Case Name: Juanita Hernandez, et al. v. Lifehouse San Jose
Case No.: 2015-1-CV-288596

This is an action primarily alleging that the treatment provided to Decedent William Vance (“Decedent”) at a facility operated by Defendant Lifehouse San Jose Healthcare Center (“Defendant”) from November 8, 2014 until approximately November 11, 2014 constituted Elder Abuse. Decedent died on November 12, 2014 at Regional Medical Center for San Jose (See Complaint, exhibit B, copy of Decedent’s death certificate). Currently before the Court is the demurrer to and motion to strike portions of Plaintiffs’ original complaint (filed December 1, 2015) brought by Defendant.

As an initial matter the Court notes that the declaration of Defense Counsel Tom Allen, filed in compliance with Code of Civil Procedure (“CCP”) §430.41, states in pertinent part at 5 that during the meet and confer process “[i]t was agreed that plaintiffs would abandon their wrongful death cause of action because it is barred by the statute of limitations.” While Plaintiffs’ Opposition to the demurrer does not reference any such agreement, it also does not offer any defense to the demurrer to the Complaint’s second cause of action for wrongful death. The Court’s docket reflects that Plaintiffs filed a request for dismissal of the second cause of action on April 18, 2016 but an actual dismissal has not yet been entered. Accordingly, the demurrer to the second cause of action is SUSTAINED without leave to amend based on the Court’s understanding that Plaintiffs do not contest that the claim is time-barred.

Defendant’s Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

Defendant asks the Court to take judicial notice of several records from an Alameda County class action lawsuit it was involved in, presented as exhibits 1-4 to the request. None of these materials are referenced in Defendant’s demurrer. The materials are referenced in Defendant’ motion to strike, but only in support of an argument that this Court lacks subject matter jurisdiction, which is not a valid basis for a motion to strike (and not a ground on which Defendant has demurred ). The Court notes that the class referenced in the records is defined as “all persons who resided at one or more of the Defendant Facilities at any time from and including December 19, 2008 thorough and including November 1, 2013 (the Settlement Class Period).” The class also includes the successors of such residents. See Ex. 4 to Defendant’s request at paragraph 3.1. This settlement class obviously did not include the Decedent and Plaintiffs in this case. The Court further notes that these records show that the injunction entered by the Alameda Superior Court “shall be effective as of January 1, 2014 and shall remain in full force and effect for 2 (two) years from that date,” which indicates that the injunction expired in January 2016. See Ex. 2 to Defendant’s request at paragraph 12.

As Defendant has failed to show that these records have any relevance to the present lawsuit the request for judicial notice is DENIED in its entirety.

Defendant’s Demurrer
The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed. Similarly, facts appearing in exhibits attached to the complaint (part of the “face of the pleading”) are given precedence over inconsistent allegations in the complaint. (See Holland v. Morse Diesel Int’l, Inc. (2001) 86 Cal.App.4th 1443, 1447. See also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[T]o the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

Defendant demurrers to the first cause of action for Elder Abuse on the ground that it is not pled “with the requisite reasonable particularity.” (Demurrer at 3:4-5.)

The Elder Abuse Act is codified in Welfare & Institutions (“W&I”) Code §15600 et seq. The purpose of the Act is “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.) To encourage private enforcement of the law, the Act affords heightened remedies, including damages for a decedent’s pain and suffering, attorneys’ fees and costs, and punitive damages. (W&I Code §15657; Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 779-780.) To state a claim for elder abuse, a plaintiff must plead facts showing: l) the defendant has subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and 2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (W&I Code §15657.) As a statutory claim, the elements must be pled with particularity. (See Covenant Care, Inc. v. Superior Court, supra at 790; Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396.)

Plaintiff’s first cause of action for Elder Abuse is clearly based on a theory of neglect, not intentional physical abuse or financial abuse. “Neglect” is specifically defined in W&I Code §15610.57(a) as either 1) the negligent failure of a person having the care of an elder adult to exercise that degree of care that a reasonable person in that position would exercise or 2) the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in that position would exercise. Section 15610.57(b) states that neglect under the statute includes “but is not limited to,” 1) failure to assist in personal hygiene or the provision of food, clothing or shelter; 2) failure to provide medical care for physical and mental health needs; 3) Failure to protect from health and safety hazards; 4) failure to prevent malnutrition or dehydration, and; 5) Failure of an elder or dependent adult to satisfy the needs specified in 1-4 for himself/herself because of poor cognitive functioning, etc.

The acts proscribed by the statute do not include acts of simple professional negligence, but rather refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. (Delaney, supra, 20 Cal.4th at 32.) As explained in Delaney, “neglect…appears to cover an area of misconduct distinct from `professional negligence’…’Neglect’…does not refer to the performance of medical services in a manner inferior to `“the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing”’, 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.” (Id. at 34, internal citations omitted.)

The Supreme Court in Delaney further explained that: “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. The latter three categories involve `intentional,’ `willful,’ or `conscious’ wrongdoing of a `despicable’ or ‘injurious’ nature. “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. 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.’” (Id. at 31-32.)

Reckless neglect for purposes of the Elder Abuse Act is therefore not mere negligence in the undertaking of medical services, but rather, consists of the more fundamental failure to provide medical care. (Delaney, supra, 20 Cal.4th at 34.) Reckless neglect includes only “‘acts of egregious abuse’”, not the merely substandard performance of medical services. (Id. at 35. See also Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 785 [confirming that the high standard under the Act protects health care providers from liability under the statute “for acts of simple or even gross negligence.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 [“To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder.”]; Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336 [statutory definition of “neglect” refers to failure to provide medical care, not the negligent undertaking of medical services. Elder Abuse Act does not apply to simple or gross negligence.])

Defendant’s demurrer to the first cause of action for Elder Abuse is SUSTAINED with 10 days’ leave to amend.

The allegations in the Complaint at 14-24 generally fail to describe anything more than the negligent undertaking of medical services, and Plaintiffs’ repeated references to the conduct of Defendant and/or its staff as “reckless (or worse) neglect” are bare legal conclusions that are not accepted as true on demurrer. The allegations at 15-16, 21i and 22 that Defendant and its staff failed to prevent Decedent’s fall, purportedly because of inadequate staffing, cannot support an Elder Abuse claim. (See Worsham, supra at 338, quoting Delaney at 34 [allegations of failing to provide adequate staffing “if true, demonstrate [Defendant’s] negligence in the undertaking of medical services, not a ‘fundamental ‘failure to provide medical care for physical and mental health needs.’’] Emphasis in original.) While the alleged failure to perform a CT or X-Ray (Complaint at 16) might describe an act of professional negligence, it is also not abuse or neglect within the meaning of the Elder Abuse Act. Similarly the allegation (at 19) that Decedent was given an unnecessary medication and the very general allegations (at 21) that Defendant and its staff failed to comply with state and federal regulations setting forth professional standards for providing medical care do not support an Elder Abuse claim. (See Worsham, supra at 338 [allegation of failure to follow doctor recommendation “like that of understaffing and undertraining, amounts to professional negligence.”] It is now well settled in California law that an Elder Abuse claim is not an alternative means of alleging professional negligence or general negligence against health care providers.

In addition, pursuant to W&I Code §15657(c), where a defendant in an elder abuse action is a corporate employer, no damages or attorney’s fees can be recovered unless the standards set forth in Civil Code section 3294(b) are satisfied. Those standards are: “An employer shall not be liable for damages … 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.” As present neither the first cause of action nor the general allegations incorporated by reference allege any such advance knowledge or conscious disregard, etc. by an officer, director or managing agent of Defendant. The boilerplate agency allegation at 7 does not satisfy this requirement.

Defendant demurrers to the third cause of action for Violation of Health & Safety (“H&S”) Code §1430(b) on the sole ground that it is “barred by the applicable statute of limitations.” (Demurrer at 2:8-9.) Health & Safety Code §1430(b) states in pertinent part that a current or former resident or patient of a skilled nursing facility or intermediate care facility (or their successors in interest) “may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights . . . The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue.” The purpose of creating this private right of action is to encourage regulatory compliance and prevent injury. (See Lemaire v. Covenant Care California, LLC (2015) 234 Cal.App.4th 860.) H&S Code §1430 does not contain a limitations provision. While §1430(b) has been interpreted by courts in other contexts, the Court is not aware of any published authority stating the applicable statute of limitation and neither side cites any such authority.

Defendant contends that because the statute includes a mandatory penalty provision of up to $500 separate and in addition to costs and fees, the applicable statute of limitation is CCP §340(a), stating a one year limitation period for “[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.” Plaintiffs in turn argue that the three year limitations period stated in CCP §338(a) for “[a]n action upon a liability created by statute, other than a penalty or forfeiture,” should apply.

Defendant’s demurrer is SUSTAINED without leave to amend.

While H&S Code §1430(b) is an action “created by statute” it clearly imposes a civil penalty of up to $500, making CCP §338(a) inapplicable. A statute imposes a penalty if it provides for the recovery of damages that are beyond, or apart from, the damages that are actually incurred. (See Menefee v. Ostawari (1991) 228 Cal.App.3d 239, 243 [“Claims based upon statutes which provide for mandatory recovery of damages additional to actual losses incurred, such as treble damages, are considered penal in nature, and thus are governed by the one-year limitations period under section 340, subdivision (1).”]; Low v. Lan (2002) 96 Cal.App.4th 1371, 1381 (“the one-year statute set out in section 340, subdivision (1) of the Code of Civil Procedure involves situations where an individual is allowed to recover against a wrong-doer, as a satisfaction for the wrong or injury suffered, and without reference to the actual damage sustained, or where there is punishment for some act which is in the nature of a public wrong.”])

While they dealt with different statutes, the Court also finds the analyses in Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805 (“Hypertouch”) and TJX Companies, Inc. v. Sup. Ct. (2008) 163 Cal.App.4th 80 (“TJX”), cited by Defendant, to be persuasive on this issue. The court in Hypertouch noted that “The ‘settled rule’ in California is that statutes which provide for damages that are in ‘‘addition[ ] to actual losses incurred,’’ or ‘not based on actual injury,’ are generally ‘‘considered penal in nature, and thus governed by the one-year period of limitations stated in section 340, subdivision (1).’’ However, section 340 does not apply if the award of a penalty is discretionary rather than mandatory.” (Hypertouch, 192 Cal.App.4th at 842, internal citations omitted.) The court in TJX made clear that a penalty is still considered mandatory when “[a] penalty must be imposed, although the amount of the penalty is within the discretion of the court, so long as it does not exceed the statutory maximums.” (TJX, 163 Cal.App.4th at 86. See also Hypertouch, supra at 844, discussing TJX.) While H&S Code §1430(b) gives the Court discretion to set the amount of the penalty anywhere from the “proverbial peppercorn” to the statutory maximum of $500 it clearly states that a penalty “shall” be imposed if a violation is established.

It follows from the above analysis that leave to amend must be denied as the defect cannot be cured through amendment. Decedent’s death certificate, attached as Exhibit B to the Complaint, establishes the date of death as November 12, 2014, and Plaintiffs’ Complaint was not filed until December 1, 2015, more than a year after any claim for violation of H&S Code §1430(b) had accrued. The claim is time-barred.

Defendant’s Motion to Strike
Defendant’s motion to strike all or portions of paragraphs 19, 21e, 21h, 22, 23g and 24, all included in the first cause of action, is DENIED as MOOT in light of the Court’s ruling above sustaining the demurrer to the first cause of action with leave to amend. Defendant’s motion to strike portions of paragraph 1 of the Complaint’s prayer, relating to damages sought under the first cause of action, is similarly DENIED as MOOT.

Defendant’s motion to strike paragraph 4 of the prayer, requesting injunctive relief under the third cause of action, is GRANTED without leave to amend.