont of Folsom tasks the Court with sifting through all of its supporting evidence to determine the relevant “facts” therefrom. Oakmont of Folsom has essentially and improperly shifted its burden as the moving party to the Court. As a result, Oakmont of Folsom has failed to meet its initial burden and on this basis alone its motion could be denied.

Nonetheless, even assuming these 15 UMFs are sufficient to shift to Plaintiffs the burden of demonstrating the existence of a triable issue of material fact, Plaintiffs have satisfied that burden.

As to UMF 14, which provides “[n]o Oakmont of Folsom, LLC employee’s actions were done with recklessness, malice, oppression, or fraud concerning the care and treatment of Robert Lee,” Plaintiffs have presented evidence that Mr. Lee was not given food or water for three days and arrived at the Kaiser Emergency Room on December 19, 2014, profoundly dehydrated. (AUMs 11-16, 47-51.) Custodial obligations pertain to providing the elderly adult’s basic needs and comforts such as hygiene, food, water, shelter and a safe environment. (Welfare and Institutions Code §15610.57.) As noted in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and care-givers. And, of course, the plaintiff must ultimately prove by clear and convincing evidence facts establishing that the defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b).) On plaintiffs’ showing alone, a jury could determine that Oakmont of Folsom’s conduct in failing to provide Mr. Lee with food or water for three days was reckless and malicious. Further, Plaintiffs have presented evidence that Mr. Lee was physically strapped to a wheelchair without obtaining a physician’s order or determining whether doing so was appropriate and was found on the floor in only a diaper, with his room door open. (AUMFs 44-46.) Mr. Lee was also identified as a fall risk who required a “fall management program,” but Mr. Lee was never enrolled in Oakmont’s “fall management program,” no further interventions for minimizing risks of falls were implemented, and Mr. Lee suffered five falls during the month he resided at Oakmont of Folsom. (AUMFs 32-40.) Oakmont of Folsom also failed to respond to Mr. Lee’s changes of condition, including that he was consistently found in pain throughout his entire stay. (AUMFs 41-43.) Plaintiff has also presented evidence that Oakmont of Folsom understaffed its memory care unit and

failed to provide proper supervision and training, all of which could support a jury finding that Oakmont of Folsom engaged in recklessness, malice, oppression, and fraud in contradiction to UMF 14. (AUMFs 64-94.)

As to UMF 15, which concludes “[n]o officer, director, or managing agent of Oakmont of Folsom, LCC authorized nor ratified any act of neglect or physical abuse toward Robert Lee,” Plaintiffs have presented evidence that the executive director, Louise Barnett, the Health Services Director, and the Memory Care Director had been informed of Mr. Lee’s failure to eat, and they, in turn, communicated this to the Senior Director of Health and Wellness, Joni Bonacci, but none of the individuals ordered or conducted a new assessment or service plan, notified Mr. Lee’ s physician, or initiated any interventions. (AUMFs 48-51.) Plaintiffs have presented evidence that these directors [or some of them] could be deemed “managing agents.” (AUMFs 124-126.) The foregoing creates a triable issue of fact as to UMF 15. Further, Plaintiffs have presented evidence that the facility was understaffed in terms of numbers, supervision, and training and that the directors are responsible for ensuring there is sufficient staff who are properly trained. (AUMFs 65-94, 124, 125.) Finally, they have presented evidence that there was a conscious plan by corporate and management personnel to get “heads in the bed” to maximize profits, even if this resulted in caregivers being unable to appropriately care for the patients. (AUMFs 95-119.)

Taking the evidence and the inferences therefrom in the light most favorable to the opposing party, the foregoing evidence creates a triable issue of fact as to whether Oakmont of Folsom acted with recklessness, malice, oppression, or fraud and whether an officer, director, or managing agent of Oakmont of Folsom, LLC authorized or ratified the alleged wrongful conduct. Oakmont of Folsom’s motion for summary adjudication as to the first cause of action for elder abuse is, therefore, DENIED. Based on the foregoing, the Court need not address the additional arguments presented.

Oakmont of Folsom – Second Cause of Action for Wrongful Death

Oakmont of Folsom’s notice indicates they are moving for summary adjudication as to the second cause of action for wrongful death on the grounds that: (1) no act or omission by Defendants caused or contributed to Mr. Lee’s death; (2) Defendants are not guilty of recklessness malice, oppression, or fraud; and/or (3) no officer, director, or managing agent of Defendants authorized or ratified any allegedly wrongful conduct by their employees. However, the separate statement of undisputed material facts only sets forth four UMFs, all of which concern the purported cause of Mr. Lee’s death.

“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) The essential elements necessary to state a cause of action for negligence are (1) duty, (2) breach, (3) causation, and (4) damages. (See Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 57.)

Oakmont of Folsom contends it was not the cause of Mr. Lee’s death. Rather, Oakmont of Folsom contends Mr. Lee died due to dementia with no contributing conditions and no actions or conduct on the part of Oakmont of Folsom, LLC caused or contributed to his death. (UMFs 43, 44.)

In opposition, Plaintiffs contend the failure to ensure Mr. Lee was adequately hydrated substantially contributed to his death. In support, Plaintiffs contend Mr. Lee arrived at the Kaiser Emergency Room severely dehydrated (AUMFs 10-27) and they rely on the declaration of Kathryn Locatell, M.D., Plaintiffs’ geriatric expert, wherein she opines that this dehydration substantially contributed to Mr. Lee’s death. (Locatell Decl. ¶¶ 17-18.)

Taking the evidence and the inferences therefrom in the light most favorable to the opposing party, as the Court must on this motion, the foregoing evidence creates a triable issue of fact as to whether the alleged dehydration of Mr. Lee was a substantial factor in bringing about his death.

Oakmont of Folsom’s motion for summary adjudication as to the second cause of action for wrongful death is, therefore, DENIED.

Punitive Damages

Defendants move for summary adjudication of Plaintiffs’ claim for punitive damages based on two UMFs: that there is no evidence of malice, oppression, or fraud on the part of Defendants concerning the care and treatment of Robert Lee (UMF 58) and there is no evidence that an officer, director, or managing agent authorized or ratified any alleged wrongful conduct (UMF 59.) These UMFs are essentially identical to UMFs 14 and 15 (discussed above) and also cite to the same evidence in support. Accordingly, for the same reasons discussed above, the Court find Plaintiffs have presented sufficient evidence to create a triable issue of fact as to these two UMFs. Defendants motion for summary adjudication of the claim for punitive damages is DENIED. (See, e.g. Sababin v. Superior Court (20006) 144 Cal.App.4th 81, 85-90.)

Conclusion

Defendants’ motion for summary judgment or, in the alternative, summary adjudication is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.