Case Number: GC051049 Hearing Date: May 23, 2014 Dept: B

Demurrer and Motion to Strike

Case Management Conference

The Complaint alleges that the Plaintiff was a mentally disabled 27 year old man. The Plaintiff was admitted to the Defendant’s outpatient treatment program. It is alleged that the Defendant neglected the Plaintiff by permitting him to leave the facility and then failing to notice that he was missing for about five hours. This resulted in the Plaintiff being missing for six days. During this six day period, the Plaintiff suffered from lack of food, water, and medication. This trauma caused the Plaintiff to be placed in an inpatient psychiatric facility for nine months.

The causes of action in the First Amended Complaint are:
1) Dependent Adult Abuse
2) Negligence
3) Negligent Infliction of Emotional Distress

This hearing concerns the Defendant’s demurrer and motion to strike directed at the First Amended Complaint.

1. Demurrer

The Defendants argue that the first cause of action for elder abuse does not plead sufficient facts to state the statutory claims. The memorandum fails to support the demurrer. It consists of pages of legal citations followed by a single paragraph on page 6 in which the Defendant argues that the Complaint is devoid of facts and that the Plaintiff has alleged only a negligence cause of action. The Defendant made no effort to analyze the pleadings, discuss the allegations, and demonstrate through arguments that apply the legal requirements to the allegations made in the pleadings to demonstrate that the cause of action lacks sufficient facts. The Defendant’s failure to support the demurrer with any analysis of the pleadings is the first ground to overrule the demurrer.

Further, a review of the pleadings reveals no basis for a demurrer based on the failure to state sufficient facts. A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare and Institutions Code sections 15600 to 15675 (references to code sections refer to the Elder Abuse Act).

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 Elder Abuse 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, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died.

In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for the following:

1) physical abuse as defined in section 15610.63; or
2) neglect as defined in Section 15610.57.

In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Accordingly, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice.

A review of the pleadings in the first cause of action reveals that the Plaintiff pleads that the Defendant engaged in neglect in the care and treatment they provided to the Plaintiff. To plead neglect within the meaning of the Elder 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.

In addition, the plaintiff must allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Id. 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. Id.

The Plaintiff alleges the following:

1) The Defendant had responsibility for meeting the basis needs of the Plaintiff because he was in their outpatient program and he was wholly dependent on the facility staff to meet his basic needs (paragraph 8);
2) The Plaintiff was a mentally disabled 27 year old man who had been diagnosed with schizophrenia and other psychotic disorders (paragraph 5). The Defendant knew of the Plaintiff’s need to be closely supervised because he lacked the mental ability to provide for his own needs or safety and the Defendant had been specifically warned that the Plaintiff needed to be under close supervision and closely watched (paragraph 7).
3) The Defendant withheld the needed care by failing to closely supervise the Plaintiff, by permitting him to leave the facility without supervision, by failing to notice that he was missing for five hours, by failing to notice that he was missing despite the Plaintiff’s failure to appear at four therapy sessions, and by failing to call promptly the police when he was discovered missing (paragraphs 10 to 12). In addition, the Defendant knew of the danger to the Plaintiff if they did not closely supervise him because he did not have the mental ability to provide for his own needs or safety (paragraph 7). The Defendant knew that the failure to provide for his basic needs would unnecessarily expose the plaintiff to great physical and mental harm (paragraph 49). The Defendant failed to provide for his basic needs with a conscious disregard that the Plaintiff would suffer unnecessary physical, mental, and emotional pain and suffering (paragraph 52).

These allegations plead neglect by demonstrating that the Defendant had responsibility for meeting the Plaintiff’s basic needs, that the Defendant knew that the Plaintiff was unable to provide for his basic needs, and that the Defendant withheld services necessary to meet the Plaintiff’s basic needs with knowledge that injury was substantially certain to behalf the Plaintiff.

Further, the Plaintiff alleges in paragraph 13 that as a result, he suffered severe emotional distress and mental suffering because he was missing for six days during which he did not receive food, water, or the medication necessary to control his schizophrenia. Further, the Plaintiff alleges in paragraphs 17 to 19 that after he was found, the Plaintiff was diagnosed with acute encephalopathy and had to be placed in an inpatient psychiatric facility for nine months. These allegations are sufficient to identify the physical harm and mental suffering and to establish the causal link between the neglect and the injury.

These allegations are sufficient to plead a dependent adult abuse claim. This is the second ground to overrule the demurrer.

In the reply, the Defendant argues that there are no allegations that identify egregious conduct. However, the above analysis of the pleadings indicate that the Defendant, knowing that the Plaintiff needed to be supervised closely due to his mental disability, failed to supervise him and failed to notice he was missing despite him missing four therapy sessions. It is egregious to fail to notice that a mental patient who unable to care for his basic needs is missing, especially when he is not present for four, separate therapy sessions. Accordingly, the pleadings allege sufficient facts to plead that the Defendant engaged in egregious misconduct.

Therefore, the Court overrules the demurrer to the first cause of action.

2. Motion to Strike

The Defendant argues that the Court should strike the request for punitive damages because the Plaintiff did not comply with CCP section 425.13. The Defendant again fails to support its motion with any analysis of the pleadings. Citations to law followed by a conclusion that the “Clearly, Plaintiffs have come nowhere near the burden” do not constitute a persuasive argument. Further, the Defendant’s argument lacks merit because the Plaintiff has pleaded a dependent adult abuse claim to which CCP section 425.13 does not apply.

CCP section 425.13 provides that in any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. Case law interpreting section 425.13 holds that it does not apply to a claim for elder abuse because the claim does not arise from professional negligence. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 783. Accordingly, the Plaintiff is not required to comply with CCP section 425.13 to seek punitive damages.

Under Civil Code section 3294, a plaintiff may recover an award of punitive damages on a showing that the defendant acted with malice, oppression, or fraud. Civil Code section 3294 defines “malice” to mean 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. As discussed above, the allegations indicate that the Defendant consciously disregarded the safety of the Plaintiff by failing to supervise him closely despite the knowledge that this could result in severe physical and mental injury to the Plaintiff. It is despicable conduct to take custody of a mental patient who cannot provide for his basic needs and then fail to supervise the patient to such an extent that the Defendant’s employees do not notice that he is missing for five hours during which he missed four, separate therapy sessions. These allegations are sufficient to plead that the Defendant engaged in malicious conduct.

In addition, when the punitive damages are sought against an employer, Civil Code section 3294 requires the plaintiff to establish the following:

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 or authorized;
2) the employer ratified the wrongful conduct for which the damages are awarded, or
3) the employer 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 alleges in paragraphs 29 to 34 that the Defendants included the officers, managing agents, and members of the board of directors involved in the administration, operation, management, and supervision of the patients and employees. In paragraph 51, the Plaintiff alleges that the Defendants authorized, ratified, assisted, and encouraged the acts of the employees by failing to establish and implement polices and procedures, by failing to reprimand or dismiss unqualified employees, by failing to train employees, and by failing to take acts to ensure that mentally disabled patients were not neglected. These allegations are sufficient to demonstrate that the Defendant can be subject to punitive damages for the acts of its employees.

In addition, the Defendant argues that the Plaintiff should not be permitted to seek damages under Welfare and Institutions Code section 15657 in the second cause of action for negligence and in the third cause of action for negligent infliction of emotional distress because they are not causes of action for elder abuse. However, section 15657 does not limit its remedies to causes of action for “elder abuse”. Instead, section 15657 provides additional remedies to a plaintiff who establishes that the defendant engaged in physical abuse or neglect and recklessness, oppression, fraud, or malice in the commission of this abuse. The Defendant made no effort to analyze the second and third causes of action to demonstrate that they lack the necessary allegations. Since the Defendant did not support its motion and demonstrate that it is entitled to the relief requested, the Court denies the motion.

Therefore, the Court denies the motion to strike because the Plaintiff does not need to comply with CCP section 425.13 and because the Plaintiff has alleged sufficient facts to support the claim for punitive damages.