Case Name: Walter Newman, Jr. v. Manor Care of Sunnyvale of CA, LLC, et al.
Case No.: 18CV330047

This lawsuit was brought by Plaintiff Walter Newman Jr. (“Plaintiff”) against Defendants Manor Care of Sunnyvale CA, LLC (“Manor Care”), HCP Properties, LP and various Doe defendants. Plaintiff’s original complaint was filed on June 14, 2018 and stated three cause of action for (1) Negligence; (2) Elder Abuse, and (3) “Willful Misconduct”/Violation of Patients’ Bill of Rights.

Defendant Manor Care demurred to the original complaint and on January 29, 2019 the Court (Hon. Pierce) adopted as final the uncontested tentative order sustaining that demurrer to all three causes of action on the ground that they failed to state sufficient facts with 10 days’ leave to amend. Leave to amend was expressly granted because it was the first pleading challenge in the action and in spite of the opposition’s failure to address how any of the claims could be amended to state sufficient facts. A formal order on the demurrer was filed February 5, 2019.

Plaintiff’s first amended complaint (“FAC”) filed February 21, 2019 alleged the same three causes of action. Defendant Manor Care demurred again and the tentative order posted by the Court (Hon. Lucas) on July 8, 2019 sustained the demurrer without further leave to amend. Plaintiff’s Counsel appeared at the hearing and convinced the Court to afford them one more opportunity to amend. A formal order to that effect was filed July 10, 2019.

Plaintiff’s operative Second Amended Complaint (“SAC”) was filed July 19, 2019 and states the same three causes of action: (1) Negligence; (2) Elder Abuse, and (3) “Willful Misconduct”/ Violation of Patients’ Bill of Rights. Defendant Manor Care once again demurrers to all three causes of action.

Request for Judicial Notice
In support of its demurrer Manor Care requests that the Court take judicial notice of the February 5, 2019 formal order on the demurrer to the original complaint (exhibit A to the request) and the tentative ruling posted on the demurrer to the FAC, which was adopted as the final order by the Court with one change, leave to amend was granted to Plaintiff (exhibit B to the request). The request is made pursuant to Evidence Code §452(d) (court records).

The request for judicial notice is GRANTED as to both documents pursuant to Evidence Code §452(d). As both documents are court orders, their contents and their legal effect may be noticed.

Demurrer to the SAC
As noted in the prior orders, the Court in ruling on a demurrer treats it as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1985) 35 Cal.3d 197, 213-214.) Where a demurrer is to an amended complaint, the Court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 [internal citations omitted].)

First Cause of Action—Negligence
“In order to establish negligence, a plaintiff must demonstrate a duty on the part of defendant, breach of that duty, causation and damages.” (Strong v. State of Cal. (2011) 201 Cal.App.4th 1439, 1449.) Whether a duty of care exists is a question of law for the Court. (Id.) “To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62, emphasis added.) The existence and scope of an alleged duty of care are questions of law to be determined by the Court on a case-by-case basis. (Liaco v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 659.)

Defendant Manor Care’s demurrer to the first cause of action on the ground that it fails to state sufficient facts is SUSTAINED.

While the SAC adds additional allegations regarding Plaintiff’s medical diagnoses and medications, and Defendant’s procedures and plan for his care, it continues to fail to establish how any breach of Defendant’s alleged duties proximately caused Plaintiff to fall and suffer injury while alone in his room walking with the aid of a walker.

The factual allegations regarding the fall have shifted over time. The original complaint alleged (at ¶15) that “plaintiff fell from his bed.” This was changed without explanation to an allegation that Plaintiff fell while walking in his room with a walker “at or about noon on June 21, 2017,” (FAC at ¶20, SAC at ¶30).

There is no allegation in this case that Manor Care was required as part of its duty of care to assign staff to observe Plaintiff 24 hours a day and physically prevent him from walking with his walker without additional assistance whenever he chose to do so. But this appears to be the only logical way Plaintiff could establish that any negligent failure of Manor Care proximately caused his fall on June 21, 2017. Instead the pleading continues to attempt to bridge that analytical gap with general conclusory allegations that Plaintiff’s fall was somehow proximately caused by Manor Care’s failure “to provide physical assistance as needed” because it “did not hire competent employees and/or did not provide adequate training to those employees and/or did not hire enough employees to properly care” for its patients (SAC at ¶37); and/or the fall was caused by a failure by Manor Care to “follow its own guidelines or its promise,” and/or because Manor Care “negligently and carelessly failed to take reasonable precautions or provide reasonable care,” (SAC at ¶38). These allegations continue to fail to adequately plead the essential element of proximate causation.

As stated in the tentative order on the demurrer to the FAC, unless the juxtaposition of allegations of wrongful conduct and harm naturally give rise to an inference of causation, the pleader “must plead specific facts” to show how the conduct caused or contributed to his injury. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 900-901; Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78; see also 6 Witkin, Summary of California Law (11th ed. 2017) Torts §1334, p. 631 [“The first element of legal cause is cause in fact: i.e., it is necessary to show that the defendant’s negligence contributed in some way to the plaintiff’s injury, so that ‘but for’ the defendant’s negligence the injury would not have been sustained. If the accident would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.”])

Here, the juxtaposition of the varying general allegations of wrongful conduct and harm continues to not naturally give rise to an inference of causation. The SAC does not describe how “but for” a specifically identified negligent act or omission by Manor Care Plaintiff would not have walked with a walker while alone in his room on June 21, 2017 and/or would not have fallen and been injured. As Plaintiff has been unable to cure this defect despite prior opportunities to do so further leave to amend (which the opposition once again does not request) is DENIED.

Second Cause of Action—Elder Abuse
The Elder Abuse Act is codified in Welfare & Institutions (“W&I”) Code §15600 et seq. 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.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) To encourage private enforcement of the law, the Act affords heightened remedies, including damages for a decedent’s pain and suffering, attorneys’ fees and costs, and punitive damages. (W&I Code §15657; Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 779-780.) To state a claim for elder abuse, a plaintiff must plead facts showing: l) the defendant has subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and 2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (W&I Code §15657.) As a statutory claim, the elements must be pled with particularity. (See Covenant Care, Inc. v. Superior Court, supra at 790; Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396.)

Defendant Manor Care’s demurrer to the cause of action on the ground that it fails to state sufficient facts is SUSTAINED.

Plaintiff continues to attempt to reframe the allegations of negligent acts or omissions (Manor Care’s failure to prevent him from walking while alone in his room) as a violation of the Elder Abuse Act, even though a claim under the Act deals with concepts distinctly different from “normal” negligence. Plaintiff alleges that Manor Care’s failure to prevent him from walking with a walker while alone in his room was a breach of a duty of care “by failing to provide the necessary care and assistance to him and failing to provide adequate fall protections in light of his specialized needs and weakened physical state.” (SAC at ¶46.) This does not describe statutory Elder Abuse.

As was also the case in the prior pleadings, while the SAC at ¶48 mentions abuse and abandonment in passing, Plaintiff’s claim can only be reasonably understood as one based on alleged neglect.

“Neglect” is specifically defined in W&I Code §15610.57(a) as either 1) the negligent failure of a person having the care of an elder adult to exercise that degree of care that a reasonable person in that position would exercise or 2) the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in that position would exercise. Section 15610.57(b) states that neglect under the statute includes “but is not limited to,” 1) failure to assist in personal hygiene or the provision of food, clothing or shelter; 2) failure to provide medical care for physical and mental health needs; 3) Failure to protect from health and safety hazards; 4) failure to prevent malnutrition or dehydration, and; 5) Failure of an elder or dependent adult to satisfy the needs specified in 1-4 for himself/herself because of poor cognitive functioning, etc.

As for the required recklessness, “‘[r]ecklessness 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.’’ ‘‘Recklessness’ refers to a subjective state of culpability greater than simple negligence . . . Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’’ ‘[T]o obtain the [Elder Abuse] Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.’” (Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1045, emphasis added, internal citations omitted but citing Carter, Delaney, and Covenant Care, supra. See also Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336 [statutory definition of “neglect” refers to failure to provide medical care, not the negligent undertaking of medical services. Elder Abuse Act does not apply to simple or gross negligence.]) Is also well established that allegations of inadequate staffing do not by themselves support an elder abuse claim. (See Worsham, supra at 338, quoting Delaney at 34 [allegations of failing to provide adequate staffing “if true, demonstrate [Defendant’s] negligence in the undertaking of medical services, not a ‘fundamental ‘failure to provide medical care for physical and mental health needs.’’] Emphasis in original.)

Defendant Manor Care’s alleged failure to prevent Plaintiff from walking with a walker while alone in his room does not constitute reckless neglect. The SAC’s allegations at ¶¶49-50 that the “failure to provide physical assistance to Mr. Newman . . . constituted neglect as a failure to provide medical care . . . and/or to protect him from a health and safety hazard,” and was a failure “to provide for Mr. Newman’s basic needs and carry out their custodial obligations” are conclusory and do not meet the pleading standard for Elder Abuse based on reckless neglect. They do not describe, through specific facts, recklessness or “conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Cochrum, supra, at p. 1045.) At best they attempt to describe the negligent undertaking of medical services—which does not support a claim under the Act.

In order to assert an elder abuse claim against a business entity defendant such as Manor Care, a plaintiff must satisfy “[t]he standards set forth in subdivision (b) of Section 3294 of the Civil Code” by alleging malice, oppression, fraud, or recklessness committed or ratified by an officer, director, or managing agent of the entity. (W&I Code § 15657(c); Carter, supra, 198 Cal.App.4th at p. 405.) A managing agent is someone who, like a corporate officer or director, exercises “substantial discretionary authority over significant aspects of a corporation’s business” and policies. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577-78.) An employee is not a managing agent simply based on his or her title or responsibility for managing employees. (Ibid; accord CRST, Inc. v. Super. Ct. (2017) 11 Cal.App.5th 1255, 1273-75.) The SAC does not adequately allege ratification by any officer, director or managing agent of Manor care. Instead it simply repeats (SAC at ¶8) the boilerplate allegations that the Court has, twice, previously ruled did not satisfy the requirement.

Finally, contrary to Plaintiff’s argument in opposition, the facts in Sababin v. Superior Court (2006) 144 Cal.App.4th 81, involving the death of a dependent adult in custodial care with progressive dementia, who required nutrition and hydration through a gastronomy tube and a skin deterioration that the care provider failed to document and care for, are not comparable with the facts here—Plaintiff falling while alone in his room on June 27, 2017.

As leave to amend to address the defects in the claim has already been granted twice, further leave to amend (which the opposition does not request) is DENIED.

Third Cause of Action—“Wrongful Conduct”/Plaintiffs’ Bill of Rights
This cause of action alleges a “violation of the Patients’ Bill of Rights pursuant to California Health and Safety Code section 1430.” (SAC at ¶55.)

As explained in the prior demurrer orders, “Health and Safety Code § 1430(b) authorizes “a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients[’] Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” The Patients’ Bill of Rights establishes rights to, among other things, informed participation in healthcare decisions and maintenance of complete and accurate healthcare records (Lemaire v. Covenant Care California, LLC (2015) 234 Cal.App.4th 860, 864-65) as well as freedom from mental and physical abuse (Cal. Code Regs., tit. 22, § 72527, subd. (a)(10)). A civil action brought under § 1430(b) is, like an elder abuse claim, a statutory cause of action and must be pled with particularity. The incorporation of prior allegations by reference does not satisfy this requirement. Also, contrary to Plaintiff’s argument in opposition, there is no exception to this pleading requirement for statutory claims where the facts are purportedly within the knowledge of the defendant.

Defendant Manor Care’s demurrer to the third cause of action on the ground that it fails to state sufficient facts is SUSTAINED.

The claim as pled in the SAC continues Plaintiff’s practice of repeating allegations the Court has already found fail to state sufficient facts. The Court’s tentative order on the demurrer to the FAC included the following language:

“The third cause of action as alleged in the FAC repeats almost verbatim the allegations stated in the original complaint that were found inadequate. (Compare FAC at ¶¶38-43 with the original complaint at ¶¶24-28.) The only substantive addition to the claim as alleged in the FAC is in ¶41, alleging that “Mr. Newman was never informed that his mobility assessments included a requirement that he be physically assisted during transfers and while walking. Defendants’ failure to provide needed physical assistance to Mr. Newman, discussed in greater detail in paragraphs 1-23, violated his right to be treated with respect, dignity, and individuality. Last, defendants’ failure to provide physical assistance was because the facility failed to employ an adequate number of qualified personal to carry out its functions.”

This additional language does not cure the failure to state specific facts supporting a claim that Manor Care, as opposed to “defendants” generally, violated §1430(b) or explain how that alleged violation by Manor Care caused Plaintiff’s injury and damages, as alleged in the FAC at ¶43.”

Despite Plaintiff Counsel’s request for leave to amend at the hearing on the demurrer to the FAC, the claim as pled in the SAC repeats verbatim allegations that were already ruled to be inadequate to state sufficient facts. The allegations in the SAC at ¶¶54-60, with one exception, repeat verbatim the allegations from the FAC at ¶¶38-43. The one exception is the inclusion of one sentence in ¶57 of the SAC and a division of what was one paragraph (¶41 in the FAC) into two (¶¶57-58 in the SAC). The one new sentence (“Plaintiff was not fully advised of the need for fall precautions and complete staff assistance while engaged in movement, and special considerations for his mobility issues and weakened state.”) does not change the analysis from the prior demurrer. It does not cure the failure to state specific facts supporting a claim that Manor Care, as opposed to “defendants” generally, violated §1430(b) or explain how that alleged violation by Manor Care caused Plaintiff’s injury and damages.

Further leave to amend is DENIED as it is now apparent that Plaintiff is unable to amend the claim to state sufficient facts.