Case Number: BC518027    Hearing Date: April 28, 2014    Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Monday, April 28, 2014
Calendar No.: 5
Case Name: Shubaralyan v. Hollywood Presbyterian Medical Center, et al.
Case No.: BC518027
Motion: Demurrer and Motion to Strike
Moving Party: Defendant CHA Hollywood Medical Center, L.P. dba Hollywood Presbyterian Medical Center
Responding Party: Plaintiff Daniel Shubaralyan
Notice: OK

Tentative Ruling: The demurrer is overruled. The motion to strike is granted as to the first count for elder abuse – neglect in the 3rd COA for wrongful death without leave to amend. Defendant to answer within 10 days.

Background –
On 8/12/13, Plaintiff Daniel Shubaralyan, as surviving heir and successor in interest to Decedent Siranush Shubaralyn, filed this action against Defendants Hollywood Presbyterian Medical Center (“HPMC”) and CHA Hollywood Medical Center, L.P. Plaintiff asserts causes of action for (1) elder abuse/neglect, (2) negligence/professional negligence, and (3) wrongful death. This action was assigned to this Court on 2/6/14. Trial is set for 1/26/15; FSC for 1/15/15.

Factual Allegations of the Complaint –
Siranush was a 75 year old woman who enjoyed an active lifestyle. ¶ 5. On 1/18/12, Siranush suffered an exacerbation of a heart condition; after being stabilized, she was transferred to HPMC on 1/20/12 for follow-up care. ¶¶ 6-7.

At HPMC, Siranush was still experiencing ongoing weakness, confusion, and shortness of breath, and was determined to be at high risk of falling. ¶ 8. Siranush’ doctor ordered safety precautions to protect her from falling ordering hospital staff to not permit her to get out of bed (and that the side rails on her bed be up at all times) and/or to walk without assistance and supervision of hospital personnel. Id. However, HPMC staff repeatedly permitted and encouraged Siranush to get out of bed to walk without any assistance: this resulted in her falling and suffering a severe hip fracture whereby she was never able to walk again resulting in a significant exacerbation of her underlying heart and respiratory conditions. ¶ 9. Siranush died on 8/31/12 from cardiopulmonary arrest, respiratory failure, and cardiomyopathy. ¶ 10.

Demurrer and Motion to Strike –
CHA Hollywood Medical Center, L.P. dba HPMC (“Defendant”) has filed a demurrer and a motion to strike as to the Complaint.

1. Elder Abuse – Neglect
Defendant argues that Plaintiff does not plead facts with particularity (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790) as to neglect of a reckless, oppressive, fraudulent, or malicious nature (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-5 (stating that an elder abuse claim requires more than simple or even gross negligence and requires recklessness, oppression, fraud, or malice)). The Court disagrees.

Carter distilled several factors from the statutes and cases for conduct to constitute neglect under the Elder Abuse Act:
The 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 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, 198 Cal.App.4th at 406-7 (citations omitted).

However, neglect includes the failure to protect from health and safety hazards. Welf. & Inst. Code § 15610.57(b)(3). Plaintiff alleges that HPMC had responsibility for Siranush’s follow-up care, knew that Siranush was at high risk of falling and that her doctor ordered restrictions on her movement, and repeatedly permitted and encouraged Siranush to walk without the any assistance. At the pleading stage, this is sufficient to meet the factors stated in Carter for reckless neglect (see also Complaint ¶ 11). The demurrer is overruled on this ground.

2. Elder Abuse – Liability
Defendant argues that Plaintiff fails to plead that the alleged conduct was authorized or ratified by an officer, director, or managing agent (Welf. & Inst. Code § 15657(c); Civil Code § 3294(b)). However, Plaintiff alleges that Defendant had been notified by prior complaints and notices of deficient care due to lack of sufficient personnel, Defendant failed to take any action to ensure the care of future patients. Complaint ¶ 7; see also Complaint ¶¶ 12, 14-16 (alleging that Defendant’s administrators and managing agents repeatedly understaffed the facility).

At the pleading stage, this is sufficient to allege facts to satisfy the requirements of Welf. & Inst. Code § 15657(c). See Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1067-68. Further details such as the identities of individuals should be the subject of discovery efforts. The demurrer is overruled on this ground.

3. Wrongful Death
Plaintiff’s 3rd COA for wrongful death is based on two counts: (1) elder abuse – neglect and (2) negligence/professional negligence. See Complaint ¶¶ 45-53. Defendant argues that the wrongful death claim based on elder abuse is improper, which is also the basis for Defendant’s motion to strike. Plaintiff does not oppose striking the elder abuse count from the 3rd COA for wrongful death. See Opp’n [Dem.] p. 6:16-21; Non-Opp’n [Strike].

Defendant correctly notes that the “Elder Abuse Act does not morph an ordinary wrongful death claim into a statutory survivor claim for dependent adult abuse—or vice versa.” Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281. Because the 3rd COA contains two counts, the Court concludes that the demurrer to the 3rd COA is improper. See id. at 1281. Therefore, the motion to strike is granted as to the first count in the 3rd COA for wrongful death without leave to amend.

Ruling –
The demurrer is overruled. The motion to strike is granted as to the first count for elder abuse – neglect in the 3rd COA for wrongful death without leave to amend. Defendant to answer within 10 days.