Case Number: BC645106 Hearing Date: February 08, 2018 Dept: 46

Case Number: BC645106
OGANES NADZHARYAN ET AL VS MAJOR LEWIS ET AL

Filing Date: 12/27/2016
Case Type: Other PI/PD/WD

02/08/2018
Hearing on Demurrer
Motion to Strike First Amended Complaint

TENTATIVE RULING

Defendant Major Lewis and Lynn Lewis, individually and as Trustees of the Lewis Living Trust, and Seabreeze Residential Facility demurrer is OVERRULED and the Motion to Strike is DENIED. See discussion.

DISCUSSION

MOTION #1-DEMURRER

2nd Cause of Action (“COA”): Elder Abuse

In order to state a claim for neglect under the Elder Abuse Act, “[t]he plaintiff must allege (and ultimately prove by clear and convincing evidence) 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 (Welf. & Inst.Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney, supra, 20 Cal.4th at p. 34, 82 Cal.Rptr.2d 610, 971 P.2d 986); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin, supra, 144 Cal.App.4th at pp. 85, 90, 50 Cal.Rptr.3d 266; Benun, supra, 123 Cal.App.4th at p. 116, 20 Cal.Rptr.3d 26; Mack, supra, 80 Cal.App.4th at pp. 972–973, 95 Cal.Rptr.2d 830); 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) (Welf. & Inst.Code, §§ 15610.07, subd. (b); 15610.57, subd. (b), 15657; Covenant Care, supra, 32 Cal.4th at pp. 783, 786, 11 Cal.Rptr.3d 222, 86 P.3d 290; Delaney, at pp. 31–32, 82 Cal.Rptr.2d 610, 971 P.2d 986). Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 369, 406-407.

The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst.Code, §§ 15610.07, subds. (a), (b), 15657; Perlin, supra, 163 Cal.App.4th at p. 664, 77 Cal.Rptr.3d 743; Berkley, supra, 152 Cal.App.4th at p. 529, 61 Cal.Rptr.3d 304.) Finally, 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. (Covenant Care, at p. 790, 11 Cal.Rptr.3d 222, 86 P.3d 290.)” Id. at 407.

The First Amended Complaint (“FAC”) alleges in relevant part as follows:

“18. On or about December 27, 2015, when DECEASED was a resident at the facility of Defendants, DECEASED was allowed to consume chicken with bone while left unsupervised by staff.

19. Defendants, prior to making the chicken available to DECEASED, were informed, based on information and knowledge, that DECEASED was not able to eat non-pureed food (especially bone with chicken) while unattended by an agent monitoring her consumption due to difficulties in eating that DECEASED had prior to December 27, 2015. Defendants were made aware of this by DECEASED herself and her family members and medical care providers. Defendants’ own records indicate that there was a precaution in place such that Deceased would not consume non-pureed food items, especially when not directly and immediately supervised, due to the high probability of choking to death as a result.

20. After consuming the chicken with bone on December 27, 2015, DECEASED began to choke on the chicken with bone and consequently suffocated. No agent or employee of Defendant was monitoring DECEASED during her consumption of the food item, nor did anyone come to her aid in a reasonable amount of time after she began choking on the chicken with bone in order to prevent the choking. In fact, DECEASED was found several minutes later, brain dead at the Defendants’ SEABREEZE facility

21. Defendants abused and neglected the DECEASED on December 27, 2015 while she consumed the chicken with bone due to the following reasons: (1) they made available chicken with bones to Plaintiff knowing very well that she was not medically cleared to consume such foods while unattended by a medical care professional or some other care provider to assist her in eating the chicken with bone; (2) they allowed DECEASED to consume the chicken with bones on multiple occasions on the date of loss while unattended by any medical professional or staff member to monitor and supervise her consumption; (3) they failed to render aid in a reasonable time frame after DECEASED had consumed chicken with bone and was unable to chew or otherwise swallow the chicken bone due to her pre-existing conditions, as known by Defendants; (4) they failed to monitor DECEASED while she consumed the chicken with bone at the eatery where the incident occurred even though they had pre-existing knowledge and notice that Plaintiff was not medically cleared to consume such food items while unattended to by a medical care professional or other adequate staff member; (5) the Defendants failed to monitor or otherwise supervise DECEASED in a reasonable manner to prevent brain damage to DECEASED due to the suffocation she suffered as a result of the chicken bone choking her; and (6) the Defendants failed to adequately staff SEABREEZE so as to properly, efficiently, and carefully monitor DECEASED to prevent the subject incident from occurring.

22. After noticing Deceased suffocated and not moving more at least five (5) minutes after DECEASED had gone unconscious, Defendants’ agent discovered DECEASED and requested emergency medical services. After being transported to the hospital on the day of the incident, December 27, 2015, Plaintiff was pronounced brain dead and placed on life support. On December 31, 2015, Plaintiff perished after life support was ended.

23. DECEASED would not have suffered a brain injury and subsequent death but for the Defendants’ carelessness -and neglect in managing her stay at SEABREEZE.

24. Per Defendants’ custom, habit, and practice, DECEASED was routinely and occasionally left unmonitored in the kitchen area of the subject premises, directly against the standards of practice at similar facilities and health and safety code/welfare and institution code regulations. In fact, Defendants routinely and customarily would allow the DECEASED to consume food items while unattended throughout her stay in the kitchen area. Additionally, the Defendants would routinely and customarily make hard food readily available to DECEASED in the kitchen area while unattended on several occasions previous to the incident, even though they knew that by doing so the danger that DECEASED would harm herself if she were to consume any hard, non-pureed food items, the chances that she would suffocate and die would be tremendously high and likely to occur, Though Defendants knew of these dangers, they still continuously left DECEASED unmonitored and unsupervised in the kitchen area with non-pureed food items readily available to her.

25. Additionally, the Defendants were in charge of ensuring that DECEASED received properly prepared meals in accordance with a prearranged meal plan. However, the DECEASED appears to have been starving on the date of the incident and hence, resorted to eating foods directly against her health plan while left unsupervised by any staff. The Defendants’ conduct in not properly ensuring that Decedent was being fed properly, adequately and in line with the standard of care led to the incident occurring.

…

60. At all times herein mentioned, DECEASED was a resident of the State of California and was a member of the class of persons intended to be protected by the Elder Abuse and Dependent Adult Civil Protections Act (Welf & Inst. Code §15600 et seq.).

61. The conduct of Defendants, as alleged above, constituted statutory abuse and neglect of DECEASED as defined by Welfare and Institutions Code §15610.57. Said defendants and/or employees under their supervision, withheld essential care and services from DECEASED, as detailed above in the “General Allegations” section of this Complaint.

62. After the subject choking incident, Defendants notified ARUTYUN NADZHARYAN via telephone; however, after the subject incident, Defendants failed to cooperate with any of DECEASED’s family members, refused them access to the facility, and ignored their requests for her records in a deliberate attempt to circumvent Plaintiffs’ ability to adequately investigate the incident.

63. At all times herein mentioned, defendants authorized—ratified, assisted and encouraged the acts of all Defendants’ nurses by failing to establish, implement, and enforce policies and procedures required for the protection of patients such as DECEASED; by failing to reprimand and/or dismiss employees who were not adequately qualified to provide care to patients in their custodial care, such as DECEASED; by failing to sufficiently train/retrain their emp1oyees/gents so as to provide adequate monitoring, supervision, and care to persons such as DECEASED; by failing to adequately staff the subject to residential care facility with the appropriate amount of properly trained, educated, and licensed professionals and employees necessary to adequately monitor, supervise, and care for patients such as DECEASED; and by failing to take other reasonable actions to ensure that the dependent patients in their care and custody, including DECEASED, were not neglected or abused in violation of the Elder/Dependent Adult Abuse/Neglect Act.

64. All of the above described withholding of necessary care and services by said defendants were done recklessly, in that defendants knew that said acts and/or omissions posed a serious danger to Defendants’ dependent patients, including DECEASED, which the California Legislature recognized are a “disadvantaged class.’ (Well, & Inst. Code § 15600). Defendants’ staff and supervisors knew, based on their training and experience, as well as the written policies and protocols, that DECEASED was at a high risk to choke and suffocate if she ate chicken with bone while unattended, unsupervised and unmonitored. Nevertheless, Defendants deliberately and continually disregarded the high probability that DECEASED’s safety and health would be endangered and that she would suffer unnecessarily and proceeded to make available to DECEASED chicken soup with bones while unattended, unsupervised, and unmonitored by any care custodian or other employee tasked with the responsibility of caring for patients such as DECEASED.” (FAC ¶¶ 18-25, 60-64).

Defendants, as with the original complaint, once again challenge the third element of the claim. The court previously sustained the demurrer to the Complaint as to the third element because it contained allegations of only one incident, which would be sufficient to show only negligence, not recklessness. “The Elder Abuse Act does not apply to simple or gross negligence by health care providers.” Worsham v. O’Connor Hospital (2014) 226 C.A.4th 331, 336. P’s case hangs on Ds’ failure to supervise the decedent; only in cases where required care is provided sporadically or not at all will failure to supervise constitute abuse. See Id. at 338; Sababin v. Superior Court (2006) 144 C.A.4th 89-90.

In an attempt to remedy the previous deficiency, Plaintiff has alleged that Defendants routinely provided the decedent with hard food and left her unsupervised in the kitchen area to eat it. (FAC ¶ 24). Plaintiff has also alleged that Defendants starved Plaintiff, inducing her to eat the hard food which was otherwise unsafe for her. (FAC ¶ 25).

At least as to the allegation that the decedent was routinely given hard food without supervision is sufficient to support this cause of action (“COA.”) The FAC currently contains detailed and specific allegations about a single incident, and the more general allegation that this sort of situation arose all the time in Defendants’ kitchen. That is sufficient, over the objection that the allegations are conclusory, to apprise Defendants of the grounds of the charge and enable them to prepare a defense. See Chapman v. Skype Inc. (2013) 220 C.A.4th 217, 231. Plaintiff has now pled that the denial of care was routine, elevating this from a case of mere negligence to recklessness.

Defendants also argue that Plaintiffs have insufficiently pled their ability to recover damages. Welf. & Inst. Code § 15657 states that the standard for imposition of damages on an employer for acts of the employee in elder abuse cases is the same as the standard for the imposition of punitive damages on an employer generally under Civ. Code § 3294(b). Section 3294(b) permits the imposition of damages only where “[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 [2] authorized or ratified the wrongful conduct for which the damages are awarded or [3] was personally guilty of oppression, fraud, or malice.” Additionally, for a corporate employer, any of the above three acts must be “on the part of an officer, director, or managing agent of the corporation.” Civ. Code § 3294(b).

Plaintiff has alleged that Defendants authorized and ratified the conduct complained of. (FAC ¶ 63). Defendants Major and Lynn, as owners of Defendant Seabreeze, are surely managing agents of Defendant Seabreeze capable of controlling its actions to the degree required for the imposition of damages. And matters of ratification and authorization are usual elements for the application of the doctrine of less particularity (see Chapman, supra, 220 C.A.4th at 231), because plaintiffs are not usually familiar with the corporate structures and decision-making processes of defendant entities.

The demurrer is therefore overruled as to the Elder Abuse cause of action.

3rd COA: Health & Safety Code § 1430

Health & Safety Code § 1430(b) reads in relevant part as follows:

“(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring 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 suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee’s employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue.”

Defendants now raise the argument that Defendant Seabreeze is not a skilled nursing facility or intermediate care facility as defined in Health and Safety Code § 1250, and therefore Plaintiff cannot bring an action under Section 1430(b).

Section 1250 defines the terms at issue as follows:

“(c)(1) “Skilled nursing facility” means a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis.

(2) “Skilled nursing facility” includes a “small house skilled nursing facility (SHSNF),” as defined in Section 1323.5.

(d) “Intermediate care facility” means a health facility that provides inpatient care to ambulatory or nonambulatory patients who have recurring need for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care.”

Defendants argument that Seabreeze does not fit this bill is in the nature of an affirmative defense. An affirmative defense must appear on the face of the pleading in order for a demurrer to lie. See Arguello v. Edinger (1858) 10 C. 150, 157, Smith v. Hall (1861) 19 C. 85, 86; E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 C.A.4th 1308, 1316.

The mere fact that Plaintiff refers to Defendant Seabreeze as a Residential Care Facility cannot be relevant here. “Residential Care Facility” is not a term defined in Section 1250, so use of that term instead of “skilled nursing facility” or “intermediate care facility” does not exclude the application of those terms. “Residential Care Facility” is a term defined in Health and Safety Code § 1569.2, which states that such a facility provides seniors “varying levels and intensities of care…based upon their varying needs.” That definition is clearly broad enough to encompass “skilled nursing facilities” and “intermediate care facilities.”

The demurrer to this COA is OVERRULED.

DISCUSSION

MOTION #2—MTS

The motion to strike is DENIED. Defendants motion is made on the same grounds as their demurrer; the result is the same.

IT IS SO ORDERED:

Frederick C. Shaller, Judge