Case Number: 19STCV31244 Hearing Date: January 21, 2020 Dept: 47

Tentative Ruling

Judge Randolph M. Hammock, Department 47

HEARING DATE: January 21, 2020 TRIAL DATE: None set.

CASE: Mary Nelson, by and through her Successor in Interest, Elmer Pogue, v. CHA Hollywood Medical Center, et al.

CASE NO.: 19STCV31244

(1) DEFENDANT CHA HEALTH SYSTEMS, INC.’S DEMURRER TO PLAINTIFF’S COMPLAINT; (2) DEFENDANT CHA HEALTH SYSTEMS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT; (3)-(4) DEFENDANT CHA HOLLYWOOD MEDICAL CENTER L.P. – SAME; (5)-(6) DEFENDANT CHS HEALTHCARE MANAGEMENT, LLC – SAME

MOVING PARTY: (1)-(2) Defendant CHA Health Systems, Inc.; (3)-(4) Defendant CHA Hollywood Medical Center L.P.; (5)-(6) Defendant CHS Healthcare Management, LLC

RESPONDING PARTY(S): Plaintiff Mary Nelson, by and through her successor in interest, Elmer Pogue

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Mary Nelson’s successor in interest alleges that Defendants committed elder abuse while she was an inpatient at the Defendant hospital.

Defendants CHA Health Systems, Inc., CHA Hollywood Medical Center L.P., and CHS Healthcare Management, LLC separately demur to the complaint and move to strike portions of the complaint.

TENTATIVE RULING:

Defendant CHA Health Systems, Inc.’s demurrer to the first cause of action is OVERRULED.

Defendant CHA Health Systems, Inc.’s motion to strike is DENIED.

Defendant CHA Hollywood Medical Center L.P.’s demurrer to the first cause of action is OVERRULED.

Defendant CHA Hollywood Medical Center L.P.’s motion to strike is DENIED.

Defendant CHS Healthcare Management, LLC’s demurrer to the first cause of action is OVERRULED.

Defendant CHS Healthcare Management, LLC’s motion to strike is DENIED.

Defendants are to answer the complaint within 30 days of the date of this Order.

DISCUSSION:

(1) Demurrer: Defendant CHA Health Systems, Inc.

Meet and Confer

The Declaration of Attorney Lesvia M. Alvarado reflects that the meet and confer requirement of CCP § 430.41 has been satisfied.

First Cause of Action (Elder Abuse)

Like a state-court brief that relies heavily on federal cases or – worse yet – unpublished cases, Defendant’s demurrer raises a red flag at the outset: the first ground raised for the demurrer is uncertainty. (CCP § 430.10(f).) Leading with uncertainty is not exactly leading from a position of strength, as demurrers based on uncertainty are disfavored and would only be sustained if Defendant truly could not reasonably respond to the complaint. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) That is not the case here. The demurrer also inexplicably refers to a “third cause of action,” which does not exist in this complaint (Demurrer, at p. 2) and seems to repeat the same uncertainty argument at least twice (Id. at pp. 1-2.) However, Defendant does also argue (also twice) that the first (and only) cause of action for elder abuse does not state facts sufficient to constitute a cause of action against this Defendant, and that will be the Court’s focus. (CCP § 430.10(e).)

The elements of a cause of action under the Elder Abuse and Dependent Adults 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.) “[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Effective January 1, 2020, the Act provides that, “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse,” the plaintiff may recover the enhanced remedies under the Act. (Welf. & Inst. Code § 15657.) Here, Plaintiff alleges neglect, which is defined as follows:

(a) “Neglect” means either of the following:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

(Welf. & Inst. Code § 15610.57.)

To the extent that Defendant bases its arguments on the standards of proof rather than pleading, its arguments are premature at the demurrer stage. (Demurrer, at pp. 6-7, 9.) Plaintiff need not prove anything by clear and convincing evidence at this stage. To the extent that Defendant attacks the pleading, however, it does so not based on any failure to plead “neglect” sufficiently, but rather based on a failure to plead “recklessness, fraud, oppression, or malice” on its part or that it authorized or ratified those acts by an employee.

[S]everal factors . . . must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. 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) . . . . 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. . . . 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.

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (bold emphasis and underlining added; citations omitted).)

Here, the complaint alleges recklessness on the Defendants’ part by, among other things, failing to develop or implement a plan to provide the level of care Plaintiff needed to prevent the development of pressure sores and infections and failing to provide her with adequate assistance, care, and monitoring. (¶¶ 42, 45.) Specifically, Plaintiff alleges, among other things, that Defendants knew that she was at risk of developing severe pressure sores and yet failed to implement the interventions needed to prevent them. (¶ 45.) Thus, Plaintiff alleges that Defendants specifically knew of her skin care needs but failed to provide her with the necessary care and treatment. (Ibid.)

These allegations are sufficient to plead “neglect” as that term is defined in Welfare and Institutions Code § 15610.57 and are sufficient to plead “recklessness” as defined as a conscious disregard of a high probability of injury.

The remaining question, however, is whether these allegations are sufficient as to this Defendant, CHA Health Systems, Inc. This Defendant argues that Plaintiff has not alleged that it authorized or ratified any recklessness on the part of any employee care givers. In fact, however, Plaintiff has alleged that the Defendants, including CHA Health Systems, Inc., “by and through the corporate officers and directors enumerated in paragraph 10 and others presently unknown . . . ratified the conduct of themselves and their co-defendants in that they were aware that such understaffing, deficiencies, and insufficiency of financial budgets to lawfully operate the HOSPITAL would lead to injury to patients of the HOSPITAL, including MARY NELSON.” (¶ 61.)

Worsham’s determination that understaffing constitutes no more than negligence may be true, absent further allegations showing recklessness. But the Fenimores have alleged more than a simple understaffing here. The FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elderly and dependent patients, as qualitatively different than simple negligence.

In addition, while Worsham focused on a “‘fundamental “[f]ailure to provide medical care”’” as the way to show neglect under the Act, that is not the only way to prove neglect. (Worsham, supra, 226 Cal.App.4th at p. 338, quoting Delaney, supra, 20 Cal.4th at p. 34.) The Act defines neglect generally as the negligent failure of custodians or care providers to exercise the degree of care a similarly situated reasonable person would exercise, and then provides examples of neglect, including but not limited to the “[f]ailure to provide medical care for physical and mental health needs.” (§ 15610.57, subds. (a), (b)(2).) As Norman and Gregory teach, violations of standards of care set by health facility regulations may provide a basis for finding the requisite negligent failure. Reckless understaffing might be neglectful under the Act even if it is not a fundamental failure to provide medical care.

(Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1350-1351 (bold emphasis added).)

Plaintiff’s allegations are sufficient as to ratification by this Defendant. “The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff’s possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)

For the first time in reply, Defendant also argues that this cause of action fails as against it because it never had “custodial care” of Plaintiff as defined in Welfare and Institutions Code § 15610.17. Although Defendant raised this issue, somewhat obliquely, and with reference to the wrong statutory provision, in its meet-and-confer letter, it did not raise this issue in its opening brief. Because Plaintiff has not had an opportunity to respond to this argument, the Court will not consider it. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [noting that the court “will not ordinarily consider issues raised for the first time in a reply brief”].)

Accordingly, the demurrer to the first cause of action for elder abuse is OVERRULED.

(2) Motion To Strike: Defendant CHA Health Systems, Inc.

Meet and Confer

The Declaration of Attorney Lesvia M. Alvarado, while referring only to CCP § 430.41(a), does reflect that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

The motion to strike is DENIED in its entirety.

Defendant’s motion to strike ¶¶ 5-6, 9-15, 22, 28-33, 34-44, 45-55, 55-66, and (though not listed separately) 67-74 on the grounds that they are legal conclusions and/or conclusory is DENIED. Conclusory allegations are permitted when supported by other facts in the pleading. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

The motion to strike is also DENIED as to the prayer for punitive damages and attorney’s fees and costs. Defendant essentially relies on the same arguments as in connection with its demurrer, which were rejected as discussed above. Plaintiff’s allegations are sufficient as to 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).)

(3) Demurrer: Defendant CHA Hollywood Medical Center L.P.

Meet and Confer

The Declaration of Attorney Lesvia M. Alvarado reflects that the meet and confer requirement of CCP § 430.41 has been satisfied.

First Cause of Action (Elder Abuse)

Like a state-court brief that relies heavily on federal cases or – worse yet – unpublished cases, Defendant’s demurrer raises a red flag at the outset: the first ground raised for the demurrer is uncertainty. (CCP § 430.10(f).) Leading with uncertainty is not exactly leading from a position of strength, as demurrers based on uncertainty are disfavored and would only be sustained if Defendant truly could not reasonably respond to the complaint. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) That is not the case here. The demurrer also inexplicably refers to a “third cause of action,” which does not exist in this complaint (Demurrer, at p. 2) and seems to repeat the same uncertainty argument at least twice (Ibid.) However, Defendant does also argue (also twice) that the first (and only) cause of action for elder abuse does not state facts sufficient to constitute a cause of action against this Defendant, and that will be the Court’s focus. (CCP § 430.10(e).)

The elements of a cause of action under the Elder Abuse and Dependent Adults 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.) “[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Effective January 1, 2020, the Act provides that, “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse,” the plaintiff may recover the enhanced remedies under the Act. (Welf. & Inst. Code § 15657.) Here, Plaintiff alleges neglect, which is defined as follows:

(a) “Neglect” means either of the following:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

(Welf. & Inst. Code § 15610.57.)

To the extent that Defendant bases its arguments on the standards of proof rather than pleading, its arguments are premature at the demurrer stage. (Demurrer, at pp. 6-7, 9.) Plaintiff need not prove anything by clear and convincing evidence at this stage. To the extent that Defendant attacks the pleading, however, it does so not based on any failure to plead “neglect” sufficiently, but rather based on a failure to plead “recklessness, fraud, oppression, or malice” on its part or that it authorized or ratified those acts by an employee.

[S]everal factors . . . must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. 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) . . . . 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. . . . 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.

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (bold emphasis and underlining added; citations omitted).)

Here, the complaint alleges recklessness on the Defendants’ part by, among other things, failing to develop or implement a plan to provide the level of care Plaintiff needed to prevent the development of pressure sores and infections and failing to provide her with adequate assistance, care, and monitoring. (¶¶ 42, 45.) Specifically, Plaintiff alleges, among other things, that Defendants knew that she was at risk of developing severe pressure sores and yet failed to implement the interventions needed to prevent them. (¶ 45.) Thus, Plaintiff alleges that Defendants specifically knew of her skin care needs but failed to provide her with the necessary care and treatment. (Ibid.)

These allegations are sufficient to plead “neglect” as that term is defined in Welfare and Institutions Code § 15610.57 and are sufficient to plead “recklessness” as defined as a conscious disregard of a high probability of injury.

The remaining question, however, is whether these allegations are sufficient as to this Defendant, CHA Hollywood Medical Center L.P. This Defendant argues that Plaintiff has not alleged that it authorized or ratified any recklessness on the part of any employee care givers. In fact, however, Plaintiff has alleged that the Defendants, including CHA Hollywood Medical Center, “by and through the corporate officers and directors enumerated in paragraph 10 and others presently unknown . . . ratified the conduct of themselves and their co-defendants in that they were aware that such understaffing, deficiencies, and insufficiency of financial budgets to lawfully operate the HOSPITAL would lead to injury to patients of the HOSPITAL, including MARY NELSON.” (¶ 61.)

Worsham’s determination that understaffing constitutes no more than negligence may be true, absent further allegations showing recklessness. But the Fenimores have alleged more than a simple understaffing here. The FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elderly and dependent patients, as qualitatively different than simple negligence.

In addition, while Worsham focused on a “‘fundamental “[f]ailure to provide medical care”’” as the way to show neglect under the Act, that is not the only way to prove neglect. (Worsham, supra, 226 Cal.App.4th at p. 338, quoting Delaney, supra, 20 Cal.4th at p. 34.) The Act defines neglect generally as the negligent failure of custodians or care providers to exercise the degree of care a similarly situated reasonable person would exercise, and then provides examples of neglect, including but not limited to the “[f]ailure to provide medical care for physical and mental health needs.” (§ 15610.57, subds. (a), (b)(2).) As Norman and Gregory teach, violations of standards of care set by health facility regulations may provide a basis for finding the requisite negligent failure. Reckless understaffing might be neglectful under the Act even if it is not a fundamental failure to provide medical care.

(Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1350-1351 (bold emphasis added).)

Plaintiff’s allegations are sufficient as to ratification by this Defendant. “The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff’s possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)

Accordingly, the demurrer to the first cause of action for elder abuse is OVERRULED.

(2) Motion To Strike: Defendant CHA Hollywood Medical Center, L.P.

Meet and Confer

The Declaration of Attorney Lesvia M. Alvarado, while referring only to CCP § 430.41(a), does reflect that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

The motion to strike is DENIED in its entirety.

Defendant’s motion to strike ¶¶ 5-6, 9-15, 22, 28-33, 34-44, 45-55, 55-66, and 67-74 on the grounds that they are legal conclusions and/or conclusory is DENIED. Conclusory allegations are permitted when supported by other facts in the pleading. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

The motion to strike is also DENIED as to the prayer for punitive damages and attorney’s fees and costs. Defendant essentially relies on the same arguments as in connection with its demurrer, which were rejected as discussed above. Plaintiff’s allegations are sufficient as to 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).)

(5) Demurrer: Defendant CHS Healthcare Management, LLC

Meet and Confer

The Declaration of Attorney Lesvia M. Alvarado reflects that the meet and confer requirement of CCP § 430.41 has been satisfied.

First Cause of Action (Elder Abuse)

Like a state-court brief that relies heavily on federal cases or – worse yet – unpublished cases, Defendant’s demurrer raises a red flag at the outset: the first ground raised for the demurrer is uncertainty. (CCP § 430.10(f).) Leading with uncertainty is not exactly leading from a position of strength, as demurrers based on uncertainty are disfavored and would only be sustained if Defendant truly could not reasonably respond to the complaint. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) That is not the case here. The demurrer also inexplicably refers to a “third cause of action,” which does not exist in this complaint (Demurrer, at p. 2) and seems to repeat the same uncertainty argument at least twice (Id. at pp. 1-2.) However, Defendant does also argue (also twice) that the first (and only) cause of action for elder abuse does not state facts sufficient to constitute a cause of action against this Defendant, and that will be the Court’s focus. (CCP § 430.10(e).)

The elements of a cause of action under the Elder Abuse and Dependent Adults 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.) “[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Effective January 1, 2020, the Act provides that, “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse,” the plaintiff may recover the enhanced remedies under the Act. (Welf. & Inst. Code § 15657.) Here, Plaintiff alleges neglect, which is defined as follows:

(a) “Neglect” means either of the following:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

(Welf. & Inst. Code § 15610.57.)

To the extent that Defendant bases its arguments on the standards of proof rather than pleading, its arguments are premature at the demurrer stage. (Demurrer, at pp. 6-7, 9.) Plaintiff need not prove anything by clear and convincing evidence at this stage. To the extent that Defendant attacks the pleading, however, it does so not based on any failure to plead “neglect” sufficiently, but rather based on a failure to plead “recklessness, fraud, oppression, or malice” on its part or that it authorized or ratified those acts by an employee.

[S]everal factors . . . must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. 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) . . . . 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. . . . 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.

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (bold emphasis and underlining added; citations omitted).)

Here, the complaint alleges recklessness on the Defendants’ part by, among other things, failing to develop or implement a plan to provide the level of care Plaintiff needed to prevent the development of pressure sores and infections and failing to provide her with adequate assistance, care, and monitoring. (¶¶ 42, 45.) Specifically, Plaintiff alleges, among other things, that Defendants knew that she was at risk of developing severe pressure sores and yet failed to implement the interventions needed to prevent them. (¶ 45.) Thus, Plaintiff alleges that Defendants specifically knew of her skin care needs but failed to provide her with the necessary care and treatment. (Ibid.)

These allegations are sufficient to plead “neglect” as that term is defined in Welfare and Institutions Code § 15610.57 and are sufficient to plead “recklessness” as defined as a conscious disregard of a high probability of injury.

The remaining question, however, is whether these allegations are sufficient as to this Defendant, CHS Healthcare Management, LLC. This Defendant argues that Plaintiff has not alleged that it authorized or ratified any recklessness on the part of any employee care givers. In fact, however, Plaintiff has alleged that the Defendants, including CHS Healthcare Management, LLC, “by and through the corporate officers and directors enumerated in paragraph 10 and others presently unknown . . . ratified the conduct of themselves and their co-defendants in that they were aware that such understaffing, deficiencies, and insufficiency of financial budgets to lawfully operate the HOSPITAL would lead to injury to patients of the HOSPITAL, including MARY NELSON.” (¶ 61.)

Worsham’s determination that understaffing constitutes no more than negligence may be true, absent further allegations showing recklessness. But the Fenimores have alleged more than a simple understaffing here. The FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elderly and dependent patients, as qualitatively different than simple negligence.

In addition, while Worsham focused on a “‘fundamental “[f]ailure to provide medical care”’” as the way to show neglect under the Act, that is not the only way to prove neglect. (Worsham, supra, 226 Cal.App.4th at p. 338, quoting Delaney, supra, 20 Cal.4th at p. 34.) The Act defines neglect generally as the negligent failure of custodians or care providers to exercise the degree of care a similarly situated reasonable person would exercise, and then provides examples of neglect, including but not limited to the “[f]ailure to provide medical care for physical and mental health needs.” (§ 15610.57, subds. (a), (b)(2).) As Norman and Gregory teach, violations of standards of care set by health facility regulations may provide a basis for finding the requisite negligent failure. Reckless understaffing might be neglectful under the Act even if it is not a fundamental failure to provide medical care.

(Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1350-1351 (bold emphasis added).)

Plaintiff’s allegations are sufficient as to ratification by this Defendant. “The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff’s possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)

For the first time in reply, Defendant also argues that this cause of action fails as against it because it never had “custodial care” of Plaintiff as defined in Welfare and Institutions Code § 15610.17. Although Defendant raised this issue, somewhat obliquely, and with reference to the wrong statutory provision, in its meet-and-confer letter, it did not raise this issue in its opening brief. Because Plaintiff has not had an opportunity to respond to this argument, the Court will not consider it. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [noting that the court “will not ordinarily consider issues raised for the first time in a reply brief”].)

Accordingly, the demurrer to the first cause of action for elder abuse is OVERRULED.

(2) Motion To Strike: Defendant CHS Healthcare Management, LLC

Meet and Confer

The Declaration of Attorney Lesvia M. Alvarado, while referring only to CCP § 430.41(a), does reflect that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

The motion to strike is DENIED in its entirety.

Defendant’s motion to strike ¶¶ 5-6, 9-15, 22, 28-33, 34-44, 45-55, 55-66, and 67-74 on the grounds that they are legal conclusions and/or conclusory is DENIED. Conclusory allegations are permitted when supported by other facts in the pleading. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

The motion to strike is also DENIED as to the prayer for punitive damages and attorney’s fees and costs. Defendant essentially relies on the same arguments as in connection with its demurrer, which were rejected as discussed above. Plaintiff’s allegations are sufficient as to 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).)

Defendants are to answer the complaint within 30 days of the date of this Order.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: January 21, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court