2014-00707055
TENTATIVE RULING ON MOTION #1:

The general and special demurrers of defendant Fountain Care Center, LLC, to the first cause of action for statutory elder abuse in the complaint of plaintiff James Burkeen, individually and as the successor-in-interest to Marian Burkeen are overruled. The general demurrer to the third cause of action for negligent hiring and supervision is sustained with 20 days’ leave to amend.

The first cause of action is for statutory elder abuse. To maintain a claim for neglect under the Elder Abuse Act and recover the enhanced remedies under the Act, the plaintiff must plead (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, e.g., 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 pleads recklessness). Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 406-407. The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Id. at p. 407. Additionally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pled with particularity, because a statutory claim is involved. Ibid.

Moving defendant contends that this cause of action is lacking specific facts to establish the elements. However, the complaint alleges that plaintiff’s decedent had a history of bowel impaction, in spite of assurances to the family that the defendant would remove the impaction and provide care and medication to prevent the condition from reoccurring, defendant’s facility failed to provide the patient with the medical and custodial care that she needed, including failing to remove the bowel impaction and overmedicating her with pain medication. The complaint also alleges that, after plaintiff’s decedent returned from the hospital, which confirmed the overmedication, defendant’s staff continued to overmedicate her and did so by trying to hide her medication in her pudding. The complaint alleges that when the plaintiff came to visit the decedent, he found her gagging on the pudding, and she went back to the hospital, where she was diagnosed as having aspiration pneumonia as well as stool impaction. The complaint alleges that, although the plaintiff’s decedent was transferred to another facility after her discharge from the hospital, she succumbed to the injuries she received from the neglect and abuse at defendant’s facility.

These allegations are sufficient to show a cause of action for statutory elder abuse under the authority cited above.

The third cause of action is for negligent hiring and supervision. An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 760, 815. Negligence liability will be imposed upon the employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. Ibid.

The moving defendant contends that this cause of action is defective because there are no facts showing that it was warned or put on notice that the doe co-defendants or employees were unfit. The responding plaintiff argues that the defendant engaged in deliberate understaffing with unqualified personnel at the expense of the care to the residents, including plaintiff.

The allegations in the third cause of action are vague and do not show that the defendant knew that a particular employee or agent was, in fact, incompetent or unfit to perform his or her job and created a particular risk or hazard. The complaint simply alleges that the facility administrator, directors of nursing, “any many certified nursing assistants, registered nurses, licensed vocation nurses, and others whose names are not presently known” “were unfit to perform their job duties and the DEFENDANTS knew, or should have known, that they were unfit and that this unfitness creates a risk to elder an infirm residents” of the facility, including plaintiff. (Complaint, ¶ 85.) These allegations do not give the defendant sufficient information to defend against, as plaintiff is essentially contending that all employees were negligent. This cause of action should be narrowed.

TENTATIVE RULING ON MOTION #2:

The motion of defendant Fountain Care Center, LLC, to strike portions of the complaint of plaintiff James Burkeen, individually and as the successor-in-interest to Marian Burkeen is granted in part, denied in part, and moot in part. The motion is granted with 20 days’ leave to amend as to items 1, 2, 3, and 6 in the notice of motion. The motion is denied as to items 4, 5, 7, and 8-23 in the notice of motion. The motion is moot as to items 24-31 in the notice of motion.

Items 1 and 3 in the notice of motion ask the Court to strike the requests for punitive and exemplary relief and attorneys’ fees in the prayer to the first cause of action. Defendant contends that the cause of action for elder abuse is defective and that there are no allegations of employer ratification or authorization. While the Court has already found that plaintiff has sufficiently pled a claim for statutory elder abuse to obtain the enhanced remedies in Welf. & Inst. Code § 15757, subdivision (c) of that section provides that the standards set forth in subdivision (b) of Civ. Code § 3294 “regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.” Subdivision (b) of section 3294 provides that an employer is not liable for punitive damages “based upon acts of an employee of the employer, unless 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 or ratified the wrongful conduct for which the damages are awarded or 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.”

Here, are no specific allegations showing that any officer, director, or managing agent had advanced knowledge of an unfit employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct. Nor are there any allegations showing that the defendant was “personally “personally guilty of oppression, fraud, or malice,” notwithstanding the allegations in ¶7 and other paragraphs that the corporate officers and directors knew that the facility was understaffed. At most, such allegations show recklessness.

Item 2 in the notice of motion asks the Court to strike the request for treble damages under Civ. Code § 3345 in the prayer to the first cause of action. Defendant contends that such damages are only available in cases involving seniors and disabled persons for unfair and deceptive acts and practices and unfair methods of competition. This is correct, as section 3345 itself provides in subdivision (a) that “[t]his section shall apply only in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons, as those terms are defined in subdivisions (f) and (g) of Section 1761, to redress unfair or deceptive acts or practices or unfair methods of competition.” There are no allegations of unfair or deceptive acts or practice of unfair competition.

Items 4, 5, and 7 in the notice of motion ask the Court to strike certain words and phrases from ¶¶ 7 and 11. Although these words and phrases are conclusory, they are innocuous.

Item 6 in the notice of motion asks the Court to strike ¶ 10 in its entirety. This paragraph alleges that the defendant and the “management defendants,” which are co-defendants Skilled Healthcare Group, Inc., and Does 51-100, “operated in such a way as to make their individual identities indistinguishable, and are therefore, the mere alter-egos of one another.” This sentence is too conclusory to support a claim of alter ego liability.

Items 8 through 31 in the notice of motion ask the Court to strike ¶¶ 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 62, 63, 71, 75, 77, 84 (twice), 86, 87, 88, 89, and 90 in their entirety. The motion is moot as to items 24, 25, 26, 27, 28, 29, 30, and 31, because these relate to paragraphs in the third cause of action, and the Court has already sustained the demurrer to that cause of action. With respect to the other items, the Court recognizes that most of these paragraphs are repetitive and not necessary for plaintiff to state her claims under Code Civ. Proc. § 425.10 (a)(1). However, the Court does not want to re-write plaintiff’s complaint for him or to permit the defendant to redline the complaint. As such, the motion is denied as to items 8 through 23 in the notice of motion.

TENTATIVE RULING ON MOTION #3:

The general and demurrers of defendant Skilled Healthcare Group, Inc., to the first and third causes of action for statutory elder abuse and negligent hiring and supervision in the complaint of plaintiff James Burkeen, individually and as the successor-in-interest to Marian Burkeen are sustained with 20 days’ leave to amend.

The primary argument in the demurrer is that the plaintiff is improperly attempting to hold the moving defendant liable for the acts of co-defendant Fountain Care Center, which is a separate and distinct entity as well as the licensee of the facility. Defendant contends that all of the alleged wrongdoing in the complaint is directed to care provided by staff at Fountain Care Center’s facility and there are no allegations that the moving defendant actively and personally provided or directed the specific care to residents of the facility or that plaintiff’s decedent was in the direct care, custody, or control of the moving defendant. Defendant also contends that it cannot be held liable simply because it is the parent company of the co-defendant and there are no facts to assert alter ego liability.

Defendant’s arguments are valid. The only allegations pertaining to the moving defendant are the conclusory allegations in the introductory portion of the complaint, to the effect that the moving defendant “actively participated and controlled the business of the FACILITY and thus provided long-term professional and custodial care as a 24-hour skilled nursing facility” (complaint, ¶ 3). There are no facts to support this broad conclusion. Nor are there any facts to support the allegation in ¶ 10 that the moving defendant and co-defendant Fountain Care Center “operated in such a way as to make their individual identities indistinguishable, and are therefore, the mere alter egos of one another.”

TENTATIVE RULING ON MOTION #4:

The motion of defendant Skilled Healthcare Group, Inc., to strike portions of the complaint of plaintiff James Burkeen, individually and as the successor-in-interest to Marian Burkeen is moot because of the ruling on the moving defendant’s demurrer.