Case Number: BC660388 Hearing Date: January 17, 2018 Dept: 74

JANA DELINA JONES,

Plaintiff,

vs.

LIFEHOUSE BAKERSFIELD OPERATIONS LLC,

Defendant

Case No.: BC660388

[TENTATIVE] ORDER SUSTAINING DEMURRER WITH 10 DAYS LEAVE TO AMEND

TENTATIVE RULING: Defendant Lifehouse Bakersfield Operations, LLC dba Bakersfield Healthcare Center’s demurrers to the first and third causes of action are SUSTAINED with 10 days leave to amend. Defendant’s motion to strike is MOOT.

Background

On May 5, 2017, Plaintiff Juana Delina Jones (“Plaintiff”) filed a complaint against Defendants Lifehouse Bakersfield Operations, LLC dba Bakersfield Healthcare Center (“Defendant”) and Does 1 through 200 for (1) elder abuse (Welfare and Institutions Code sections 15600 et seq.); (2) negligence; and (3) violation of Residents’ Rights (Health and Safety Code section 1430(b)).

On June 26, 2017, Defendant filed the instant demurrer to complaint and motion to strike. On August 25, 2017, the Court sustained the demurrer with leave to amend.

On October 10, 2017, Plaintiff filed a First Amended Complaint (“FAC”).

On December 14, 2017, Defendant filed the instant demurrer to FAC and motion to strike. No oppositions have been filed.

Request for Judicial Notice

The Court notes Defendant has requested judicial notice of the ruling to the original demurrer. This request is improperly made in a footnote in the demurrer. Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c). (Cal. Rules of Court, rule 3.1113(l).) Therefore, Defendant’s request is denied.

Demurrer

First Cause of Action for Elder Abuse

Case law is clear that, “‘neglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.” As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) To plead elder abuse, the plaintiff must allege “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 [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; 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) [citations].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Id. at 407.) “[T]he 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.” (Id. (quoting Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790).) There must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for elder abuse against corporate defendants. (See Civ. Code, § 3294; Cal. Welf. & Inst. Code, § 15657(c).)

Plaintiff has failed to sufficiently allege a cause of action for elder abuse against Defendant. Plaintiff alleges that Defendant knew of Plaintiff’s propensity to fall but failed to implement any care plans to prevent her from falling and suffering injury. (See FAC, ¶ 16.) Plaintiff alleges that she suffered a fracture to her right arm as a result of Defendant’s staff’s failure to monitor Plaintiff and understaffing. (See id., ¶¶ 17-18.) Plaintiff has failed to allege sufficient facts showing how Defendant’s purported failure to implement care plans and monitor Plaintiff constitutes recklessness and thus neglect. There are no facts to show Defendant’s knowledge of Plaintiff’s propensity to fall. There are also no facts setting forth the circumstances surrounding the fall, such as when the alleged incident occurred. Furthermore, as discussed in the prior court order, lone allegations of understaffing and undertraining leading to injury are insufficient to arise to recklessness unless there is a showing of a knowing pattern of violations of staffing regulations. (See Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1349-50.) Plaintiff has failed to plead any facts showing that Defendant engaged in any knowing pattern of violations of staffing regulations. There are also insufficient facts demonstrating a causal nexus between the purported understaffing and Plaintiff’s injury. Plaintiff has also failed to allege any facts to support her allegations that Defendant failed to provide basic needs with respect to nutrition and hydration; failed to inform Plaintiff’s physician of the nature and extent of her medical issues; and failed to adequately carry out doctor’s orders and document Plaintiff’s plan of care. (See FAC, ¶¶ 19-20.)

In terms of allegations that the understaffing was the result of a financial plan and efforts to cut costs (see FAC, ¶ 23), there are no facts to show Defendant implemented such plans and efforts. These allegations are made on information and belief. A plaintiff “may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) A pleading made on information and belief must allege the information that leads the plaintiff to believe that the allegations are true. (See id. at 550-51.) Plaintiff has failed to allege what information led her to believe that Defendant and its management implemented such a financial plan. Additionally, Plaintiff has failed to allege facts showing Defendant engaged in relentless marketing and sales practices to increase resident and patient census despite knowledge of ongoing care deprivation; an ongoing practice of utilizing unqualified and untrained employees; and an ongoing practice of recruiting heavier care residents despite dangerous levels of incapable staff, or how these purported practices led to Plaintiff’s injury. (See FAC, ¶ 26.) There are also insufficient factual allegations showing authorization or ratification of any purported misconduct by Defendant’s officer, director, or managing agent.

Accordingly, Defendant’s demurrer to the first cause of action is sustained with leave to amend.

Third Cause of Action for Violation of Resident’s Rights

Health and Safety Code section 1430 provides that “[a] current or former resident or patient of a skilled nursing facility . . . may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” (Health & Safety Code, § 1430(b).) “The licensee shall be liable for the acts of the licensee’s employees.” (Id.)

Plaintiff has failed to allege sufficient facts to state a violation of section 1430 against Defendant. While Plaintiff has alleged a list of rights that Defendant purportedly violated (see FAC, ¶ 39), Plaintiff has failed to allege sufficient facts demonstrating how Defendant violated these rights.

Accordingly, Defendant’s demurrer to the third cause of action is sustained with leave to amend.

Motion to Strike

As the demurrer is sustained, the motion to strike is moot.