Case Number: BC517527 Hearing Date: June 05, 2014 Dept: 34

Moving Party: Defendant Brius Management Co. (“defendant” or “Brius”)

Resp. Party: Plaintiffs Maria Gregoria Chale, Finita Chale, Brigida Chale, Maria Felix Chale, Felipe Chale, Wenseslao Chale, Maria Trinidad Chale, and Manuela Chale (“plaintiffs”)

Defendant’s demurrer to the first, second, and fourth causes of action is OVERRULED.

Defendant’s motion to strike is DENIED to the extent that it is not moot.

BACKGROUND:

Plaintiffs commenced this action on 8/7/13 against defendant for: (1) elder abuse; (2) willful misconduct; (3) wrongful death; and (4) violation of Patients’ Bill of Rights. Plaintiffs are heirs and successors in interest to Teofilo Chale Noh (“Teofilo”). On 11/12/12, Teofilo, who was 79 years old at the time, was admitted to the care and protection of defendants for nursing, medical, and custodial care and treatment. (Compl., ¶ 9.) Teofilo had Alzheimer’s disease, dimentia, encephalopathy, and a history of falling, and was therefore a high risk of falling. (Id., ¶ 11.) Despite defendant’s knowledge of this fact, they left Teofilo unsupervised and unattended. (Ibid.) On 5/19/13, Teofilo fell from his bed and, because defendant failed to implement preventative safety measures, developed a hematoma that directly caused his death. (Ibid.)

On 1/27/14, plaintiff filed an amendment to the complaint substituting Brius as Doe 51. Brius was served with the summons and complaint by personal service on 2/3/14.

PRELIMINARY COMMENTS:

The Court disregards the declaration of plaintiffs’ attorney Chelsea Chun, filed with the oppositions. A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The same is true for a motion to strike. (See Code Civ. Proc., § 437(a).) Chun’s declaration and the exhibits attached thereto constitute extrinsic evidence and are inappropriate for the instant demurrer and motion to strike. Counsel should know better.

ANALYSIS:

Demurrer

Defendant demurs to the first, second, and fourth causes of action in plaintiffs’ complaint on the grounds that they fail to state sufficient facts to constitute a cause of action and are uncertain.

Brius’ main argument is that, although the complaint might be sufficient as to the originally-named plaintiffs, it is not sufficient as to Brius, who was added as a DOE defendant. (See, e.g., Demurrer, p. 3:14-20.) For the reasons indicated below, the Court does not agree.

First Cause of Action for Elder Abuse

The elements of elder abuse include: (1) physical abuse by the defendant; (2) plaintiff was 65 years old or older at the time of the conduct; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing the harm. (CACI 3106.) Because causes of action for elder abuse are governed by a statute, the elements must be alleged with particularity. (See Welf & Inst. Code, §§ 15600, et seq.; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82 [elder abuse elements are statutory]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [in general statutory claims must be alleged with particularity].)

Mere negligence is not sufficient to support a claim for elder abuse.

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. [Citations.]

Section 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Thus, amici curiae argue, causes of actions within the scope of section 15657 are not “cause[s] of action … based on … professional negligence” within the meaning of section 15657.2. Defendants claim that such an interpretation would render section 15657.2 surplusage because section 15657 already on its face excludes actions based on professional negligence strictly construed. We disagree. The Legislature could have reasonably decided that an express statement excluding professional negligence from section 15657 was needed because the language of section 15657, and in particular the terms “neglect” and “recklessness,” may have been too indefinite to make sufficiently clear that “professional negligence” was to be beyond the scope of section 15657.

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

Defendant argues that plaintiffs have not alleged that it was a care custodian of Teofilo. The complaint alleges that Doe 51 was an owner, operator, etc., who made significant decisions as to the level and quality of care provided to residents at Vernon. (Compl., ¶ 8.) Plaintiffs refer to all defendants, including Vernon and Doe 51, collectively as “defendants.” (Id., ¶ 4.) Plaintiffs allege that Teofilo was admitted to the care and protection of defendants to receive skilled nursing care, medical care, custodial care, and treatment as to his medical conditions. (Id., ¶ 9.) Nothing in the complaint or a judicially noticed item establishes that Brius does not provide medical or custodial care to individuals. The allegations are sufficient to establish that Brius acted as a care custodian of Teofilo.

Defendant next argues that plaintiffs have not alleged that defendant engaged in conduct to support an elder abuse claim. Plaintiffs allege that Teofilo was at a high risk for falling and, although defendants were aware of this risk, they left Teofilo unsupervised and unattended and did not take preventative measures to prevent him from falling. (Compl., ¶ 11.) Plaintiffs allege that defendants failed to immediately send Teofilo to the hospital following the fall. (Ibid.) Plaintiffs allege that defendants were “keenly aware” that the preventative measures should have been implemented to prevent Teofilo from falling and that defendants “intentionally, recklessly, and with a conscious disregard for the rights, health, and safety of [Teofilo], chose not to implement such preventative measures despite the knowledge that they had to in order to save costs and increase profits.” (Ibid.) These facts are sufficient to allege that defendant acted in a reckless manner because they establish that defendant acted with “deliberate disregard” to a “high degree of probability” that Teofilo would fall, and that defendant made a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” (See Delaney, 20 Cal.4th at p. 31.)

Defendant next argues that plaintiffs fail to allege facts of authorization or ratification. “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.” (Welf. & Ins. Code, § 15657(c).) “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.” (Civ. Code, § 3294(b).)

Plaintiffs allege that defendants, and their officers, directors, and managing agents, directed, approved, and/or ratified all of the wrongful conduct of their agents and employees and authorized and ratified all of the alleged conduct. (Compl., ¶¶ 13, 15, 33.) These allegations are sufficient to support an elder abuse claim against this corporate defendant.

Accordingly, defendant’s demurrer to the first cause of action is OVERRULED.

Second Cause of Action for Willful Misconduct

“The concept of wilful misconduct has a well-established, well-defined meaning in California law. ‘Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. [Citation.]’ [Citation.]” (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689.) ) “ ‘Three essential elements must be present to raise a negligent act to the level of wilful misconduct: (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. [Citations.]’ [Citation.]” (Id. at pp. 689-690.)

Plaintiffs sufficiently allege the elements of a willful misconduct claim. Plaintiffs allege that defendants had knowledge that Teofilo was at a high risk for falling. (Compl., ¶ 11.) Plaintiffs allege that, despite this knowledge, they left Teofilo unsupervised and unattended and did not take sufficient preventative measures to prevent a fall. (Ibid.) Defendants were aware of the preventative measures that should have been implemented to prevent a fall, but intentionally, recklessly, and with a conscious disregard of Teofilo’s rights and safety, chose not to implement the preventative measures despite knowledge that they had to do so. (Ibid.) Plaintiffs allege that defendants knew that the failure to hire sufficient numbers of trained personnel resulted in a high probability that they would be unable to prevent the injuries suffered by Teofilo. (Id., ¶ 49.)

Accordingly, defendant’s demurrer to the second cause of action is OVERRULED.

Fourth Cause of Action for Violations of the Patients’ Bill of Rights

Plaintiffs’ fourth cause of action is based on Health & Safety Code section 1430(b), which allows a private cause of action against a skilled nursing facility for violations of the rights of a patient or resident as set forth in California Code of Regulations Title 22, Section 72527, or other federal or state law or regulation. Defendant argues that this cause of action fails to allege facts establishing a violation of an applicable statue or regulation.

Code of Regulations Title 22, Section 72527, incorporates the rights set forth in Health and Safety Code section 1599.1. (Cal. Code Regs., tit. 22, § 72527(a)(25).) Health and Safety Code section 1599.1 provides that a skilled nursing facility “shall employ an adequate number of qualified personnel to carry out all of the functions of the facility.” (Health & Saf. Code, § 1599.1(a).) Plaintiffs allege that defendants were licenced and unlicensed care providers rendering services as skilled nursing facilities, etc., and that they are the owners, operators, and managers of skilled nursing facilities. (Compl., ¶¶ 5-6, 8.) Plaintiffs allege that defendants adopted a practice of “allocating insufficient funds from revenue derived from operation of their facilities for hiring staff to properly attend to the health and safety and needs of their residents.” (Compl., ¶ 48.) Plaintiffs allege that defendants failed to educate their employees on prevention of serious injuries such as those resulting from Teofilo’s fall. (Ibid.) This practice “made it impossible for defendants to have staff available to properly attend to the health and safety needs of” Teofilo. (Ibid.) Plaintiffs allege that defendants hired fewer staff members than necessary in order to increase its profits. (Ibid.) Plaintiffs allege that defendants knew this failure to hire sufficient numbers of adequately trained personnel resulted in a high probability that they would be unable to prevent the injuries suffered by Teofilo. (Id., ¶ 49.) These allegations are sufficient to support plaintiffs’ claim that defendant violated the Patients’ Bill of Rights.

Accordingly, defendant’s demurrer to the fourth cause of action is OVERRULED.

Motion to Strike

Defendant moves to strike the claims for punitive and exemplary damages, the claims for treble damages, the claims for attorney’s fees, and the statements of what may be recovered under the Patients’ Bill of Rights.

Punitive damages

The standard of proof for recovery of punitive damages is “clear and convincing” evidence of malice, fraud, or oppression. (Civil Code § 3294(a).) Under Civil Code 3294(c),

[¶] (1) ‘Malice’ means 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. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) The inquiry is generally fact specific to the nature of the claim raised and the context in which the damages are sought, but “the critical element is an ‘evil motive’ of the defendant.” (Ibid.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.'” (American Airlines v. Sheppard (2002) 96 Cal.App.4th 1017, 1051.)

Plaintiffs allege that Teofilo was at a high risk for falling and, although defendants were aware of this risk, they left Teofilo unsupervised and unattended and did not take preventative measures to prevent him from falling. (Compl., ¶ 11.) Plaintiffs allege that defendants failed to immediately send Teofilo to the hospital following the fall. (Ibid.) Plaintiffs allege that defendants were “keenly aware” that the preventative measures should have been implemented to prevent Teofilo from falling and that defendants “intentionally, recklessly, and with a conscious disregard for the rights, health, and safety of [Teofilo], chose not to implement such preventative measures despite the knowledge that they had to in order to save costs and increase profits.” (Ibid.) These facts are sufficient to establish that defendant engaged in despicable conduct with a willful and conscious disregard for Teofilo’s rights and safety.

Accordingly, defendant’s request to strike plaintiffs’ claims for punitive and exemplary damages is DENIED.

Treble Damages

In their opposition, plaintiffs agree to withdraw their claims for treble damages in the first and fourth causes of action. Therefore, defendant’s request to strike these claims is moot.

Attorney’s Fees

“[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.) 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.)

Plaintiffs request attorney’s fees in the prayers for relief for the second and fourth causes of action. In the opposition, plaintiffs agree to withdraw the request for attorney’s fees in the second cause of action.

The Court rejects defendant’s challenge to the request for attorney’s fees in the fourth cause of action. Health and Safety Code section 1430(b) states that a licensee of a skilled nursing facility shall be liable for a patient’s costs and attorney’s fees. Regardless of whether the complaint sufficiently alleges that defendant is a licensee of Vernon, the request for attorney’s fees should not be stricken because discovery could reveal a basis for the request. Further, 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.)

Accordingly, defendant’s request to strike plaintiffs’ claim for attorney’s fees in the fourth cause of action is DENIED.

Statement Regarding Statutory Damages under Section 1430(b)

For reasons discussed above, the Court rejects defendant’s argument that the damages under this section should be stricken because plaintiffs fail to sufficiently allege this cause of action.

Nonetheless, Defendant is correct that Health and Safety Code section 1430(b) does not provide that a licensee is liable for $500.00 “per violation, per day.” Instead, this section merely states that a licensee shall be liable “for up to five hundred dollars ($500).” (Health & Saf. Code, § 1430(b). See also Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) 221 Cal.App.4th 102, 137 [“the $500 maximum in section 1430, subdivision (b) applies per civil action rather than per violation”].) In the opposition, plaintiffs agree to withdraw the portions of the complaint that reference “per violation, per day.” Therefore, this request is moot.