Case Name: Judith Molina v. Stanford Health Care, et al.

Case No.: 18CV334012

I. Background

This action arises from a dispute over the quality of in-home healthcare provided to plaintiff Judith Molina (“Plaintiff”) by defendants Stanford Health Care (“Stanford”), Pear Holdings, LLC (doing business as Peninsula Post-Acute), Sutter Bay Hospitals (doing business as Mills-Peninsula Medical Center) (“Mills-Peninsula Hospital”), and Sutter Visiting Nurse Association and Hospice (“Sutter Hospice”).

Plaintiff alleges Stanford admitted her for medical care on October 5, 2017, when she was at a high risk for skin breakdown. (First Amended Complaint (“FAC”), ¶¶ 22–24.) Stanford created a skin integrity plan that required twice daily monitoring and repositioning of her body every two hours. (FAC, ¶¶ 26–27.) After Plaintiff’s admission, Stanford failed to adhere to this care plan causing her to develop pressure ulcers on her coccyx. (FAC, ¶¶ 28–35.)

On October 19, 2017, Stanford transferred Plaintiff to Mills-Peninsula Hospital. (FAC, ¶¶ 37–38.) After three days, Mills-Peninsula Hospital discharged Plaintiff. (FAC, ¶¶ 39–40.) While at home, from October 22, 2017, until November 16, 2017, Sutter Hospice provided Plaintiff with in-home healthcare. (FAC, ¶ 41.) Mills-Peninsula Hospital readmitted Plaintiff on November 16 and discharged her the next morning. (FAC, ¶¶ 42–43.) When Plaintiff returned home, Sutter Hospice once again provided in-home healthcare until January 2018. (FAC, ¶ 44.) Mills-Peninsula Hospital readmitted Plaintiff for shortness of breath in January 2018 at which time it discovered her ulcers had worsened. (FAC, ¶¶ 45–46.)

Based on these factual allegations and other more conclusory allegations, Plaintiff asserts causes of action against the defendants for: (1) abuse of a dependent adult (against all defendants); (2) negligence (against all defendants); and (3) violation of patients’ rights (against Pear Holdings, LLC only). She seeks enhanced remedies, including attorney’s fees, as well as punitive damages.

Currently before the Court are nearly identical demurrers and motions to strike by Sutter Hospice and Mills-Peninsula Hospital (collectively, “Defendants”). Because Defendants (who are represented by the same counsel) filed nearly identical papers, the Court addresses these matters collectively.

II. Demurrers

Defendants demur to the first and second causes of action—the only causes of action asserted against them—on the ground of uncertainty. (See Code Civ. Proc., § 430.10, subd. (f).) They additionally demur to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

A. Uncertainty

A demurrer on the ground of uncertainty tests whether a pleading is ambiguous, uncertain, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–46.)

Defendants argue the first and second causes of action are uncertain because Plaintiff refers to them collectively and without specifying the conduct attributable to each defendant. But failure to clearly label claims or parties does not typically render a pleading so ambiguous a defendant cannot reasonably respond. (See, e.g., Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) And, the Court is not persuaded Plaintiff’s choice of terminology renders the FAC unintelligible. In actuality, and as reflected by Defendants’ supporting points, the issue is simply that Plaintiff does not plead enough facts. Accordingly, Defendants’ demurrers on the ground of uncertainty are OVERRULED.

B. Failure to State Sufficient Facts

In general, “a complaint must contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’” (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) A plaintiff is not ordinarily required to allege “‘each evidentiary fact that might eventually form part of the plaintiff’s proof….’ [Citation.]” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.)

Notwithstanding this generally-applicable standard of pleading, certain causes of action are subject to a higher pleading standard. Statutory causes of action, like the first cause of action here, must be pleaded with particularity. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 407, citing Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790.)

A demurrer tests whether the plaintiff alleges each fact essential to the cause of action asserted. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 873.) For the purpose of a demurrer, a court accepts the truth of the facts alleged in the complaint, but not contentions, deductions or conclusions. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) When a plaintiff alleges specific allegations as well as general or more conclusory allegations, the specific allegations control. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 827.)

The first cause of action is for abuse of a dependent adult in violation of the Elder Abuse and Dependent Adult Protection Act (the “Act”). (See Welf. & Inst. Code, § 15657.) Defendants argue Plaintiff does not allege facts with particularity sufficient to plead all of the essential elements of this cause of action. For the reasons that follow, the Court agrees.

For context, Welfare and Institutions Code section 15657 provides “heightened remedies for plaintiffs who successfully sue for dependent adult abuse.” (Sababin v. Super. Ct. (2006) 144 Cal.App.4th 81, 88.) Abuse within the meaning of the statute includes both neglect and physical abuse. (Ibid.)

The first cause of action appears to be predicated solely on neglect. (FAC, ¶ 19.) Neglect is “the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration.” (Sababin, supra, 144 Cal.App.4th at p. 88, citing Welf. & Inst. Code, § 15610.57.) Welfare and Institutions Code section 15657.2 specifically excludes negligence, and even gross negligence, by healthcare providers. (Sababin, supra, 144 Cal.App.4th at p. 88.) And so, neglect “covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, supra, 32 Cal.4th at p. 783.) “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 [ ] dependent adults, regardless of their professional standing, to carry out their custodial obligations.’” (Ibid., quoting Delaney v. Baker (1999) 20 Cal.4th 23, 34.) Thus, a plaintiff must allege more than the “substandard performance of medical care,” he or she must allege the custodian or caretaker responsible for meeting the needs of the dependent adult “fail[ed] to provide medical care.” (Covenant Care, supra, 32 Cal.4th at p. 783, original italics.)

To state a cause of action based on neglect, “[t]he 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 [ ] dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the [ ] 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 [ ] dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the [ ] 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, supra, 198 Cal.App.4th at pp. 406–07, citing Delaney, supra, 20 Cal.4th at pp. 31–32.) “The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the [ ] dependent adult to suffer physical harm, pain or mental suffering.” (Carter, supra, 198 Cal.App.4th at p. 407.) “Finally, 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.” (Ibid., quoting Covenant Care, supra, 32 Cal.4th at p. 790.)

Plaintiff fails to plead all of these elements of her claim with particularity. The only particular facts she pleads are the dates of her admission and discharge from Mills-Peninsula Hospital. As set forth in more detail below, her remaining allegations are pleaded in conclusory terms and without differentiation between the defendants.

First, Plaintiff quotes the statutory definition of a dependent adult in the pleading, but she does not actually allege facts reflecting she was a dependent adult with whom Mills-Peninsula Hospital and Sutter Hospice had a custodial, caretaking relationship. Indeed, because Plaintiff simply pastes the statutory definition into the pleading, it is not apparent which of the statutory criteria she purportedly meets and, thus, what the nature and scope of the custodial relationship was. (See Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158 [a plaintiff must allege “a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an [individual]’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.”].)

Second, she does not specifically allege Mills-Peninsula Hospital and Sutter Hospice engaged in conduct constituting neglect. To the extent she identifies deficiencies in the care she received, she does not attribute these deficiencies to any particular defendant and describes instances of substandard care as compared to withholding of or failure to provide care. (See, e.g., Carter, supra, 198 Cal.App.4th at p. 413 [failure to properly document condition and administer antibiotics was negligence, not neglect]; see also Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 337 [understaffing and inadequate training at nursing home constituted negligence, not neglect].)

Finally, Plaintiff’s scienter allegations are insufficient as well. Although Plaintiff seemingly intends to rely on allegations about business patterns and practices to establish recklessness—as in Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1349–50—her allegations are generic and pleaded without regard for the culpability of individual defendants. Thus, her scienter allegations also lack the requisite degree of particularity.

In summary, the demurrer to the first cause of action is sustainable because Plaintiff does not allege facts with particularity sufficient to state a statutory claim for abuse against Sutter Hospice and Mills-Peninsula Hospital.

Defendants also argue Plaintiff fails to adequately allege ratification and cite Civil Code section 3294, which governs punitive damages. Although not especially clear, perhaps Defendants cite this statute because it is cross-referenced in some sections of the Act. In any event, Defendants’ argument is not well-taken because Plaintiff does include ratification allegations in the pleading, which Defendants do not fairly and adequately address in their papers. (FAC, ¶¶ 9, 14, 61, 98–99, 101.)

In conclusion, Defendants’ demurrers to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action are SUSTAINED with 20 days’ leave to amend.

III. Motions to Strike

Defendants move to strike Plaintiff’s prayers for punitive damages and attorney’s fees.

First, Defendants argue the prayer for punitive damages should be stricken because Plaintiff did not seek leave to include the prayer in her complaint under Code of Civil Procedure section 425.13. Code of Civil Procedure section 425.13, subdivision (a) states: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” Most significantly, this prefiling requirement does not apply to claims for abuse under the Act, such as the first cause of action for which Plaintiff seeks to recover punitive damages. (Covenant Care, supra, 32 Cal.4th at p. 790 [distinguishing intentional tort claims from abuse claims under the Act].) Additionally, Defendants do not identify any factual basis in the record before the Court—consisting solely of the operative pleading —establishing they are healthcare providers within the meaning of the statute. Thus, Defendants do not establish a basis for striking the prayer for punitive damages.

Second, Defendants argue Plaintiff has not pled a statutory basis for recovery of attorney’s fees because her abuse claim is not properly pleaded. In general, “California follows the ‘American rule,’ under which each party to a lawsuit ordinarily must pay his or her own” attorney’s fees unless a statute or agreement between the parties provides otherwise. (Musaelian v. Adams (2009) 45 Cal.4th 512, 517, citing Code Civ. Proc., § 1021.) But the statutory or contractual authority for the fee award need not be pled in the first instance. (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 496–97; see also Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 583.) And so, it is ordinarily error to strike a prayer for attorney’s fees based on the failure to properly plead a statutory or contractual basis for a fee award. (Snatchko, supra, 187 Cal.App.4th at pp. 496–97.) In any event, because the Court sustained the demurrers to the first cause of action, the motions to strike are moot to the extent they are directed to the related prayer for attorney’s fees.

In light of the foregoing, Defendants’ motions to strike are DENIED.