Case Number: EC064760 Hearing Date: May 09, 2016 Dept: A

Esteves v AHMC San Gebriel Family Medical Center

DEMURRER & MOTION TO STRIKE

Calendar: 17
Case No: EC064760
Date: 5/9/16

MP: Defendant, AHMC San Gabriel Valley Medical Center and
AHMC Healthcare, Inc.
RP: Plaintiff, Esther Esteves

ALLEGATIONS IN COMPLAINT:
The Plaintiff is an elder who was under the care of the Defendants. The Defendants neglected the Plaintiff by withholding care needed to prevent injuries that could result from frequent falls. Further, the Defendants were negligent because they hired, supervised, and retained employees who were unfit for their job duties.

CAUSES OF ACTION IN COMPLAINT:
1) Elder Abuse
2) Negligence
3) Negligent Hiring

RELIEF REQUESTED:
Demurrer to 1st and 3rd causes of action
Strike claim for punitive damages

DISCUSSION:
This hearing concerns the Defendants’ demurrer and motion to strike directed at the original Complaint.

1. Demurrer to First Cause of Action for Elder Abuse
The Defendants argues that this cause of action lacks the particular allegations needed to support a claim for elder abuse.
This cause of action is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare and Institutions Code sections 15600 to 15675 (references to code sections refer to the Elder Abuse Act). The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died.
In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for the following:

1) physical abuse as defined in section 15610.63; or
2) neglect as defined in Section 15610.57.

In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Accordingly, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice.

A review of the pleadings in the third cause of action reveals that the Plaintiff pleads that the Defendants engaged in neglect. To plead neglect within the meaning of the Elder Abuse Act a plaintiff must allege 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.
Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406-407.

In addition, the plaintiff must allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Id. 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. Id.

The Defendants’ moving papers do not show that the pleadings are insufficient because there is no meaningful analysis of the facts actually pleaded in the Complaint to show that they do not satisfy any particular element in Carter. Summarizing legal authorities and then concluding, without any meaningful scrutiny of the allegations in the Complaint, that the allegations are insufficient, does not supply a basis to sustain a demurrer. On the contrary, the Plaintiff’s opposition papers are useful because they direct the Court to the allegations that plead each of the elements identified in Carter.
In paragraphs 2 and 16, the Plaintiff alleges that the Defendants had responsibility for meeting the basic needs of the Plaintiff because the Defendants were providing acute psychiatric care. In paragraphs 18 and 19, the Plaintiffs allege that upon admission, the Defendants were made specifically aware of the fact that the Plaintiff was considered at a high risk of falls due to her history of right knee replacement, arthritis, and medication regiment which had sides effects that adversely affected balance. In paragraph 21, the Plaintiffs allege that the Defendants withheld care needed by the Plaintiff for her condition, i.e., her susceptibility to falling, by failing to create and follow a plan of care to prevent falls, by failing to provide accurate monitoring of the Plaintiff, by failing to provide psychiatric nursing services, and by failing to assess her needs. These allegations are sufficient to plead that the Defendants had responsibility for the basic needs of the Plaintiff, that the Defendants knew of the Plaintiff’s susceptibility to falling, and that the Defendants withheld the services necessary to meet the Plaintiff’s basic need for care regarding her condition.
In paragraph 26, the Plaintiff alleges that she suffered a preventable fall while she was completely unattended. Further, the Plaintiff alleges in paragraphs 27 to 30 that the Defendants fraudulently concealed the nature of the fall and that care had been withheld from the Plaintiff such that she was unable to walk and bedridden due to the severe pain on her right side that resulted from the fall. In paragraphs 30 and 31, the Plaintiff alleges that the Defendants then concealed a second fall before fraudulently telling a false story that the Plaintiff had an “assisted fall”. Further, in paragraph 32 to 34, the Plaintiff alleges that the Defendants concealed that the Plaintiff had suffered a stroke and that her right hip had been inverted. Further, the Plaintiffs alleged that the Defendants withheld care needed for these conditions. The Plaintiffs allege in paragraphs 36 to 38 that the Defendants concealed these events to ensure that MediCare pays for the Plaintiff’s injuries. In paragraphs 45 and 46, the Plaintiff alleges that the Defendants withheld the care with the knowledge that it was highly probable that this would cause injury to the Plaintiff. These allegations are sufficient to plead that the Defendants recklessly withheld care because they knew that it was highly probable that withholding the care would cause injury to the Plaintiff.
Finally, in paragraphs 47 and 48, the Plaintiff alleges that the Defendants, through its officers, directors, and managing agents, implemented a financial plan and scheme that withheld care through the failure to ensure that the staff and budget were sufficient to operate the facility and prevent injuries to the Plaintiff. The Plaintiff alleges in paragraphs 42 and 43 that the Defendants did not meet minimum staffing required by regulations and that the Defendant did not maintain nurse-to-patient staffing levels at the acute psychiatric hospital required under regulations. This is sufficient to plead that the Defendants, as business entities, are liable for the alleged elder abuse.

The Defendants argue that this case is similar to Worsham v. O’Connor Hospital (2014) 226 Cal. App. 4th 331 in which the Court found that allegations of understaffing were insufficient to plead a claim for elder abuse. However, this case is more similar to Fenimore v. The Regents of the University of California (2016) 2016 Cal. App. LEXIS 231, in which the plaintiff, who was in an acute psychiatric hospital, died after he fell and suffered a hip injury from which he never recovered. The Court found that the plaintiff had pleaded an elder abuse claim with allegations that the defendant had violated regulations applicable to acute psychiatric hospitals by failing to ensure that there were sufficient staff and that these regulatory violations had caused injury to the plaintiff. In Fenimore, the plaintiff was at a risk of falling and the lack of staffing had increased the risk of falling and the resulting injuries to and death of the plaintiff.
In the pending case, the Plaintiff has alleged that the Defendant violated regulations applicable to acute psychiatric hospitals by failing to ensure that there were sufficient staff and that these regulatory violations caused injury to the Plaintiff. The Plaintiff alleges that the Plaintiff was at a risk of falling and that this lack of staffing increased the risk of falling and the resulting injuries to the Plaintiff. This is sufficient to plead the elder abuse claim.

Therefore, the Court will overrule the demurrer to the first cause of action.

2. Demurrer to Third Cause of Action for Negligent Hiring and Supervision
Defendants argue that this cause of action does not plead the facts needed to show that the identified employees were unfit.
California law permits the Plaintiff to plead that an employer is liable to her for negligently hiring, supervising, or retaining an unfit employee. Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054. The employer’s liability is based upon facts showing that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. Id.
In Doe v. Capital Cities, the plaintiff, an aspiring actor, sued a casting director and the employer, the broadcasting company (ABC), based on allegations he was drugged and sexually assaulted by the casting director and others. The trial court dismissed the plaintiff’s claim of negligent hiring and supervision. The Court of Appeal affirmed the dismissal of plaintiff’s negligent hiring and supervision claim because the plaintiff did not allege sufficient facts to show that employer had prior knowledge of the casting director’s propensity to engage in sexual assault. The Court of Appeal held that the pleadings were insufficient because they did not allege that the employer knew that the casting director was surreptitiously using mind-altering illegal drugs on individuals in order to engage in sexual assaults. Since the allegations did not show that the employer knew or should have known that employing the casting director created the particular risk that the casting director would drug applicants and then sexually assault them, the Court of Appeal affirmed the trial court’s ruling that sustained the demurrer.

The Plaintiff alleges in paragraphs 58 and 59 that Makoto Nakayama, Karen Price-Gharzeddine, Arayimo, Elmira, Mariano, Pam, Jessica, and many certified nursing assistants, registered nurses, licensed vocational nurses, and others were unfit to perform their job duties. There are no allegations showing that the Defendants knew or should have known that employing each of the identified individuals and groups of individuals created the particular risk that they would neglect the Plaintiff by withholding medical care needed by the Plaintiff. This is insufficient to plead the claim for negligent hiring and supervision.
In their opposition, the Plaintiff does not address this legal authority, which was cited by the Defendants. Instead, the Plaintiff argues that they pleaded sufficient facts with allegations that the Defendants did not conduct proper interviews, reference checks, and performance evaluations. However, this does not address the defect, which is that the Plaintiff did not plead the facts required under California law. The Plaintiff was required to plead that the Defendant knew or should have known that employing each of the identified individuals or groups of individuals created the particular risk, i.e., that they would engage in elder abuse. Since the Plaintiff did not satisfy this requirement, the cause of action lacks sufficient facts.

Therefore, the Court will sustain the demurrer to the third cause of action. Since this is the original Complaint, the Court will grant leave to amend.

3. Motion to Strike
The Defendants request that the Court strike the claim for punitive damages.

A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. When a motion to strike is made, the Court evaluates the pleadings by assuming the truth of all allegations. Id. Thus, for purposes of ruling on a motion to strike, the Court assumes the truth of all well-pleaded allegations of a complaint and reads the complaint as a whole. Courtesy Ambulance Serv. v. Superior Court (1992) 8 Cal.App.4th 1504, 1519.
Under Civil Code section 3294, a plaintiff may recover an award of punitive damages on a showing that the defendant acted with malice, oppression, or fraud. Malice is defined to include 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. Civil Code section 3294(b) provides that an employer shall not be liable for punitive damages based upon the acts of an employee unless
1) 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;
2) authorized or ratified the wrongful conduct for which the damages are awarded; or
3) 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.
As discussed above in the analysis of the Defendants’ demurrer to the first cause of action, the Plaintiff had pleaded sufficient facts to support a claim for elder abuse under Welfare and Institutions Code section 16567, i.e., that the Defendants had neglected the Plaintiff by denying him goods and services with knowledge that injury was substantially certain to befall the Plaintiff and with a conscious disregard of the high probability of such injury. Further, since the Defendants are corporate employers, the pleadings also include facts to satisfy the standards under Civil Code section 3294(b) for imposing punitive damages on an employer for the acts of an employee, as required under Welfare and Institutions Code section 15657(c).

These findings on the demurrer indicate that the pleadings include sufficient facts to support a claim for punitive damages. The allegations in the first cause of action include facts demonstrating that the Defendants acted with malice by engaging in the despicable conduct of withholding goods, services, and medical care from the Plaintiff, who was an elder and dependent on the Defendants to provide his basic needs. Further, the allegations include facts demonstrating that the Defendants acted with a conscious disregard of the safety of Plaintiff because they knew that injury was substantially certain to befall the Plaintiff from their withholding of goods, services, and medical care. This satisfies the definition of malice in Civil Code section 3294.

In addition, the allegations include facts demonstrating that managing agents ratified the conduct because the managing agents implemented the plan that caused the injury to the Plaintiff by violating regulatory requirements for staffing in an acute psychiatric hospital. This is sufficient to satisfy the requirement of Civil Code section 3294(b) to impose punitive damages on a corporate employer for the acts of the employees.

Therefore, the Court will deny the Defendants’ motion to strike punitive damages.

RULING:
Overrule demurrer to 1st cause of action
Sustain demurrer to 3rd cause of action with leave to amend.

Deny motion to strike.