Filed 5/5/20 Petrosian v. Prime Healthcare Services CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

VARTUHI PETROSIAN,

Plaintiff and Appellant,

v.

PRIME HEALTHCARE SERVICES,

Defendant and Respondent.

B292918

(Los Angeles County
Super. Ct. No. LC105825)

APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Kralik, Judge. Affirmed.

Vicken O. Berjikian, Freeman M. Butland for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen & McBride, Michael J. Trotter, Brenda M. Ligorsky and David P. Pruett, for Defendant and Respondent.

________________________________________

Plaintiff and appellant Vartuhi Petrosian filed suit against defendant and respondent Prime Healthcare Services—Sherman Oaks, LLC, dba Sherman Oaks Hospital (Hospital), alleging she fell and sustained injuries during a hospital stay. Petrosian alleged Hospital committed both professional negligence and elder abuse. The trial court sustained Hospital’s demurrer to the elder abuse cause of action in Petrosian’s second amended complaint (SAC) without leave to amend on two bases: Petrosian failed to plead recklessness, and Petrosian failed to plead that Hospital’s corporate officers authorized or ratified the alleged misconduct.

Petrosian, who dismissed her negligence cause of action with prejudice to facilitate this appeal, contends the trial court erred in sustaining the demurrer. She argues she adequately pled an elder abuse claim by alleging that Hospital had a pattern and practice of chronic understaffing in knowing violation of state regulations. She contends these allegations are analogous to those that survived demurrer in Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339 (Fenimore). To the extent we find “any issue with the recklessness claim,” Petrosian further contends she can pursue an elder abuse claim based on mere negligence, though she does not specifically address the court’s ruling on the authorization issue. We conclude the demurrer was properly sustained and affirm.

BACKGROUND

I. Second amended complaint

Petrosian filed her SAC on March 5, 2018, after the trial court sustained Hospital’s demurrer to her first amended complaint with leave to amend. “In considering whether that demurrer should have been sustained, we treat the demurrer as an admission by defendant[ ] of all material facts properly pled in plaintiff[’s second] amended complaint—but not logical inferences, contentions, or conclusions of fact or law.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (Winn).)

A. Factual allegations

On June 4, 2016, when Petrosian was 69 years old, paramedics transported her to Sherman Oaks Hospital in restraints. No one assessed Petrosian for fall risk when she arrived, either by examining her or by reviewing Hospital’s records of her previous visits. Petrosian, who is “somewhat frail,” alleged that her fall risk “would have been obvious to any nurse or even unlicensed personnel.” No notes regarding Petrosian’s care were placed in her file until approximately an hour after her admission. Petrosian alleged the failure to assess her fall risk and timely document her care were due to understaffing.

Petrosian repeatedly called for nurse assistance because she was thirsty and needed to use the restroom. She called for more than half an hour, but no one responded because Hospital was understaffed. Petrosian consequently attempted to go to the restroom unassisted. She fell and was injured.

Petrosian asserted two causes of action against Hospital: elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.Code § 15600 et seq.) (the Elder Abuse Act) and medical malpractice.

B. Cause of action for elder abuse

In her cause of action for elder abuse, Petrosian alleged she fell because Hospital “did not have sufficient staffing and the lack of sufficient staffing led them to not assess plaintiff’s fall risk and thus to fail to take proper precautions to protect plaintiff from falling.” She further alleged Hospital’s understaffing “resulted in two factors that led directly to plaintiff’s fall: (1) failure to assess fall risk resulting in failure to take fall risk precautions, and (2) failure to respond to plaintiff’s multiple requests to go to the restroom.”

Petrosian alleged generally that the understaffing violated state regulations governing hospital staffing and nurse-to-patient ratios. She further alleged Hospital knowingly violated the regulations on a repeated basis to cut costs, despite having “knowledge of the serious danger the violation of the regulations posed to elderly patients who posed fall risks.”

Petrosian alleged Hospital “acted with malice, oppression, fraud and recklessness with regard to their neglect of plaintiff.” Hospital was “aware of the lack of staffing and that there was a high probability that the lack of staffing would cause injury—such as falls for elderly patients who tried to ambulate for basic needs when nurses did not respond to calls for assistance or elderly patients for whom proper fall precautions were not taken because of understaffing.” Moreover, Petrosian alleged, Hospital “had a pattern and practice of understaffing to save on costs.”

Petrosian alleged “[s]aid conduct” entitled her “to heightened damages under the Elder Abuse Act including attorney’s fees.” She also sought punitive damages. Petrosian alleged Hospital was responsible for the acts of its agents because it or its officer, director, and/or managing agent “authorized and ratified all wrongful acts committed by said agents and employees that separately or together constitute grounds for awarding punitive damages” and heightened damages under the Elder Abuse Act. She did not make any further allegations about authorization or ratification.

C. Cause of action for medical malpractice

Petrosian incorporated her factual and elder abuse allegations into her cause of action for medical malpractice. She also alleged Hospital owed her a duty to provide a medical standard of care and proximately caused her damages by failing to meet their obligation. Specifically, she alleged Hospital “negligently did not provide reasonable care to plaintiff by failing to provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients, said negligence proximately causing injuries and damages to the plaintiff.” Petrosian again alleged generally that Hospital was liable for the acts of its employees.

II. Demurrer and Opposition

Hospital filed a demurrer to the elder abuse cause of action. It contended Petrosian failed to state a claim for elder abuse because she did not adequately plead facts sufficient to demonstrate Hospital was reckless, oppressive, fraudulent, or malicious. Hospital contended Petrosian failed to allege “that medical care was deliberately withheld by Sherman Oaks” and rather “simply takes issue with the manner in which the care was rendered.” Hospital further contended Petrosian’s elder abuse claim “sounds in medical negligence” because it was “based on plaintiff’s dissatisfaction with the medical care provided to her.” In addition, Hospital claimed Petrosian “failed to specifically allege that an officer, director or managing agent of Sherman Oaks ratified its agents or employees’ alleged intentional conduct.”

Petrosian opposed the demurrer. She argued that Fenimore, supra, 245 Cal.App.4th 1339, “dictates the decision in this case,” because the allegations of the SAC were indistinguishable from those found sufficient to plead an elder abuse cause of action in Fenimore. Petrosian specifically pointed to her allegations that Hospital engaged in a pattern or practice of flouting state staffing regulations.

In reply, Hospital argued Petrosian conceded the ratification issue by failing to address it in her opposition. It also contended Fenimore “supports defendant’s position that this is not elder abuse,” because Fenimore held that elder abuse requires a conscious choice to provide any care or treatment, and “[t]hat is not the case here.” Hospital further argued Petrosian’s allegations pertained to medical care, not custodial malfeasance, because “decisions by a patient’s health care team regarding the most appropriate manner to prevent falls is a medical assessment.”

III. Hearing and Ruling

The trial court heard the demurrer on May 2, 2018. The court certified a settled statement summarizing the hearing as follows: “Plaintiff Vartuhi Petrosian’s counsel argued that the ruling of Fenimore v. Regents of the State of California [(2016)] 245 Cal.App.4th [1339,] 1343 was controlling on the issue as to whether plaintiff had sufficiently alleged an Elder Abuse Cause of Action because the facts were very similar to the ones in the instant case and in Fenimore the appellate court found that the plaintiff had sufficiently alleged facts to support a Elder Abuse Cause of Action at the demurrer stage of the proceeding [sic]. However, the trial court in the instant case at the hearing contended that there was a difference between Fenimore and the instant case in that in Fenimore the alleged conduct occurred over a period of days whereas in the instant case it was limited to one day and the court believed that was an insufficient period of time to constitute elder abuse. The court took the matter under submission and issued a ruling that sustained [the demurrer] . . . without leave to amend said cause of action.” The settled statement is in accord with the trial court’s minute order documenting the hearing.

After the hearing, the court sustained the demurrer and issued a written ruling explaining its decision. The majority of the ruling explained why the court believed Fenimore was distinguishable. It also stated: “Moreover, after several tries, the Plaintiff has not provided allegations showing ratification by corporate officers. Therefore, the demurrer is sustained, and the motion to strike is granted. [¶] It is difficult to see how the Plaintiff can truthfully amend to make a pattern of abuse or neglect out of a single incident. The Court will not grant leave to amend at this point, but will consider leave to amend if the Plaintiff produces evidence at a later dated [sic] from which a jury could reasonably conclude that Elder Abuse has taken place.”

Petrosian’s medical malpractice cause of action was not subject to the demurrer. On September 14, 2018, Petrosian filed and the trial court granted a request to voluntarily dismiss that cause of action with prejudice. Petrosian timely filed a notice of appeal from the judgment of dismissal.

DISCUSSION

I. Standard of review

“The standard by which we review an order sustaining a demurrer without leave to amend is well established. We review the order de novo, exercising our independent judgment on whether the complaint states a cause of action as a matter of law.” (Lo v. Lee (2018) 24 Cal.App.5th 1065, 1070.) We treat the demurrer as admitting all properly pled material facts, but not contentions, deductions or conclusions of fact or law. (Winn, supra, 63 Cal.4th at p. 152.)

“The plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer.” (Martin v. Bridgeport Community Association, Inc. (2009) 173 Cal.App.4th 1024, 1031.) “The fact that we examine the complaint de novo does not mean that plaintiffs need only tender the complaint and hope we can discern a cause of action. It is plaintiffs’ burden to show either that the demurrer was sustained erroneously or that the trial court’s denial of leave to amend was an abuse of discretion.” (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) “[T]he trial court’s judgment is presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited.” (Ibid.) “The appellant may not simply incorporate by reference arguments made in papers filed in the trial court, rather than briefing them on appeal.” (Id. at p. 656.)

II. Elder Abuse Act pleading requirements

The Elder Abuse Act “makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’ (Welf. & Inst. Code,§ 15610.27.)” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404 (Carter).) “The Elder Abuse Act’s heightened remedies are available only in limited circumstances. A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with ‘recklessness, oppression, fraud, or malice.’ (§ 15657.)” (Winn, supra, 63 Cal.4th at p. 156.) In other words, “to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 (Covenant Care).)

For purposes of the Elder Abuse Act, neglect is 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.” (§ 15610.57, subd. (a)(1).) Neglect includes “[f]ailure to assist in personal hygiene,” “[f]ailure to provide medical care for physical and mental health needs,” “[f]ailure to protect from health and safety hazards,” and “[f]ailure to prevent malnutrition or dehydration.” (§ 15610.57, subds. (b)(1)-(4).) Neglect thus incorporates “the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1999) 20 Cal.4th 23, 34.) When the medical care of an elder is at issue, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, supra, 32 Cal.4th at p. 783.)

The Elder Abuse Act prohibits “only egregious acts of misconduct distinct from professional negligence.” (Covenant Care, supra, 32 Cal.4th at p. 784.) “[T]he Legislature expressly has excluded ordinary negligence claims from treatment under the Act.” (Id. at p. 789.) The plaintiff thus must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect. (§ 15657.) “‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. [Citations.] Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to a level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ [Citation.]” (Delaney v. Baker, supra, 20 Cal.4th at pp. 31-32.) “Hence, the Act does not provide liability for simple or gross negligence by health care providers.” (Fenimore, supra, 245 Cal.App.4th at p. 1347.)

Thus, to state a claim under 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 [citations]; (2) knew of conditions that made the elder or 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 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) [citations].” (Carter, supra, 198 Cal.App.4th at pp. 406-407.) These facts must be alleged with particularity. (Covenant Care, supra, 32 Cal.4th at p. 790.) The plaintiff must also allege, with particularity, that the neglect caused the elder adult to suffer physical harm, pain, or mental suffering. (Carter, supra, 198 Cal.App.4th at p. 407.)

To the extent the plaintiff seeks to hold a corporate defendant liable for the acts or omissions of its employee, the plaintiff also must satisfy the standards set forth in Civil Code section 3294, subdivision (b). (§ 15657, subd. (c).) As relevant here, that section provides: “An employer shall not be liable for damages . . . based upon the acts of an employee of the employer, unless the employer . . . authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (b).) Allegations regarding authorization or ratification must also be pled with particularity. That means “the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.” (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5; see also Covenant Care, supra, 32 Cal.4th at p. 790 [also citing “the general rule that statutory causes of action must be pleaded with particularity”].)

III. Analysis

The trial court sustained the demurrer without leave to amend after finding that Petrosian failed to adequately plead both recklessness and corporate authorization thereof. Petrosian focuses her appellate briefing almost exclusively on the first finding. She argues that her recklessness allegations are analogous to those in Fenimore, supra, 245 Cal.App.4th 1339, which survived demurrer, and that “the analysis of the Fenimore case is enough to decide this appeal.” She does not mention her allegations about corporate authorization, or make any argument directly challenging the trial court’s conclusion that they were inadequate.

Petrosian has failed to carry her burden of overcoming all of the legal grounds on which the trial court sustained the demurrer. Even were we to assume that her allegations of recklessness are analogous to those in Fenimore, which we do not decide here, Petrosian additionally is required to “allege conduct essentially equivalent to conduct that would support recovery of punitive damages” to obtain the Elder Act’s heightened remedies. (Covenant Care, supra, 32 Cal.4th at p. 789.) The punitive damages statute, Civil Code section 3294, subdivision (b), which is incorporated into the Elder Abuse Act by section 15657, subdivision (c), requires a plaintiff to plead facts establishing an employer’s liability for the conduct of its employees. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 721-722.) Those facts must be pled with particularity. (See Covenant Care, supra, 32 Cal.4th at p. 790.)

The bare allegations in the SAC that Hospital authorized wrongful acts do not meet this threshold. Petrosian alleged only that “an officer, director, and/or managing agent authorized and ratified all wrongful acts committed by said agents and employees.” This conclusory assertion is not pled with particularity. All that is alleged is a legal conclusion that an unidentified managing agent authorized or ratified the staff’s failure to assess Petrosian’s fall risk, take precautions to prevent her from falling and respond to her calls for assistance, and further authorized or ratified the understaffing that led to that neglect. There are no allegations about the identity of a managing agent or that agent’s authority to bind Hospital. There likewise are no allegations that the unidentified managing agent was aware of the understaffing or its consequence to Petrosian, or the nature of the understaffing. The trial court accordingly was correct to sustain the demurrer on this basis.

Petrosian contends “she could still proceed on a neglect claim without heightened remedies,” because “[i]t really does not make any sense that you could have heightened remedies without an underlying cause of action.” Relying on CACI No. 3103, she argues that she “can seek relief for neglect without any showing of reckless or worse conduct.” “[J]ury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent.” (People v. Morales (2001) 25 Cal.4th 34, 48 & fn. 7.)

Petrosian’s other authorities are no more supportive. ARA Living Centers-Pacific Inc. v. Superior Court (1993) 18 Cal.App.4th 1556 (ARA) considered whether changes made to the Elder Abuse in 1991 applied to events that occurred before the statutes were amended. (ARA, supra, 18 Cal.App.4th at p. 1558.) It recounted the legislative history of the Elder Abuse Act, observing that the 1991 amendments intended to incentivize the prosecution of elder abuse claims by adding section 15657, which provides for heightened remedies. (Id. at p. 1560.) Neither this observation nor the court’s conclusion that the 1991 amendments “did not add a cause of action” (id. at p. 1563) demonstrates that a plaintiff may obtain relief under the Elder Abuse Act for mere negligence. Indeed, ARA is inconsistent with Supreme Court dicta. (Perlin v. Fountain View Management (2008) 163 Cal.App.4th 657, 665-666.) Covenant Care states “the Legislature expressly has excluded ordinary negligence claims under the Act” (Covenant Care, supra, 32 Cal.4th at p. 789 [citing § 15657.2 and Delaney, supra, 20 Cal.4th at p. 30]), and appellate courts have treated “reckless, oppressive, fraudulent, or malicious conduct” as a necessary element of an elder abuse cause of action. (See, e.g., Wintrier v. Superior Court (2004) 117 Cal.App.4th 72, 83-85.)

In Stewart v. Superior Court (2017) 16 Cal.App.5th 87 (Stewart), the petitioner was the representative of a decedent who died after admission to a hospital owned by the real parties in interest. She alleged the hospital denied the decedent the right to refuse, through her, the pacemaker surgery that ultimately led to his demise. (Stewart, supra, 16 Cal.App.5th at p. 90.) The trial court granted the hospital’s motion for summary adjudication of petitioner’s elder abuse claim, and the court of appeal issued a writ of mandate directing the trial court to vacate its order. (Id. at pp. 90-91, 109.) In doing so, the appellate court stated, “we find the facts Stewart has alleged and proved could support not just some formless cause of action that is something more than professional negligence, but a cause of action for elder abuse, specifically.” (Id. at p. 104.) It further stated, “we find Stewart has at least shown the existence of triable issues of material fact regarding whether custodial neglect within the meaning of the Act occurred when [the hospital] authorized [the decedent’s] pacemaker surgery over Stewart’s objection,” and then “turn[ed] to whether she has produced enough evidence that [the hospital] ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of this’ neglect, so as to entitle her to the Act’s enhanced remedies.” (Id. at pp. 107-108.)

Pointing to these quoted excerpts, Petrosian asks, “If Elder Abuse were one unitary cause of action—requiring both neglect and conduct demonstrating enhanced remedies be shown—why would the court say that plaintiff has ‘at least shown the existence of triable issues of material fact regarding custodial neglect within the meaning of the Act. . .’ and then turn to whether there were triable issues of material fact as to the Act’s enhanced remedies? How there could [sic] triable issues of material fact on the neglect claim before you get to an analysis of enhanced remedies unless the court was indicating that plaintiff could go to trial on the neglect claim separately from whether it had proven enough facts to go to trial on the enhanced remedies claim?” This line of questioning misconstrues the Stewart court’s careful analysis of the petitioner’s claims and application of summary judgment principles. The existence of a triable issue on one element of a cause of action does not render that element a stand-alone cause of action. Moreover, the Stewart court expressly rejected the hospital’s suggestion that its holding “will be interpreted to mean that any act of negligence by a hospital will constitute elder abuse,” noting that cases are not authority for propositions they do not consider and that it was “careful to describe the evidence introduced by the parties on summary judgment in detail, to focus our inquiry on where and how Stewart’s evidence created triable issues of material fact.” (Stewart, supra, 16 Cal.App.5th at pp. 108-109.)

Petrosian also contends that section 15657 suggests that “neglect would appear to the [sic] basic cause of action to which enhanced remedies are added when there is egregious conduct,” and that any other interpretation “would mean that the elderly who were treated with neglect that fell short of egregious conduct would have no relief for the misconduct of people responsible for their care.” These contentions are supported by little more than speculation. They also ignore the existence of causes of action for professional negligence, which Petrosian herself asserted but dismissed in this case.

DISPOSITION

The judgment is affirmed. Hospital is awarded its costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. CURREY, J.