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; various SCSNC nurses; and various SCSNC physicians, including Richard Minkner (“Minkner”) (collectively “Defendants”).

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 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.) They 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 further 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 six causes of action 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”).

Currently before the Court is Minkner’s demurrer to the first cause of action, which Plaintiffs oppose.

II. Demurrer

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 Defendants repeatedly and continuously failed to fulfill their care and custodial duties to Barba by depriving him of food and/or water, medication, one-on-one care, hygiene care, medical care, assessments of his condition and a timely response to his emergent medical condition.

Minkner demurs to this cause of action on the ground of failure to state facts sufficient to constitute a cause of action (See Code Civ. Proc., § 430.10, subd. (e).) He argues the allegations do not meet the heightened pleading requirements for stating an elder abuse claim under Welfare and Institutions Code section 15657 (“Section 15657”) because they do not allege anything more than professional negligence and Plaintiffs do not substantiate their averment of recklessness, oppression, fraud or malice.

“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.) The general rule for statutory causes of action is that they must be pled 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.”

In order to obtain the remedies available under section 15657, the plaintiff must allege the 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 v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (“Carter”), 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.) Examples of neglect, as explicitly listed under Section 15657, include the failure to provide medical care for physical and mental needs, assist with personal hygiene, provide food, and prevent dehydration. (See e.g. Delaney, supra, 20 Cal.4th at 33; Carter, supra, 198 Cal.App.4th at 405.)

Here, contrary to Minkner’s assertion, Plaintiffs do not merely allege he undertook to provide medical services and did so inadequately. Instead, they allege he withheld and fundamentally failed to provide Barba with necessary care. Minkner’s reliance on Carter, supra, in support of his argument the allegations establish only professional negligence is misplaced.

In Carter, the plaintiffs alleged the defendant hospital was liable for elder abuse because it failed to treat their father’s pressure ulcers, administer prescribed medications and properly stock a crash cart with medical supplies that could have saved their father’s life. (198 Cal.App.4th at 402.) In determining if an elder abuse claim was pled, the court stated: “[W]hen the medical care of an elder is at issue, [Section 15657’s] definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Id. at 404-05, internal citations and quotations omitted, emphasis in original.) The court then analyzed the allegations in the complaint and determined no elder abuse claim had been stated because the plaintiffs did not aver the hospital withheld or denied any care, services or treatment of their father. (Id. at 407-08.) In fact, as observed by the court, the allegations indicated the hospital actively undertook to provide treatment for him, even if it might have done so negligently. (Id. at 408.) Among other things, the hospital performed diagnoses of the father’s medical conditions and diligently attempted to provide him with treatment intended to save his life. (Ibid.)

Here, in contrast, Plaintiffs do not allege Minkner undertook to provide Barba with medical care and did so negligently. Rather, they allege Minkner “repeatedly withheld from and/or failed to provide to [Barba] food and/or water necessary to meet his basic needs.” (Complaint, ¶ 37, emphasis added.) They also aver he “withheld from and deprived [Barba] of goods and services necessary for his proper medical and health care.” (Id. at ¶ 38, emphasis added.) Accordingly, under the standard discussed by the Carter court, Plaintiffs sufficiently plead a claim for elder abuse.

Minkner further argues no elder abuse claim has been pled because many of the allegations that form the basis of this cause of action also form the basis of Plaintiffs’ claim for professional negligence. This contention is not persuasive.

First, Minkner does not explain why allegations forming the basis of an elder abuse action could not also form the basis of a professional negligence action. He also cites absolutely no legal authority supporting his proposition that “[t]he same conduct and resulting injuries cannot found to be both elder abuse and negligence.” (Dem. at p. 6:25-26.) As such, he fails to substantiate his contention. (See Cal. Rules of Court, rule 3.1113(b) [supporting memorandum must include a discussion of legal authority in support of the position advanced].) Second, as Minkner’s own demurrer indicates, even though many of the allegations that form the bases of the two claims are identical, at least one allegation in the elder abuse claim is far more egregious than those pled in the professional negligence claim – namely, the averment he failed to “provide [Barba with] food and/or water.” (See Dem. at p. 6:7-22.) As already discussed, this failure does not amount to mere negligence but is one of the enumerated forms of neglect as it is defined in Section 15657. (See Welf. & Inst. Code, § 15610.57, subd. (b) [“Neglect includes… [the] [f]ailure to assist in personal hygiene, or in the provision of food… .”]; see also Carter, supra, 198 Cal.App.4th at 404-05.)

Minkner’s argument that Plaintiffs’ averment of recklessness, oppression, fraud and/or malice is merely conclusory and the failures alleged do not amount to recklessness also lacks merit. The allegations are sufficient to demonstrate recklessness under the applicable legal standards discussed above. Plaintiffs specifically allege Minkner knew of Barba’s medical conditions (i.e. uncontrolled type 2 diabetes, alcohol withdrawal delirium and dementia) yet withheld, denied and failed to provide him with care. (FAC, ¶¶ 35, 37-39.) This allegation is sufficient to demonstrate Minkner 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 he “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.])

Finally, for the first time in his reply, Minkner argues that the purported elder abuse is not alleged with sufficient particularity because “clump[ing] numerous defendants together” prevents him from discerning what wrongful conduct is alleged specifically against him. (Reply at p. 3:1-11.) Because this argument was not originally raised in his demurrer, it is not properly before the Court. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [courts generally do not consider arguments raised for the first time on reply for the simple reason that opposing counsel is deprived of an opportunity to address them]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303.) In any event, the fact the defendants are referred to collectively does not mean the pleading is undecipherable or lacks sufficient particularity. Minkner is specifically named as one of the defendants against whom the elder abuse claim is being brought and the allegations of the claim set out the specific misconduct he purportedly committed, including the failure to provide Barba with food, water, medication, and one-on-one care. (See FAC, ¶ 44.)

For these reasons, the demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a claim is OVERRULED.