Case Number: BC675107 Hearing Date: March 01, 2018 Dept: 46

Case Number: BC675107
BERNABE COLOMBA ET AL VS BLYTHE WINSOR COUNTRY PARK HEALTH

Filing Date: 09/06/2017
Case Type: Elder/Dependent Adult Abuse Case

03/01/2018
Motion for Summary Adjudication (“MSA”)

TENTATIVE RULING

Plaintiff’s Objections to the Declaration of Maria Saril, R.N. is/are OVERRULED.

Motion for Summary Adjudication is DENIED as to the 1st and 4th Causes of Action.

The motion for Summary Adjudication is GRANTED as to the claim for punitive damages. Punitive damage claims are ordered stricken from Complaint.

DISCUSSION

Procedural History: On September 06, 2017, the instant complaint was filed by Plaintiffs Bernabe Colomba, by and through his successor-in-interest Beatriz Colomba, Beatriz Colomba, and Daniel Colomba, alleging causes of action for (1) Elder Abuse; (2) Negligence; (3) Violation of Health & Safety Code § 1430(B); (4) Willful Misconduct; and (5) Wrongful Death. On November 13, 2017, the Court granted Plaintiffs’ motion for trial preference, and scheduled trial for March 7, 2018.

Factual History: Decedent Bernable Colomba, then age 95, legally blind and with dementia, was admitted to the hospice facility owned and operated by Defendants on May 10, 2017. Plaintiffs allege he was mistreated over the following days, and on May 14, 2017, decedent was taken to the hospital, where he remained for three days. He was transferred to another nursing home on May 17, 2017, and died May 26, 2017.

Evidentiary Objection: Plaintiffs object to the declaration of Defendants’ expert, Maria Christina Saril, R.N., in its entirety, on the ground she did not provide the medical records upon which she based her opinion. The objection is OVERRULED: although the declaration is somewhat vague as to what records she reviewed, it appears clear from context that she is referring to the medical records made by the nurses at the health care facility, and those records have been included with her declaration. While the Court agrees it would be improper for her to rely on other medical records without including them, each assertion she makes in the declaration references an attached exhibit, and Plaintiffs have not identified any specific documents otherwise missing from the declaration, other than decedent’s earlier medical records more generally.

Standard for Summary Adjudication

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” CCP § 437c(p)(2).

Elder Abuse

To assert a claim for elder abuse, “[t]he plaintiff must allege (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, such as 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 alleges recklessness). 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. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07 [internal citations omitted].)

Defendants argue Plaintiffs cannot demonstrate that Defendants neglected decedent, and that Defendants cannot demonstrate that any neglect that did occur was due to recklessness, oppression, malice, or fraud. In framing this as two different inquiries, Defendants have misconstrued the nature of the statute. In Delaney v. Baker (1999) 20 Cal. 4th 23, the Supreme Court observed that there is often difficulty in distinguishing between “professional negligence” and “neglect.” By way of example, the court explained that when a nursing home allows a patient to suffer malnutrition, such conduct might be described either as “professional negligence” or “neglect” as defined in Welfare and Institutions Code section 15610.57. (Id. at 34.) The court further explained, however, that the Legislature created a mechanism to differentiate between conduct that is merely negligent and that which rises to the level of elder abuse: “Section 15657 provides the way out of this ambiguity: if the neglect is ‘reckless[],’ or done with ‘oppression, fraud or malice,’ then the action falls within the scope of section 15657 and as such cannot be considered simply ‘based on . . . professional negligence’ within the meaning of section 15657.2. The use of such language in section 15657, and the explicit exclusion of ‘professional negligence’ in section 15657.2, make clear the Elder Abuse Act’s goal was to provide heightened remedies for, as stated in the legislative history, ‘acts of egregious abuse’ against elder and dependent adults.” (Id. at 35.)

Defendants concede at the outset of their motion that triable issues of fact exist as to whether any professional negligence occurred in their treatment of decedent, and the only thing separating professional negligence from neglect is that the latter is done with recklessness, malice, oppression, or fraud. Accordingly, Defendants attempt to argue that there was no neglect, separate and apart from its argument that there was no recklessness, malice, oppression, or fraud, misunderstands that the former issue is contingent on the latter issue.

As to whether Defendants acted with recklessness, malice, oppression, or fraud, the Court notes that Defendants motion is fairly lacking: For evidence, Defendants rely almost exclusively on the testimony of Plaintiff Daniel Colomba, who frequently was not present to observe whether Defendants’ staff were caring for his father, and their Director of Nursing, who fails to address a number of important issues such as whether decedent was dehydrated, malnourished, or experiencing ulcers, and who otherwise provides minimal specificity about decedent’s condition and the efforts undertaken to care for decedent. The Court is therefore finds that that this is insufficient to find that Defendant has carried its burden as to these issues.

In any event, assuming the burden shifts to Plaintiffs, Plaintiffs note in opposition that, upon admittance to the hospital after being removed from Defendants’ care, decedent was identified as appearing malnourished, was dehydrated, had vitamin deficiencies, and had the beginning of ulcers on his buttocks. (P’s Exh. 6.) “Neglect” under the statute is specifically defined to include failure to prevent malnutrition and dehydration. (Welf.& Inst. Code § 15610.57(b)(4).) Moreover, decedent’s care plan at the facility expressly identified malnutrition and dehydration as concerns, required that decedent be administered fluids hourly, and monitor him for pressure ulcers, and there is little evidence Defendants met these requirements. (P’s Exh. 4, Greengold Decl., ¶ 5(g)-(i); Plaintiff’s Additional Material Facts Nos. 49, 50, & 53.) The Court concludes the foregoing is sufficient to conclude that triable issues of fact exist as to whether Defendants were reckless. (See Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [“A trier of fact could find that when a care facility’s employees ignore a care plan and fail to check the skin condition of a resident with Huntington’s Chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury.”].)

Willful Misconduct

The bulk of Defendants’ motion is focused on arguing that the California Supreme Court abolished the cause of action for Willful Misconduct in 1975. Defendants are incorrect. California courts have continued to affirm the validity of the cause of action as recently as last year (see, e.g., Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140), and it has also been recently applied to a case arising in the elder abuse context (see, e.g., Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528).

Willful misconduct is not a separate tort from negligence, but rather an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.(Doe v. United States Youth Soccer Association, Inc., supra, 8 Cal.App.5th at 1140 [internal quotations omitted].)

Defendants do briefly also argue that, assuming the cause of action still exists, on the same basis as was stated above regarding the elder abuse cause of action. However, the court finds that there are triable issues of material fact as to whether the Care Plan for decedent resulted in Defendants having actual or constructive knowledge of the risk to decedent and the probability of the injury, as well as to whether Defendants’ treatment of (or, more particularly, their failure to treat) decedent constituted a “conscious failure to act.”

Punitive Damages

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code § 3294.)

Finally, Defendants argue Plaintiff do not have sufficient evidence of malice, oppression, or fraud to warrant punitive damages. The Court agrees. While the Court concluded above that triable issues of fact exist as to whether Defendants were reckless in failing to adhere to decedent’s care plan, nothing submitted before the Court suggests malice, oppression, or fraud, let alone clear and convincing evidence of malice, oppression, or fraud.

Conclusion

For the foregoing reasons, Defendants’ motion for summary adjudication is DENIED as to the first and fourth causes of action and is GRANTED as to the claim for punitive damages.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge