Case Number: BC704785 Hearing Date: November 27, 2018 Dept: A

# 8. Jimi Furlano, et al. v. Canyon Ridge Hospital, Inc., et al.

Case No.: BC704785

Matter on calendar for: hearing on demurrer (x3)

Tentative ruling:

I. Background

This is a wrongful death and dependent adult neglect action. Plaintiff Jimi Furlano was involuntarily admitted to defendant Canyon Ridge Hospital, Inc., on May 1, 2016, due to schizophrenia and suicidal ideations. He was discharged on May 16, 2017. Staff from defendants Los Angeles County Department of Mental Health (“DMH”) and Pacific Asian Counseling Services (“PACS”) arranged the transportation of Mr. Furlano to defendant Live Life, a supportive living program that contracts with DMH.

The day before discharge, Mr. Furlano’s mother, Jennifer Schickedanz, allegedly was told that Mr. Furlano would be transported to a different facility, Penn Mar Therapeutic Center.

On May 16, 2017, after he was transferred to Live Life, Mr. Furlano was seen leaving “for a walk” at 6 pm. That evening, he was struck by train less than 200 feet from Live Life’s facility. (FAC ¶¶ 46–48.)

The First Amended Complaint (“FAC”) alleges two causes of action for (1) dependent adult neglect (Welf. & Inst. Code, § 15600 et seq.), and (2) wrongful death. Ms. Schickedanz brings suit as Mr. Furlano’s successor in interest and individually.

Three defendants demur to the First Amended Complaint:

1) Mukund Deshmukh, M.D., who was the attending physician at Canyon Ridge Hospital

2) Canyon Ridge Hospital

3) PACS

The demurrers are opposed.

For the reasons set forth below, the demurrers are overruled.

II. Standard

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; 2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P. § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) “Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

III. Analysis

A. Canyon Hospital demurrer

Canyon demurs to the first cause of action for dependent adult neglect. The Elder Abuse Act enhances the potential sanctions for neglect of elders or dependent adults. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155.) The act establishes heightened remedies, “allowing not only for a plaintiff’s recovery of attorney fees and costs, but also exemption from the damages limitations otherwise imposed by Code of Civil Procedure section 377.34. Unlike other actions brought by a decedent’s personal representative or successor in interest, claims under the [Elder Abuse Act] allow for the recovery of damages for predeath pain, suffering, and disfigurement. [Welf. & Inst. Code § 15657.]” (Ibid.) “What seems beyond doubt is that the Legislature enacted a scheme distinguishing between–and decidedly not lumping together–claims of professional negligence and neglect. [Citations.]” (Id. at 159–160.)

The issue here is whether the alleged conduct is professional negligence or neglect under the Elder Abuse Act. “[I]f the neglect is ‘reckless,’ or done with ‘oppression, fraud or malice,’ then the action falls within the scope of section 15657 and as such cannot be considered simply ‘based on … professional negligence’ within the meaning of section 15657.2.” (Delaney v. Baker (1999) 20 Cal.4th 23, 35.) “[T]he Elder Abuse Act’s goal was to provide heightened remedies for, as stated in the legislative history, “acts of egregious abuse” against elder and dependent adults [Citation], while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence.” (Ibid.)

Canyon argues that plaintiff’s first cause of action for neglect under the Elder Abuse Act is window dressing for a professional negligence claim.

Plaintiffs essentially allege that defendants either misdiagnosed Mr. Furlano and recklessly discharged him, or intentionally misrepresented his condition for financial purposes. The former allegations sound in professional negligence and do not amount to “acts of egregious abuse” contemplated under the Elder Abuse Act. Allegations of fraud, however, do amount to neglect under the Elder Abuse Act. The elements of fraud are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled with specificity. (Id. at 645.) This “necessitates pleading facts which show how, when, where, to whom, and by what means representations were tendered.” (Ibid.) “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.” (Civ. Code, § 3294(b).)

Here, plaintiffs allege that Canyon misrepresented that Mr. Furlano was not a danger to himself or others, and that Canyon fraudulently concealed its financial motives. In paragraphs 66–69 plaintiffs claim that officers and directors of Canyon “knew that their facilities were being run in such a manner so as to maximize profitability by circumventing the legal duty to assure the health, safety and oversight of residents such as JIMI and, in particular, the duty to hire competent employees, to train those employees and to terminate or discipline employees for misconduct towards the residents, including JIMI.” (FAC ¶ 68.) Plaintiffs allege that the officers and directors set policy and that Canyon’s policy was to maximize profit by circumventing health standards. (FAC ¶ 66.)

Less particularity in pleading is required when “it appears that [the] defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable [the] preparation of a defense.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.) The allegations concerning Canyon’s internal policies and the claimed connection to decisions made about Mr. Furlano are sufficient to alert Canyon to the charges it must face.

Canyon’s demurrer is overruled.

B. Deshmukh demurrer

The Court grants Deshmukh’s request for judicial notice and notices Welf. & Inst. Code §§ 5150, 5250, 5257, and 5259.3.

1. Immunity under the Lanterman-Petris-Short Act (“LPS Act”)

Welfare & Institutions Code § 5150(a) allows for an individual determined to be a danger to others or themselves, as a result of a mental health disorder, to be taken into custody for up to 72 hours for purposes of assessment. Welfare & Institutions Code § 5250 allows for the 72 hours to be extended for 14 days for intensive treatment under certain conditions, such as a finding that the person, as a result of their mental health disorder, is a danger to others or themselves, or gravely disabled. (Welf. & Inst. Code, § 5250(a).) After the 14 days, the person “shall be released” unless they are recertified for additional intensive treatment. (Welf. & Inst. Code, § 5257.) Welfare & Institutions Code 5259.3(c) states that “the medical director of the facility or his or her designee described in Section 5257, the psychiatrist directly responsible for the person’s treatment, or the psychologist shall not be held civilly or criminally liable for any action by a person released at the end of the 14 days pursuant to this article.”

Deshmukh argues that he is immune from both causes of action under Welfare & Institution Code § 5259.3(c). In opposition, plaintiffs argue that he is not immune because Deshmukh did not have a good faith basis for discharging Mr. Furlano; he was discharged for financial reasons. (Deshmukh Opp. 6–7; FAC ¶ 42.) The allegations before the Court are similar to those in Bragg v. Valdez (2003) 111 Cal.App.4th 421, 432–433. Bragg involved a patient who was released despite the psychiatrist’s determination that the patient was a danger to himself because he did not have insurance. (Bragg, surpa, 111 Cal.App.4th at 430.) Here, plaintiffs allege that Deshmukh’s knew Mr. Furlano posed a danger to himself but did not recertify him because he was not able to pay for medical services and they would not be reimbursed. (FAC ¶ 42.) The FAC sufficiently alleges misrepresentations, and if these allegations are proved, the immunity of Welfare & Institutions Code 5257(c) would not extend to Deshmukh.

Deshmukh’s demurrer is overruled.

C. PACS demurrer

Only the second cause of action for wrongful death is alleged against PACS. PACS argues the claim is conclusory, ambiguous and uncertain. Specifically, PACS argues that plaintiff seeks to circumvent the limitations of MICRA, Civil Code 3333.2, by pleading non-malpractice negligence.

Paragraph 77 alleges ordinary negligence against PACS. In that paragraph, plaintiffs claim that PACS is a case management service that organizes the transportation of vulnerable adults. It took custody of Mr. Furlano and negligently deposited him at a facility it knew was unlicensed. Beyond this, plaintiffs admit that at this time they do not know the precise nature of PACS’s arrangement with the Department of Mental Health. Discovery may reveal that plaintiffs have only a medical negligence claim against PACS, subject to MICRA limits. However, the allegations of the FAC are not impermissibly vague or uncertain. They sufficiently advise PACS of the issues.

PACS’s demurrer is overruled.

IV. Ruling

The demurrers are overruled. Defendants must answer within 20 days.