Case Number: BC593338 Hearing Date: May 05, 2016 Dept: 34

SUBJECT: Demurrers to first amended complaint (3); motions to strike (3)

Moving Party: Defendants Gardens Regional Hospital and Medical Center, Michael Stone, and Homyoun Nassiri

Resp. Party: Plaintiff Elisa Villarreal

Defendant Gardens Regional Hospital and Medical Center’s demurrer is OVERRULED. Gardens’ motion to strike is DENIED.

Defendant Stone’s demurrer is OVERRULED. Stone’s motion to strike is DENIED.

Defendant Nassiri’s demurrer is OVERRULED. Nassiri’s motion to strike is DENIED.

PRELIMINARY COMMENTS:

The three defendants, Defendant Gardens Regional Hospital and Medical Center, Defendant Michael Stone, and Defendant Homyoun Nassiri each filed separate demurrers and separate motions to strike. Each of the three demurrers – and each of the three motions to strike – are, mutatis mutandis, identical. Therefore, the Court will analyze all three demurrers, and all three motions to strike, as if it were one demurrer and one motion to strike.

BACKGROUND:

Plaintiff commenced this action on 9/2/15. Plaintiff filed a first amended complaint on 12/3/15 against defendants for: (1) elder abuse; (2) negligence; (3) intentional infliction of emotional distress; and (4) false imprisonment. Plaintiff, a homeless woman with mental and medical issues, alleges that defendants failed to treat her and dumped her on Skid Row.

ANALYSIS:

Demurrers

Defendants each demur to the first and third causes of action in the first amended complaint on the ground that plaintiff fails to allege sufficient facts.

First cause of action

Plaintiff’s first cause of action is for abuse and neglect of a dependent adult under Welfare and Institutions Code sections 15600, et seq. The elements of elder or dependent abuse include: (1) physical abuse by the defendant; (2) plaintiff was 65 years old or older or 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 causes of action for elder and dependent abuse 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].)

Defendants first argue that plaintiff has not alleged that she is a “dependent adult” under the statutes. This argument is frivolous and not well taken. A “dependent adult” includes “any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.” (Welf. & Inst. Code, § 15610.23(a).) Plaintiff alleges that she is a “homeless woman with acute mental and other health related issues.” (FAC ¶ 1.) Plaintiff alleges that she was “suicidal and suffering from intense auditory hallucinations.” (Id., ¶¶ 1, 5, 6, 13, 38.) Plaintiff alleges that she has a history of mental and physical illness, including chronic diabetes. (Id., ¶¶ 3, 16, 27.) Plaintiff alleges that has a history of bipolar disorder and schizophrenia. (Id., ¶ 4.) The FAC contains several other allegations which suggest that plaintiff had physical and mental limitations restricting her ability to carry out normal activities or protect her rights. (See, e.g., id., ¶¶ 10-12, 27, 36-37, 53, 58, 62.) These allegations are more than sufficient to allege that plaintiff was a dependent adult.

Defendants next argue that plaintiff has not alleged dependent adult abuse or neglect, and instead merely alleges medical negligence. Mere negligence is not sufficient to support a claim for elder or dependent 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.)

“From the statutes and cases discussed above, we distill several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The 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 [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; 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) [citations]. 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. [Citations.] Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims. [Citation.]” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)

Plaintiff alleges that on 8/30/14, she admitted herself to Gardens’ emergency room, complaining of injuries and pain to her feet. (FAC ¶ 28.) At the time, Gardens recorded her as homeless. (Ibid.) Plaintiff was placed in the care of Nassiri, who had previously treated plaintiff on 8/6/13 and noted her history of bipolar disorder and schizophrenia-like psychotic disorder. (Id., ¶ 29.) Despite plaintiff’s complaints and her noted history of diabetes and mental illness, Nassiri and Gardens provided only minimal medical care and decided to discharge her three hours after her arrival, stating that her condition had resolved. (Id., ¶ 30.) Notwithstanding their awareness of plaintiff’s homelessness and the contact information for her primary care physician, Nassiri and Gardens failed to make any referrals to or notify the physician and discharged plaintiff to her “home.” (Id., ¶ 31.)

On 9/1/14, plaintiff sought further medical treatment for similar diabetes and mental health symptoms, and returned to Gardens’ emergency room. (FAC ¶ 32.) Plaintiff’s blood sugar level was exceedingly high. (Ibid.) Gardens also documented plaintiff’s history of mental illness, but there is no indication that they provided any psychiatric care, medication, or therapy. (Id., ¶ 33.) Hours after plaintiff’s arrival and her experiencing high glucose levels, Gardens again discharged plaintiff. (Id., ¶ 34.) Plaintiff alleges that the medical records are vague and inconsistent as to her discharge destination. (Ibid.) Shortly after this release, plaintiff’s mental state deteriorated. (Id., ¶ 35.)

On 9/4/14, plaintiff was suicidal, confused, and complaining of pain in her head and abdomen when she again sought treatment at Gardens. (FAC ¶ 36.) Plaintiff was initially placed in the care of Stone. (Ibid.) Stone had previously treated plaintiff in February 2014, when he noted plaintiff’s history of bipolar disorder and schizophrenia. (Ibid.) Plaintiff’s care was later transferred from Stone to Nassiri. (Ibid.) While in the emergency room, plaintiff realized that she had defecated and urinated on herself, but could not recall when. (Id., ¶ 37.) Plaintiff was provided a set of blue scrubs, but was not bathed or permitted to shower. (Ibid.) Stone and a nurse at Gardens had noted plaintiff’s mental and physical condition, but Stone failed to prescribe or administer any psychiatric medications. (Id., ¶ 38.) Plaintiff was given a glucose serum at a dangerously high level. (Ibid.) Less than four hours later, Gardens concluded that plaintiff was stable and, per Nassiri’s decision, discharged her without any medications despite her obvious psychiatric symptoms. (Id., ¶ 39.) Plaintiff alleges that Gardens and Nassiri failed to consider plaintiff’s homelessness in discharging her and engaged in no discharge planning. (Id., ¶¶ 40-48.) Plaintiff alleges that Gardens arranged for her to be dropped outside the Union Rescue Mission in Skid Row, over 20 miles away, despite the fact that plaintiff protested and had no connection to Skid Row. (Id., ¶ 45.) Gardens failed to determine whether plaintiff was fit for placement at the Union Rescue Mission. (Id., ¶ 47.) Gardens’ staff placed plaintiff in a hospital van without telling her where it was going. (Id., ¶ 50.) When the van reached the Union Rescue Mission, the van stopped and plaintiff was instructed to exit. (Id., ¶ 51.) Plaintiff was dressed only in oversized hospital scrubs and no shoes. (Ibid.) Plaintiff wandered alone until staff at the Midnight Mission brought her inside, where she later fled without warning. (Id., ¶ 52.)

On 9/7/14, plaintiff’s sister found plaintiff lying unconscious in a parking lot in Hawaiian Gardens. (FAC ¶ 53.) Plaintiff was soiled in urine and covered in feces and insects. (Ibid.) When her sister left to get food and water, plaintiff disappeared again. (Ibid.) The next day, plaintiff’s daughter filed a missing persons report, which was distributed to Gardens. (Id., ¶ 54.)

On 9/10/14, fire department personnel found plaintiff and brought her back to Gardens for treatment. (FAC ¶ 55.) Plaintiff was again put under the treatment of Stone. (Ibid.) Prior to her arrival, Gardens had been notified by law enforcement that she was reported missing and that Gardens should contact the police if it had any knowledge of her whereabouts. (Id., ¶ 56.) When plaintiff arrived on 9/10/14, Gardens and Stone failed to cross-check the patient intake information against the database of missing persons and failed to inform the police that she had been located. (Id., ¶ 57.) Plaintiff alleges that, in addition to her mental and physical disorder, plaintiff was covered in insects and excrement and was unmedicated. (Id., ¶ 58.) Despite this, Gardens and Stone merely diagnosed plaintiff with “alcohol intoxication” and noted that plaintiff was “well-developed and well-nourished and not in acute distress.” (Ibid.) Gardens and Stone determined to discharge plaintiff just hours later, but provided no medications and made no attempt to connect with her individualized care or mental health resources to assist with her needs. (Id., ¶ 59.) Gardens arranged for plaintiff’s discharge despite her lack of consent. (Id., ¶ 60.) Gardens’ records contain no indication of where plaintiff was taken or why, but just 24 hours later she was again without shelter and living on the streets. (Id., ¶ 61.) On 9/12/14, a detective at the Monterey Park Police Department who was investigating plaintiff’s missing person report found plaintiff in Hawaiian Gardens. (Ibid.) He observed feces and urine stains on her and raw blisters on her feet. (Ibid.) Plaintiff was thereafter admitted to a health treatment facility under a 5150 hold and remained there for close to two weeks, where she received treatment for her mental and physical issues and was taken to an adequate living facility. (Id., ¶¶ 62-63.)

Plaintiff alleges that her discharge violated Gardens’ own discharge protocols. (FAC ¶¶ 69-73.)

These allegations are more than sufficient sufficient to support the first cause of action. Plaintiff is alleging that defendants were aware of plaintiff’s mental and physical ailments and her inability to provide for her own basic needs. (See FAC ¶¶ 28, 29, 33, 36.) Plaintiff alleges facts which suggest that defendants attempted to discharge plaintiff quickly and without addressing her medical needs or making proper arrangements for discharge. (See id., ¶¶ 30, 31, 34, 37, 39, 40-48, 50-52, 56-60, 69-73.) A reasonable trier of fact could find that defendants either knew that plaintiff would be harmed by their conduct or acted with conscious disregard of the high probability that plaintiff could be harmed. Plaintiff has alleged a causal link between defendants’ conduct and plaintiff’s harm. (See id., ¶¶ 35, 53-55, 61.)

Gardens also argues that plaintiff has failed to allege sufficient facts to impose liability on it. “The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.” (Welf. & Ins. Code, § 15657(c).) “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had 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 authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294(b).)

Aside from plaintiff’s allegations that Gardens improperly discharged plaintiff, plaintiff also alleges that, after plaintiff’s discharges, Gardens attempted to cover up its actions. Plaintiff alleges that on 10/29/14, the same day that the Deputy City Attorney contacted Gardens’ CEO Jim Sherman to notify him that Gardens was being investigated for plaintiff’s discharge, two new entries appeared in plaintiff’s medical records to “clarify” what happened on 9/4/14. (FAC ¶ 64.) Gardens employee Paul Bracho, a licensed social worker, falsely recorded that plaintiff did not want to go home, had a residence in the area, and requested and insisted on the Union Rescue Mission shelter. (Id., ¶¶ 65, 66.) Plaintiff’s case manager authored another “clarification” from 10/29/14 which stated that plaintiff was “medically cleared … for alcohol intoxication” even though alcohol never appeared in plaintiff’s contemporaneous records. (Id., ¶ 67.) The case worker falsely claimed to have spoken with staff at the Union Rescue Mission and arranged for her arrival. (Id., ¶¶ 67-68.) Plaintiff alleges that these actions were approved of and carried out under the direction of Gardens’ management. (Id., ¶ 96.) These allegations are sufficient, at the pleadings stage, to support the first cause of action against Gardens. To the extent that defendants wish to learn more about this claim, they should do so during the discovery process.

Accordingly, defendants’ demurrers to the first cause of action are OVERRULED.

Third cause of action

The tort of intentional infliction of emotional distress is comprised of the following elements: (1) defendant’s extreme and outrageous conduct; (2) intention of causing emotional distress, or reckless disregard of the probability of causing emotional distress with knowledge of plaintiff’s presence when the conduct occurred; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the conduct was the actual and proximate causation of the emotional distress. (CACI 1600; see also Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Outrageous conduct is not a bright line determination but depends upon an intuitive appraisal of “values, sensitivity threshold, and standards of civility.” (Kovr Tv, Inc. v. Superior Court (1994) 31 Cal.App.4th 1023, 1028.) “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.'” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 1051.)

The allegations recited above – if believed by the trier of fact – are easily sufficient to sustain a finding that defendants engaged in outrageous conduct. Plaintiff alleges resulting emotional distress. (See FAC ¶ 123.)

Accordingly, defendants’ demurrers to the third cause of action are OVERRULED.

Motions to Strike

Dependent adult allegations

Defendants move to strike paragraph 75 in the FAC, which alleges that plaintiff was a dependent adult. As discussed above, plaintiff alleges sufficient facts to support her claim that she was a dependent adult at all relevant times.

Defendants move to strike the first cause of action in its entirety on the ground that plaintiff fails to allege that she was a dependent adult. As discussed above, plaintiff alleges sufficient facts to support the first cause of action. Moreover, a motion to strike is improper as to an entire cause of action. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2015) ¶ 7:188.5 [citing Code Civ. Proc., § 436].)

Punitive damages

Defendants move to strike plaintiff’s request for punitive damages. A claim for punitive damages must allege facts showing malice, fraud, or oppression. (Civil Code § 3294(a).) Under Civil Code 3294(c),

[¶] (1) ‘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. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [¶] (3) ‘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.

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) The inquiry is generally fact specific to the nature of the claim raised and the context in which the damages are sought, but “the critical element is an ‘evil motive’ of the defendant.” (Ibid.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.'” (American Airlines v. Sheppard (2002) 96 Cal.App.4th 1017, 1051.)

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had 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 authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code, § 3294(b).)

As discussed above, plaintiff sufficiently alleges that defendants knowingly failed to provide proper care for plaintiff, and that the corporate defendant participated in and ratified such conduct. This is clearly sufficient to allege that defendants engaged in despicable conduct with willful and conscious disregard of plaintiff’s rights and safety.

Attorney’s fees

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) Courts may strike prayers for attorney fees where a party demonstrated no potential basis for their recovery. (Agricultural Ins. Co. v. Sup. Ct. (1999) 70 Cal.App.4th 385, 404.) However, unsupported attorney’s fees allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery. (Camenisch v. Sup. Ct. (1996) 44 Cal.App.4th 1689, 1699.)

Defendants concede that Welfare and Institutions Code section 15657 allows for the recovery of attorney’s fees for an elder or dependent adult abuse claim upon a showing of recklessness, oppression, fraud, or malice. As discussed above, plaintiff has alleged sufficient facts to support a request for fees under this statute.

Accordingly, defendants’ motions to strike are DENIED.