Case Number: EC058262 Hearing Date: May 02, 2014 Dept: NCD

TENTATIVE RULING (5-2-14)
#1
EC 058262
FUENTES v. PROVIDENCE HEALTH SYSTEM—SOUTHERN CALIFORNIA

Defendants Brier Oak on Sunset, LLC and Sycamore Park Care Center, LLC’s Demurrer to Plaintiff’s Fourth Amended Complaint

Defendants Brier Oak on Sunset, LLC and Sycamore Park Care Center, LLC’s Motion to Strike Portions of Plaintiff’s Fourth Amended Complaint

TENTATIVE:
The opposition does not address the demurrer and motion to strike asserted by defendant Sycamore Park Care Center, LLC, and the failure of the pleading to state specific facts showing specific misconduct by this defendant. The court construes this failure to oppose those arguments as a concession that plaintiff is not pursuing such claims against Sycamore Park Care Center, LLC, and the demurrer brought by this defendant is therefore SUSTAINED WITHOUT LEAVE TO AMEND.

Demurrer of Brier Oaks on Sunset, LLC to first cause of action is OVERRULED.
Demurrer of Brier Oaks on Sunset, LLC to second and third causes of action is SUSTAINED on the ground that plaintiff has failed to sufficiently plead facts to avoid the bar of the statute of limitations. Demurrer on all other grounds is OVERRULED.

Ten days leave to amend.

Motion to Strike is DENIED.

CAUSES OF ACTION: from Fourth Amended Complaint
1) Dependent Adult Abuse
2) Negligence
3) Wrongful Death

FACTUAL AND PROCEDURAL BACKGROUND:
This is a wrongful death, negligence and elder abuse action brought by plaintiff Marc Fuentes, individually, and as successor in interest to decedent Gladys Fuentes.

Moving defendants Brier Oak on Sunset and Sycamore Park Care were added by Doe amendment to the action on September 4, 2013. They filed “joinders” in a demurrer brought by defendant KND Development 52 (also added by Doe amendment the same date), which was heard on February 10, 2014. The demurrer was sustained, the court noting that plaintiff in opposing the demurrer had conceded his operative complaint failed to state facts sufficient to state a cause of action against the demurring defendants and requested the opportunity to file a Fourth Amended Complaint.

Defendants now challenge the sufficiency of the Fourth Amended Complaint.

ANALYSIS:
Demurrer
The demurrer first argues that there are no specific allegations relating to Sycamore Park, but only paragraphs globally pleaded against the three defendants described in the fourth amended complaint. The pleading states that Doe 13 “Defendant, Sycamore Park Care Center, LLC dba Sycamore Park Care Center (Sycamore) was and is in the business of providing long-term care, in a 24-hour health facility…” [Para. 6]. There are then general allegations in the second cause of action that “Providence, Brier Oak and Sycamore” failed to provide certain care and services, and that each of these entities breached duties of care and caused injuries. [Paras. 53-57]. The third cause of action alleges that each of the named defendants caused plaintiff’s wrongful death. [Para. 59].

First Cause of Action—Dependent Adult Abuse
Defendants argue that this cause of action is not sufficiently alleged against Sycamore Park, which, as discussed above, is true, and the demurrer by this party is sustained.

Defendant Brier Oak argues that the factual allegations against it do not amount to facts showing recklessness, fraud or malice.

The FAC alleges that on May 22, 2012, Fuentes entered Brier Oak for skilled nursing care, and describes the deterioration of her pressure ulcers. [Paras. 24-28]. It is then alleged that by June, when she entered another facility for wound evaluation, serious wounds had been developed during decedent’s short residency at Brier Oaks. [Para. 29]. The cause of action then alleges that Brier Oak failed to provide custodial care, including repositioning and skin inspections, failed to monitor the pressure injuries, and that the pressure ulcers became infected. [Paras. 41-45]. It is also alleged that officers, directors and managing agents participated in the neglect, authorized the neglect, and created a patient care environment leading to the neglect by utilizing insufficient, underpaid and untrained staff, and that staff was insufficiently supervised, to maximize profits at the expense of resident care. [Paras. 46-50].

These allegations appear to be sufficient to state a claim for dependent adult abuse, as case law has long regarded the failure to prevent the development of or to properly address and monitor pressure ulcers as neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771.

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, the Second District reversed the trial court’s granting of summary judgment on a claim for dependent adult abuse based on the development of pressure ulcers which became infected and led to the death of a woman with Huntington chorea disease, which put her at a known risk for skin breakdown.
“A trier of fact could find that when a care facility’s employees ignore a care plan and fail to check the skin condition of a resident with Huntington’s chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury. Though Covina offers conflicting declarations regarding the care provided, we are not permitted to weigh the evidence.”
Sababin, at 90.

The allegations appear sufficient here, and the demurrer is overruled.

Defendant seems to argue that there is some requirement to specifically name the managing agents who engaged in or ratified the alleged dependent adult abuse, but this does not appear to be a pleading requirement.

Second Cause of Action—Negligence and Third Cause of Action—Wrongful Death
Defendants argue that these causes of action are barred by the statute of limitations. Plaintiff in opposition does not dispute that although Brier Oaks was added by a Doe Amendment, the complaint against it does not relate back to the original filing of the complaint because Brier Oaks’ alleged misconduct occurred since the filing of that complaint. Brier Oaks also does not dispute that the statute of limitations which applies is CCP § 340.5, under which
“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or should have discovered, the injury, whichever occurs first.”

The argument is that plaintiff was discharged from Brier Oak on June 20, 2012, by which time her injuries should have been discovered, but Brier Oaks was not sued until September 4, 2013, more than a year later.

Plaintiff argues that the statutory time here should be tolled under CCP § 352, under which:
“(a) If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time the cause of action accrued either under the age of majority or insane, the time of the disability is not part of the time limited for the commencement of the action.”

The argument is that the FAC alleges that plaintiff had paraplegia, significant physical limitations, and could not care for herself, so the insanity provision should be applied to toll the action for the period between her discharge and her death on September 29, 2012. [See para. 3]. However, it is not clearly pleaded that decedent was insane during any particular period. The demurrer is sustained to require plaintiff to more clearly plead the application of the tolling of the statute, if possible.

Motion to Strike
As discussed above, the conduct alleged is sufficiently egregious to support a finding of oppression, fraud or malice, and the heightened remedies under the Dependent Adult Abuse Act, so the allegations seeking punitive damages shall not be stricken at the pleadings stage. As to the allegations argued to be immaterial and as to the allegations concerning the business practices of Brier Oaks, these are typical allegations made to establish corporate ratification and malice in such cases, and are not properly subject to being stricken. The motion is therefore denied.