Case Name: Barba v. Santa Cruz Skilled Nursing Center, Inc, et al.
Case No.: 17CV309185

I. Background

This action arises from alleged elder abuse that occurred while plaintiff Tiburcio Barba (“Barba”) was a resident of a 24-hour skilled nursing facility. The pleading at issue is the First Amended Complaint (“FAC”) filed by Plaintiff and his wife (collectively, “Plaintiffs”) against defendants Santa Cruz Skilled Nursing Center, Inc. dba Hearts & Hands, Post Acute Care and Rehab Center (“SCSNC”), the nursing facility; AJ Rana (“Rana”) and Trilochan Singh (“Singh”), corporate officers, directors and shareholders of SCSNC; and various SCSNC physicians and nurses.

According to the allegations in the FAC, Barba was in the hospital around May 3, 2016 and, upon discharge, was admitted to SCSNC’s facility as an inpatient for 24-hour health care as his medical conditions prevented him from caring for himself. (FAC, ¶ 29, 31-32.) SCSNC, Rana, and Singh (collectively “Defendants”) represented that SCSNC would provide Barba with excellent 24-hour inpatient care, including assistance with daily living (i.e. hydration, nutrition and hygiene) along with medical, nursing, health and behavioral care. (FAC, ¶ 29.) Defendants further represented Barba would be assessed to ensure proper care, adequate staffing would be maintained to provide for his daily needs, and a care plan would be implemented that would include supervised one-on-one care related to his uncontrolled type two diabetes, alcohol withdrawal delirium and dementia. (FAC, ¶ 30.)

Despite Defendants’ knowledge of Barba’s medical conditions, elderly age and general condition of infirmity, between May 3 and 8, 2016, Defendants repeatedly failed to provide him with food and water necessary to meet his basic needs and he became seriously dehydrated. (FAC, ¶ 37.) Defendants also failed to: conduct assessments of Barba; maintain records of his blood glucose and hydration levels; test his glucose levels to assess his diabetes medication needs; administer prescribed medications to control his blood sugar level; timely respond to his emergent conditions when he became ill; provide one-on-one supervision necessary to protect him against burns, bruises, and abrasions occasioned by his delirium and dementia; and meet his hygiene, movement and position needs. (FAC, ¶ 38.) Defendants also failed to provide sufficient, adequately trained staff to care for him. (FAC, ¶ 39.)

As a result, Barba suffered physical and mental harm in the form of dangerously high blood sugar, acute respiratory failure, hypoxia, acute renal failure, dehydration, shock, failure of skin integrity, burns, bruises, abrasions, body pain, anxiety, exhaustion and overall deterioration to his physical health. (FAC, ¶ 40.) On or around May 8, 2016, Barba became unconscious due to diabetic ketoacidosis and was transferred to the Dominican Hospital. (FAC, ¶ 41.)

Plaintiffs’ FAC asserts nine causes of action against Defendants for: (1) elder abuse; (2) violation of the Patient’s Bill of Rights; (3) fraud; (4) professional negligence; (5) loss of consortium; and (6) violation of Business and Professions Code section 17200 (the “UCL”).

Defendants now demur to the first, second and sixth causes of action. They also move to strike various portions of the FAC. Plaintiffs oppose both matters.

II. Demurrer

A. First Cause of Action

Plaintiffs’ first cause of action is for violation of the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”), codified in Welfare and Institutions Code section 15600 et seq. Plaintiffs allege that Defendants and the remaining nurse and physician defendants repeatedly and continuously failed to fulfill their care and custodial duties to Barba and repeatedly deprived him of food and/or water, medication, and one-on-one care.

Defendants demur to this cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.

1. Uncertainty

The first cause of action is asserted against fourteen defendants. Defendants argue the first cause of action is uncertain because it is “impossible for [them] to ascertain the alleged wrongful conduct that plaintiffs are alleging was committed by [them] because every allegation is lodged generally against ‘defendants.’” (Mtn. at p. 3:26-27.)

Demurrers for uncertainty are disfavored and will be sustained only where the allegations of the pleading are so unintelligible the defendant cannot reasonably respond them, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.; see also Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2.)

Here, Plaintiffs’ allegations are far from unintelligible. Their elder abuse claim specifically states it is alleged against all the defendants and sets out the misconduct they purportedly committed, including the failure to provide Barba with food, water, medication, and one-on-one care. (See FAC, ¶ 44.) These allegations are sufficient to apprise Defendants of what claims and misconduct are alleged against them. The fact that Plaintiffs frequently refer to the defendants collectively does not render this claim uncertain.

The demurrer to the first cause of action on the ground of uncertainty is therefore OVERRULED.

2. Failure to State Sufficient Facts to Constitute a Cause of Action

Defendants argue the allegations in the first cause of action are of insufficient quality to state an elder abuse claim under Welfare and Institutions Code section 15657 (“Section 15657”). Defendants also contend Plaintiffs’ allegations fail to demonstrate they are entitled to recover Section 15657 remedies from Defendants as an employer.

a. Sufficiency of Factual Allegations

“The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) “The elements of a cause of action under the [Elder Abuse Act] are statutory, and reflect the Legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) As an Elder Abuse Act claim is statutory, the Court applies “the general rule that statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Under Section 15657, a plaintiff may recover enhanced remedies “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.”

Defendants argue Plaintiffs only alleged “generalized conclusions of poor care” and mere “negligence in the undertaking of medical care” rather than acts rising to the level of recklessness, malice, oppression or fraud.” (Mtn. 5:3-5; 6:1-3.) In opposition, Plaintiffs argue they properly pleaded an elder abuse claim because they allege an actual withholding of care by Defendants, not merely a negligent undertaking of medical services.

In order to obtain the remedies available under section 15657, a plaintiff must allege that a defendant is “guilty of something more than negligence.” (Delaney, supra, 20 Cal.4th at 31.) “[H]e 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. Recklessness involves ‘deliberate disregard’ of the ‘high degree of probability that an injury will occur’ and ‘rises to the level of a conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’” (Carter, supra, 198 Cal.App.4th at 405, citing Delaney at p. 31-32.) “Thus, the enhanced remedies are available only for ‘acts of egregious abuse’ against elder and dependent adults.” (Carter, supra, at p. 405.) Such acts of egregious abuse “may include the egregious withholding of medical care for physical and mental health needs.” (Covenant, supra, 32 Cal.4th at 786, emphasis added.) In fact, under Section 15657, the failures to provide medical care for physical and mental needs, assist with personal hygiene, provide food, and prevent dehydration, are cited as examples of neglect. (See e.g. Delaney, supra, 20 Cal.4th at 33; Carter, supra, 198 Cal.App.4th at 405.)

Here, Plaintiffs do not allege Defendants undertook to provide medical services and did so negligently. Instead, they allege Defendants fundamentally failed to provide Barba with necessary care. Moreover, Plaintiffs allege specific facts relating to the types of care Barba did not receive, contrary to Defendants’ position that the allegations consist only of “generalized conclusions of poor care.” Among other things, Plaintiffs aver that Defendants repeatedly failed to provide Barba with food and water; failed to meet his hygiene, movement and position needs; and failed to provide him with the medical care he required for his diabetes, including glucose level tests, assessments of his diabetes medication needs, and administering prescribed medications to control his blood sugar level. (FAC, ¶ 37-39.) Plaintiffs therefore specifically allege the actual denial or withholding of necessary care by Defendants.

Plaintiffs also sufficiently allege Defendants’ conduct was reckless because they knew of Barba’s medical conditions (i.e. uncontrolled type 2 diabetes, alcohol withdrawal delirium and dementia) yet took no measures to provide him with care. (FAC, ¶¶ 30, 33-34.) This allegation is sufficient to demonstrate Defendants had knowledge of a “high degree of probability” that injuries, like Barba’s resulting diabetic ketoacidosis and dangerously high blood sugar, would result and yet “deliberate[ly] disregarded” this risk. (See Carter, supra, 198 Cal.App.4th at 405; see also Covenant, supra, 32 Cal.4th at 778 [Section 15657 remedies available where skilled nursing facility knew elderly man suffered from Parkinson’s disease yet failed to provide sufficient care, nutrition, hydration and medication, and left him unattended and unassisted for long periods of time]; Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 430, 434–435 [Section 15657 remedies available where skilled nursing facility knew elderly woman to be at high risk for developing pressure ulcers yet failed to provide her with pressure relief as well as proper diet, food intake monitoring and assistance with eating.])

Defendants argue that in order to demonstrate “recklessness,” Plaintiffs were required to plead a “significant pattern of withholding care” but failed to do so, citing Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90, in support. (Mtn. at p. 5:26-29) Defendants’ reliance on this case is misplaced. This case refers to a pattern of withholding care solely in the context of addressing a defendant’s argument that liability for elder abuse does not exist unless there is a total absence of care. (Sababin, supra, 144 Cal.App.4th at 90.) The court disagreed and held that even where some care was provided, elder abuse liability could exist if there is a “significant pattern of withholding portions or types of care.” (Ibid.) Here, Plaintiffs are not alleging Defendants provided some forms of care and not others but that there was a total absence of care. As such, Sababin does not apply. However, even if it did, Plaintiffs do in fact allege a significant pattern of withholding care as they allege Defendants “repeatedly withheld” basic and necessary of care from Barba. (FAC, ¶¶ 37-38.)

Finally, Defendants contend Plaintiffs have not sufficiently alleged a causal link between their alleged neglect and Barba’s resulting injuries. They frame this argument solely in reference to Plaintiff’s allegation of understaffing at SCSNC, which they say did not cause Barba’s injuries. This argument is misplaced as it focuses on one alleged failure to the exclusion of the numerous other failures Plaintiffs allege against Defendants (i.e. the failure to provide Barba with food, water, glucose monitoring, assessment of diabetes medication needs, diabetes medication, and one-on-one supervision). These allegations are sufficient to establish a causal link between Defendants’ alleged neglect and Barba’s dangerously high blood sugar and diabetic ketoacidosis that resulted.

Defendants’ demurrer is therefore not sustainable on the basis that Plaintiffs’ allegations of elder abuse are insufficient.

b. Recovery of Section 15657 Remedies from Defendants as an Employer

Defendants argue the first cause of action of action fails because Plaintiffs have not sufficiently pled they are entitled to recover Section 15657 remedies from Defendants as an employer.

Section 15657, subdivision (c), allows a plaintiff alleging a violation of the Elder Abuse Act to recover enhanced remedies from an employer where “[t]he 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” are satisfied. Civil Code section 3294, subdivision (b) (“Section 3294”), provides that an employer shall not be liable for damages based upon acts of an employee 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.” Section 3294 also provides that, “[w]ith 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.”

Defendants argue Plaintiffs insufficiently allege facts showing they personally engaged in wrongful conduct towards Barba, had advance knowledge of the unfitness of any SCSNC employee and employed him or her anyway, or authorized or ratified the misconduct of an employee. As to the issue of authorization or ratification of misconduct, Defendants contend there are no allegations demonstrating that Defendants had “actual knowledge of any abuse or neglect that was directed specifically at [Barba]” and intended to adopt or approve of these acts. (Mtn. at p. 10:4-7.) In response, Plaintiffs argue they specifically allege Defendants had advance knowledge of unfit staff, and authorized and ratified the acts of their employees. Their argument is well-taken because Plaintiffs specifically allege Defendants “[h]ad advance knowledge of the unfitness of their staff and employed said staff with a conscious disregard of the rights and safety of others; authorized the wrongful conduct alleged…[and] ratified wrongful conduct.” (FAC ¶ 28.) Beyond this, Plaintiffs allege that Defendants themselves repeatedly withheld food, water and necessary medical care and services while Barba was at the SCSNC. (FAC, ¶¶ 37-38.)

For these reasons, Defendants’ demurrer is not sustainable on the basis that Plaintiffs insufficiently pled entitlement to Section 15657 remedies from Defendants as an employer.
c. Conclusion

In consideration of the foregoing, the demurrer to the first cause of action on the grounds of failure to state a cause of action is OVERRULED.

B. Second Cause of Action

Plaintiffs’ second cause of action for violation of the Patient’s Bill of Rights alleges Defendants’ conduct toward Barba violated his rights as a patient to be free from physical abuse, be treated with respect and dignity, have documented the reasons for denial or limitation of his rights, be treated at a facility that employed adequate personnel, and be accorded good personal hygiene. Plaintiffs seek statutory civil penalties against Defendants pursuant to Health and Safety Code section 1430, subdivision (b) (“Section 1430”).

Defendants demur to this cause of action on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty.

1. Failure to State Sufficient Facts to Constitute a Cause of Action

Defendants argue the second cause of action fails because Plaintiffs do not plead specific facts demonstrating a violation of any statute or regulation. In opposition, Plaintiffs contend paragraphs 1 through 48 of their FAC allege facts relating to specific conduct by Defendants and the second cause of action enumerates Barba’s rights that were violated.

As set forth in the second cause of action, Plaintiffs allege they are seeking remedies pursuant to Section 1430, which allows a civil action to be brought based on violations of the Patients Bill of Rights as codified in Section 72527 of Title 22 of the California Code of Regulations. The Patients Bill of Rights enumerates a list of patients’ rights that are not to be violated by a facility, including the rights to be free from mental and physical abuse and treated with consideration, respect and dignity. It also incorporates various other rights accorded patients under other sections of the Health and Safety Code and Welfare and Institutions Code, including the right to good hygiene and care to prevent bedsores. Plaintiffs’ second cause of action alleges the specific rights Defendants violated, including the rights to be free from physical abuse and be treated with respect and dignity along with the right to good hygiene and care to prevent bedsores. These allegations are sufficient to state a claim for violations of the Patients Bill of Rights.

Defendants’ demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a claim is therefore OVERRULED.

2. Uncertainty

Defendants do not distinguish between their demurrer on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. For the reason discussed, the Court finds Plaintiffs’ allegations sufficient to state a claim for violations of the Patients Bill of Rights.

Also, “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations already made.” (Butler v. Sequiera (1950) 100 Cal.App.2d 143, 145-146.) To avoid a demurrer for uncertainty, a pleading merely needs to “‘set forth the essential facts of [the] case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of [the] cause of action.’ [Citations.]” (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.) The second cause of action sufficiently apprises Defendants of the nature, source and extent of Plaintiffs’ claim.

Defendants’ demurrer is unsubstantiated. As such, their demurrer to the second cause of action on the ground of uncertainty is OVERRULED.

C. Sixth Cause of Action

Plaintiffs’ sixth cause of action is for violation of the UCL. Plaintiffs aver that Defendants solicited and represented to them and other members of the public that, in exchange for payment, Defendants would provide excellent 24-hour care for the medical, health and behavioral needs of patients, including assistance with hygiene, positioning, mobility, nutrition and hydration. They also allege Defendants represented they would provide adequate staffing, adhere to physicians’ orders and timely administer medications and necessary tests. Plaintiffs further aver that based on this solicitation, they paid Defendants to undertake the care and custody of Barba but Defendants failed to provide him with any of the promised care and he suffered injuries as a result. Plaintiffs allege Defendants’ conduct violated a number of state statutes as well as various federal regulations.

Defendants demur to the sixth cause of action on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty.

1. Failure to State Sufficient Facts to Constitute a Cause of Action

Defendants argue Plaintiffs’ UCL cause of action is not viable because it is duplicative of their claim for fraud and alleges only a one-time act as opposed to repeated statutory violations or ongoing conduct by them.

Defendants’ argument that the sixth cause of action is duplicative is unavailing. As the Sixth District has explained, the fact that causes of action are duplicative “is not a ground on which a demurrer may be sustained.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-90, citing Code Civ. Proc., § 430.10.) For context, “[a] quarter-century ago the code authorized a motion to strike ‘irrelevant and redundant’ matter from a pleading. [Citation.]” (Id. at p. 890, original italics.) “But the parallel provision now empowers the court only to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Ibid., quoting Code Civ. Proc., § 436, subd. (a).) “The elimination of the reference to redundancy may have rested on the irreproachable rationale that it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. (See Civ. Code, § 3537 [‘Superfluity does not vitiate.’].)” (Ibid.)

In any event, the sixth cause of action is not duplicative of Plaintiffs’ third cause of action for fraud. A cause of action for the tort of fraud is fundamentally different from a UCL claim which more broadly encompasses “unlawful, unfair or fraudulent” business practices with specific remedies recoverable under the UCL’s statutory scheme. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, cf. Bus. & Prof. Code § 17200.)

With respect to their argument that Plaintiffs failed to allege ongoing wrongful conduct, Defendants’ reliance on State of California ex rel Van de Kamp v. Texaco (1988) 46 Cal.3d 1147 (“Van de Kamp”) is likewise misplaced. Though Van de Kamp held a pattern or course of conduct was required to state a UCL claim, it was superseded by a 1992 amendment to the UCL which made even a “single instance of unfair conduct” actionable. (Podolsky v. First Healthcare Corp., 50 Cal. App. 4th 632, 653.) Defendants themselves acknowledge that Plaintiffs here have alleged at least a single instance of unfair conduct in the form of the misrepresentations Defendants made to them regarding the care that would be provided to Barba at SCSNC. The Court also questions the notion that only a single act of wrongdoing is alleged, given that Plaintiffs allege Defendants “repeatedly” withheld food and water from Barba. (FAC, ¶ 37.)

As such, the demurrer to the sixth cause of action on the ground of failure to state sufficient facts to constitute a claim is OVERRULED.

2. Uncertainty

Defendants do not distinguish between their demurrer on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. For the reason discussed, the Court finds Plaintiffs’ allegations sufficient to state a claim for violations of the UCL.

To avoid a demurrer for uncertainty, a pleading need only set forth the essential facts of the case with “reasonable precision and particularity sufficient to acquaint a defendant with the nature, source and extent of [the] cause of action.” (Semole, supra, 28 Cal.App.3d at 719.) The sixth cause of action sufficiently apprises Defendants of the nature, source and extent of Plaintiffs’ claim.

As such, the demurrer to the UCL claim on the ground of uncertainty is OVERRULED.

III. Motion to Strike

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.)

Pursuant to this statute, Defendants move to strike various prayers for relief from the FAC in connection with Plaintiffs’ first, second and sixth causes of action on the ground they are improper. They move to strike Plaintiffs’ request for: (1) punitive damages and reasonable attorney’s fees in connection with the first cause of action; (2) statutory damages and attorney’s fees under Section 1430 in connection with the second cause of action; and (3) a permanent injunction, restitution, civil penalties and attorney’s fees in connection with the sixth cause of action. In support, they reiterate arguments advanced in their demurrer contending that Plaintiffs failed to plead a viable claim under each of these causes of action.

As already discussed, Defendants have not demonstrated that the first, second and sixth causes of action have been insufficiently pled. Furthermore, it is well-established that a motion to strike is not the appropriate vehicle for raising defects properly raised by demurrer. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

Defendants otherwise argue Plaintiffs’ request for punitive damages is insufficiently pled because the FAC lacks facts demonstrating malice, oppression or fraud. The request for punitive damages is alleged only in connection with the first cause of action.

The Court observes that this is a proper ground for a motion to strike. (See Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963 [a plaintiff must allege facts supporting the existence of malice, oppression, or fraud].) With that said, Defendants’ motion is unsubstantiated. In order to allege an elder abuse claim and recover remedies under Section 15657, a plaintiff is required to plead a defendant has been “guilty of recklessness, oppression, fraud, or malice” in the abuse or neglect of an elder. (Welf. & Inst. Code, § 15657.) In short, “[i]n order to obtain the [Elder Abuse] Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, supra, 32 Cal.4th at 789.) As Plaintiffs sufficiently alleged an Elder Abuse Act cause of action, they necessarily also pled sufficient facts of malice, oppression or fraud to support a punitive damages claim.

Defendants argue in their reply that Plaintiffs only allege recklessness by Defendants and mere allegations of recklessness are insufficient to support a request for punitive damages. They contend Plaintiffs are required to allege malice as defined by Civil Code section 3294, subsection (c) (“Section 3294(c)”). Section 3294(c) defines “malice” as “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.” Defendants argue Plaintiffs have not alleged facts demonstrating their conduct was “despicable.” This argument is not well-taken.

“Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (Coll. Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Here, as previously discussed, Plaintiffs allege Defendants undertook care of Barba with knowledge of his uncontrolled type 2 diabetes, alcohol withdrawal delirium, dementia and inability to care for himself, yet repeatedly failed to provide him with food or water, monitor his glucose levels or administer his diabetes medication. These facts are sufficient to allege conduct that is vile or contemptible for purposes of alleging malice under Plaintiffs’ punitive damages claim.

Accordingly, Defendants’ motion to strike is DENIED.