2018-00233691-CU-PO

Forrest Evans vs. Maxium Healthcare Services

Nature of Proceeding: Motion to Strike

Filed By: Wells, Kim M.

Defendant Maxim Healthcare Services Inc.’s (“Maxim”) Motion to Strike Portions of the

First Amended Complaint is ruled on as follows:

A motion to strike is appropriate to strike out any irrelevant, false or improper matter asserted in any pleading and the Court may strike out all or any part of any pleading not drawn or filed in conformity with the law. (See Code Civ. Pro. § 436 (a)-(c).) A motion to strike challenges portions of a cause of action that are substantively defective on the face of the complaint. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83; see also Code of Civ. Proc. § 437.) More specifically, a motion to strike should be granted to remove “any irrelevant, false, or improper matter inserted in any pleading,” or where the pleadings are drawn in violation of a law, rule or court order. (Code of Civ. Proc. § 436.) Examples of “improper” matters include allegations which are “at variance with the contract.” (California Sugar & White Pine Agency v. Penoyar (1914) 167 Cal. 274, 279.

Item 1: Granted. The motion to strike the “alter ego” language is granted. When there is only one entity defendant in a complaint, as here, the alter ego allegations make no sense. Although plaintiff may at some time in the future name another entity or person who is allegedly the alter ego of Maxim, plaintiff is clearly not alleging that Hubbard is Maxim’s alter ego. The fact that plaintiff has named some DOE defendants who may eventually be replaced by an alter ego entity is not sufficient to support an alter ego allegation against Maxim. The alter ego allegation is stricken without leave to amend at this time. However the ruling is without prejudice to a future motion to amend the complaint in the event another person or entity is named who is alleged to have an alter ego relationship with Maxim. The motion to strike remaining enhanced remedy

language in Item 1 is granted, with leave to amend, as the court has sustained the demurrer to the elder abuse cause of action, with leave to amend.

The motion is granted with leave to amend as to the prayer for reasonable attorney fees and for exemplary and punitive damages. (Items 3, 4, 5, 6.) As discussed in the ruling on the demurrer, plaintiff has failed to sufficiently allege a claim for elder abuse against Maxim. The only other cause of action for negligence does not support a claim for punitive damages, enhanced remedies, or attorneys fees.

Plaintiff may file and serve a Second Amended Complaint on or before January 25, 2019. Response to be filed and served within 30 days of service of the amended pleading, 35 days if served by mail.

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

Item 10 2018-00233691-CU-PO

Forrest Evans vs. Maxium Healthcare Services

Nature of Proceeding: Hearing on Demurrer

Filed By: Wells, Kim M.

Defendant Maxim Healthcare Services Inc.’s (“Maxim”) demurrer to the cause of action for Elder Abuse in the First Amended Complaint is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.

The demurrer to the entire complaint based on uncertainty is denied. The negligence cause of action is not uncertain. Demurrers for uncertainty are disfavored. Demurrer’s for uncertainty are strictly construed and should not be granted unless the Complaint is so incomprehensible that the Defendants cannot reasonably respond. Lickiss v Financial Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.

Defendant Michelle Hubbard was employed by Maxim as plaintiff’s licensed vocational nurse. Plaintiff is a young adult with, among other conditions,

spastic cerebral palsy, seizure disorder, asthma with chronic recurrent aspiration, cecostomy tube and trachycardia. To manage his conditions and seizure disorder, he was prescribed and took among other medications. Clonazepam, Lamictal, Neurontin, Keppra and Diazapam. The medications were necessary for the physical and daily health and well-being of plaintiff and were only to be

changed and/or modified by specific orders from licensed medical doctors responsible for the care of plaintiff. In May of 2017, defendant Hubbard, employed by Maxim, began caring for him as his licensed vocational nurse, providing plaintiff with assistance with all activities of daily living, including the dispensing and management of his daily medications. (FAC ¶ 8)

In the general allegations of the FAC, plaintiff alleges in a conclusionary fashion that defendants acted as the agents, servants, employees and/or alter egos of their co-defendants, acted within the course and scope of said agency and employment, with the knowledge, consent and approval of their co-defendants; and their conduct was

ratified by their co-defendants. In particular, at all times material hereto, defendants Maxim DOES 1-50, inclusive, individually and through their officers, directors, and/or managing agents: (1) had advance knowledge of the unfitness of defendant Michelle Hubbard of others of their respective employees, and employed defendant Michelle Hubbard and the other respective employees with a conscious disregard of the rights and safety of others, including Plaintiff Forrest Evans; (2) authorized the wrongful conduct of defendant Michelle Hubbard and the other respective employees as alleged in this Complaint; (3) ratified said wrongful conduct; and (4) were personally guilty of oppression, fraud, malice and/or recklessness. (FAC ¶ 4)

Plaintiffs family noticed he was having more seizures and specifically asked Hubbard if she was giving plaintiff all of his medications, to which she affirmatively responded. Plaintiff alleges that the family discovered that defendant Hubbard switched plaintiff’s medications after family members went to the pharmacy and were told by the pharmacist that the medication was being mismanaged at home, after the prescriptions had been correctly filled. Plaintiff’s family discovered Hubbard was mixing different pills in the same bottles, that plaintiff’s sister’s pills were taken and placed in one of plaintiff’s medication bottles, and that someone had removed the prescribed medications and replaced them with other similar looking medications. In the presence of the family, Hubbard emptied her purse in which she had several prescription bottles with mixed medications in the containers as well as several plastic bags of mixed medications. Hubbard is alleged to have intentionally or with reckless neglect withheld plaintiff’s prescribed medication, resulting in his suffering toxic shock. (FAC ¶ 9-10)

Maxim allegedly promised and represented that plaintiff would receive adequate, appropriate, honest and compliant staffing at all times during his care, and that plaintiff’s medical needs would be met, including, but not limited to, proper and compliant medication management. Maxim is alleged to have knowingly and recklessly failed to screen or have vetted their employees, and failed to supervise, oversee and monitor defendant, and to have represented and warranted to plaintiff, through his mother, that its employees, agents and contractors who were sent to plaintiff’s home to provide care, would be carefully screened and vetted and properly supervised and overseen to ensure that such adequate, appropriate, honest and compliant care would be provided to plaintiff. Plaintiff alleges that defendants failed to comply with physician orders relative to plaintiff’s medications, that Hubbard was unfit, and that Maxim knowingly and recklessly failed to screen or vet their employees, agents, and contractors to verify and ensure that they were fit, trained and qualified. (FAC ¶¶ 11-12)

Within the Elder abuse cause of action itself, plaintiff alleges defendants failed to provide the following:

a. provide the care and service promised in accordance with the prevailing Standard of Practice in the Licensed Vocational Nursing and State and Federal laws and regulations;

b. follow, implement and adhere to all physicians’ orders, including the administration of medication and treatment of physical conditions and applicable protocols;

c. monitor and accurately record plaintiff’s condition, and to report meaningful changes therein;
d. establish and implement a patient-care plan for plaintiff based upon and including without limitation an ongoing process of identifying his care needs;

e. follow proper nursing and care standards to maximize the health, safety and well-being of plaintiff;

f. maintain accurate records of plaintiff’s condition, treatment, medication and activity;

g. employ nursing staff with the qualifications to provide the necessary nursing services for plaintiff;
h. provide treatment and services necessary to promote healing and prevent infection; maintain hygiene and prevent injury from occurring to plaintiff,

i. provide treatment and care consistent with physician orders. (FAC ¶¶ 15, 22)

1st cause of action Elder Abuse

Sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.

Maxim contends that plaintiff has not alleged with specificity facts that would render Maxim liable for elder abuse. The Court agrees. Although the Court finds that a claim for elder abuse is adequately alleged against Hubbard, the claim for elder abuse against Maxim is not pleaded with the specificity required for elder abuse. Mere vicarious liability does not render an employer liable for elder abuse. It is well established that elder abuse and dependent adult causes of action must be plead with particularity. See Covenant Care v Superior Court (2004) 32 Cal.4th 771, 790.

To maintain a cause of action for Dependent Adult Abuse (neglect), a plaintiff must allege facts establishing; that the defendant: (1) had responsibility for meeting the basic needs of the dependent, adults such, as nutrition, hydration, hygiene or medical;

(2) knew of conditions that made the dependent adult unable to provide for his or her own basic, needs; and (3) denied or withheld goods or services, necessary to meet the dependent, adult’s basic needs, either with knowledge, that injury was substantially certain to befall the dependent adult or with conscious disregard of the high probability of such injury. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406,407.)

The problematic aspect of the allegations against Maxim is the conclusory nature of their conduct with respect to the actions of Hubbard. The language of ¶ 4, parroting the language of Civil Code 3294(b) which is incorporated in Welfare & Institutions Code section 15657, does not conform to the more specific conduct in which Maxim is alleged to have engaged in within the elder abuse claim. The specific acts alleged such as negligent hiring, failure to supervise, as well as the acts enumerated in the elder abuse cause of action support a negligence claim but not a claim for elder abuse. The cause of action for elder abuse does not allege that a managing agent or officer of Maxim authorized or ratified the switching of medications and giving medication that was not prescribed to plaintiff or otherwise alleged conduct that rises to the level of reckless neglect.

However, contrary to defendant’s argument, the allegations of elder abuse are sufficient as against the alleged employee. The allegations that Hubbard acted either intentionally or with reckless neglect in switching the medications is sufficient to allege the denial or withholding of goods (medication) and services. The withholding of prescribed medications and or giving plaintiff the wrong medications that were not prescribed are alleged to have resulted in plaintiff’s respiratory failure and toxic shock. As alleged, this conduct is sufficient to allege both reckless neglect and physical abuse

on behalf of Hubbard. The Court rejects the argument that Hubbard was merely providing “medical care” and that therefore the claim is limited to professional negligence. The allegations, taken as a whole, go beyond mere professional negligence, and are sufficient to state a claim for elder neglect. The allegations include failure to provide prescibed medication, and, indeed, mixing different pills in the same bottles, that Hubbard switched plaintiff’s sister’s pills and placed them in one of plaintiff’s medication bottles, and that someone had removed the prescribed medications and replaced them with other similar looking medications. Custodial neglect is adequately alleged as to Hubbard. If credited by the trier of fact, the alleged conduct implicates the fundamental failure to provide custodial care. (Delaney v. Baker (1999) 20 Cal.4th 23, 34.) 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 other involved in it.’” (Delaney, supra, 20 Cal.4th at 31-32.) Moreover, Maxim has provided no authority for its contention that a claim for physical abuse (as opposed to reckless neglect) in connection with medications is limited to the use of medications for chemical restraint or for punishment purposes. Defendant repeatedly argues, citing to the opposition to the motion to strike, that plaintiff concedes that Hubbard did not act intentionally but only negligently. The opposition to the motion to strike states no such thing. Plaintiff merely states that at this point it is unknown whether the conduct was intentional or merely the result of reckless neglect in conscious disregard for the safety of plaintiff.

2nd cause of action Negligence

Overruled. No argument in the points and an authorities is directed to the negligence cause of action specifically. A cause of action is stated against Maxim for negligence.

Plaintiff may file and serve a Second Amended Complaint on or before January 25, 2019. Response to be filed and served within 30 days of service of the amended pleading, 35 days if served by mail.

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