Case Number: BC522062 Hearing Date: May 22, 2014 Dept: SEC

BASSETT v. M&I ROYAL CARE GUEST HOME, INC., ET AL.
CASE NO.: BC522062
HEARING: 05/22/14

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TENTATIVE ORDER

I. Defendant PROFESSIONAL HOME HEALTH SERVICES, INC.’s demurrer is OVERRULED.

II. Defendant PROFESSIONAL HOME HEALTH SERVICES, INC.’s motion to strike is DENIED.

I. Plaintiff GRACE BASSETT alleges that Defendant PROFESSIONAL HOME HEALTH SERVICES, INC. (“PHHS”) was in the business of providing custodial care, treatment, and services to residents including Plaintiff at Co-Defendant M&I ROYAL CARE GUEST HOME (“M&I”). FAC, ¶4. Plaintiff was admitted to M&I on September 21, 2012 with no skin breakdown and she required extensive assistance with her activities of daily living. FAC, ¶10. However, on October 30, 2012, Plaintiff was admitted to an acute care hospital from M&I with multiple areas of skin breakdown, deep tissue injuries, Stage IV infected coccyx wound, unstageable wounds on her heels, urinary tract infection with proteus mirabilis, and was malnourished. FAC, ¶11.

PHHS demurs to the 3rd cause of action for Elder Abuse and Neglect arguing that it fails to state facts sufficient to constitute a cause of action and is uncertain. Paragraphs 46 through 61 of the FAC state the allegations of wrongful conduct on the part of PHHS.

“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.” Delaney v. Baker (1999) 20 Cal.4th 23, 31.

In addition, “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.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407.

“Examples of cases involving conduct sufficiently egregious to warrant the award of enhanced remedies under the Elder Abuse Act include the following: . . . .

A facility caring for a dependent adult with a known condition causing progressive dementia, requiring nutrition and hydration through a gastrostomy tube, and subjecting her to skin deterioration, ignored a medical care plan requiring the facility to check the dependent adult’s skin on a daily basis and failed to notify a physician when pressure ulcers and other skin lesions developed. (Sababin, supra, 144 Cal.App.4th at pp. 83–87, 90 [50 Cal.Rptr.3d 266].)” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406.

Here, Plaintiff alleges that PHHS was aware of her admitting diagnoses (including dementia, was fed by a syringe and drank through a straw, among others) (FAC, ¶51), and PHHS affirmatively represented Plaintiff would have no skin breakdown (FAC, ¶57) and assessed that Plaintiff was at risk for developing pressure ulcers (FAC, ¶58a). However, during this time, Plaintiff developed 15-18 pressure ulcers and a Stage IV coccyx pressure ulcer (FAC, ¶58a), failed to take Plaintiff’s weight upon admission, failed to document intake and output, and failed to ensure that Plaintiff received adequate nutrition at M&I (FAC, ¶58b).

These facts are similar to those described in Sababin and are sufficient to point how PHHS has allegedly transgressed while Plaintiff was in its care. The FAC consists of particular facts regarding PHHS’ involvement that go beyond mere conclusory allegations

With respect to PHHS’ employer liability, pursuant to Wel. & 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.”

Pursuant to Civ. Code § 3294(b): “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.”

Alleging that persons acted “with the permission and consent” of all defendants including corporate defendants is sufficient to plead corporate employer liability for punitive damages. O’Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 806 (“it was alleged that the misrepresentations were made by persons who acted ‘with the permission and consent’ of all the defendants. For the purpose of meeting a general demurrer, this was a sufficient allegation that the corporations had authorized their agent’s acts; a corporation is liable for punitive damages when it authorizes the wrongful act.”); Kisesky v. Carpenters’ Trust (1983) 144 Cal.App.3d 222, 235 (allegations of agents acting in scope of employment with employer’s permission and consent were sufficient).

Here, while Plaintiff alleges that RN Eva Estrellado is a “managing agent”, she fails to allege how Ms. Estellado meets the definition which Plaintiff provides. (FAC, ¶52.) However, Plaintiff does allege that “through their managing agents, DEFENDANTS, and each of them, agreed, approved, authorized, ratified and/or conspired to commit all of the acts or omissions alleged herein.” (FAC, ¶48.) This allegation meets the standard described above.

Accordingly, PHHS’ demurrer is OVERRULED.

II. PHHS moves to strike from the FAC paragraph 58(a) lines 13-14 and 17-18, paragraph 89 lines 13-15, paragraph 90 lines 16-18, paragraph 92 lines 26-28, paragraph 94 lines 14-16, paragraph 96 lines 20-24, and from the FAC prayer for relief paragraphs 3 and 4. PHHS claims that Plaintiff’s request for punitive, exemplary and attorney’s fees are improper.

First, with respect to PHHS’ argument regarding punitive damages against a corporation, that was addressed and rejected above.

Second, “[i]n order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255. Accord Blegen v. Sup. Ct. (1981) 125 Cal.App.3d 959, 962.

Malice is defined as “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.” Civ. Code § 3294(c)(1).

A complaint which describes conduct from which a conscious disregard for parties’ rights may be inferred is sufficient to state a cause of action for punitive damages. SKF Farms v. Sup. Ct. (1984) 153 Cal.App.3d 902, 907.

The conscious disregard of the safety of others may constitute malice, and justify an award of punitive damages, where a defendant was aware of the probable dangerous consequences of the conduct, yet willfully and deliberately failed to avoid them, as distinguished from mere negligence or recklessness. Lackner v. North (2006) 135 Cal.App.4th 1188, 1211; Bell v. Sharp Cabrillo Hosp. (1989) 212 Cal.App.3d 1034, 1044.

Here, as discussed above, Plaintiff alleges that PHHS was aware of her admitting diagnoses (including dementia, was fed by a syringe and drank through a straw, among others) (FAC, ¶51), and PHHS affirmatively represented Plaintiff would have no skin breakdown (FAC, ¶57) and assessed that Plaintiff was at risk for developing pressure ulcers (FAC, ¶58a). However, during this time, Plaintiff developed 15-18 pressure ulcers and a Stage IV coccyx pressure ulcer (FAC, ¶58a), failed to take Plaintiff’s weight upon admission, failed to document intake and output, and failed to ensure that Plaintiff received adequate nutrition at M&I (FAC, ¶58b). Finally, Plaintiff alleges PHHS intended to maximize profits at the expense of the safety and well-being of their residents and did not transfer Plaintiff to a hospital in order to not lose a paying client. (FAC, ¶58b).

These allegations are sufficient to establish that PHHS acted with conscious disregard for Plaintiff’s safety. Based on the above authority, Plaintiff’s request for punitive and exemplary damages is proper.

Third, “[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.

Pursuant to Welf. & Inst. Code, § 15657, “Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorney’s fees and costs. . . .”

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 attorneys’ 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.

Here, PHHS’ argument regarding attorneys’ fees hinges entirely on Plaintiff’s ability to obtain punitive damages (discussed above). Accordingly, Plaintiff’s request for attorneys’ fees is also proper.

Based on the foregoing, PHHS’ motion to strike is DENIED.