Case Number: BC703405 Hearing Date: August 06, 2018 Dept: 24

Defendants’ Demurrer to the Complaint is OVERRULED as to the first and second causes of action and SUSTAINED as to the fourth cause of action. Leave to amend will only be granted if Plaintiffs make an offer of proof showing how the complaint can be amended. The Motion to Strike is DENIED.

Background:

On April 19, 2018, Plaintiffs Odell Stamps, by and through his successor-in-interest, Deanna Cole, (“Plaintiff Stamps”), and Deanna Cole, individually, (“Plaintiff Cole”) commenced this action against Defendants Montebello Care Center, LLC (“Montebello”) and Genesis Healthcare LLC (“Genesis”). The complaint alleges the following four causes of action: (1) elder abuse; (2) violation of Health & Safety Code section 1430 (against Montebello only); (3) negligent, hiring, supervision, and retention; and (4) wrongful death. The first through third causes of action are brought by Plaintiff Stamps and the fourth cause of action is brought by Plaintiff Cole.

The Plaintiffs’ allegations state that on January 15, 2015, Plaintiff Stamps began residing at Montebello, a skilled nursing facility, at the age of 74. Defendants knew when Plaintiff Stamps first arrived that he was limited in his mobility due to multiple, chronic health conditions. Defendants also knew that Plaintiff Stamps was a high risk of developing pressure wounds and infection if appropriate interventions were not taken. Defendants chose not to implement these interventions. In or about March 2016, Plaintiff Stamps began to develop pressure wounds on his left heel, left calf, right heel, sacrum, and buttocks. Plaintiff Stamps later died on January 22, 2017 as a result of Defendants’ neglect as defined in Welf & Inst. Code §15610.57.

Demurrer

First Cause of Action: Elder Abuse

The Elder Abuse Act, Welfare & Inst. Code § 15600, et seq. (“Act”), provides for heightened remedies to protect the elderly and dependent adults. Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1347. More specifically, if a plaintiff succeeds in an elder abuse action, the plaintiff may recover attorney fees and costs; a plaintiff in a survival action may recover damages for the decedent’s predeath pain and suffering, not to exceed $250,000. Id.

Plaintiff Cole’s elder abuse cause of action is based on neglect. (Compl., ¶ 16.) To plead neglect under the Act, “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). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. 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.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (citations and internal quotations omitted); Covenant Care, Inc. v. Sup. Ct. (2004) 32 Cal.4th 771, 790.

“The Elder Abuse Act’s heightened remedies do not apply to acts of professional negligence. Hence, the Act does not provide liability for simple or gross negligence by health care providers. Plaintiffs must plead and prove something more than negligence—that is, reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. Recklessness is 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.” Fenimore, supra, 245 Cal.App.4th at 1347 (internal citations and quotation marks omitted).

Defendants argue that the complaint does not contain sufficient factual allegations to demonstrate egregious abuse beyond the level of even gross negligence. Defendants point to Plaintiff Stamp’s allegations of understaffing and contend that they are inadequate and not pled with sufficient particularity to amount to elder abuse.

Simply alleging understaffing, without more, is not enough as it only amounts to “negligence in the undertaking of medical services,” as opposed to “a fundamental failure to provide medical care.” Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 338, quoting Delaney v. Baker (1999) 20 Cal.4th 23, 34. However, pleading a healthcare facility’s knowing pattern and practice of understaffing in violation of the specific applicable regulations in order to cut costs, thereby endangering the facility’s elderly and dependent patients, sufficiently alleges facts showing recklessness. Fenimore, supra, 245 Cal.App.4th at 1349. The court held that the plaintiff’s allegations of understaffing and undertraining were sufficient to demonstrate recklessness. Id. at 1349. The court explained that “if a jury were to find the Hospital knew of the staffing regulations, violated them, and had a significant pattern of doing so, it could infer recklessness, i.e., a “ ‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’ ” Id., quoting Delaney, supra, 20 Cal.4th at 31-32.

Plaintiff Stamps here alleges Defendants knew that Plaintiff Stamps was a high risk for developing pressure wounds and infection if appropriate interventions were not implemented to protect him from a voidable injury, but that they chose not to implement several of these interventions. (Compl., ¶ 18.) Plaintiff Stamps alleges that Defendants’ understaffing and improper training of its staff lead to his injuries. (Compl., ¶¶ 8, 9, 19.)

Plaintiff Stamps further alleges that “Defendants and their Managing Agents knew of the pattern and practice at the Facility to minimize the amount of staff at the Facility rather than provide sufficient staff to meet the needs of the Facility’s patients. Defendants also knew that serious injuries would likely occur from the failure to provide staff in adequate numbers and with sufficient training, because the Facility previously received numerous complaints of neglect from its patients as well as regulatory agencies. The unfortunate and predictable outcome of the Facility’s operational practices was Plaintiff’s development of avoidable pressure wounds and infections.”(Compl., ¶ 19.)

Plaintiff Stamps also alleges that the failure to provide adequate staffing was in violation of Code of Federal Regulations, title 42, section 483.30 and California Code of Regulations, title 22, section 72329 and these violations caused Plaintiff’s injury. (Id., ¶ 27.) Plaintiff Stamps alleges that Plaintiff’s injuries “were the result of Defendants’ plan to avoid increased costs of care at the expense of their residents such as Plaintiff Stamps,” “this plan included a pattern and practice of staffing the Facility which ignored the individual needs of residents such as Plaintiff, many of whom were not properly trained or qualified” and “[t]he operations plan was designed to stabilize labor costs, rather than meet the changing needs of residents, and predictably and foreseeably resulted in the neglect of residents of the Facility, including Plaintiff.” (Id., ¶ 30.)

Plaintiff Stamps’ allegations of understaffing and undertraining are substantially similar to the allegations that the Second District found adequate in Fenimore. The Court therefore finds that Plaintiff Stamps has pled sufficient facts to show recklessness.

Defendants also argue that Plaintiff Stamps has not plead sufficient facts to show that an officer, director, or managing agent of defendants or defendants’ facility employed any employee who allegedly abused Plaintiff Stamps, knowing in advance that the employee was likely to commit the acts and employed him anyway or actually authorized or ratified the employee’s acts. Plaintiff Stamps does not appear to address this in the opposition.

When an elder abuse claim is brought against an employer, the plaintiff must further allege the same elements for the imposition of punitive damages. Welfare & Inst. Code § 15657(c). Therefore, the plaintiff must also allege the employer “had advance knowledge of the unfitness of the employee [who committed the abuse or neglect] and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct . . . or was personally guilty of oppression, fraud, or malice.” Civ. Code § 3294(b). “[T]he 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.” Id.

Plaintiff Stamps has sufficiently alleged ratification of the understaffing/inadequate training. Plaintiffs allege:

The FACILITY, by and through its corporate officers; directors and managing agents, including TERENCE KEEHAN and SHIRLEY SALVANERA, and who are otherwise presently unknown to PLAINTIFF and according to proof at time of trial, ratified the conduct of their co-defendants and the FACILITY, in that they were aware of improper practices at the FACILITY, in both number and training, the relationship between understaffing and sub-standard provision of care to residents of the FACILITY, including PLAINTIFF, as well as several prior lawsuits against the FACILITY, and the FACILITY’S history of receiving administrative deficiencies for failure to provide adequate care, which penalties were issued by the State of California’s Department of Public Health. That notwithstanding this knowledge, these officers, directors, and/or managing agents meaningfully disregarded several dangerous practices even though they knew such practices could and would lead to avoidable injuries to residents of the FACILITY, including PLAINTIFF.

(Compl., ¶ 8.)

It is unclear what additional facts Defendants believe should have been alleged. The Court notes that “[l]ess particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.” Okun v. Superior Court (1981) 29 Cal.3d 442, 458. Defendants do not argue that Plaintiff Stamps has not sufficiently plead any other elements of the claim. Therefore, the demurrer to the first cause of action is OVERRULED.

2. Second Cause of Action – Violation of Health & Safety Code § 1430(b

Health & Safety Code section 1430(b) allows a resident or former resident of a skilled nursing facility to bring a civil action against the licensee of a facility who violates any rights of the resident as set forth in the Patient’s Bill of Rights in California Code of Regulations, title 22, section 7257, which includes a requirement that sufficient number of personnel be on duty to meet the needs of each resident. Here, Defendants similarly argue that Plaintiff Stamps has not alleged sufficient facts to show he was mentally or physically abused, that the facility was not sufficiently staffed, that the plans of care were not prepared, or that physicians were not notified of changes. However, as discussed in regards to the elder abuse claim, Plaintiff Stamps has sufficiently plead understaffing and inadequate training. Consequently, the demurrer to the second cause of action is OVERRULED.

3. Fourth Cause of Action – Wrongful Death

Defendants argue that Plaintiff Cole’s wrongful death claim is barred by the applicable statute of limitations. Plaintiff states that she served Montebello in compliance with CCP 364 (requiring notice of intent to sue) and notes that “defendant” is not protected by CCP 364, which only applies to licensed providers. According to Plaintiff, the only licensed provider alleged in the complaint is Montebello, not Genesis. Therefore, according to Plaintiff, Genesis cannot succeed in its argument at this stage of the lawsuit. Defendants respond that Plaintiff failed to attach the intent to sue letter either to the complaint or the opposition.

Code of Civil Procedure § 340.5 provides, in relevant part:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first . . . .

Both the limitations periods must be met in order to maintain a timely action. Rose v. Fife (1989) 207 Cal.App.3d 760, 767-68. “Injury” as applied to wrongful death actions arising from alleged medical malpractice, “refers to the death, with its allegedly wrongful cause, which gives rise to the lawsuit.” Larcher v. Wanless (1976) 18 Cal.3d 646, 650.

Here, Plaintiff Cole alleges that Plaintiff Stamps died on January 22, 2017 as a result of Defendants’ neglect. This action was filed over a year later on April 19, 2018. Thus, the claim is time-barred.

Defendants are correct that Plaintiff’s reliance on CCP section 364 is misplaced absent a showing of compliance. CCP section 364 provides, in relevant part:

(a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

(d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.

(f) For the purposes of this section:

(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider.

CCP, § 364(a), (d), (f)

Plaintiff neither alleges compliance with this notice provision nor attaches a copy of the notice to the complaint or the opposition. Therefore, Plaintiff cannot take advantage of the 90-day extension of the statute of limitations period provided for in section 364(d). The demurrer to the third cause of action is SUSTAINED.

Motion to Strike

Defendants seek to strike punitive damages and attorney fees from the complaint, which Plaintiff Stamps seeks in connection with the first and second causes of action.

1. Punitive damages

Defendants argue that punitive damages may not be sought without a court order and that Plaintiffs have not sufficiently alleged facts to support a request for punitive damages. Plaintiff Stamps argues the allegations are sufficient.

Pursuant to CCP section 425.13(a), a plaintiff must first seek a court order to plead a claim for punitive damages against a health care provider. However, as Defendants acknowledge in a footnote of their moving papers: “‘[I]n Covenant Care, Inc., v. Superior Court (2004) 32 Cal.4th 771, the Supreme Court held that section 425.13’s procedural requirements for seeking punitive damages do not apply to causes of action for elder abuse.” (Mot., p. 3:25-28.) The Court has ruled the Plaintiff Stamps adequately alleged a claim for elder abuse. Accordingly, section 425.13 does not bar Plaintiff’s claim for punitive damages claim. The motion is DENIED.

2. Attorney Fees

Defendants argue that there is no statutory or contractual authority entitling Plaintiff Stamps to attorney fees. However, a claim for elder abuse under Welfare & Inst. Code § 15600, et seq. entitles Plaintiff Stamp to recover attorney fees. See Fenimore, supra 245 Cal.App.4th at 1347. The Court has ruled the Plaintiff Stamps adequately alleged a claim for elder abuse. Accordingly, motion is DENIED.

Moving party is ordered to give notice.