Case Number: KC066569 Hearing Date: June 24, 2014 Dept: O

Pratt, et al. v. Ensign San Dimas, LLC, et al. (KC066569)
1. Defendants Ensign San Dimas LLC and The Ensign Group, Inc.’s DEMURRER TO FIRST AMENDED COMPLAINT FOR DAMAGES

Respondent: Plaintiffs S. and D. Pratt

2. Defendants Ensign San Dimas LLC and The Ensign Group, Inc.’s MOTION TO STRIKE

Respondent: Plaintiffs S. and D. Pratt

TENTATIVE RULING

1. Demurrer

Defendants Ensign San Dimas LLC and The Ensign Group, Inc.’s demurrer to first amended complaint for damages is SUSTAINED without leave to amend as to the 1st and 2nd causes of action, and OVERRULED as to the 3rd cause of action.

JUDICIAL NOTICE is taken of Plaintiff’s Ex. 1 and A per Ev. Code 452(d), however, the ruling of a trial court in a separate, unrelated matter, is not binding on this court, and irrelevant to this action.

1ST CAUSE OF ACTION: ELDER ABUSE:
The elements of a cause of action under the Elder Abuse and Dependent Adults Act, Welfare & Inst C § 15600, et seq. (the Act) are statutory, and reflect the legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect. (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) To state a cause of action for dependent adult or elder abuse under the Act and obtain the heightened remedies provided under the Act, the plaintiff must plead facts showing two elements: (1) the defendant has subjected dependent adult or elder to statutorily-defined physical abuse, neglect or financial abuse; and (2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (Welf. & Inst. Code § 15657.) Under the Act, abuse of an elder or a dependent adult entails either of the following: (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welfare & Inst C § 15610.07; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779, fn. 3.) Like other statutory causes of action, a claim must be pled with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)
Par. 13 alleges that not only was David Pratt left unsupervised and unattended, but there was an absolute failure to provide any precautionary measures to prevent him from falling, including floor mats, side rails, bed alarms, or a lowered bed position. As a result, David fell from his bed soon after admission. Because of the fall, his health deteriorated until he passed away on 3/1/13. (FAC, Par. 15.) The court finds the allegations do not sufficiently describe acts of Neglect within the meaning of the Elder Abuse statute. Plaintiff has simply repackaged her previous complaint by adding words such as “absolute failure” to her FAC. Plaintiff has added no new facts to bring this claim within the meaning of the Elder Abuse statute. Plaintiff is merely describing substandard use of precautionary measures, not the denial or withholding of goods or services necessary to meet the basic needs of an elder. Similarly, with respect to the allegation that Defendants waited for five hours before sending David to the hospital, the FAC admits that David was sent to the hospital, just not as swiftly as Plaintiffs desired. This allegation does not support the denial or withholding of medical services within the meaning of the Elder Abuse statute. As Plaintiff was given a prior opportunity to amend, but failed to add any additional facts that would support her claim, demurrer is SUSTAINED without leave to amend.

3rd CAUSE OF ACTION: WILFUL MISCONDUCT:
“The parties have argued extensively about whether a tort called “willful misconduct” is recognized in California. It is not a separate tort, but simply “an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.” Its pleading requirements are similar to negligence but stricter… THE ACT OR OMISSION MUST BE EVEN MORE SPECIFICALLY DESCRIBED IN ORDER TO RAISE IT TO THE LEVEL OF WILLFUL MISCONDUCT. No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. In addition, “‘[t]hree essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) CONSCIOUS FAILURE TO ACT TO AVOID THE PERIL.” (Berkley v. Dowds (2007) 152 Cal. App. 4th 518, 526-528.)
Par. 50 alleges that Defendants knew or should have known that David was prone to falling. However, the complaint fails to allege any facts supporting Defendants’ conscious failure to act to avoid the peril. Plaintiffs’ allegations merely support a claim for Negligence, not facts rising to the level of Willful Misconduct. As Plaintiff was given a prior opportunity to amend, but failed to add any additional facts that would support her claim, demurrer is SUSTAINED without leave to amend.

3rd CAUSE OF ACTION: WRONGFUL DEATH:
The elements are: 1) wrongful act or neglect on the part of one or more persons; and 2) causing the death of another. (Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 404 citing CCP 377.60.)

Par. 58 incorporates allegations in the preceding paragraphs. Pars. 1-57 allege what appears to be negligent conduct. Par. 59 alleges that as a proximate result of Defendants’ conduct, David died on 3/1/13. Pars. 61-61 alleges resulting damages to David’s heirs. Demurrer is OVERRULED.

2. Motion to Strike

Defendants Ensign San Dimas LLC and The Ensign Group, Inc.’s motion to strike is GRANTED.

Plaintiffs failed to allege an adequate claim for Elder Abuse, and failed to seek leave per CCP 425.13. Further, Plaintiffs have agreed to withdraw those portions stating “per violation, per day” under the Violation of Patients’ Rights cause of action.