Case Number: BC542198    Hearing Date: July 17, 2014    Dept: 34

Moving Party: Defendants San Fernando Community Hospital and Mission Community Hospital Foundation (“defendants”)

Resp. Party: Plaintiff Jennifer Racette (“plaintiff”)

Defendants’ demurrer to plaintiff’s complaint is OVERRULED.

Defendants’ motion to strike is DENIED.

BACKGROUND:

Plaintiff commenced this action on 4/18/14 against defendants for: (1) assault; (2) battery; (3) IIED; and (4) violation of Elder Abuse and Dependent Adult Civil Protection Act. On 2/13/13, plaintiff was admitted to Mission under a mental health evaluation hold, and as a result she became a “dependent adult” under Welfare and Institutions Code section 15610.23. (Compl., ¶ 14.) On 2/17/13, plaintiff asked a nurse for medication to help her sleep, to call a doctor, and for towels so that plaintiff could shower, and the nurse refused all of these requests. (Id., ¶¶ 16-18.) Plaintiff took a shower anyway, had to push the emergency light switch in order to get help drying off, and the nurse gave plaintiff a towel. (Id., ¶¶ 19-20.) Thereafter, the four individual defendants (employees of Mission) entered the room. (Id., ¶ 21.) An altercation arose between plaintiff and the defendants, resulting in one of the defendants grabbing plaintiff’s feet and turning her so that she was laying on the bed. (Id., ¶ 23.) Defendant Aceves then laid on top of plaintiff while another defendant held her arms down against the bed over her head. (Ibid.) Aceves struck plaintiff repeatedly with his closed fists. (Id., ¶ 24.) The defendants then pulled down plaintiff’s pants, exposing her hip, and gave her an injection. (Id., ¶ 26.) Afterward, plaintiff was carried to the other side of the premises. (Id., ¶ 27.)

ANALYSIS:

Demurrer

Defendants demur to the fourth cause of action on the ground that plaintiff fails to allege sufficient facts and the claim is uncertain.

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 7:85.) “Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, ¶ 7:85 [citing Khoury, 14 Cal.App.4th at p. 616].) The allegations in the complaint are not so unclear that defendants cannot reasonably respond. To the extent that defendants wish to obtain more information as to the fourth cause of action, such information may be sought during the discovery process.

The elements of a claim for physical abuse under the Elder Abuse and Dependent Adult Civil Protection Act include: (1) physical abuse by the defendant; (2) plaintiff was a dependent adult at the time of the conduct; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing the harm. (CACI 3106.) Because such claims are governed by a statute, the elements must be alleged with particularity. (See Welf & Inst. Code, §§ 15600, et seq.; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82 [elder abuse elements are statutory]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [in general statutory claims must be alleged with particularity].) “Physical abuse” under the statute includes such things as assault and/or battery as defined by the Penal Code, or unreasonable physical restraint. (See Welf. & Inst. Code, § 15610.63.)

Mere negligence is not sufficient to support a claim for elder or dependent adult abuse.

In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. [Citations.]

Section 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Thus, amici curiae argue, causes of actions within the scope of section 15657 are not “cause[s] of action … based on … professional negligence” within the meaning of section 15657.2. Defendants claim that such an interpretation would render section 15657.2 surplusage because section 15657 already on its face excludes actions based on professional negligence strictly construed. We disagree. The Legislature could have reasonably decided that an express statement excluding professional negligence from section 15657 was needed because the language of section 15657, and in particular the terms “neglect” and “recklessness,” may have been too indefinite to make sufficiently clear that “professional negligence” was to be beyond the scope of section 15657.

(Delaney v. Baker (1999) 20 Cal.4th 23, 31-32. See also Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)

Defendants argue that the allegations at most allege a claim for professional negligence. This argument is not well taken. Plaintiff’s allegations do not pertain to the administration of treatment for her condition. Instead, she alleges that the four individual defendants physically restrained her on her bed by holding her arms and legs and laying on top of her. (See Compl., ¶¶ 23, 25.) Plaintiff alleges that one of the defendants “repeatedly struck [her] in the face, abdomen, and back with his closed fists.” (Id., ¶ 24.) Plaintiff alleges that they pulled down her pants and exposed her hip, and then gave her an unidentified injection. (Id., ¶ 26.)

Certainly defendants are not arguing that, if the hospital personnel “repeatedly struck [her] in the face, abdomen, and back with his closed fists” this would simply amount to malpractice.

Plaintiff’s allegations are sufficient to establish that defendants engaged in intentional, willful, or conscious behavior of a despicable or injurious nature.

Accordingly, defendants’ demurrer to plaintiff’s complaint is OVERRULED.

Motion to Strike

Defendants move to strike plaintiff’s claim for punitive damages because plaintiff has not complied with Code of Civil Procedure section 425.13. This section provides, in relevant part:

In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.

(Code Civ. Proc., § 425.13(a).) “Professional negligence” under this section is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 187 [internal quotations and citation omitted].) The court in Central Pathology noted that, in order to constitute professional negligence under the statute, the conduct must be directly related to the manner in which professional services were provided. (Id. at p. 192.)

Here, plaintiff is not alleging that defendants’ conduct pertained to professional services. Instead, she alleges that the individual defendants committed an assault and battery upon her while she was at defendants’ facility. (See Compl., ¶¶ 23-26.) As indicated above when discussing the demurrer, this includes the allegation that one of the defendants “repeatedly struck [her] in the face, abdomen, and back with his closed fists.” (Id., ¶ 24.) Nothing in the complaint suggests that defendants’ conduct was directly related to the manner in which professional services were provided.

Accordingly, defendants’ motion to strike is DENIED.

Defendants to answer within 10 days.