2018-00235555-CU-MC

Mary Castex vs. Eskaton Properties, Inc.

Nature of Proceeding: Hearing on Demurrer

Filed By: Hottinger, Darryl C.

Defendants Eskaton Properties, Incorporated, Todd Murch, Betsy Donovan, and Bill Pace’s (collectively, “Defendants”) demurrer to plaintiff Mary Castex, by and through her successor in interest Reginald Castex’s (“Plaintiff”) complaint is OVERRULED.

In this elder abuse action, Plaintiff alleges she was in the care and custody of Defendants from November 3, 2016, to March 31, 2018, and that during that time,

Defendants withheld care and services, resulting in injuries and Plaintiff’s ultimate death. Plaintiff’s complaint alleges causes of action for elder abuse and negligent hiring/supervision. Mr. Murch is the CEO of Eskaton, Ms. Donovan is the Secretary of Eskaton, and Mr. Pace is the CFO of Eskaton. (Complaint ¶¶ 4-6.)

Defendants demur only to the first cause of action for elder abuse on the grounds it fails to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).)

Legal Standard

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

First Cause of Action for Elder Abuse

Defendants contend the complaint only identifies the following three incidents over Plaintiff’s year-and-a-half residency: (1) Plaintiff suffered a stroke and was transferred to the hospital, but her transfer was delayed due to the facility nurse’s initial misdiagnosis; (2) a single fall without any explanation as to the facility’s negligence; and (3) Plaintiff’s death allegedly due to a choking incident. Defendants argue these three separate, unrelated incidents, spread out over a year-and-a-half do not support a claim for elder abuse, and only at most support a claim for professional negligence.

Elder abuse is a statutory cause of action provided for in Welfare & Institutions Code §§15600 et seq. At the pleading stage, Plaintiff must allege conduct within the Elder Abuse Act, and those claims must be pled “with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Welfare & Institutions Code section 15657 mandates specific pleading requirements for an elder abuse cause of action and requires more than general allegations. (Ibid.) The Supreme Court has affirmed in Covenant Care that trial courts are to perform the function of gate keepers for elder abuse claims by examining the material factual content of the pleadings, which require pleading with factual particularity. (Ibid.)

The court of appeals in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 explained in sustaining a demurrer to an elder abuse cause of action that: “The 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; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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).” (Carter, supra, 198 Cal. App. 4th 396, 406-407 [citations omitted].)

The high standard imposed by W&I § 15657 protects health care providers from liability under the statute “for acts of simple or even gross negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785.) Recklessness under the Elder Abuse Act is more than “inadvertence, incompetence, unskillfullness, or a failure to take precautions’ but rather rise to a level of a ‘conscious choice of a course of action…with knowledge of the serious danger to others involved in it.'” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Neglect includes, among other things, the failure to assist in personal hygiene, the failure to provide medical care for physical and mental needs, and the failure to protect from health and safety hazards. (Welf. & Inst. Code § 15610.57(b).) “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.” (e.g., Covenant Care, Inc., supra, 32 Cal.4th at 790.) As noted by the Supreme Court in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal. 4th 148, 156, “The Elder Abuse Act’s heightened remedies are available only in limited circumstances. A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with “recklessness, oppression, fraud, or malice.” (§ 15657.)

Against this backdrop, the complaint alleges the following incidents.

Defendants were aware that Plaintiff suffered from a number of serious medical issues, was at high risk for falls and choking, and required 24-hour supervision and monitoring to eat, take medication, and be moved or transferred, and that Plaintiff required interventions to prevent choking. (Complaint ¶¶ 21, 22, and 29.) Defendants failed to create and implement proper care plans to prevent Plaintiff from falling and this created a high probability that she would suffer further falls and resulting injury. (Complaint ¶ 25.) Defendants failed to provide 24-hour supervision and monitoring and interventions, such as hoyer lifts, low beds with floor mats at bedside, gait belts, and assistance with walking and transfers and lap buddies, in order to prevent falls. (Id.) As a result, on September 5, 2017, Plaintiff fell out of bed while attempting to transfer from her bed to wheelchair unsupervised by the inadequately trained caregiver assigned to her care who was responsible for more patients than was possible to provide care. (Complaint ¶ 26.) Defendants then concealed the misconduct by transferring Plaintiff to the hospital without recommendation for assessment for internal injuries. (Complaint ¶ 27.)

On August 27, 2017, Plaintiff’s son notified a nurse he thought his mother may have had a stroke, and the nurse said Plaintiff was just tired, checked on Plaintiff after her son insisted, was asked to call 911, and only did so after Plaintiff’s son said he would call if she did not. (Complaint ¶ 30.) Plaintiff was then admitted to the hospital and found to have suffered from multiple stokes and was paralyzed, and the hospital explained she would not have become paralyzed if she was transferred sooner. (Complaint ¶ 31.)

Defendants failed to implement proper care plans to prevent Plaintiff from suffering a choke incident, failed to provide 24-hour supervision and monitoring and assistance devices to prevent choking, and failed to implement interventions such as the proper position during oral intake, placement of oral intake for stroke residents on unaffected side, and 1:1 supervision during oral medication administration. (Complaint ¶ 38.) As a result, on March 31, 2018, Plaintiff suffered a choke incident after she was left unsupervised and by the time facility staff returned, she was unresponsive due to lack of oxygen. (Complaint ¶ 43.) Defendants failed to perform any meaningful assessments and allowed Plaintiff to die without oxygen to cover up their misconduct. (Complaint ¶ 45.) Defendants concealed the choke incident by fraudulently charting an illogical chronology of events. (Complaint ¶ 46.) Defendants failed to notify the family, responsible party or physician. (Complaint ¶ 41.) Defendants failed to provide 1:1 supervision during oral intake, properly perform procedures to clear aspirated obstructions and CPR, and create and modify plans of care to prevent choking. (Complaint ¶ 42.)

Defendants withheld care to Plaintiff by failing to create plans of care, perform assessments of Plaintiff’s care needs, accurately notify Plaintiff’s physician of sudden adverse changes, treat Plaintiff with dignity and respect, failing to answer Plaintiff’s call signals, have employed and on duty sufficient and qualified staff to provide necessary nursing services, ensure Plaintiff’s environment remains free of accident hazards, and ensure Plaintiff receives adequate supervision and assistance to prevent accidents. (Complaint ¶ 48-62.) That Defendants knew it was highly probable their conduct and understaffing would lead to harm to elders such as Plaintiff. (Complaint ¶¶ 66 and 79.) Defendants implemented a financial scheme which led to the facility being understaffed in order to maximize profits. (Complaint ¶¶ 80-82, 86.)

The foregoing allegations when viewed as a whole establish Defendants were aware of the extremely compromised state of Plaintiff (i.e., she could do almost nothing on her own) and that she required special care. Specifically, that Plaintiff required 24-hour monitoring and supervision and interventions and a plan of care to prevent falls and choking. That care was allegedly denied to Plaintiff and it resulted in her falling and choking on medication while unsupervised and her ultimate death. Defendants then engaged in actions to cover-up the wrongful conduct. The Court finds Plaintiff has sufficiently alleged the facts constituting the neglect and that the actions were undertaken recklessly as they were undertaken knowing that failure to supervise Plaintiff at all times and implement interventions to prevent falls and choking could result in serious injury to Plaintiff. Further, the specific allegations that Defendants made a deliberate choice to understaff its operations to increase profits, knowing it was likely to result in injuries, and failing to provide Plaintiff 24-hour supervisions knowing Plaintiff was a fall and choking risks and that injury was substantially certain to befall Plaintiff are sufficient allegations of fraud, malice, or recklessness. These are not allegations of “inadvertence, incompetence, unskillfullness, or a failure to take precautions’ but rather rise to a level of a ‘conscious choice of a course of action…with knowledge of the serious danger to other involved in it.'” (Delaney, supra, 20 Cal.4th at 31-32.) Indeed, case law had found that a cause of action for Elder Abuse may be premised on a fall where it was alleged that the subject hospital was understaffed at the time of the fall, that the understaffing caused the fall and that the understaffing was part of a pattern of practice. In such circumstances a claim for reckless neglect was stated. (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349.)

While Defendant contends the three separate incidents do not establish a sufficient pattern of withholding care, there is no magic number of incidents that are required to state a claim for elder abuse. In fact, a single incident could be sufficient. As stated in Sababin v. Superior Court (2006)144 Cal.App.4th 81, 90, “the trier of fact [in a neglect case under the Act] must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” The Court also ruled that to the extent that a pattern of care is not required, then the single incident giving rise to the elder abuse claim must alone rise to the level of denial or withholding of 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) (Welf & Inst.Code, §§ 15610.07, subd. (b); 15610.57, subd. (b), 15657; Covenant Care v. Superior Court (2004) 32 Cal.4th 783], 786; Delaney at pp. 31-32).” Further, whether Plaintiff also alleges she was sufficiently cared of for a certain period of time has no bearing on whether she can state a claim for elder abuse based upon other instances when care was allegedly withheld from her.

The Court finds the foregoing allegations regarding Plaintiff’s fall and choking due to her lack of supervision and failure to implement a plan of care and interventions are sufficient to state a claim for elder abuse as the allegations establish Defendants knew of Plaintiff’s special needs and that if these services were denied, injury was substantially certain to befall Plaintiff.

As to the individual defendants who are officers of Eskaton, Defendants contend there are no specific allegations as to how their alleged personal conduct amounts to elder abuse. Defendants reason there are no allegations any of these three individuals worked at the subject facility or were personally involved in the care provided to Plaintiff. In short, Defendants argue Plaintiff was not in the “care or custody” of these individual defendants. This argument is rejected. There are allegations in the complaint that the individual defendants participated in the wrongful course of conduct and authorized and directed the conduct because they established a financial plan and scheme to understaff the facility (in both number and training) to maximize profits knowing that such understaffing was likely to result in injuries and that understaffing led to Plaintiff’s injuries and death. (Complaint ¶¶ 10, 78-81, and 86.) The Court finds this is sufficient.

Further, Defendants reason Eskaton, as an employer, is only vicariously liable for elder abuse based upon the conduct of its employees if an officer, director, or managing agent had advance knowledge of the unfitness of an employee and employed him or her with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice. Defendants contend Plaintiff’s conclusory allegations are insufficient. However, as discussed above, the Court has concluded the allegations regarding the individual defendants as officers of Eskaton are sufficient to state a claim that they authorized or ratified the wrongful conduct. Therefore, a sufficient claim has also been stated against Eskaton.

Based on the foregoing, the demurrer to the complaint is OVERRULED.

Defendants shall file and serve their answer by September 14, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 12 2018-00235555-CU-MC

Mary Castex vs. Eskaton Properties, Inc.

Nature of Proceeding: Motion to Strike

Filed By: Hottinger, Darryl C.

Defendants Eskaton Properties, Incorporated, Todd Murch, Betsy Donovan, and Bill Pace’s (collectively, “Defendants”) motion to strike to plaintiff Mary Castex, by and through her successor in interest Reginald Castex’s (“Plaintiff”) claim for punitive damages is DENIED.

Defendants move to strike Plaintiff’s prayer for punitive damages.

The motion to strike punitive damages is denied. Defendants argue that Plaintiffs failed to allege facts showing that they acted with oppression, fraud, or malice. In order to plead an entitlement to punitive damages a plaintiff must allege that the defendant is guilty of “oppression, fraud, or malice.” (Civil Code §3294(a).) “Malice” under Civil Code §3294(c)(1) means conduct intended to injure the plaintiff or despicable conduct by the defendant with a willful and conscious disregard of others. Malice “based on a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) “‘[D]espicable’ connotes conduct that is ‘…so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’” (Id. [citations omitted].) Despicable conduct includes “that which is in blatant violation of law or policy.” (American Airlines, Inc. v. Sheppard, Mullin, Richter,

& Hampton (2002) 96 Cal.App.4th 1017, 1050.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s

rights.” (Civ. Code § 3294(c)(2).) “’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.” (Civil Code §3294(c)(3).)

Here, while Defendants argue the complaint lacks the requisite facts from which malice, oppression or fraud may be inferred, the Court disagrees. Indeed, as seen from the Court’s ruling on demurrer, the Court found that Plaintiff’s alleged a cause of action for elder abuse alleges, which conduct could be found to be malicious in that it sets forth conduct which a trier of fact could find was despicable conduct with a willful and conscious disregard of others. Indeed, the Court found that Plaintiffs adequately alleged that Defendants were aware that their conduct would create a high probability

that the Plaintiff would suffer serious injury and knowingly disregarded the risk. These allegations are sufficient to support a claim for punitive damages.

The motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.