Case Number: GC051101 Hearing Date: April 11, 2014 Dept: B

Demurrer and Motion to Strike

Case Management Conference

The Second Amended Complaint alleges as follows:

Olivia Hunter was a dependent adult under the care and custody of the Defendants. Olivia Hunter was admitted to San Gabriel Valley Medical Center on January 20, 2012 for custodial care related to her Alzheimer’s disease. Olivia Hunter was overmedicated and the Defendants did not monitor Olivia Hunter for malnutrition and dehydration. The Defendants failed to fill her water cup and did not open her beverage containers. The Defendants denied her physical activity, which resulted in deep vein thrombosis and pulmonary embolism. Olivia Hunter died on March 21, 2012 from a pulmonary embolism.

The Plaintiff, Robert Hunter, is the son of Olivia Hunter, and brings an elder abuse and willful misconduct claim against the Defendants as survivor actions that Olivia Hunter could have brought. In addition, the Plaintiff brings a wrongful death claim.

The Defendants are:
1) AHMC San Gabriel Valley Medical Center LP, which operates the facility at which Olivia Hunter was a patient;
2) AHMC Healthcare Inc., which is the parent company of AHMC San Gabriel Valley Medical Center LP;
3) The Medical Staff of San Gabriel Valley Medical Center, which is a corporation that includes the individuals that provided care to Olivia Hunter; and
4) Pei-Huey Nie, M.D., who was the attending physician for Olivia Hunter.

The Causes of action in the Second Amended Complaint are for:
1) Wrongful Death
2) Negligent Infliction of Emotional Distress
3) Negligence/Willful Misconduct
4) Elder Abuse

This hearing concerns the demurrers and motions to strike of Defendants, AHMC San Gabriel Valley Medical Center LP, AHMC Healthcare, and Medical Staff of San Gabriel Valley Medical Center, and Defendant, Pei-Huey Nie.

1. Second Cause of Action for Negligent Infliction of Emotional Distress

All Defendants argue that this cause of action was improperly added to the Second Amended Complaint because the Plaintiff did not obtain leave to add it. The Plaintiff admits this on page 2, at line 27, of the opposition papers.

The Plaintiff filed the Second Amended Complaint after the Court sustained the demurrers to the First Amended Complaint with leave to amend on February 7, 2014. The First Amended Complaint did not include a cause of action for negligent infliction of emotional distress.

When a Court grants leave to amend after sustaining a demurrer, it is leave to amend only the cause of action to which the demurrer has been sustained. People ex rel. Department of Public Works v. Clausen (1967) 248 Cal. App. 2d 770, 785. Accordingly, the Plaintiff had leave to amend only his wrongful death, negligence/willful misconduct, and elder abuse causes of action.

The Plaintiff’s Second Amended Complaint included a new cause of action for negligent infliction of emotional distress. Since the Plaintiff did not have leave to add this claim, the Court strikes the second cause of action. If the Plaintiff seeks to add the claim, the Plaintiff must file a properly noticed motion and obtain leave to amend.

2. Demurrer to Fourth Cause of Action for Elder Abuse

The Defendants argue that the Plaintiff does not allege the particular facts needed to plead elder abuse.

The fourth cause of action for neglect of a dependent adult abuse seeks a statutory remedy provided under Welfare and Institutions Code section 15657. This section is part of the Elder Abuse and Dependent Adult Civil Protection Act, which is enacted at Welfare and Institutions Code sections 15600 to 15675. The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. 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. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787.

In order to protect elders and dependent adults, the Legislature added heightened civil remedies for egregious elder and dependent adult abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died. Since this is a statutory cause of action, it must be pleaded with particularity. Id. at 790.

A review of the caption for the fourth cause of action reveals that it is for “Elder Abuse and Neglect”. To plead neglect within the meaning of the Elder and Dependent Adult Abuse Act, a plaintiff must allege 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 v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406-407.

a. Defendants, AHMC San Gabriel Valley Medical Center LP, AHMC Healthcare, and Medical Staff of San Gabriel Valley Medical Center

A review of the fourth cause of action reveals that it does not contain any particular allegations regarding the elements of elder abuse. For example, the Plaintiff alleges in paragraph 47 that the conduct of the Defendants constitutes “neglect” as defined by Welfare & Institutions Code section 15610.57. However, there are no particular allegations that identify the specific conduct to support this conclusion of each, separate Defendant that meets this definition.

There are four Defendants:

1) AHMC San Gabriel Valley Medical Center LP, which operates the facility at which Olivia Hunter was a patient;
2) AHMC Healthcare Inc., which is the parent company of AHMC San Gabriel Valley Medical Center LP;
3) The Medical Staff of San Gabriel Valley Medical Center, which is a corporation that includes the individuals that provided care to Olivia Hunter; and
4) Pei-Huey Nie, M.D., who was the attending physician for Olivia Hunter.

The Plaintiff’s claim is that the Defendants engaged in elder abuse by failing to open her beverage contains, by not filling her cut with water, by not handing her fluids, by not encouraging her to drink, by not feeding her meals, by not encouraging her to eat, and by allowing Olivia Hunter to lay dormant and sedentary in bed for long periods of time. However, the Plaintiff does not connect these allegations of neglect to each, separate Defendant to demonstrate that each, separate Defendant committed the egregious conduct that constituted neglect, e.g., the specific conduct of AHMC San Gabriel Valley Medical Center LP that is alleged to be neglect for the purposes of establishing elder and dependent adult abuse.

Further, the Plaintiff does not allege facts to demonstrate that each, separate Defendant had responsibility for meeting the basic needs of Olivia Hunter. In paragraph 39, the Plaintiff alleges that “as care custodians and healthcare providers”, the “Defendants” were under a duty to ensure that Olivia Hunter’s basic needs were met. There are no particular allegations to demonstrate that each, separate Defendant was a care custodian with a responsibility to meet the basic needs of Olivia Hunter, e.g., that the “Medical Staff” was a care custodian.

In paragraph 40, the Plaintiff alleges that the “Defendants” were aware of Olivia Hunter’s dependence and knew of her inability to communicate her needs. Again, this is a general allegation that does not plead particular facts regarding each, separate Defendant.

In addition, there are no allegations connecting the liability to the corporate employer. The Defendants, AHMC San Gabriel Valley Medical Center LP, AHMC Healthcare, and Medical Staff of San Gabriel Valley Medical Center, must act through their employees. The remedy provided under the Elder Abuse Statute in section 15657(c) requires that the standards set forth in Civil Code section 3294(b) regarding the imposition of punitive damages on an employer based upon the acts of an employee be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.

Civil Code section 3294(b) provides that an employer shall not be liable for punitive damages based upon the acts of an employee unless

1) 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;
2) authorized or ratified the wrongful conduct for which the damages are awarded; or
3) 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.

The Plaintiff’s Second Amended Complaint lacks sufficient facts to satisfy these requirements. There are no allegations demonstrating that an officer, director, or managing agent of Defendants, AHMC San Gabriel Valley Medical Center LP, AHMC Healthcare, and Medical Staff of San Gabriel Valley Medical Center, had advance knowledge that employees were unfit, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice. This is insufficient.

In the opposition, the Plaintiff directs the Court to paragraph 19. An initial defect is that this paragraph is within the second cause of action for negligent infliction of emotional distress, which should be removed because it was added without leave to amend.

Further, a review of paragraph 19 reveals no allegations satisfying the requirements identified above. Instead, paragraph 19 contains only the allegation that Robert Hunter spoke with hospital staff and top management. There are no allegations that identify for which Defendants these individuals were “top management”. Further, there are no allegations that satisfy the requirements of Civil Code section 3294, e.g., that the “top management” authorized or ratified the wrongful conduct.

Finally, this is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of his pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Here, the Plaintiff is not incorporating portions for informational purposes. Instead, the Plaintiff is attempting to plead by incorporation the essential elements of a cause of action that must be pleaded with particularity. This is an improper use of incorporation.

Therefore, the Court sustains the demurrer to the fourth cause of action because the Plaintiff did not plead the particular facts needed to state his claim against each, separate Defendant.

This is the Plaintiff’s third attempt to plead the claim. California law imposes the burden on the Plaintiff to demonstrate the manner in which he can amend his pleadings to correct the defects identified in the demurrer. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff did not request leave to amend in his opposition. Further, the Plaintiff did not offer any basis to find that he can correct these defects by amendment.

Therefore, the Court does not grant leave to amend.

b. Defendant, Pei-Huey Nie, M.D.

The Defendant argues that the pleadings are insufficient to demonstrate that he was a care custodian or that he acted with recklessness, malice, oppression, or fraud.

The Plaintiff’s claim is that the Defendants engaged in elder abuse by failing to open her beverage contains, by not filling her cut with water, by not handing her fluids, by not encouraging her to drink, by not feeder her meals, by not encouraging her to eat, and by allowing Olivia Hunter to lay dormant and sedentary in bed for long periods of time. However, the Plaintiff does not connect these allegations of neglect to each, separate Defendant to demonstrate that each, separate Defendant committed the egregious conduct that constituted neglect, e.g., the specific conduct of Pei-Huey Nie that indicates he engaged in neglect for the purposes of establishing elder and dependent adult abuse.

Further, the Plaintiff does not allege facts to demonstrate that Defendant, Pei-Huey Nie, had responsibility for meeting the basic needs of Olivia Hunter. In paragraph 39, the Plaintiff alleges that “as care custodians and healthcare providers”, the “Defendants” were under a duty to ensure that Olivia Hunter’s basic needs were met. There are no particular allegations to demonstrate that Defendant, Pei-Huey Nie, was a care custodian with a responsibility to meet the basic needs of Olivia Hunter.

In addition, there are no allegations demonstrating that the Defendant, Pie Huey Nie engaged in the conduct with recklessness, malice, oppression, or fraud. There are no allegations that Pie Huey Nie acted with an intent to harm Olivia Hunter. In paragraph 42, the Plaintiff alleges that “knowing of the likelihood of further serious and potentially fatal consequences”, Pie-Huey Nie consciously and deliberately disregarded Olivia Hunter’s needs and failed to ensure that she received assisted feeding, fluids, and exercise. There are no allegations of particular fact that demonstrate Pie-Huey Nie had knowledge of these needs or that he had care and custody of Olivia Hunter such that he knew that there was a high degree of probability that his conduct would result in serious danger to Olivia Hunter. This is insufficient to plead that Pie-Huey Nie engaged in elder abuse.

Therefore, the Court sustains the demurrer to the fourth cause of action because the Plaintiff did not plead the particular facts needed to state his claim against the Defendant, Pie-Huey Nie.

This is the Plaintiff’s third attempt to plead the claim. California law imposes the burden on the Plaintiff to demonstrate the manner in which he can amend his pleadings to correct the defects identified in the demurrer. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff did not request leave to amend in his opposition. Further, the Plaintiff did not offer any basis to find that he can correct these defects by amendment.

Therefore, the Court does not grant leave to amend.

3. Motion to Strike
a. Defendants, AHMC San Gabriel Valley Medical Center LP, AHMC Healthcare, and Medical Staff of San Gabriel Valley Medical Center

The Defendants request that the Court strike the claim for punitive damages in the fourth cause of action for elder abuse. In light of the tentative to sustain the demurrer to the fourth cause of action, the motion to strike is moot because the demurrer will remove the claim for punitive damages.

b. Defendant, Pei-Huey Nie, M.D.

The Defendant requests that the Court strike the claim for punitive damages and the claim for attorney’s fees in the fourth cause of action for elder abuse. In light of the tentative to sustain the demurrer to the fourth cause of action, the motion to strike is moot because the demurrer will remove the claim for punitive damages and the claim for attorney’s fees.