Defendants EMERITUS CORP., EMERITUS SENIOR LIVING, and SUMMERVILLLE AT COBBCO INC. demur to the second cause of action for Elder Abuse in the Original Complaint filed on 1/06/14 by Plaintiffs GERTRUDES MURAT, ANNE MARY MURAT and ROSEMARY TAMAYO.

The court OVERRULES the demurrer and DENIES the motion to strike.

DEMURRER

2nd Cause of Action: Elder Abuse

Defendants base their demurrer as to this c/a on two grounds:

(A) the complaint fails to plead facts sufficient to show “recklessness, oppression, fraud, or malice in the commission of the abuse” as required by Welf. & Inst. Code 15657; and that

(B) the complaint fails to properly plead facts that would enable Plaintiffs to recover damages against a corporate employer under CCP 3294 (b) and Welf. & Inst. Code 15657 (c).

A. Recklessness, Oppression, Fraud or Malice

To recover for elder abuse, Plaintiffs must show more than mere professional negligence, but rather but rather egregious abuse amounting to willful or reckless conduct, done with deliberate indifference and conscious disregard for the health, safety, and well-being of the decedent. (Delaney v. Baker (1999) 20 Cal.4th 23, 34; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 402, 404.)

Elder abuse is defined to include physical abuse, neglect, abandonment, and deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. 15610.07 (a), (b).)
Plaintiffs allege all 4 types of elder abuse noted above. (Complaint at ¶¶ 66-69.) Moreover, section 15610.57 (b), expressly provides that it INCLUDES, BUT IS NOT LIMITED TO the specifically enumerated types of neglect.

Plaintiffs allege that Defendants intentionally or recklessly failed to provide for adequate training or staffing and failed to adequately supervise and assist her in performing her daily activities, including but not limited to safety checks every shift for fall management and assistance in transferring and walking. (Complaint at ¶¶ 20-33.)

Defendants also allege Defendants knew of the decedent’s need for assisted transfers and safety checks, but failed to provide them in conscious disregard for her safety, despite the fact that she fell on many occasions over several years.

Neglect and deprivation are broadly defined to include failure to protect an elder from health and safety hazards and deprivation of services necessary to avoid physical harm or mental suffering. Arguably, the intentional failure to provide adequate training or staffing and the intentional or reckless failure to provide assistance with transferring or walking, would constitute neglect or abuse. (Welf. & Inst. Code 15610.07; CACI 3103.)

Under Delaney v. Baker (1999) 20 Cal.4th 23, 34-35, neglect includes, but is not limited to, the failure to protect from health and safety hazards. Here, decedent’s propensity to fall was allegedly a known safety hazard, which Defendants allegedly failed to guard against.

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88, the court of appeal held that defendant’s failure to properly monitor decedent’s skin condition, leading to an infected skin ulcer that caused death, could constitute recklessness amounting to elder abuse. Similarly, in this case, Defendants’ allegedly reckless failure to adhere to a care plan protecting decedent from falls could constitute neglect within the meaning of the statute.

So the Plaintiffs’ allegations of neglect appear to satisfy the broad statutory definition. And the claim is sufficiently pleaded.

B. Damages Against Employer

Under Welfare and Institutions Code 15657 (c), Plaintiffs may not recover any damages or attorney’s fees against a corporate employer, unless they plead and prove the elements required by CCP 3294 (b) for the liability of a corporate employer.

Specifically, plaintiffs must plead that an officer, director or managing agent of the corporation had (i) advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, or (ii) authorized or ratified the wrongful conduct, or (iii) was personally guilty of oppression, fraud, or malice. These elements must be pled with particularity. (Covenant Care v. Superior Court (2004) 32 Cal.4th 771, 790.)

Here, plaintiffs relied on ratification as the avenue to hold the corporate defendants’ liable. Although specific officers, directors or managing agents are identified in the complaint, there are sufficient allegations to demonstrate circumstantially that certain individuals of this level may have been responsible for the neglect the decedent was alleged to have suffered. In overruling the demurrer, the court recognizes that defendants may be in a superior position to know the specifics of any alleged ratification, and that discovery may be necessary to fully address this issue.

MOTION TO STRIKE

Defendants move to strike the request for punitive damages on two grounds:

(1) Plaintiffs have filed to properly plead recklessness, malice, oppression, or fraud as required by Civil Code 3294; and

(2) Plaintiffs have failed to properly plead that an officer, director, or managing agent ratified or had advanced knowledge of the misconduct amounting to recklessness, fraud, oppression, or malice, or that the officer, director, or managing agent was personally liable for oppression, fraud, or malice.

As set forth above Plaintiffs have properly pleaded recklessness, malice, oppression or fraud, and have properly pleaded ratification.

Plaintiffs shall serve notice of this ruling.