Case Number: GC049042 Hearing Date: June 06, 2014 Dept: A

Schwalley v Front Porch California Lutheran Homes

DEMURRER & MOTION TO STRIKE

Calendar: 17
Case No: GC049024
Date: 6/6/14

MP: Defendant, Front Porch California Lutheran Homes, Inc.
RP: Plaintiff, Fraser Schwalley, individually and as successor in interest to Lawrence Schwalley

ALLEGATIONS IN THIRD AMENDED COMPLAINT:
The Plaintiff claims that the Defendants engaged in elder abuse and provided negligent care when Lawrence Schwalley was under the care and custody of the Defendants. The Plaintiff is the son and heir of Lawrence Schwalley. Lawrence Schwalley suffered injuries when he fell and as a result died three weeks after the fall.

CAUSES OF ACTION IN THIRD AMENDED COMPLAINT
1) Elder Abuse
2) Negligence
3) Wrongful Death

RELIEF REQUESTED:
1) Demurrer to first cause of action.
2) Strike requests for punitive damages and for attorney’s fees.

DISCUSSION:
This hearing concerns the Defendant’s demurrer and motion to strike directed at the Third Amended Complaint.

1. Demurrer to First Cause of Action for Elder Abuse
The Defendant argues that the Plaintiff has not pleaded sufficient facts to demonstrate that the Defendant engaged in conduct that qualifies as elder abuse or that the Defendant engaged in the conduct with recklessness, oppression, fraud, or malice.
A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare and Institutions Code sections 15600 to 15675 (references to code sections refer to the Elder Abuse Act).
The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died.
In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for the following:

1) physical abuse as defined in section 15610.63; or
2) neglect as defined in Section 15610.57.

In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Therefore, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice.
Finally, since this is a statutory cause of action, it must be pleaded with particularity. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790.

The Plaintiff alleges in paragraph 15 that the Defendants neglected Lawrence Schwalley. Further, a review of the allegations in paragraphs 23 to 38 indicate that the Plaintiff’s theory is that the elder abuse arose from business decisions by the Defendant’s managing agents to withhold care and services from its residents.
Case law finds that claims based on the failure to provide adequate staffing are the negligent undertaking of medical services and not the egregious conduct needed to establish elder abuse. Worsham v. O’Connor Hospital (Cal. App. 6th Dist. April 23, 2014). 2014 WL 2085555. In Worsham, the plaintiff alleged that the defendant had failed to maintain specific staff-to-patient ratios to address the needs of patients and to ensure compliance with state and federal law. Further, the plaintiff alleged that the defendant was chronically understaffed and did not adequately train the staff it did have. In addition, the plaintiff alleged that the defendant was aware that the plaintiff had a risk of falling and failed to have the proper staffing in place to prevent the plaintiff’s fall. The plaintiff claimed that as a result of the defendant’s insufficient staffing, the plaintiff suffered a fall that resulted in a broken arm and a re-break of her right hip.
The Court of Appeal found that these allegations indicated a negligent undertaking of medical services and not an elder abuse claim because there was not a fundamental failure to provide medical care for physical and mental health needs.

The claims in the pending case mirror the allegations in Worsham. The Plaintiff alleged in paragraphs 23, 25, and 26 that the Defendant did not have sufficient staffing due to a business plan and that it did not comply with laws regarding staffing levels. The Plaintiff alleges in paragraphs 24 and 25 that Lawrence Schwalley had a history of falls and that the Defendant failed to have sufficient staffing to meet his needs. Further, the Plaintiff alleges in paragraphs 30 and 31 that Lawrence Schwalley fell as a result of the lack of staff. These allegations indicate a negligent undertaking to provide medical care and not elder abuse.

Therefore, the Court will sustain the demurrer to the first cause of action because the Plaintiff has not alleged particular facts identifying elder abuse. Instead, the Plaintiff’s allegations indicate that the Defendant’s conduct was the negligent undertaking to provide medical care.

The Plaintiff has the burden of identifying the manner in which he can amend his complaint and how that amendment will change the legal effect of his pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Although the Plaintiff makes a routine request for leave to amend, he offers no explanation of the manner by which he can correct the defects in his first cause of action, i.e., that he can plead that the lack of sufficient staffing was elder abuse. Accordingly, the Court should not grant leave to amend.

2. Motion to Strike
The Defendant requests that the Court strike the punitive damages and for attorney’s fees sought in the first cause of action for elder abuse. In light of the sustaining of the demurrer to the first cause of action, the motion to strike is moot because these remedies will be removed by the demurrer.
Accordingly, the Court will take the motion to strike off calendar.

TENTATIVE RULING:
SUSTAIN demurrer to first cause of action without leave to amend.
TAKE OFF CALENDAR motion to strike