Case Name: Ian Belvin, et al. v. Magdalene Residential Care, et al.
Case No.: 16CV294652

I. Factual and Procedural Background

This is an elder abuse action filed by plaintiffs Ian Belvin (“Ian”), individually and as successor-in-interest to Betty Belvin (“Betty”), and the Estate of Betty Belvin (collectively “Plaintiffs”), against defendants Magdalene Residential Care (“Magdalene”), Fe Literato-Hilario (“Fe”), Francisco Hilario (“Francisco”), and Doe 1 Elizabeth R. Wolfert (“Wolfert”) (collectively “Defendants”).

As alleged in the fourth amended complaint (“4AC”), Ian’s mother, Betty, resided at Magdalene, a residential care facility located at 994 Sobrato Drive, Campbell, CA. (4AC, ¶¶ 8, 15.) Magdalene was licensed by the state of California and owned, operated, managed, and supervised by Fe and Francisco. (Id. at ¶ 11.) Wolfert owned the premises on which Magdalene operated and acted as its unlicensed owner and operator. (Id. at ¶ 11.) Betty was around 92 years old when she moved into Magdalene, suffered from dementia, and could not move without assistance. (Id. at ¶¶ 15, 17.) Despite Defendants’ knowledge of these facts and the fact that failing to move Betty would place her at increased risk of developing bed sores and pressure ulcers, they failed to sufficiently move her. (Id. at ¶¶ 16-17.) As a result, Betty developed bed sores, pressure ulcers, and injuries to her skin and underlying tissue. (Id. at ¶ 17.) Fe, Francisco, and Magdalene also failed to chart Betty’s bed sores and pressure ulcers. (Ibid.)

Around June 12, 2015, at the request of Betty’s physician, Prohealth was contacted to help provide care for her. (Id. at ¶18.) Prohealth assessed Betty, created a care plan for her, and sent skilled nurses and physical therapists to Magdalene on a regular basis. (Ibid.) It also instructed Magdalene on how to assess, prevent, and heal bed sores and pressure ulcers. (Ibid.) Defendants, however, did not follow these instructions or provide Betty with the care needed to arrest the development of her condition. (Id. at ¶¶ 20-21.) Consequently, around November 2015, Betty developed multiple Stage III bed sores and pressure ulcers, including one on her coccyx that ultimately proved fatal. (Id. at ¶ 21.) In December 2015, in addition to having severe bed sores, Betty was malnourished and had pneumonia and urinary tract infections caused or exacerbated by her sores; as such, she was brought to the Good Samaritan Hospital for treatment. (Id. at ¶ 23.) While there, her condition improved and she was transferred to Vasona Creek Healthcare Center for care. (Id. at ¶¶ 24-25.) On January 11, 2016, however, Betty was sent back to the hospital because her coccyx bed sore developed necrotic tissue that was so toxic it was causing a failure of her systems. (Id. at ¶ 26.) Betty died one week later as a result of infections stemming from the sore. (Id. at ¶¶ 27-28.)

The 4AC alleges ten causes of action for: (1) elder abuse; (2) violation of patient/resident’s rights under Health and Safety Code section 1430, subdivision (b); (3) negligence and negligence per se; (4) negligent infliction of emotional distress; (5) willful misconduct/recklessness; (6) fraudulent concealment; (7) constructive fraud; (8) survival and wrongful death; (9) violation of Business and Professions Code section 17200, et seq.; and (10) breach of contract (third party beneficiary).

Currently before the Court is: (1) Plaintiffs’ motion for leave to file a fifth amended complaint; and (2) Wolfert’s motion for summary judgment or, in the alternative, summary adjudication, which is accompanied by a supporting request for judicial notice. Wolfert opposes the motion for leave to amend while Plaintiffs oppose the motion for summary judgment or, alternatively, summary adjudication. Plaintiffs also filed written evidentiary objections to the evidence and request for judicial notice submitted by Wolfert.

II. Motion for Leave to Amend

Plaintiffs request leave to file a fifth amended complaint (“5AC”) to add allegations to the ninth cause of action for violations of Business and Professions Code section 17200, et seq., otherwise known as the Unfair Competition Law (“UCL”). Based on discovery responses recently received from Wolfert, Plaintiffs seek to add averments she violated various provisions of the Health and Safety Code and the state and federal tax codes, including ones requiring her to be fingerprinted, complete a criminal background check, and report gross income rents and other monies received from Magdalene.

In opposition, Wolfert contends any amendment would be futile because the statutes purportedly violated do not provide for a private right of action, and Plaintiffs do not aver they sustained any economic injury as a result of the violations. In essence, Wolfert asserts leave to amend should be denied because the proposed amendments do not state a claim.

A trial court may, after notice to the adverse party and upon any terms that may be just, allow an amendment to a pleading. (Code of Civ. Proc., § 473, subd. (a)(1).) The decision whether to allow amendment is within the discretion of the court and denial of leave to amend is proper if the proposed amendment fails to state a cause of action. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230; see also Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 652 [court not required to grant leave to amend where the additional claims sought to be included were without merit]; Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 [same].)

At the outset, the Court is not persuaded by Wolfert’s assertion leave to amend should be denied because no private right of action exists under the additional statutes claimed to have been violated. Courts have held that, for purposes of a UCL claim, a plaintiff may borrow violations of other laws even if those laws do not specifically provide for a private right of action. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 677 [“Thus, our Supreme Court has held that even though a particular act is proscribed by another statute in which no private right of action is specifically provided, this does not preclude the ‘borrowing’ of a violation of that other statute by a private UCL plaintiff.”]; see also Saunders v. Superior Court (Cal. Reporting Alliance) (1994) 27 Cal.App.4th 832, 839.)

With that said, Wolfert’s argument that the proposed amendments state no claim is otherwise well-taken because Plaintiffs fail to allege any economic injury sustained as a result of the purported violations of the Health and Safety Code and the state and federal tax codes. In order to have standing to sue under the UCL, a plaintiff must plead a loss of money or property (i.e. an economic injury) caused by the violation. (See Bus. & Prof., § 17204; Kwikset Corp. v. Superior Court (Benson) (2011) 51 Cal.4th 310, 326.) Here, Plaintiffs’ proposed amendments to the ninth cause of action do not allege such facts. Specifically, Plaintiffs broadly allege they “suffered injuries” and are entitled to relief but do not aver Wolfert’s failure to get fingerprinted, undergo a criminal background check, or properly report rent and money received from Magdalene, caused them an actual loss of money or property. (See Evans Decl., Exh. A, p. 39.) As such, the proposed amendments fail to state a UCL claim.

In reply, Plaintiffs do not directly respond to Wolfert’s argument or otherwise articulate how they have pled an economic injury stemming from the purported violations. Instead, they merely assert Wolfert’s citation to Business and Professions Code section 17204, the statute setting forth the above-referenced standing requirement, is erroneous as “that section governs the power of the Attorney General and other persons to seek injunctive relief.” (Reply at p. 4:11-13.) Plaintiffs’ argument lacks merit. Though it is true section 17204 is titled “Actions for Injunctions by Attorney General, District Attorney, County Counsel, and City Attorneys,” it also governs actions brought “by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” (Bus. & Prof., § 17204.) Moreover, under this statute, it is well-established a UCL claim must plead an economic injury (see, e.g., Kwikset, supra, 51 Cal.4th at 326; In re Tobacco II Cases (2009) 46 Cal.4th 298, 314; Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1381; Troyk v. Farmers Grp., Inc. (2009) 171 Cal.App.4th 1305, 1344), which Plaintiffs fail to do here.

In sum, the proposed amendments do not state a claim for a UCL violation. As such, Plaintiffs’ motion for leave to file the 5AC is DENIED.

III. Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Wolfert’s motion for summary judgment or, in the alternative, summary adjudication is directed toward Plaintiffs’ first, third, fifth, sixth, seventh, eighth, and tenth causes of action.

A. Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) To demonstrate an action has no merit, a defendant moving for summary judgment must show one or more of the elements of a cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (Ocadian Care Centers, Inc.) (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“A motion for summary adjudication may be made…as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) Such a motion may be brought on the grounds a cause of action has no merit, there is no affirmative defense to a cause of action, there is no merit to an affirmative defense as to any cause of action, there is no merit to a claim for damages, or one or more defendants owed or did not owe a duty to the plaintiff. (Code Civ. Proc., § 437c, subd. (f)(1).)

B. Request for Judicial Notice

Wolfert requests judicial notice of a California Health and Human Services Agency policies and procedures manual for residential care facilities for the elderly, two sections of the California Code of Regulations regarding resident records and criminal record clearance, and a California Department of Social Services policy regarding records to be maintained at a residential care facility.

These documents are generally judicially noticeable under Evidence Code section 452, subdivision (b), which authorizes judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (See also Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270, 1282 [taking judicial notice of city policies under subdivision (b)]; Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 296 [taking judicial notice of provisions in the California Code of Regulations under subdivision (b)].) With that said, a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) Here, Wolfert references these documents only once in the factual background section of her memorandum and does not rely on them relative to arguments advanced in support of her motion. As such, they are not helpful or necessary to the resolution of the motion.

Accordingly, Wolfert’s request for judicial notice is DENIED.

C. Merits of the Motion

1. First Cause of Action

The first cause of action is for violation of the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”), codified in Welfare and Institutions Code section 15600 et seq. Plaintiffs allege Defendants were care custodians for Betty who repeatedly neglected and abused her by inadequately moving, hydrating, feeding and changing her; ignoring her flu- and cold-like symptoms; and failing to adequately treat or prevent development of her bedsores despite their knowledge of her vulnerability to this condition.

Wolfert contends this claim fails because she had no duty to provide care to Betty and did not harm her. Her argument to this end consists solely of the following two sentences: “In this context, WOLFERT is solely a landlord, had no interaction with Magdalene Residential Care other than her role as landlord, had no duty to BETTY BELVIN, and had no interaction with BETTY BELVIN. WOLFERT caused no harm to BETTY BELVIN.” (Mtn. at p. 7:17-21.) She also generally asserts the “Undisputed Material Facts 1-20 demonstrate [no liability exists]” but does not further elaborate on this proposition. (Ibid.) Though not clearly articulated, Wolfert appears to be arguing this cause of action lacks merit because one or more elements of the claim cannot be established. (See Code Civ. Proc., § 437c, subd. (p)(2).) Her assertion is wholly deficient.

In order to demonstrate a plaintiff cannot establish an element of a cause of action, a defendant may either present evidence conclusively negating an element or demonstrating a plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 854.) Here, Wolfert does not even discuss the elements of an elder abuse claim much less present evidence negating a specific element or demonstrating Plaintiffs cannot obtain needed evidence.

“The elements of a cause of action under the [Elder Abuse Act] are statutory, and reflect the Legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.” (Intrieri, supra, 117 Cal.App.4th at 82.) Welfare and Institutions Code section 15610.07 defines elder abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” As relevant here, to state a claim for elder abuse based on neglect, “[a] 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].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406–07.) A plaintiff must also allege and prove that “the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering [citations].” (Ibid.)

Here, Wolfert asserts she was only a landlord who did not interact with Betty or owe her any duty but does not explain how these contentions relate to any of the above-listed elements. As such, it is unclear how any of her arguments would compel a conclusion an element of the elder abuse claim cannot be established. Wolfert’s separate statement also does not illuminate matters. In it, Wolfert submits evidence that, among other things, she was not paid to provide care for Betty; had no financial or ownership interest in Magdalene; exercised no control over Magdalene; was not employed by Fe; did not occupy a room at Magdalene; did not meet, interact with, provide care to, agree to provide care to, or receive payments from Betty; had no knowledge of the circumstances resulting in harm to Betty; and interacted with Fe solely in a landlord-tenant capacity. (Def. Sep. Stmt., Nos. 1-20.) But, again, Wolfert provides no analysis explaining how any of these facts relate to much less negate an element of an elder abuse claim.

Though, when read generously, Wolfert may perhaps be attempting to contend the evidence submitted demonstrates Plaintiff cannot establish the first element of responsibility for meeting the basic needs of an elder, she cites no authority discussing what legal principles apply in evaluating if this element has been met or supporting the proposition a landlord of a residential care facility cannot be deemed to have been responsible for meeting the basic needs of an elder. As such, her position is wholly unsubstantiated. (See Cal. Rules of Court, rule 3.1113(b) [a supporting memorandum must include a discussion of legal authority in support of the position advanced]; see also People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without citation to authority may be disregarded].) The Court otherwise observes it is not the role of a court to “comb the record and the law for factual and legal support that a party has failed to identify or provide.” (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934.)

For the reasons stated, Wolfert fails to meet her initial burden of demonstrating the first cause of action lacks merit.

2. Third Cause of Action

The third cause of action for negligence and negligence per se alleges Defendants breached their duty to provide for and protect Betty’s health and welfare, which ultimately resulted in the development of bed sores leading to her death.

The elements of a cause of action for negligence are as follows: “(1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

Wolfert asserts her “Undisputed Material Facts 1-23” demonstrate she had no duty to Betty and did not harm her. She also contends Plaintiff have no evidence she was a shadow operator of Magdalene as they produced no proof in discovery that Betty’s family paid her, agreed with her that she would provide care for Betty, or had records referring to her. This contention suffers from many of the same defects discussed relative to the first cause of action.

Though, relative to this claim, Wolfert does recite the elements of a negligence claim and identify the elements she asserts have not been established, she utterly fails to provide any analysis in support of her argument. Significantly, she cites no legal authority discussing the applicable legal principles for evaluating whether the elements of duty and causation of damages have been met, discussing how a defendant’s status as a shadow operator would impact a plaintiff’s establishment of these elements, or supporting the proposition a lack of evidence a defendant was referred to in medical records or paid to provide care demonstrates these elements have not been met. As such, Wolfert’s position is wholly unsupported. (See Cal. Rules of Court, rule 3.1113(b); Dougherty, supra, 138 Cal.App.3d at 282.)

Moreover, though Wolfert broadly references the same evidence relied on with regards to the elder abuse claim along with two additional facts, namely, that she inspected and made repairs as needed to the care facility during the relevant time period, the materiality of this evidence is unclear as she does not discuss the analytical framework for determining the existence of a duty of care or causation in the first instance.

As such, Wolfert does not meet her initial burden of demonstrating the third cause of action lacks merit.

3. Fifth Cause of Action

The fifth cause of action for willful misconduct/recklessness pleads Defendants’ breaches of their duty to Betty were not only negligent but reckless to the point of constituting willful misconduct.

Wolfert asserts Plaintiffs produced no evidence demonstrating she was involved in caring for Betty or caused any harm to her. In support, she recites the elements for gross negligence, which consist of the traditional elements of negligence coupled with an allegation of extreme conduct on the part of the defendant (see Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082). Wolfert does not further elaborate. This is insufficient.

At the outset, the fifth cause of action is not one for gross negligence but, rather, willful misconduct. The elements of willful misconduct are “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Morgan v. S. Pac. Trans. Co. (1974) 37 Cal.App.3d 1006, 1012.) It is not apparent to the Court how Wolfert’s vague assertion she was not involved in caring for or harming Betty demonstrates Plaintiff’s inability to establish an element of the claim for willful misconduct.

As such, Wolfert fails to carry her initial burden of demonstrating the fifth cause of action lacks merit.

4. Sixth and Seventh Causes of Action

The sixth cause of action for fraudulent concealment and seventh cause of action for constructive fraud alleges Betty was in a special fiduciary relationship with Defendants whereby they had a duty to but failed to disclose that Magdalene’s staff lacked the knowledge, time, skill and intention to provide her with necessary care; they were not going to provide her with the needed care or proper supervision; her primary caretaker Fe was going to be out of the country for over a month and she would be neglected in that time; Wolfert was an unlicensed owner and operator of Magdalene; and each of them did not carry liability insurance as required under California Health and Safety Code section 1569.605.

Wolfert first contends these claims must fail. In support, she quotes a portion of the California Civil Jury Instructions regarding a claim for concealment before baldly concluding that Plaintiffs have failed to factually support their claims because “[n]o communications, agreements, representations, or any other supporting information has been provided that would support [she] had a duty to disclose, that she made any representations to [Plaintiff or Betty], or that she concealed any facts from [Plaintiff or Betty.” (Mtn. at p. 9:9-13.) She does not further elaborate. For the reasons previously articulated, Wolfert’s argument is unsubstantiated, unsupported by any analysis and, consequently, wholly inadequate.

Wolfert next asserts that fraud allegations require specificity and “[Plaintiff’s] complaint fails here as well.” (Mtn. at p. 9:14-15.) Though not articulated as such, through this contention, Wolfert appears to be challenging the sufficiency of the pleading.

“A defendant’s motion for summary judgment necessarily includes a test of the sufficiency of the complaint.” (Am. Airlines, Inc. v. Cty. of San Mateo (1996) 12 Cal.4th 1110, 1117.) When a motion for summary judgment is used to test whether the complaint states a cause of action, its legal effect is the same as a demurrer or a motion for judgment on the pleadings if the time to demur has passed. (Ibid.)

Here, to the extent Wolfert intended that her motion function as a motion for judgment on the pleadings relative to these causes of action, her position is unsubstantiated. Though Wolfert is generally correct that every element of a fraud cause of action must be pled with particularity (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 231), she does not articulate at any point how Plaintiffs’ allegations in these claims are deficiently pled.

In sum, Wolfert neither meets her initial burden of demonstrating the sixth and seventh causes of action lack merit nor demonstrates any pleading deficiency in these claims.

5. Eighth Cause of Action

The eighth cause of action is for survival and wrongful death. As successors-in-interest to Betty, Plaintiffs seek recovery of all losses or damages sustained as a result of Betty’s death, which resulted from Defendants’ negligence.

Wolfert contends this claim fails because Plaintiffs can identify no duty she owed to Betty and the evidence demonstrates she caused no harm to Betty. She does not further elaborate. This is insufficient.

Plaintiffs allege in the 4AC that Defendants had a “heightened duty to use utmost care to avoid causing foreseeable harm to the decedent.” (4AC, ¶ 136.) Wolfert asserts no duty existed but does not support her contention with any reasoned analysis.

As such, Wolfert fails to carry her initial burden of demonstrating the eighth cause of action lacks merit.

6. Tenth Cause of Action

The tenth cause of action for breach of contract to a third-party beneficiary pleads that Betty was an intended third-party beneficiary of a lease agreement between Wolfert and Magdalene, and was harmed when Wolfert breached provisions of the agreement requiring her to maintain liability insurance, verify that Magdalene carried liability insurance, and perform monthly inspections of the premises.

Wolfert asserts this claim fails because “common sense dictates that a lack of insurance does not itself cause bed sores (or other lack of care), nor would the failure to inspect automatically cause harm.” (Mtn. at p. 10:12-13.) She does not further elaborate but concludes Plaintiff cannot establish causation or damages.

At the outset, Wolfert’s reference to causation as a purported element of a breach of contract claim is anomalous. “It is hornbook law that the essential elements to be pleaded in an action for breach of contract are: (1) the contract; (2) plaintiff’s performance of the contract or excuse for nonperformance; (3) defendant’s breach; and (4) the resulting damage to plaintiff.” (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) Causation is not an element of the claim. Presumably, Wolfert’s assertion pertains to the element of resulting damage to the plaintiff.

With respect to the issue of resulting damages, Wolfert’s contention it cannot be established is flawed and unsubstantiated. First, Wolfert focuses on the fact the purported breaches could not have caused Betty’s bed sores when it is not apparent Plaintiffs are only alleging damages in the form of bed sores sustained by Betty. (See 4AC, ¶ 157 [pleading generally that “Plaintiffs suffered injuries” as a result of Wolfert’s breaches of the lease agreement].) Second, Wolfert asserts Plaintiffs cannot establish damages resulting from the breach but does not point to the specific evidence supporting this contention. Instead, she merely generally states “Undisputed Materials Facts 1-29” substantiate her position. (Mtn. at p. 10:14.) The facts referenced are the entirety of facts listed in Wolfert’s separate statement, which cite to nearly 300 pages of evidence. This is insufficient. As previously stated, it is not the role of the Court to “comb the record and the law for factual and legal support that a party has failed to identify or provide.” (See Quantum, supra, 197 Cal.App.4th at 934.)

As such, Wolfert fails to carry her initial burden of demonstrating the tenth cause of action lacks merit.

7. Conclusion

Therefore, Wolfert’s motion for summary judgment or, alternatively, summary adjudication as to the first, third, fifth, sixth, seventh, eighth, and tenth causes of action is DENIED.

The Court will prepare the Order.