Case Number: GC049024    Hearing Date: August 22, 2014    Dept: A

Schwalley v Front Porch California Lutheran Homes

DEMURRER & MOTION TO STRIKE

Calendar: 22
Case No: GC049024
Date: 8/22/14

MP: Defendant, Front Porch California Lutheran Homes, Inc.
RP: Plaintiff, Fraser Schwalley, individually and as successor in interest to
Lawrence Schwalley

ALLEGATIONS IN FOURTH AMENDED COMPLAINT:
The Plaintiff claims that the Defendants engaged in elder abuse and provided negligent care when Lawrence Schwalley was under the care and custody of the Defendants. The Plaintiff is the son and heir of Lawrence Schwalley. Lawrence Schwalley suffered injuries when he fell and, as a result, died three weeks after the fall.

CAUSES OF ACTION IN FOURTH AMENDED COMPLAINT
1) Elder Abuse
2) Negligence
3) Wrongful Death

RELIEF REQUESTED:
1) Demurrer to first cause of action.
2) Strike requests for punitive damages and for attorney’s fees.

DISCUSSION:
This hearing concerns the Defendant’s pleading and motion attacks directed at the Fourth Amended Complaint.

1. Demurrer to First Cause of Action for Elder Abuse
The Defendant argues that the Plaintiff has not pleaded sufficient facts to demonstrate that the Defendant engaged in conduct that qualifies as elder abuse or that the Defendant engaged in the conduct with recklessness, oppression, fraud, or malice.
A cause of action for elder abuse 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. Therefore, 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.
Further, section 15657(c) requires the standards identified in Civil Code section 3294 to be satisfied before any damages or attorney’s fees may be imposed against an employer for the acts of an employee. This requires the plaintiff to establish the following:

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 or authorized;
2) the employer ratified the wrongful conduct for which the damages are awarded, or
3) the employer 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.
Finally, since this is a statutory cause of action, it must be pleaded with particularity. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790.

The Plaintiff alleges in paragraphs 66 and 71 that the Defendants neglected Lawrence Schwalley. However, the first cause of action for elder abuse does not include the particular facts needed to state the claim in the cause of action. Instead, the supporting facts for these conclusions are pleaded in paragraphs 1 to 64, which are then incorporated into the first cause of action. This imposes the burden on the Defendant and the Court of searching through numerous paragraphs in an effort to ascertain whether the Plaintiff has pleaded the essential elements of the claim.
This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendant should be required to search the pleadings in order to determine whether the Plaintiff has pleaded the particular facts needed to state the elder abuse cause of action. Instead, the Plaintiff must plead the essential elements of the cause of action within the cause of action.
In addition to this customary, though technically improper use of incorporation, the Plaintiff did not simply plead the facts of this case; instead, his pleadings include numerous and unnecessary quotations from statutes that must be searched through in an effort to analyze the claim. Also, Plaintiff has confusingly combined numerous claims, e.g., a claim that the Defendant did provide sufficient staffing, a claim that the Defendant was engaged in a scheme to close the facility, and a claim that the Defendant failed to provide care after Lawrence Schwalley fell. The Plaintiff’s claim might plead sufficient facts to constitute a cause of action if there was a simply drafted cause of action that included the required elements of an elder abuse claim for neglect in the manner identified in the case law.

The Plaintiff’s claim is that the Defendant engaged in elder abuse through 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.

After a search of the pleadings, the following attempts to apply the allegations in the Fourth Amended Complaint to the three requirements for elder abuse based on neglect that were identified above from Carter:

1) The Defendant had responsibility for meeting the basic needs of Lawrence Schwalley because they had entered into a contract to provide assistance with basic needs in exchange for a monthly payment (paragraph 24);
2) Lawrence Schwalley was over 65 (paragraph 68). Lawrence Schwalley required assistance with his basic custodial services, such as food, fluids, medications, and medical care, because he was confused, was legally blind, and suffered instances of dizziness and fainting (paragraphs 28, 29, and 31). Lawrence Schwalley was unable to maintain proper nutrition or manage his medications (paragraph 36). Lawrence Shwalley could no longer walk due to blood clots in his legs (paragraph 36).

There are no particular allegations that the Defendants knew of these conditions and knew that Lawrence Schwalley was unable to provide for his own basic needs, e.g., that the Defendants knew that Lawrence Schwalley required additional care because he was confused, legally blind, and suffering from dizziness and fainting. This is grounds to sustain a demurrer to the elder abuse claim.

3) Lawrence Schwalley fell to the floor on February 11, 2011 as a result of his physical and mental condition (paragraph 37). Lawrence Schwalley was unable to get up without assistance (paragraph 37). After he was returned to his bed, Lawrence Schwalley did not leave his bed and was unable to feed himself (paragraph 40).

The Defendant is a corporate employer. As noted above, in order to plead the claim for the heightened remedies authorized by Welfare and Institutions Code section 15657, there must be particular allegations that an officer, director, or managing agent of the corporation had advance knowledge and conscious disregard, authorized, ratified, or personally engaged in the neglect. There are no particular allegations that an officer, director, or managing agent had advance knowledge and conscious disregard that unfit employees were failing to provide care for Lawrence Schwalley after his fall. There are no particular allegations that an officer, director, or managing agent had authorized, ratified, or personally engaged in the failure to provide care for Lawrence Schwalley after his fall. Since there are no allegations that an officer, director, or managing agent was involved in the neglect, there are insufficient facts to plead that the Defendant withheld goods or services from Lawrence Schwalley with a conscious disregard of the high probability of danger.
This is grounds to sustain a demurrer to the elder abuse claim.

These allegations are insufficient to plead the statutory elder abuse claim for neglect.

Further, a review of the allegations in the Fourth Amended Complaint indicate that the Plaintiff’s theory is that the alleged elder abuse arose from business decisions by the Defendant’s managing agents to withhold care and services from its residents.
Case law finds that claims based on the failure to provide adequate staffing are the negligent undertaking of medical services and not the egregious conduct needed to establish elder abuse. Worsham v. O’Connor Hospital (2014) 226 Cal. App. 4th 331, 338. In Worsham, the plaintiff alleged that the defendant had failed to maintain specific staff-to-patient ratios to address the needs of patients and to ensure compliance with state and federal law. Further, the plaintiff alleged that the defendant was chronically understaffed and did not adequately train the staff it did have. In addition, the plaintiff alleged that the defendant was aware that the plaintiff had a risk of falling and failed to have the proper staffing in place to prevent the plaintiff’s fall. The plaintiff claimed that as a result of the defendant’s insufficient staffing, the plaintiff suffered a fall that resulted in a broken arm and a re-break of her right hip.
The Court of Appeal found that these allegations pleaded a claim for the negligent undertaking of medical services and not a claim for elder abuse because there was not a fundamental failure to provide medical care for physical and mental health needs.

The claims in the pending case are similar to the allegations in Worsham. The Plaintiff alleged in paragraphs 13 to 18 that the Defendant did not have sufficient staffing due to a business plan and that it did not comply with laws regarding staffing levels. The Plaintiff alleges in paragraphs 17, 25, and 26 that Lawrence Schwalley had a history of falls and that the Defendant failed to have sufficient staffing to meet his needs. Further, the Plaintiff alleges in paragraphs 37 to 38 that Lawrence Schwalley fell as a result of the lack of staff. These allegations indicate a negligent undertaking to provide medical care and not elder abuse.

Therefore, the Court will sustain the demurrer to the first cause of action because the Plaintiff has not alleged particular facts identifying elder abuse. This is the Plaintiff’s fifth attempt to plead the claim. It does not appear reasonably possible to correct the defects by amendment because the Plaintiff’s allegations indicate that the Defendant’s conduct was negligently providing medical care.

The Plaintiff has the burden of identifying the manner in which he can amend his complaint and how that amendment will change the legal effect of his pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff did not meet this burden because he did not identify any manner by which he can correct these defects by amendment. Accordingly, the Court will not grant leave to amend.

2. Motion to Strike
The Defendant requests that the Court strike the punitive damages and for attorney’s fees sought in the first cause of action for elder abuse. In light of the sustaining of the demurrer to the first cause of action, the motion to strike is moot because these remedies will be removed by the demurrer.
Accordingly, the Court will take the motion to strike off calendar.

RULING:
Sustain demurrer to first cause of action without leave to amend.
Take off calendar motion to strike