2018-00227833-CU-PO

George Merchant vs. Convenant Care California, LLC

Nature of Proceeding: Demurrer to Complaint

Filed By: Deering, Robert R.

Defendants Covenant Care California, LLC dba Capital Transitional Care, Barbara Addington, and Kaly Vo’s (together, “Defendants”) Demurrer to the Complaint is OVERRULED as follows.

Defendants’ request for judicial notice of (1) the Complaint, and (2) Covenant Care California, LLC’s status as a Skilled Nursing Facility is unopposed and is granted.

This is an elder abuse action. Plaintiff George Merchant, by and through his successor in interest, Nica Gauff (“Plaintiff”) alleges that George Merchant (“Decedent”) was transferred from Kaiser Hospital to Capital Transitional Care on August 3, 2015. Plaintiff alleges that while in the care of Capital Transitional Care, he was neglected and abused by the staff, which caused him to suffer from an infection, pressure ulcers, bruising, dehydration, malnutrition, and ultimately resulted in his death on February 28, 2016. Plaintiff alleges that the neglect of Decedent was a result of inadequate staffing, staff training, and staff supervision at Capital Transitional Care, as well as poor custodial care. Plaintiff alleges two causes of action against all Defendants for (1) Elder Abuse and (2) Wrongful Death. Plaintiff alleges a third cause of action against defendant Capital Transitional Care for Violation of Resident’s Bill of Rights (Health and Safety Code § 1569.269, 22 C.C. R. § 87468.)

Defendants filed this demurrer to all three causes of action on the grounds that they fail to state facts sufficient to state a cause of action and because they are time barred. Plaintiff opposes.

Legal Standard

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving

the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

Elder Abuse

Defendants argue that Plaintiffs have failed to plead sufficient facts to show that their Elder Abuse cause of action is timely. Defendants argue that an elder abuse cause of action must be pled with particularity, which would include Decedent’s date of discharge. Here, Defendants argue that Plaintiff’s cause of action is insufficiently pled, because the Complaint fails to allege Decedent’s date of discharge, which was January 26, 2016. They contend that if Plaintiff does amend the Complaint to include the date of discharge, the Elder Abuse cause of action will be untimely. Specifically, Defendants argue that the statute of limitations for Elder Abuse is two years pursuant to CCP § 335.1, and thus Plaintiff was required to file the Complaint by January 26, 2018, two years after his discharge from the facility. Because Plaintiff filed the Complaint on February 26, 2018, Defendants argue that the cause of action will be untimely if amended with the date of discharge. Thus, Defendants propose that the Court bypass the amendment of the Complaint as futile and simply sustain the demurrer without leave to amend.

In opposition, Plaintiff agrees that the Elder Abuse cause of action is governed by the 2 year statute of limitations set forth in CCP 335.1. Plaintiff also does not contest Defendants’ assertion that Decedent was discharged on January 26, 2016. However, he argues that the cause of action is timely because Decedent died on February 28, 2016, and the Complaint was filed on February 26, 2018, less than two years later.

At the outset, the Court notes that it may not consider the purported date of discharge for purposes of a demurrer. A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (McKenney v. Purepac Pharm. Co. (2008) 162 Cal.App.4th 72, 79.) Extrinsic evidence may not properly be considered on demurrer. ( Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.) The date of discharge is not pled in the Complaint, and Defendants have not requested judicial notice of the date of discharge. Accordingly, for purposes of this motion, the Court can make no determination as to whether the Elder Abuse cause of action is time-barred pursuant to the purported discharge date, as Defendants suggest.

Next, the Court considers the sufficiency of the allegations.

Elder abuse is a statutory cause of action provided for in Welfare & Institutions Code §§15600 et seq. At the pleading stage, Plaintiff must allege conduct within the Elder Abuse Act, and those claims must be pled “with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Welfare & Institutions Code section 15657 mandates specific pleading requirements for an elder abuse cause of action and requires more than general allegations. (Ibid.) The Supreme Court has affirmed in Covenant Care that trial courts are to perform the function of gate keepers for elder abuse claims by examining the material factual content of the pleadings, which require pleading with factual particularity. (Ibid.)

The court of appeals in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 explained in sustaining a demurrer to an elder abuse cause of action that: “The 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; (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, supra, 198 Cal. App. 4th 396, 406-407 [citations omitted].)

The high standard imposed by W&I § 15657 protects health care providers from liability under the statute “for acts of simple or even gross negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785.) Recklessness under the Elder Abuse Act is more than “inadvertence, incompetence, unskillfullness, or a failure to take precautions’ but rather rise to a level of a ‘conscious choice of a course of action…with knowledge of the serious danger to others involved in it.'” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Neglect includes, among other things, the failure to assist in personal hygiene, the failure to provide medical care for physical and mental needs, and the failure to protect from health and safety hazards. (Welf. & Inst. Code § 15610.57(b).) “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.” (e.g., Covenant Care, Inc., supra, 32 Cal.4th at 790.) As noted by the Supreme Court in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal. 4th 148, 156, “The Elder Abuse Act’s heightened remedies are available only in limited circumstances. A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with “recklessness, oppression, fraud, or malice.” (§ 15657.)

Here, Plaintiff alleges that Defendants were at all relevant times care custodians acting within the course and scope of their employment. (Compl. ¶10.) Plaintiff further alleges that due to grossly inadequate staffing, staff training, and staff supervision by Defendants, Plaintiff suffered from neglect and abusing including but not limited to: an infection, pressure ulcers, bruising, dehydration, and malnutrition. (Compl. ¶23.) Plaintiff alleges that Defendants failed to turn and position his body to relieve pressure and care for his skin, maintain a clean and sterile environment, provide proper assistance moving, provide adequate wound prevention precautions and ensure he had adequate nutrition and hydration, and grossly failed to render medical aid or seek treatment of Plaintiff’s infection and pressure ulcers. (Id.) Plaintiff alleges that Defendants owed Plaintiff a duty of care to, among other things, provide Plaintiff with food and fluids, assist with toileting, monitor his condition, and protect him from safety hazards, which they failed to do. (Compl. ¶32.) Plaintiff alleges that Defendants made the business decision to understaff and cut training to staff in their facilities, while charging Plaintiff a premium. (Compl. ¶25.) Plaintiff alleges that as a result of Defendants’ knowing neglect and abuse, Plaintiff suffered from painful ailments and died. (Compl. ¶¶29-40.)

These allegations are sufficient to plead a cause of action for Elder Abuse. Indeed,

Defendants do not seem to argue that these allegations are insufficiently particular, but rather that Plaintiff fails to meet the standard for particularity solely because he does not allege his discharge date from Defendants’ care. There is no requirement in the case law or in the statutory authority, as set forth above, requiring Plaintiff to plead a discharge date to sufficiently state a cause of action for Elder Abuse. The demurrer is accordingly OVERRULED.

Wrongful Death

Next, Defendants argue that Plaintiffs’ cause of action for Wrongful Death is time-barred. Defendants assert that the operative statute of limitations is CCP § 340.5, which is applicable to professional negligence claims. Here, Defendants contend that Plaintiff alleges that Decedent’s injuries resulted from Defendant’s professional medical services. Under section 340.5, the statute of limitations is three years after the date of injury or one year after the plaintiffs discover, or through the use of reasonable diligence should have discovered the injury, whichever occurs first. As Decedent died almost two years before the Complaint was filed, Defendants contend the Wrongful Death cause of action is indisputably time barred.

In opposition, Plaintiff argues that the relevant statute is CCP § 335.1, which provides for a two year statute of limitations for elder abuse. As argued, under section 335.1, Plaintiff’s cause of action would not be time barred, as the Complaint was filed less than two years after Decedent’s death. Plaintiff further argues that section 340.5 is inapplicable because it may only be applied to causes of action asserted against a licensed healthcare provider. Here, Plaintiff argues that Defendant is a rehabilitation facility, not a medical facility. However, Plaintiff cites to the Covenant Care website as support for this argument, which the Court may not consider on demurrer.

Welfare & Institutions Code § 15657.2 states, “Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider’s alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action. (Cal Wel & Inst Code § 15657.2.) Section 340.5(a) defines “Health care provider” as “any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider.”(CCP § 340.5.)

The Court finds that the statute of limitations found at Code of Civil Procedure section 335.1 also applies to Plaintiffs’ claim for wrongful death, as currently pled, rather than section 340.5. (San Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1553.) Plaintiff’s suit is not brought as an action for professional negligence, but for wrongful death from custodial neglect under the Elder Abuse Act. The Court would observe, C.C.P., sec. 377.60, provides that a “cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf.” The suit is not brought as an action for professional negligence, but for wrongful death from neglect under the Elder Abuse and Dependent Adult Civil Protection Act.

Moreover, Plaintiffs’ cause of action for wrongful death is asserted against three defendants: Capital Transitional Care, an alleged skilled nursing facility, Barbara Addington, the alleged “administrator of Capital Transitional Care and a managing agent for Covenant Care, LLC,” and Kaly Vo, the alleged “Director of Nursing to the Capital Transitional Care facility, and a managing agent for Covenant Care, LLC.” (Compl. ¶¶ 6-8.) Defendants have made no showing that these three Defendants, as alleged, all qualify as health care providers who committed professional negligence under section 340.5. A general demurrer will not go to a part of a cause of action. (Campbell v. Genshlea (1919) 180 Cal. 213, 217; Grieves v. Superior Court (1984) 157 Cal. App. 3rd 159, 163.)

As section 335.1 applies, and Decedent died on February 28, 2016, the two year statute had not yet expired at the time of the filing of the original complaint on February 26, 2018. The demurrer is accordingly OVERRULED.

Patients’ Bill of Rights

Finally, Defendants argue that a one year statute of limitations is applicable to Plaintiff’s Patients Bill of Rights cause of action, pursuant to CCP § 340(a). Section 340(a) provides that “an action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation,” is subject to a one year statute of limitations. Because Health & Safety Code § 1430(b) provides that a licensee shall be liable for up to $500 for a violation, Defendants contend that section 340(a) is the applicable statute of limitations. If the one year statute of limitations is applied, Plaintiff’s cause of action is time barred.

Plaintiff argues that section 340(a) is not the applicable statute of limitations. (Opp. at p. 5:2-8.) Thus, Plaintiff has not “abandoned” his right to this argument, as Defendants contend on reply. (Reply at p. 6.)

CCP § 340(a) provides a one year statute of limitations for claims for penalties. CCP § 338 provides a three year statute of limitations for all other claims for liability created by statute. Thus, if the remedies for a violation of Patient’s Bill of Rights (Health & Saf. Code, § 1430) are civil damages, the three year statute of limitations applies.

Health & Saf. Code, § 1430(a) repeatedly refers to the amount of “civil damages” that may be recovered in an action brought pursuant to this section. Subsection (b) provides that in addition to the Attorney General, 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

“A civil action for damages may be prosecuted by either the Attorney General or a private party . . . Section 1430 does not foreclose civil actions for damages by patients who have been injured by a violation; the remedies specified in that section are ‘in addition to any other remedy provided by law.’ (§ 1430, subd. (c).)” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 143.) In Kizer, the Supreme Court analyzed the Long-Term Care, Health, Safety, and Security Act of 1973 ( Health & Saf. Code, § 1417, et seq.) concluding that in addition to the penalties provided in other sections,

the “Act also provides an enforcement mechanism when the Department has not taken action and violations have not been corrected. Again, a civil action for damages may be prosecuted by either the Attorney General or a private party. The damages recoverable in such an action are not to exceed the maximum amount of civil penalties that could be assessed for the violation. (§ 1430, subd. (a).)” This Court concludes that the Legislature meant what it said, and civil actions under section 1430 are for civil damages, not for penalties, thus the three year limitations period of C.C.P., sec. 338 is applicable

Accordingly, the Court finds that the three year statute of limitations pursuant to section 338 is applicable. Plaintiffs’ Patients’ Bill of Rights claim is therefore not barred by the statute of limitations, and the demurrer to the third cause of action is

OVERRULED.

Leave to Amend

Plaintiff spends much of the Opposition stating facts that he intends to allege in an amended complaint. As the demurrer is overruled in its entirety, this request is moot.

Defendants shall file their Answer no later than December 7, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.