Case Name: Joyce L. Nicholas, et al. v. Lopiseni Fangaloka, et al.

Case No.: 18CV336511

Motion for Summary Judgment or in the Alternative Adjudication on Behalf of Defendant Lopiseni Fangaloka

Factual and Procedural Background

On or about July 13, 2017, defendant Lopiseni Fangaloka (“Defendant”) was providing in-home senior caretaker services to Leland Nicholas (“Decedent”), then 98 years old, at his home in Los Altos. (Complaint, ¶¶3 and 7.) Defendant was the caretaker referred to Decedent by 1 Plus 1 Senior Care Services Referral Agency to act as an independent contractor in providing caretaker services including, but not limited to, custodial care, management, and supervision of Decedent to prevent him from hazards, and to prevent him from physical harm and mental suffering. (Id.)

Defendant so carelessly, negligently, and recklessly performed and provided in-home senior caretaking services to Decedent and failed to provide custodial care, management, or supervision of Decedent and violated applicable safety statutes and regulations as to cause Decedent to wander from his home and to be struck by a large garbage truck in the street which ultimately caused his death on July 24, 2017. (Complaint, ¶10.) Defendant permitted and allowed Decedent to leave his home on a mobility scooter unaccompanied, knowing that Decedent required supervision when operating the scooter alone on roads without sidewalks, due to the presence of motor vehicles including but not limited to large garbage trucks. (Complaint, ¶18.)

On October 12, 2018, plaintiffs Joyce L. Nicholas (wife of Decedent), Andrew R. Nicholas, Kathryn L. Irlanda, Paul L. Nicholas, Ruth A. Urban, and Rosalind Lorey (children of Decedent) (collectively, “Plaintiffs”) filed a complaint against Defendant asserting causes of action for:

(1) Negligence – Wrongful Death
(2) Negligence – Survival Action
(3) Violation of Elder and Dependent Adult Civil Protection Act

On February 7, 2019, Defendant filed an answer to Plaintiffs’ complaint.

On September 25, 2019, Defendant filed the motion now before the court, a motion for summary judgment/ adjudication of Plaintiffs’ complaint.

I. Defendant’s motion for summary judgment/adjudication is DENIED.

A. Elder abuse.

The third cause of action asserted against defendant MCC is by Plaintiffs for elder abuse. “The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).) “The elements of a cause of action under the Elder Abuse Act [Welfare and Institutions Code sections 15600, et seq.] 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 v. Superior Court (2004) 117 Cal.App.4th 72, 82.)

Welfare and Institutions Code section 15610.07, subdivision (a)(1) states, “Abuse of an elder or a dependent adult” means … “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Emphasis added.)

Welfare and Institutions Code section 15610.57 goes on to state:

(a) “Neglect” means either of the following:
(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

(See also CACI, No. 3103.)

“[T]he statutory definition of neglect set forth in the first sentence of Welfare and Institutions Code section 15610.57 is substantially the same as the ordinary definition of neglect.” (Conservatorship of Gregory v. Beverly Enterprises, Inc. (2000) 80 Cal.App.4th 514, 521.) The primary reason for making a claim under the Elder/Dependent Abuse Act is to recover enhanced remedies, including pre-death pain and suffering, attorney’s fees and costs, and punitive damages. These enhanced remedies are available under section 15657 but only “[w]here it is proven by clear and convincing evidence that a defendant is liable for … 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.” (Welf. & Inst. Code, §15657; emphasis added.)

As noted above, elder abuse may consist of neglect, abandonment, or other treatment with resulting physical harm or pain or mental suffering. As against Defendant, the third cause of action for elder abuse is based on one of these three forms of elder abuse. Neglect is defined by Welfare and Institutions Code section 15610.57, subdivision (a) to mean, “The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Emphasis added.) “ ‘Abandonment’ means the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.” (Welf. & Inst. Code, § 15610.05.)

In moving for summary adjudication of the third cause of action for statutory elder abuse, Defendant first contends he did not have “care or custody” of Decedent. Defendant cites Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155 (Winn) which held that “a claim of neglect under the Elder Abuse Act requires a caretaking or custodial relationship—where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.”

In Winn, the plaintiffs were daughters and surviving heirs of the decedent who sought medical care on an outpatient basis from defendants Pioneer Medical Group, Inc. (Pioneer) and Dr. Csepanyi, a medical doctor working at Pioneer, from November 2000 until March 2009 for treatment of onychomycosis, a condition that may limit mobility and impair peripheral circulation. After decedent’s last visit with Dr. Csepanyi in March 2009, decedent was admitted to a hospital suffering from sepsis, or blood poisoning. Doctors unsuccessfully attempted a revascularization procedure. Decedent underwent amputation of her right leg in April and June of that year. Decedent was hospitalized again in January 2010 for blood poisoning and died shortly thereafter.

The plaintiffs in Winn filed a complaint for elder abuse, alleging that defendants consciously failed “to make a vascular referral.” The trial court sustained defendants’ demurrer without leave to amend. The appellate court reversed holding that the Elder Abuse Act does not require the existence of a custodial relationship in order for the plaintiff to establish a cause of action for neglect and that even if section 15610.57 requires a defendant to have a custodial relationship with the elder or dependent adult, defendants in the instant case were “care custodians.”

The California Supreme Court overturned the appellate court. In its decision, the Winn court found the examples of neglect identified in the elder abuse statutes “contemplate is the existence of a robust caretaking or custodial relationship—that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn, supra, 63 Cal.4th at p. 158.) “Ultimately, the focus of the statutory language is on the nature and substance of the relationship between an individual and an elder or a dependent adult. This focus supports the conclusion that the distinctive relationship contemplated by the Act entails more than casual or limited interactions.” (Ibid.)

Beyond the assertion that defendants treated Mrs. Cox at outpatient “clinics” operated by defendants, plaintiffs offer no other explanation for why defendants’ intermittent, outpatient medical treatment forged a caretaking or custodial relationship between Mrs. Cox and defendants. No allegations in the complaint support an inference that Mrs. Cox relied on defendants in any way distinct from an able-bodied and fully competent adult’s reliance on the advice and care of his or her medical providers. Accordingly, we hold that defendants lacked the needed caretaking or custodial relationship with the decedent.

(Id. at p. 165.)

Defendant provides the following evidence to support his assertion that he did not have a caretaking or custodial relationship with Decedent and, consequently, cannot be liable for elder abuse:

On or about July 13, 2017, Defendant was providing working [sic] as an in home care aide, providing care to Decedent. Decedent had been a dentist who retired in 2004. At the time of Decedent’s death, he was 98 years old. At the time of the accident, Decedent and his wife, plaintiff Joyce L. Nicholas, resided by themselves at their residence at 27860 Vogue Ct., Los Altos Hills.

Approximately a year before the accident, Decedent had been hospitalized for c-diff. for approximately two to three weeks. Before this he had been in good health. Prior to hospitalization, Decedent was independent, without caregiver, was mentally sharp, and participated in regular exercises. When Decedent first returned home from his hospitalization, he was not able to care for himself much as he had before. For this reason, his daughter hired 1 Plus 1 Senior Care to refer to her an in home care providers.

1 Plus 1 Senior Care referred several different care givers to Decedent’s daughter for her father. Defendant provided this care to Decedent to the extent he needed and wanted Defendant’s care. During the year from the time Decedent came home from the hospitalization, up to the accident with the garbage truck, Decedent’s condition gradually improved. Even after Decedent returned home from his hospitalization, he was a very independent person.

Decedent’s daughter knew that her father was riding the scooter and Decedent had no problem operating the scooter. Decedent’s daughter never told Decedent not to ride the scooter and never told Defendant not to let him ride the scooter without him being present.

Decedent’s condition continued to improve to the extent that he was stronger and able to walk around the house unassisted with a walker or cane. After the hospitalization, Decedent’s physical health improved close to his pre-hospitalization level. Just prior to the accident, Decedent’s mental sharpness was essentially the same as it had been before his hospitalization and Decedent was independent and had no problem talking or stating his opinion.

As of July 13, 2017, Decedent regularly told Defendant when he wanted to [be] left alone and would make his own decision on his daily routine. Decedent had become less and less tolerant of Defendant’s suggestions to him and often did what he wanted despite his requests. When Decedent would indicate he did not want Defendant’s help or his company, Defendant would then return to the utility room where he generally stayed, or the living room to wait until Decedent requested assistance. If Decedent wanted space away from Defendant, Defendant would provide Decedent with space.

On the day of the accident, Decedent left the house on his own without informing Defendant, took his scooter and drove to his friend, Emmalou Montgomery’s house. Decedent had made this trip in the past to Ms. Montgomery’s house. On each of these visits, Ms. Montgomery would walk Decedent back to his house when they were done visiting.

At the time Decedent went to Ms. Montgomery’s house on July 13, 2017, he was lucid and very sharp mentally. Defendant believed Decedent was competent to make decisions on his own and to return to the house safely. Defendant was not aware of any hazard in the immediate area and did not believe returning back to the house placed Decedent in any danger, given the prior history of Ms. Montgomery accompanying Decedent home and Decedent’s ability to drive his scooter and Decedent’s overall physical and mental health.

In opposition, Plaintiffs point to Defendant’s own testimony stating he provided Decedent with the usual caregiving services he had provided to others in the past which included taking responsibility for Decedent’s basic needs such as getting up in the morning, helping with breakfast, helping him go to the bathroom, showering, and protecting him from health and safety hazards that Decedent might encounter. Defendant testified he showered with Decedent during the entire time he worked with Decedent because of the risk that Decedent could slip and fall. Defendant’s testimony also acknowledged he was to provide companionship to Decedent to protect Decedent from health and safety hazards he might encounter. Defendant recognized there were safety issues with Decedent’s use of the scooter. Defendant’s testimony includes his recognition that he had a job to perform which included accompanying Decedent if he left the house.

The evidence before the court is in dispute with regard to whether Decedent was in Defendant’s custody or care. A triable issue of material fact exists, thereby precluding summary adjudication of this third cause of action.

As a second basis for summary adjudication of this elder abuse cause of action, Defendant contends “neglect,” as that term is used by the Elder Abuse Act, is based upon the failure to provide care, not providing substandard care.

As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the “failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney, supra, 20 Cal.4th at p. 34, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Thus, the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care. (Ibid.)

(Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)

Defendant asserts there was no failure to provide care in this situation. Defendant cites to the same evidence above (Defendant’s UMF, Fact Nos. 28, 30 – 33) to suggest that Decedent made the decision to go visit his neighbor/friend, Montgomery, of his own accord and that Defendant, based on past experience and his own assessment that there was no danger, left Decedent to come home on his own. Again, this contrasts with Defendant’s own testimony that his job was to accompany Decedent at all times to protect Decedent from health and safety hazards Decedent might encounter. Defendant’s decision to leave Decedent could constitute the failure to provide care, not just substandard performance of care.

Finally, Defendant argues this elder abuse claim fails because Plaintiffs cannot establish clear and convincing evidence of any recklessness, oppression, fraud, or malice on Defendant’s part as required by Welfare and Institutions Code section 15657.

“Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur (BAJI No. 12.77 [defining “recklessness” in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” (Rest.2d Torts, § 500, com. (g), p. 590.) [Footnote.]

(Delaney v. Baker (1999) 20 Cal.4th 23, 31–32.)

Defendant contends he did not believe there to be any danger because Decedent had made the trip to Montgomery’s house in the past and an on each of those visits, Montgomery would walk Decedent back to his house when they were done visiting. On the date of the accident, Decedent was lucid and mentally sharp. Defendant believed Decedent was competent to make decisions on his own and to return to his house safely. At the time Decedent went to Montgomery’s house, Defendant was not aware of any hazard in the immediate area and did not believe that returning back to the house placed Decedent in any danger given the prior history of Montgomery accompanying Decedent home and Decedent’s ability to drive his scooter and his overall physical and mental health.

In opposition, Plaintiffs point to evidence which would create a triable issue of material fact with regard to whether Defendant acted with recklessness. Namely, Plaintiffs point to evidence that conflicts with Defendant’s assertion that he accompanied Decedent to Montgomery’s house before deciding to return home. Plaintiffs proffer Montgomery’s testimony that Decedent always came to her house alone. Defendant never accompanied Decedent. Montgomery’s daughter and son-in-law told Montgomery that Decedent occasionally came when Montgomery was not at home and Decedent always came alone. This evidence also comports with the declaration of Montgomery that Defendant submitted in support of his motion for summary judgment/ adjudication. This evidence is enough to create a triable issue of material fact precluding summary adjudication of the third cause of action.

For the reasons stated above, Defendant’s motion for summary adjudication as to Plaintiffs’ third cause of action for statutory elder abuse is DENIED.

B. Exemplary damages.

Defendant seeks summary adjudication of Plaintiffs’ claim for exemplary damages. In opposition, Plaintiffs state their intent to dismiss their claim for punitive damages prior to the hearing. In light of this stated intent, Defendant’s motion for summary adjudication as to Plaintiffs’ claim for punitive/exemplary damages is DENIED as moot.

C. Negligence.

The first and second causes of action are for negligence. Defendant moves for summary adjudication by arguing that Defendant had no duty (or right) to prevent Decedent from leaving the house unaccompanied and/or that once Decedent made the decision to leave the house unaccompanied, Defendant was relieved of any obligation until Decedent either returned home or requested Defendant’s assistance.

“[T]he existence of a duty is a question of law for the court.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237; see also Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “The question of whether a duty exists is a question of law and must be decided by the court on a case-by-case basis.” (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175.)

The court rejects Defendant’s argument outright. As noted above, Defendant’s testimony acknowledged he was to provide companionship to Decedent to protect Decedent from health and safety hazards he might encounter. Defendant recognized there were safety issues with Decedent’s use of the scooter. Defendant’s testimony includes his recognition that he had a job to perform which included accompanying Decedent if he left the house. By his own acknowledgment and recognition, Defendant had a duty to accompany Decedent and to protect Decedent from health and safety hazards Decedent might encounter.

Accordingly, Defendant’s motion for summary adjudication as to Plaintiffs’ first and second causes of action for statutory elder abuse is DENIED. For all the reasons stated above, Defendant’s motion for summary judgment is DENIED.