2015-00184230-CU-PO

Beverly Edwards vs. Plum Healthcare Group, LLC

Nature of Proceeding: Hearing on Demurrer to the 2nd Amended Complaint

Filed By: Weissman, Aaron J.

Defendants Vohra Wound Physicians of California, P.C. Vohra Wound Physicians Management LLC, Vohra Heath Services, P.A. and Luis Lee MD (“Defendants”) Demurrer to the Second Amended Complaint is overruled.

The preference trial date has been continued to July 9, 2018.

Defendant’s objection to the timeliness of the opposition is overruled. CCP 1013 does not apply to the service of opposition papers. See, CCP 1005(b). The opposition was served in compliance with CCP 1005(c) because the papers opposing the motion were reasonably calculated to ensure delivery to the other party no later than the close of the next business day after the time the opposing papers were filed. The opposition was filed and served by express mail on March 2, 2018, the date the opposition was due. Monday March 5 is one business day after the opposing papers were filed, thus receipt of the opposition on that date is timely.

Defendant’s Objection to the Declaration of Lesley Ann Clement is overruled.

This action arises from plaintiff Edwards’ stay at three different skilled nursing facilities owned and operated by the “Plum Corporate Defendants” following surgery on her left ankle. The Plum Corporate Defendants retained Vohra “to provide safe custodial medical management of the residents’ wounds” and Vohra employee, Dr. Lee, was assigned to care for plaintiff’s wounds during her stay at one facility.

Plaintiff alleges the high volume nature of the business pressures physicians to see large numbers of patients on a daily basis and to debride wounds on every visit to maximize Medicare revenue. Plaintiff alleges that defendant Luis Lee MD, a Vohra Physician, debrided Beverly Edwards pressure ulcers so excessively that he exposed her bone. He allegedly never told her attending physician, the orthopedist, or her family about her exposed bone. Ms. Edwards eventually became septic and her leg was amputated.

Custodial relationship

In ruling on the demurrer to the 1st Amended Complaint, the Court overruled the demurrer to the elder abuse cause of action, finding that plaintiff had adequately alleged a custodial relationship to support this cause of action. (See ruling from Department 54, October 17, 2016, Ex. 2 Declaration of Clement) Defendants again rely on Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148 in arguing that the elder abuse cause of action fails to state facts sufficient to constitute a cause of action. In Winn, the Supreme Court concluded that the Act does not apply “unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” “It is the nature of the elder[’s]…relationship with the defendant–not the defendant’s professional standing–that makes the defendant potentially liable for neglect.” Thus, because the doctors in that case did not have “a caretaking or custodial relationship with the decedent,” plaintiffs could not adequately allege neglect under the Act. (Winn, at 152.) However, plaintiff in this case has sufficiently alleged a custodial relationship, as determined in the ruling of October 17, 2016. The Court will not revisit this issue on a subsequent demurrer. Code Civ. Proc., § 1008, essentially forbids a trial court from reconsidering an order previously rendered in an action, either its own or one made by another judge, unless a motion is made according to § 1008, which must include reference to new or different facts, circumstances, or law before the earlier order may be reconsidered. Thus, the second judge is limited to ruling on the causes

of action to which the first judge had sustained the demurrer. Bennett v. Suncloud (1997) 56 Cal App 4th 91, 96-97. Accordingly, the Court is foreclosed from rendering a new determination on the viability of the other claims unless some new facts or circumstances were brought to his attention. Therefore, absent new facts or circumstances, the court is precluded from sustaining a demurrer to a cause of action that was previously overruled by another judge.

In addition to the issues raised before, defendants also allege that plaintiff has not alleged sufficient facts to support vicarious liability and alter ego against Vohra-CA, Vohra Management, and Vohra Health. Welfare and Institutions Code §15657 requires that a plaintiff plead and ultimately prove that: 1) defendant subjected an elder to statutorily-defined physical abuse, neglect or financial abuse; and (2) defendant acted with recklessness, malice, oppression, or

fraud in the commission of the abuse. When an elder abuse claim is brought against corporate defendants such as Vohra CA, Vohra LLC and Vohra PA, the plaintiff must further establish that an officer, director or managing agent authorized or ratified the abuse or neglect. Welfare and Institutions Code § 15657(c); Civil Code §3294. Thus, in order “to recover against an employer or corporate defendant, the plaintiff must meet the standards of Civil Code
§3294(b) for the imposition of punitive damages of an employer based on the act of an employee.” (Welfare and Institutions Code § 15657(e).)

Vicarious Liability

Defendants contend plaintiff has failed to plead corporate ratification, which requires proof that the officer, director or managing agent had actual knowledge of both the alleged misconduct of the employee and of its malicious nature and then the corporation must have approved that malicious misconduct. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.) The Court finds that the SAC adequately alleges corporate liability for the acts of Lee as follows:

“¶86. The Vohra Corporate Defendants and their physicians are compensated based on the number of patients seen and the number of procedures performed. The Vohra Corporate Defendants exert constant pressure on their physicians to see excessive numbers of patients each day and to minimize the amount of time spent with each patient. The Vohra Corporate Defendants demand that their physicians perform excessive debridements and other procedures, even when such procedures are not in the best interests of the patient, in order to maximize billings to Medicare and other third-party payors . . . Managing agents of the Vohra Corporate Defendants know that their company’s practices compromise the quality of care provided to each patient and put the patients at risk of dangerous and even life-threatening complications such as amputation, but they are indifferent to this because their priority is profits, not quality of care.”

“They further ratified the physicians’ conduct by choosing not to discipline or take remedial action against them based on their maltreatment of Ms. Edwards. SAC ¶107.

It is not necessary to name the managing agents at the pleading stage.

Alter Ego

Defendant contends the alter ego allegations, all of which are contained in paragraph 28 of the SAC and incorporated by reference into the First Cause of Action for Elder Abuse at paragraph 94, are insufficient to support claims against Vohra LLC and

Vohra PA. Alter ego is an extreme remedy, sparingly used. Sonora Diamond Corp. v.

Superior Court (2000) 83 Cal. App. 4th 523, 539. In paragraph 28 of the SAC,
Defendants contend Plaintiff sets forth an allegation of a “single business enterprise”

with virtually no facts in support thereof. Moreover, plaintiff made no allegations going
to the second requirement for piercing the corporate veil – that failure to do so would
“sanction a fraud or promote
injustice.”

It is well established that even in cases involving statutory liability, the complaint is to be liberally construed as against a demurrer, and allegations contained in the complaint are assumed to be true. (Shields v. County of San Diego (1984) 155 Cal. App.3d 103, 113).

Here, Plaintiffs SAC puts defendants on notice of the nature, source,

and extent” of her single enterprise/alter ego theory against defendants. Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2017 § 6:128). Among other things. Plaintiff alleges: The Vohra Corporate Defendants were and are part of a single business enterprise founded and substantially owned by Dr. Ameet Vohra to supply wound care physicians to long-term care facilities located throughout the nation. The Vohra Corporate Defendants were and are owned, operated, and managed by the same group of individuals, who treat them as a single enterprise. The Vohra Corporate Defendants commingle and transfer funds among themselves. The Vohra Corporate Defendants share personnel and resources. The Vohra Corporate Defendants are under common supervision.

The Vohra Corporate Defendants together manage and oversee every aspect of the wound care provided by their physicians. SAC ¶¶28, 29 Although defendants are correct that plaintiffs will have to provide proof at trial to prevail on this theory, and to show an inequitable result if the corporate veil is not pierced, the Court is not persuaded that these details need to be alleged at the pleading stage, particularly since a preference trial date has already been set and the moving parties have also scheduled motions for summary judgment to be heard before the July 9 trial date.

Answer to be filed and served on or before March 26, 2018.