Case Number: BC529500    Hearing Date: July 15, 2014    Dept: J

Re: Richard A. Mumford v. San Dimas Retirement Center, Inc., et al. (BC529500)

DEMURRER TO COMPLAINT; MOTION TO STRIKE

Moving Party: Defendant Atul Aggarwal, M.D.

Respondent: Plaintiff Richard A. Mumford

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

The Complaint herein alleges that the decedent was a resident at San Dimas Retirement Center, Inc., she received hospice care at the facility, by Ultimate Care Hospice, Inc. and Atul Aggarwal, M.D., and that Defendants abandoned and neglected the decedent. The Complaint, filed 12/4/13 asserts causes of action for:

1. Elder Neglect & Abuse
2. Willful Misconduct
3. Fraud-Concealment
4. Wrongful Death

The Trial Setting Conference is set for 7/15/14.

(1) DEMURRER:

Defendant Atul Aggarwal, M.D. demurs to the Complaint on the grounds that the first, second and third causes of action do not state facts sufficient to constitute a cause of action and are also uncertain.

FIRST CAUSE OF ACTION FOR 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.) Like other statutory causes of action, a claim under the Elder Abuse Act must be pled with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

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.) For example, physical abuse of an elder includes unreasonable physical constraint, or prolonged or continual deprivation of food or water, as stated in Welfare & Inst C § 15610.63(d). (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1517.) Then, also, neglectful elder abuse is 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. (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at 785.)

“Neglect” is defined in Welfare & Inst C § 15610.57, as either (1) 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 or (2) failure to provide medical care for physical and mental health needs. (Mack v. Soung (2000) 80 Cal.App.4th 966, 973.) Specifically, Welfare & Inst C § 15610.57(a)(1) defines “neglect” as the negligent failure of any person having the care or custody of an elder to exercise that degree of care that a reasonable person in a like position would exercise, and includes failure to provide medical care for physical and mental health needs (Welfare & Inst C § 15610.57(b)(2)), failure to protect from health and safety hazards (Welfare & Inst C § 15610.57(b)(3)), and failure to prevent malnutrition or dehydration (Welfare & Inst C § 15610.57(b)(4)). (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1517.) Thus, “neglect” within the meaning of Welfare & Inst C § 15610.57 covers an area of misconduct distinct from “professional negligence. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) As used in the Elder Abuse and Dependent Adult Civil Protection Act, Welfare & Inst C § 15600 et seq., “neglect” refers not to the substandard performance of medical services but, rather, to the failure to provide medical care. (Id.) That is, claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care providers. (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at 786.)

With respect to the level of culpability described in the second element of the claim, a plaintiff must allege conduct essentially equivalent to that which would support recovery of punitive damages, in order to obtain the Elder Abuse Act’s heightened remedies. (Covenant Care, Inc., supra, 32 Cal.4th at 789 (Compare Welfare & Inst C § 15657, requiring “clear and convincing evidence that a defendant is liable for” elder abuse and “has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse,” with CC § 3294(a), requiring “clear and convincing evidence” that the defendant has been guilty of oppression, fraud, or malice.).)

The Complaint fails to adequately allege facts to support a cause of action for elder abuse against Dr. Aggarwal. Specifically, the Complaint does not allege facts to demonstrate that the decedent was denied medical care amounting to egregious abuse and/or that Dr. Aggarwal acted with recklessness, fraud, malice or oppression.

The Complaint alleges that Defendant San Dimas Retirement Center, Inc. (“SDRC”) was short staffed during the 11pm to 7am shifts (Complaint ¶¶ 29-31); sometime during 11-7am shift that ended on the morning of December 17, 2012, decedent was placed in wheelchair by one or more employees of SDRC, and taken from her residential room and bed to SDRC’s “Activity/Day room” (Id. ¶ 33); some point in time, during the shift the decedent was left alone completely unsupervised for a substantial period of time and fell off her wheelchair and fractured her hip (Id. ¶ 34); and that Defendants failed to implement the necessary plan of care (“POC”) that would have prevented the fall (Id. ¶ 39). However, such allegations are inadequate to assert a claim for elder abuse or neglect against Dr. Aggarwal.

The Complaint also alleges that Dr. Aggarwal omitted any reference to decedent’s wheelchair fall when filling out box item 112 on the Death Certificate, which specifically asks for: “other significant conditions contributing to death but not resulting in the underlying cause given in 107” (Complaint ¶ 48); and that by Dr. Aggarwal’s concealment of this information, Defendants received certain benefits or advantages, including but not limited to avoiding any negative reporting based upon a public record that a resident, while under their care and custody, was left unattended, fell, and suffered a hip fracture which contributed to her death, and also received payment from Medicare (Id. ¶ 50). However, such allegations are inadequate to support a claim for elder abuse or neglect against Dr. Aggarwal.

Plaintiff, in opposition, also argues that Dr. Aggarwal abandoned and neglected the decedent after she fell and fractured her hips. However, there are no specific facts alleged in the Complaint supporting such allegations of abandonment and/or neglect. Thus, the demurrer to the first cause of action is sustained.

SECOND CAUSE OF ACTION FOR WILLFUL MISCONDUCT:

Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689.) Willful or wanton misconduct travels under several other names. (Id.) Its aliases include “serious and willful misconduct,” “wanton misconduct,” “reckless disregard,” “recklessness,” and combinations of some or all of these. (Id.) These terms are interchangeable because they all identify the same thing — an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. (Id.) The usual meaning assigned to “wilful,” “wanton” or “reckless,” according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. (Id.)

Three essential elements must be present to raise a negligent act to the level of willful 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. (Id., at 689-690; Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 53; Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 552- 553.)

The second cause of action for willful misconduct is based on the same allegations as the first cause of action for elder abuse. The Complaint fails to allege a wrongful conduct done by Dr. Aggarwal either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. Thus, the demurrer is to the second cause of action is sustained.

THIRD CAUSE OF ACTION FOR FRAUD – CONCEALMENT:

The elements of fraud-concealment are: (1) defendant concealed or suppressed a material fact; (2) defendant was under a duty to disclose the fact to the plaintiff; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact; (5) causation; and (6) the plaintiff sustained damage. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)

The Complaint alleges that Dr. Aggarwal failed to notify the Los Angeles County Coroner and concealed certain facts and information regarding decedent’s death on the Death Certificate filed with the Los Angeles County Department of Public Health. (Complaint ¶ 91.) The Complaint, however, fails to allege facts demonstrating that Dr. Aggarwal concealed certain material facts from Plaintiff with intent to defraud Plaintiff, and any damages as a result of such concealment.

The Complaint also alleges that Defendants concealed from Plaintiff that under decedent’s Medicare coverage, no reimbursement would be forthcoming under its No Pay-Never Events policy in connection with decedent’s hip fracture injury; and that Defendants concealed the actual financial contract or business relationship between SDRC and Ultimate. (Complaint ¶ 92.) However, it appears that these allegations are against SDRC and Ultimate, and not against Dr. Aggarwal. The Complaint fails to allege facts demonstrating that Dr. Aggarwal was under a duty to disclose such facts to Plaintiff, Dr. Aggarwal intentionally concealed or suppressed the fact with the intent to defraud Plaintiff, Plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact, and/or that Plaintiff sustained damages as a result. Thus, the demurrer to the third cause of action is sustained.

(2) MOTION TO STRIKE:

Defendant also moves to strike potions of the Complaint seeking punitive damages and attorneys’ fees.

PUNITIVE DAMAGES:

In order to plead punitive damages, a plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.) “Fraud” means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (CC § 3294(c)(3).) “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (CC § 3294(c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (CC § 3294(c)(2).)

As discussed above, the Complaint fails to adequately allege fraud, malice, or oppression with sufficient particularity to support its allegations of punitive damages against Dr. Aggarwal. Thus, the motion to strike allegations and prayer for punitive damages is granted.

ATTORNEY’S FEES:

Attorney’s fees are allowable only when authorized by contract, statute, or law. (CCP § 1033.5(a)(10).)

The Complaint fails to adequately allege a contract, statute or law to support its request for attorney’s fees. Thus, the motion to strike allegations and prayer for attorney’s fees is granted.

The court will hear from counsel for Plaintiff as to whether leave to amend is requested.