Case Number: BC653507 Hearing Date: April 23, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

ERNEST ARMSTRONG,

Plaintiff,

vs.

OSAGE HEALTHCARE & WELLNESS CENTRE, et al.,

Defendants.

Case No.:

BC 653507

Hearing Date:

April 23, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

A. DEFENDANT CENTINELA SKILLED NURSING & WELLNESS CENTRE, EAST, LLC’S DEMURRER TO SECOND AMENDED COMPLAINT,

AND

B. DEFENDANT CENTINELA SKILLED NURSING & WELLNESS CENTRE, EAST, LLC’S MOTION TO STRIKE PORTIONS OF COMPLAINT

Ernest Armstrong (“Mr. Armstrong”), by and through his Guardian-ad-Litem and daughter, Ernessa Armstrong (“Ms. Armstrong”) filed this elder abuse/neglect action on March 3, 2017 against Defendant Centinela Skilled Nursing & Wellness Centre, East, LLC, dba Osage Healthcare & Wellness Centre (“Defendant”)[1]. Mr. Armstrong died on April 18, 2017.

Mr. Armstrong, by and through Ms. Armstrong as his successor-in-interest and as an individual (“Plaintiff”), filed the operative Second Amended Complaint (“SAC”) on January 5, 2018. The SAC alleges that Defendants failed to provide necessary care despite knowing that it was substantially certain that Mr. Armstrong would suffer injury or death absent such care. The SAC asserts causes of action for (1) elder abuse; (2) negligence; (3) willful misconduct; (4) violation of residents rights; and (5) wrongful death.

Defendant now demurs to each cause of action. Defendant also moves to strike portions of the SAC. Plaintiff opposes both motions.

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Elder Abuse

Defendant argues that Plaintiff fails to plead a claim of elder abuse because she does not meet the heightened pleading requirements under the Elder Abuse Act.

“The Elder Abuse Act provides for heightened remedies to afford extra protection to the vulnerable population of infirm elders and dependent adults. Specifically, when the plaintiff proves by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of neglect, the plaintiff may recover attorney fees and costs.” (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1347 (Fenimore).) “The Elder Abuse Act’s heightened remedies do not apply to acts of professional negligence. Hence, the Act does not provide liability for simple or gross negligence by health care providers. Plaintiffs must plead and prove something more than negligence—that is, reckless, oppressive, fraudulent, or malicious conduct.” (Fenimore, supra, 245 Cal.App.4th at p. 1347 [internal citations omitted]. For purposes of elder abuse law applying the punitive-damages standards to medical services, actionable “recklessness” includes a “deliberate disregard” of a “high degree of probability” an injury will occur, and “oppression” and “malice” include “intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89 (Sababin).)

Further, to trigger the enhanced remedies available under the Elder Abuse Act, the plaintiff must allege 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 . . . 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, 406-407 (Carter).) “[T]he 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.” (Carter, supra, 198 Cal.App.4th at p. 407.)

In Carter, the court provided examples of cases involving conduct sufficiently egregious to warrant an award of enhanced remedies under the Elder Abuse Act. One such example was the following:

An 88–year–old woman with a broken ankle “was frequently left lying in her own urine and feces for extended periods of time” and she developed pressure ulcers on her ankles, feet and buttocks that exposed bone, “despite plaintiff’s persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman.”

(Carter, supra, 198 Cal.App.4th at p. 405, citing Delaney v. Baker (1999) 20 Cal.4th 23, 27, 41.)

In Fenimore, the court determined that allegations that a hospital engaged in a pattern and practice of understaffing and undertraining its staff to cut costs, which foreseeably resulted in the abuse and neglect of its residents, were sufficient to state a cause of action under the Elder Abuse Act. (Fenimore, supra, 245 Cal.App.4th at p. 1349.) In Sababin, the court held that a health care facility’s significant pattern of withholding portions of care may support an award of heightened remedies where the care facility knows it must provide a certain type of care on a daily basis but provides it sporadically, or is supposed to provide multiple types of care, but only provides some of those types of care. (Sababin, supra, 144 Cal.App.4th at p. 90.)

Here, Plaintiff has included certain new allegations to the SAC to support the elder abuse cause of action. Plaintiff alleges that on or around November 11, 2015, Mr. Armstrong was “readmitted” to Defendant’s facility. (SAC, ¶ 20.) Plaintiff alleges that on November 12, 2015, Defendant created a care plan for Mr. Armstrong which indicated that he had poor safety awareness and that Defendant would ensure his whereabouts were being constantly monitored to maintain a safe and hazard-free environment. (SAC, ¶ 21.) Plaintiff alleges that another care plan, also created on November 12, 2015, indicated that Defendant would provide a tab alarm to notify staff to ensure that Mr. Armstrong did not get out of his wheelchair unattended. (SAC, ¶ 22.) Plaintiff also alleges that Mr. Armstrong was assessed as being a wandering and elopement risk, and so his plan of care included redirecting and cueing Mr. Armstrong as appropriate. (SAC, ¶ 24.) Plaintiff alleges that on November 18, 2015, Defendant documented that Mr. Armstrong was observed wandering in and out of different rooms at the facility and described as difficult to re-direct. (SAC, ¶ 25.) Plaintiff alleges that on December 8, 2015, Mr. Armstrong wandered into another resident’s room three different times where he was eventually physically struck in the head by another resident, which caused him to suffer a subdural hematoma. (SAC, ¶ 19.)

Plaintiff alleges that Mr. Armstrong’s care plan was not followed on December 8, 2015, because he was not monitored. Instead, he was allowed to wander into another resident’s room, where he was attacked. (SAC, ¶ 24.) Although Plaintiff alleges that Mr. Armstrong suffered a second subdural hematoma at Defendant’s facility as a result of a fall, there are no facts describing the circumstances of the fall, when it took place, where it took place, and how it took place to support an inference that this fall was a result of his care plan not being followed. (SAC, ¶ 27.)

In any event, the Court finds that, pursuant to Sababin, supra, 144 Cal.App.4th at page 90, Plaintiff has sufficiently stated a claim for elder abuse on the care plan theory. As in Sababin, Plaintiff has alleged a care plan that was created that required certain conduct by Defendant in caring for Mr. Armstrong and has also alleged that Defendant failed to follow the care plan, resulting in injury to Mr. Armstrong. Though Defendant counters that Sababin is factually distinguishable (the patient there was in the care of the defendant facility for 3 years), the Court finds that the distinction is material. The allegation is that a care plan was in place but ignored, and an inference can be made that the failure to follow Mr. Armstrong’s specific care plan shows recklessness, oppression, or malice. Defendant also contends that there are no facts to support a finding that there was a significant pattern of withholding care. “A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” (Sababin, supra, 144 Cal.App.4th at p. 90.) The SAC alleges that Mr. Armstrong was admitted to the facility on November 11, a care plan put in place on November 12, and then he was observed wandering into rooms on November 18, 2015. It was noted that he was difficult to re-direct, but then he wandered into a room three different times on December 8, 2015, when he was attacked. The Court finds that these allegations are sufficient to allege a significant pattern of withholding of care.

Defendant also argues that Plaintiff fails to sufficiently allege corporate employer ratification. (See Welf. & Inst. Code, § 15657(c) [“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.”].)

In the SAC, Plaintiff alleges that Defendant’s Administrator and Director of Nursing were both aware of the acts and omissions of the staff (failure to follow the care plan), which resulted in Mr. Armstrong’s injuries from the December 8 attack. (SAC, ¶ 80.) Plaintiff also alleges that both the Administrator and the Director of Nursing interviewed residents and knew that Mr. Armstrong entered other rooms without intervention by the staff. (SAC, ¶ 80.) Plaintiff alleges that Defendant failed to terminate, discipline, reprimand, or otherwise repudiate the acts and omissions of any employee due to the failure to follow Mr. Armstrong’s care plan. (SAC, ¶ 80.) The Court finds that this is sufficient to plead corporate ratification. (Pusateri v. E.F. Hutton & Co. (1986) 180 Cal.App.3d 247, 251-253 [“Failure to dismiss an employee after the commission of oppressive acts is evidence of ratification if the managing agent has knowledge of, or the opportunity to learn of, the misconduct and fails to investigate.”].)

Accordingly, the demurrer to the elder abuse cause of action is overruled.

Negligence

For the same reasons as discussed above, the Court finds that Plaintiff has sufficiently pled a cause of action for negligence. Plaintiff has alleged that Defendant owed a duty to

Mr. Armstrong to provide medical care, and in particular, by creating a care plan that sets forth the care Mr. Armstrong required. Plaintiff has also alleged that Defendant breached that duty by failing to actually follow and implement the care plan. Finally, Plaintiff has alleged that

Mr. Armstrong’s injuries, a subdural hematoma, were proximately caused by Defendant’s breach of its duty. Therefore, the demurrer to the negligence cause of action is overruled.

Willful Misconduct

The Supreme Court has found that willful misconduct is “a tort separate and distinct from negligence and involves different principles of liability and different defenses.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1016 (Potter).) Willful misconduct differs from negligence in that it “implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.” (Potter, supra, 6 Cal.4th at p. 1016.) As the Court has found that the elder abuse cause of action, which requires pleading recklessness, has been sufficiently pled, the Court also finds that the willful misconduct cause of action is also sufficiently pled. Therefore, the demurrer to this cause of action is overruled.

Violation of Patient’s Bill of Rights

In support of the fourth cause of action, Plaintiff alleges in the SAC that Defendant violated Mr. Armstrong’s rights pursuant to the Patients Bill of Rights. Although Defendant contends that the violations are not supported by factual allegations, the Court finds otherwise. Plaintiff alleges that Mr. Armstrong was transferred to a hospital following his December 8 attack, but that Defendant fraudulently concealed the injury from Mr. Armstrong’s physician and family in violation of the regulations that provides that residents have the right to have all significant changes of condition reported to them, their families, and their physicians. (SAC,

¶¶ 108-109.) Plaintiff also alleges that Defendant violated the provision that a nursing home resident’s environment be free of accident hazards and that each resident receive adequate supervision and assistance devices to prevent accidents when it failed to provide adequate monitoring and supervision for Mr. Armstrong leading up to his December 8 attack. (SAC,

¶ 111.) Finally, Plaintiff alleges that Defendant violated the provision requiring it to review, evaluate, and update patient care plans by failing to implement Mr. Armstrong’s care plan appropriately. (SAC, ¶ 112.) These allegations are sufficient to state a cause of action for a violation of the Patients Bill of Rights, and so the demurrer is overruled.

Wrongful Death

The elements for a wrongful death cause of action are: “(1) a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of [another] person.’” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404, citing Code Civ. Proc., § 377.60.) Defendant argues that Plaintiff has failed to plead any facts establishing that it did anything to cause

Mr. Armstrong’s death. Specifically, there are no facts showing how or if Defendant was responsible for the worsening of Mr. Armstrong’s preexisting medical conditions, given that his death was more than three months after his discharge from Defendant’s facility. Plaintiff alleges in the SAC that the subdural hematoma “directly contributed” to Mr. Armstrong’s death. (SAC, ¶ 122.) The Court finds that this is a sufficient allegation of causation, and therefore the demurrer is overruled.

Motion to Strike

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

As discussed above, the Court finds that the allegations in the SAC are sufficient to plead an elder abuse cause of action, and specifically, the elements of recklessness, malice or oppression. The Court also has found sufficient allegations of corporate ratification. Therefore, the Court declines to strike the allegations as to punitive damages and attorney’s fees.

Defendant also argues that Plaintiff cannot seek injunctive relief against Defendant as a former resident. However, Health and Safety Code section 1430(b) clearly states: “A current or former resident or patient of a skilled nursing facility . . .may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights . . .[and t]he licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue.” The statute clearly contemplates injunctive relief as a remedy for violations of the Patients Bill of Rights for both current and former residents.

Defendant also contends that the Court should abstain from issuing injunctive relief because the requested relief “would require a trial court to assume the functions of an administrative agency, or to interfere with the functions of an administrative agency.” (Alvarado v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292, 1298.) However, in Alvarado, the issue of abstention was raised on demurrer. Accordingly, the Court finds that a motion to strike is not the appropriate vehicle for addressing this purported defect and declines to grant the motion to strike these allegations on that basis.

Finally, with regard to the allegations regarding the Department of Public Health, although Defendant contends these allegations are violation of Health and Safety Code section 1280(f), the Court disagrees. Health and Safety Code section 1280(f) prohibits using a plan of correction “in any legal action…as an admission within the meaning of Sections 1220 to 1227, inclusive, of the Evidence Code against the health facility…” (Health & Saf. Code, § 1280(f).) There is no indication in the SAC that the Department of Public Health investigation and findings are being used as admissions of wrongdoing by Defendant. Therefore, the Court declines to strike these allegations.

Conclusion

Based on the foregoing, Defendant’s demurrer is overruled. Defendant’s motion to strike is denied. Plaintiff is ordered to provide notice of this Order.

DATED: April 23, 2018

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

[1] Erroneously sued as Osage Healthcare & Wellness Centre dba Centinela Skilled Nursing and Wellness Centre East.