30-2014-00697565
1. Demurrer by Defendants Midwest Care Sunflower, LLC dba Sunflower Gardens, Meridian Senior Living, LLC (sued as Midwest Care Sunflower, LLC, Meridian Senior Living, LLC Midwest Care Sunflower, LLC/Meridian Senior Living, LLC, and Sunflower Gardens), and Violet Lazarescu to the Complaint

The court sustains the demurrer without leave to amend as to the fourth cause of action, and overrules as to all other causes of action.

The demurrer as to Second, Third, and Fourth causes of action with respect to the statute of limitations is overruled.

The statute of limitations set forth in Code Civ. Proc., § 340.5 applies to health care providers. As correctly noted by Plaintiff, a residential care facility is not a health care provider even if it provides incidental medical services. (Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1390-1395.) Indeed, Defendants address this issue in its “Combined Reply.”

The demurer to the first cause of action (elder abuse) is overruled.

The Complaint alleges facts sufficient to establish neglect. Neglect under the Elder Abuse Act “refers ‘to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.) In the case of care of an elder, “‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.’” (Id. at 404-405.)

Defendant correctly notes the general rule that statutory claims must be pled with particularity. (Id. at 410.) In a pleading, the term “particularity” “means the detailed statement of particulars.” (Jack v. Wood (1968) 258 Cal.App.2d 639, 645.) It “has been held to be synonymous with ‘details.’” (Ibid.)

Here, Plaintiff alleges Defendant Lazarescu and other staff knew and experienced resident Paul Pearce’s outburst and combative behavior during his residency. They knew he did not like his personal space invaded and would be combative when someone invaded his space. (Complaint, ¶ 50.) Despite this knowledge and to maximize profits, they admitted Paul Pearce without having sufficient and properly trained staff to care for him and protect other residents from him. (Complaint, ¶ 68.) Such conduct violated several regulations, including 22 CCR § 87464(d); 22 CCR § 87455(c)(3)(A), 22 CCR § 87461(A)(5), and 22 CCR § 87458(a). (Complaint, ¶ 65.) A violation of regulations “in caring for an elder constitutes elder abuse neglect under the Act.” (Norman v. Life Care Centers of Am., Inc. (2003) 107 Cal.App.4th 1233, 1246.)

It also appears Plaintiff has adequately alleged authorization or ratification of Lazarescu’s conduct by the Facility Defendants or by Lazarescu as the Facility Defendants’ managing agent. Circumstantial evidence is sufficient to allege authorization and ratification. (Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 249–250.) In 2010 there were several pending complaints against the facility, while under Lazarescu’s management, yet she was kept on as administrator after the facility was sold. (Complaint, ¶ 49.) As the administrator, she was appointed and authorized “to carry out the policies” of the Facility Defendants. (22 CCR § 72501(b)-(c).) Lazarescu was an integral party of policy-making decisions, including determining number of staff working and approving resident admissions. (Complaint, ¶ 56.)

Finally, to the extent Defendants contend they cannot be liable under the Elder Abuse Act unless Plaintiff pleads and proves conduct sufficient to support an award of enhanced remedies, they are misplaced.

While the Elder Abuse Act limits the circumstances under which a plaintiff may recover certain enhanced, statutory remedies, nothing precludes Plaintiff from obtaining other remedies for Defendant’s alleged neglect of Virginia, even in the absence of conduct sufficient to support those enhanced remedies. (See CACI 3103 [Neglect – Essential Factual Elements], 3104 [Neglect – Enhanced Remedies Sought], VF-3103, VF-3014.) A demurrer may not be sustained as to a cause of action on the grounds that the plaintiff has not adequately alleged a right to a remedy sought. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384-385.)

The demurrer to the second cause of action (Violation of Health & Safety Code, § 1599.74) is overruled.

Because the elder abuse claim survives, so too does this claim.

The demurrer to the fourth cause of action (Willful misconduct) is sustained without leave to amend.

Willful misconduct “is not a separate tort, but simply an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526 [internal quotes and citations omitted].) Here, the third cause of action is for negligence. Thus, the fourth cause of action for willful misconduct is duplicative.

2. Motion to strike by same Defendants

The court denies the motion as to punitive damages and attorney fees and grants as to pain and suffer damages arising from Plaintiff’s negligence claim.

A. Punitive damages

Plaintiff need not obtain a court order pursuant to Code Civ. Proc., § 425.13 (applicable to health care providers) because it is alleged that Defendants operate a residential care facility and are not health care providers.

Plaintiff has adequately alleged facts sufficient to establish malice and/or oppression. (Civ. Code, § 3294.) The Complaint alleges the following: Defendants owed—but failed to meet—numerous duties of care pursuant to specified California Code of Regulations. The facility was understaffed and the staff was not adequately trained, as required by federal and state law. Defendants knew that Paul Pearce had an altered mental state with violent outbursts and a propensity for aggression, but still admitted him without a plan to protect the other residents. This conduct was intentional and/or in conscious disregard of the probability that it would cause the severe harm, because it was the result of a conscious decision to maximize profits at the expense of the residents’ well-being. Defendants were on notice of these issues because they had received previous complaints.
These allegations are factual, as opposed to mere conclusions of law. They appear sufficient, if proven, to support a conclusion that Defendants engaged in intentional conduct and/or despicable conduct that subjected Virginia to cruel and unjust hardship in conscious disregard of her rights and safety.

Finally, as discussed above in the demurrer, Plaintiff has adequately alleged authorization or ratification for an award of punitive damages against Defendants.

B. Attorney fees

Plaintiff may recover attorney fees if Plaintiff successfully pleads and proves a basis for enhanced remedies under Welf. & Inst. Code, § 15657. In order to obtain those enhanced remedies, Plaintiff must allege and prove conduct “essentially equivalent to conduct that would support recovery of punitive damages.” (Country Villa Claremont Healthcare Center, Inc. v. Superior Court, supra, 120 Cal.App.4th at p. 432.)

As discussed above, Plaintiff has adequately alleged facts sufficient to establish malice and/or oppression by Defendant. Therefore, Plaintiff has adequately alleged facts that would support the enhanced remedies under Section 15657. (See Id.; Welf. & Inst. Code, § 15657, subd. (c).)

C. Damages for pain and suffering

“In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” (Code Civ. Proc., § 377.34.)

Nonetheless, the portions that Defendants seek stricken from the Complaint based on this ground are overbroad. Only the following portions are stricken from the Complaint:

1. ¶ 74: “physical and emotional trauma, and conscious pain and suffering.”

2. ¶ 84: “pain”

3. ¶ 88: “emotional injuries”

Defendants are to answer the Complaint within 10 days of the hearing.

Plaintiff shall give notice of the ruling.