Case Number: BC633912 Hearing Date: February 22, 2018 Dept: 47

Norma Iris Perez v. Covina Care Center, Inc. dba Covina Rehabilitation Center, et al.

(1) DEMURRER TO THIRD AMENDED COMPLAINT;

(2) MOTION TO STRIKE

MOVING PARTY: (1) & (2) Defendant Citrus Valley Medical Center, Inc. dba Queen of the Valley Campus and dba Intercommunity Campus (erroneously sued separately as Citrus Valley Medical Center, Inc. dba Citrus Valley Medical Center – QV Campus (formerly Doe 2) and Citrus Valley medical Center, Inc. dba Citrus Valley Medical Center – IC Campus (formerly Doe 3).

RESPONDING PARTY(S): (1) & (2) Plaintiff Norma Iris Perez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an Elder Abuse action based on Defendants’ neglect in failing to attend to Plaintiff to prevent her from developing pressure sores, infections and dehydration.

Defendant Citrus Valley Medical Center, Inc. dba Queen of the Valley Campus and dba Intercommunity Campus (erroneously sued separately as Citrus Valley Medical Center, Inc. dba Citrus Valley Medical Center – QV Campus (formerly Doe 2) and Citrus Valley medical Center, Inc. dba Citrus Valley Medical Center – IC Campus (formerly Doe 3).demurs to the third amended complaint and moves to strike portions thereof.

TENTATIVE RULING:

Defendant Citrus Valley Medical Center, Inc. dba Queen of the Valley Campus and dba Intercommunity Campus (erroneously sued separately as Citrus Valley Medical Center, Inc. dba Citrus Valley Medical Center – QV Campus (formerly Doe 2) and Citrus Valley medical Center, Inc. dba Citrus Valley Medical Center – IC Campus (formerly Doe 3) demurrer to the third amended complaint is OVERRULED as to the entire third amended complaint, and also as to the first cause of action.

The hearing on the motion to strike is CONTINUED to March 22, 2018. The parties are ordered to meet and confer pursuant to CCP § 435.5. in light of the Court’s ruling on the demurrer above. Defendant is to file a meet and confer declaration by March 9, 2018 indicating whether or not the parties were able to resolve the issues presented in the motion to strike.

DISCUSSION

Demurrer

Meet and Confer

The Declaration of Karine Mkrtchyan reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Analysis

Defendant Citrus Valley Medical Center, Inc. dba Queen of the Valley Campus and dba Intercommunity Campus (erroneously sued separately as Citrus Valley Medical Center, Inc. dba Citrus Valley Medical Center – QV Campus (formerly Doe 2) and Citrus Valley medical Center, Inc. dba Citrus Valley Medical Center – IC Campus (formerly Doe 3).

1. Entire Third Amended Complaint

As a matter of law, Elder Abuse Claims are not based upon professional negligence for purposes of the statute of limitations. As such, CCP § 340.5 does not apply to Elder Abuse Act claims. Rather, the two-year statute of limitations set forth in CCP § 335.1 applies to Elder Abuse Act causes of action. Benun v. Superior Court (2004) 123 Cal.App.4th 113, 115-116.

As such, Defendant’s argument that the tolling provision set forth in CCP § 352 does not apply to MICRA actions governed by CCP § 340.5 is inapposite as to the Elder Abuse Act claim because § 340.5 does not apply to such claims.

However, the tolling provision of CCP § 352 does not apply to the negligence cause of action.

Alternatively, Bennett contends the one-year statute of limitations should be tolled “due to [his] dementia.” The only authority he cites is Weinstock v. Eissler (1964) 224 Cal. App. 2d 212, 230 [36 Cal. Rptr. 537], which concerned section 352, subdivision (a). Under that provision “a person who is ‘insane’ is disabled from bringing suit. ‘Insan[ity]’ is defined for these purposes as ‘a condition of mental derangement which renders the sufferer incapable of caring for [his or her] property or transacting business, or understanding the nature or effects of [his or her] acts.’ [Citation.]” (DeRose v. Carswell (1987) 196 Cal. App. 3d 1011, 1027 [242 Cal. Rptr. 368].)

Section 352, however, is a general tolling statute that is inapplicable to MICRA actions governed by section 340.5. “There is no evidence of a legislative intent . . . to allow exceptions other than those listed in section 340.5. All indications of intent are to the contrary. The legislative enumeration of certain exceptions by necessary implication excludes all other exceptions. [Citation.]” (Fogarty v. Superior Court (1981) 117 Cal. App. 3d 316, 320 [172 Cal. Rptr. 594]; see also Woods v. Young, supra, 53 Cal. 3d at pp. 324-325.)

In any event, “[n]o person can avail himself of a disability, unless it existed when his right of action accrued.” (§ 357.) According to Bennett’s declaration, his mental problems began in June 1996, after his action against Dr. Shahhal accrued. Additionally, Bennett’s lay opinion was insufficient to establish any mental disability. (See Jambazian v. Borden (1994) 25 Cal. App. 4th 836, 848-849 [30 Cal. Rptr. 2d 768] [lay opinion does not create triable issue of material fact regarding medical condition].)

Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 392.

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 through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. . . .

For the purposes of this section:

(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;

(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

CCP § 340.5 (bold emphasis and underlining added).

As to the third cause of action for violation of Health and Safety Code § 1430, the one year statute of limitations set forth in CCP § 340(a) for recovery of statutory penalties or forfeitures applies. “[T]he one-year statute of limitations applies to recovery of statutory damages calculated without reference to actual harm.” Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1245.

(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, 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. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee’s employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue. An agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive his or her rights to sue pursuant to this subdivision shall be void as contrary to public policy.

(c) The remedies specified in this section shall be in addition to any other remedy provided by law.

Health & Saf. Code, § 1430.

Nonetheless, for purposes of this demurrer, the foregoing is academic because ¶ 103 of the 3AC alleges that Plaintiff Perez was admitted to Citrus QV from February 8, 2017 to February 16, 2017. On August 16, 2017, Citrus Valley Medical Center, Inc. dba Citrus Valley Medical Center – Qv Campus was substituted in as Doe 2;and Citrus Valley Medical Center, Inc. dba Citrus Valley Medical Center – Cc Campus was substituted in as Doe 3. Even under the shortest one-year statute of limitations[1], Plaintiff’s claims arising from this period of admission to Citrus QV would be timely, regardless of whether the Doe amendments related back to the filing of the original complaint. In this regard, at least a portion of Plaintiff’s claims are timely, and thus, are sufficient to overcome this demurrer to the entire 3AC. “A demurrer must dispose of an entire cause of action to be sustained.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119. A demurrer does not lie to only part of a cause of action or a particular type of damage or remedy. See Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1682. The proper procedure is to bring a motion to strike the substantively defective allegation. Id. at 1682-83.

As such, the demurrer to the entire 3AC is OVERRULED.

2. First Cause of Action (Elder Abuse).

For purposes of argument, in light of the ruling above that the two-year statute of limitations applies—and putting aside the question of whether the addition of Citrus-QV as a defendant relate back to the filing of the original complaint—the Court will address allegations pertaining to the two-year period prior to the addition of Citrus-QV as a Defendant on August 16, 2017, i.e., after August 16, 2015.

On October 8, 2015 until October 15, 2015, Perez was admitted to Citrus-IC for Acute Renal Failure and a complicated Urinary Tract infection with Sepsis. 3AC, ¶ 75. On February 14, 2016 until February 26, 2016, Perez was admitted to Citrus-IC for care for her labored respirations and elevated temperature. ¶ 85. On April 2, 2016, while Perez was at the dialysis center, she suffered a cardiac arrest and was transferred to Citrus-IC until April 13, 2016. ¶ 91. On June 8, 2016, Perez was transferred to Citrus-QV from Arbor, and was diagnosed with the following upon admission: acute chronic respiratory failure; sever sepsis; aspiration pneumonia; metabolic encephalopathy; on June 15, 2016, she was transferred to Kindred. ¶¶ 96-98.

¶ 103 alleges that she presented to the emergency room at Citrus-QV with having four episodes of coffee ground emesis and acute respiratory distress. The history and physical at Citrus-QV indicated the following diagnoses: coffee ground emises; leukocytosis with fever; and aspiration pneumonia. ¶ 104. ¶ 109 alleges that, although hospital patients at a high risk for the development of pressure ulcers are to be turned and repositioned at a minimum every two hours to avoid tissue damages, but according to Citrus-QV nurses’ notices, Citrus-QV staff repositioned Perez sporadically or not at all. ¶ 110 alleges likewise as to Citrus-IC. ¶¶ 121 and 122 allege that, as a result of Citrus-IC’s nursing staff’s failure to reposition Perez at least every two hours, she developed a deep tissue injury to her left ischium which caused her extreme pain and suffering. ¶¶ 123-124 allege that Citrus-IC’s nursing staff’s failure to reposition Perez at least every two hours resulted in Perez’s coccyx pressure ulcer growing by over five times in size, which caused her extreme pain and suffering.

¶ 143 alleges that Citrus-QV and Citrus-IC (which demurring Defendant admits are both part of a single entity) knew that failure to meet legally-mandated minimum staffing ratios and requirements of acute care hospital as set forth in 22 C.C.R. § 70217 would lead to the injuries suffered by Perez. ¶ 144 alleges that Citrus-QV and Citrus-IC failed to report Perez’s pressure sores to the Department of Public Health pursuant to Health and Safety Code § 1279.1 to cover up their malfeasance and reckless neglect of Perez.

¶¶ 13 and 14 allege that Citrus-QV and Citrus-IC, by and through its corporate officers, directors, and managing agents, including Robert H. Curry, President, Chief Executive Officer and Administrator; Kathy Van Allen, Director of Nursing (as to Citrus-QV) and Francis Largoza, Director of Nursing (as to Citrus-IC), ratified the misconduct in that they were aware of the understaffing of their general acute hospitals, in both number and training, the relationship between understaffing and sub-standard provision of care to residents and patients of their general cute hospitals, including Perez, the unfitness of licensed and unlicensed nursing personnel employed at their skilled nursing facilities, and their customary practice of note responding to correct deficiencies issued by the State of California’s Department of Public Health, and disregarded these issues even though they knew the understaffing would lead to unnecessary injuries to residents and patients, including Plaintiff.

The foregoing allegations, taken together and liberally construed[2] for purposes of this demurrer, are sufficient to allege neglect: known understaffing, ratified by Defendant’s managing agents, caused Defendant’s staff to intentionally/recklessly fail to reposition Plaintiff every two hours, which caused her tissue damage and extreme pain and suffering:

The allegations that the Hospital’s regulatory violations constituted elder abuse add more to the story, however. Among other regulations, the FAC alleged the Hospital violated California Code of Regulations, title 22, section 71225, subdivision (c), requiring “[a] sufficient number of appropriate personnel [to] be provided for the safety of the patients” in an acute psychiatric hospital. The Fenimores’ opening brief also points to another staffing regulation, California Code of Regulations, title 22, section 71215, subdivision (c)(2), which mandates “[s]ufficient registered nursing personnel” to provide “direct nursing care based on patient need.”

The regulations applicable to acute psychiatric hospitals “define those facilities’ duties of care owed to their residents and therefore define duties of care applicable to elder abuse of those residents.” (Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1244 [132 Cal. Rptr. 2d 765] (Norman).) Thus, proof that a facility violated a regulation may constitute “‘[t]he negligent failure of any person having the care or custody of an elder … to exercise that degree of care that a reasonable person in a like position would exercise.’” (Id. at p. 1243, quoting § 15610.57, subd. (a)(1); see Norman, supra, at p. 1246.) In Norman and Conservatorship of Gregory (2000) 80 Cal.App.4th 514 [95 Cal. Rptr. 2d 336] (Gregory), regulations applicable to skilled nursing facilities provided the duty of care by which the jury could judge neglect. (Norman, supra, at p. 1246 [“[A] violation by LifeCare of those regulations in caring for an elder constitutes elder abuse neglect under the Act”]; Gregory, supra, at pp. 522–523.) In Gregory in particular, the court rejected the defendants’ challenge to a jury instruction based on staffing and other regulations, which the defendants alleged were too vague to provide meaningful guidance to the jury. The court held the jury could ascertain the regulations’ meaning because the jury heard testimony describing how nursing homes construed and applied the standards regarding sufficient staff. (Gregory, at p. 524.) Like in Norman and Gregory, a violation of staffing regulations here may provide a basis for finding neglect. Such a violation might constitute a negligent failure to exercise the care that a similarly situated reasonable person would exercise, or it might constitute a failure to protect from health and safety hazards (George’s known fall risk). The former is the definition of neglect under the Act, and the latter is just one nonexclusive example of neglect under the Act. (§ 15610.57, subds. (a), (b)(3).)

Of course, the Fenimores still had to allege facts showing the Hospital acted recklessly, oppressively, fraudulently, or maliciously in the commission of neglect. (§ 15657.) The FAC supplied allegations that may show recklessness. It alleged the Hospital had a pattern and knowing practice of improperly understaffing to cut costs, and had the Hospital been staffed sufficiently, George would have been properly supervised and would not have suffered injury. On a demurrer, we must accept the allegations as true and express no opinion on whether the Fenimores can ultimately prove these allegations. We must assume the Fenimores can prove by clear and convincing evidence that the Hospital was understaffed at the time George fell, that this understaffing caused George to fall or otherwise harmed him, and that this understaffing was part of a pattern and practice. If they do so, we cannot say as a matter of law that the Hospital should escape liability for reckless neglect. The trier of fact should decide whether a knowing pattern and practice of understaffing in violation of applicable regulations amounts to recklessness.

Sababin is instructive. In that case, the court found a triable issue of fact on recklessness when the defendant rehabilitation center had established but failed to follow a care plan of monitoring a patient’s skin daily and reporting changes to a physician for treatment orders. (Sababin, supra, 144 Cal.App.4th at pp. 89–90.) The rehabilitation center had cared for the patient continuously for approximately three years when she was admitted to an emergency room and severe skin conditions were discovered. (Id. at p. 85.) The pertinent neglected care plan had been in place for approximately three months when the severe conditions were discovered. (Id. at pp. 85, 89.) The rehabilitation center had no skin condition reports on the patient, and no one at the center had notified her physician of the need for a treatment order. The court held the trier of fact could infer reckless failure to provide medical care from this “significant pattern” of ignoring the care plan: “[I]f a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” (Id. at p. 90.) Put otherwise, recklessness may be inferred when the neglect recurs in a significant pattern.

By way of analogy, here, if a jury were to find the Hospital knew of the staffing regulations, violated them, and had a significant pattern of doing so, it could infer recklessness, i.e., a “‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’” (Delaney, supra, 20 Cal.4th at pp. 31–32.) We decline to hold as a matter of law that such conduct does not constitute recklessness.

The trial court relied on Worsham to hold the understaffing allegations did not amount to reckless neglect under the Act, but we do not find Worsham controlling. In that case, the elder suffered a fall while recovering from hip surgery at a hospital’s rehabilitative care unit. (Worsham, supra, 226 Cal.App.4th at p. 334.) The plaintiff alleged the hospital knew the elder was a fall risk; the hospital was “chronically understaffed” and undertrained the staff it did have; and the lack of sufficiently well-trained staff caused the decedent’s fall. (Id. at pp. 334, 338.) The trial court sustained the hospital’s demurrer to the operative complaint, holding that, although the plaintiff alleged the hospital acted recklessly by deliberately understaffing and undertraining, he had not sufficiently supported the allegations with particular facts. (Id. at p. 335.) The appellate court affirmed and held the allegations of failure to provide adequate staffing constituted nothing more than “negligence in the undertaking of medical services, not a ‘fundamental “[f]ailure to provide medical care for physical and mental health needs.”’” (Id. at p. 338, quoting Delaney, supra, 20 Cal.4th at p. 34.)

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 [*1351] 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.

. . .

In sum, the FAC stated at least one viable theory of elder abuse based on recklessness. Because the court should not sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory (Aubry, supra, 2 Cal.4th at p. 967), and it may not sustain a demurrer to only a part of a cause of action (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [134 Cal. Rptr. 2d 260]), the court should enter a new order overruling the demurrer to the elder abuse cause of action.

Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1348-51(bold emphasis added).

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

Motion To Strike

This motion to strike was filed and served on January 22, 2018. Effective January 1, 2018, there is a meet and confer requirement for motions to strike. CCP § 435.5. Defendant did not submit a meet and confer declaration, as required by CCP § 435.5(a)(3). The Declaration of Karine Mkrtchyan submitted in support of the demurrer does not reflect that a meet and confer regarding the motion to strike occurred.

Accordingly, the hearing on the motion to strike is CONTINUED to March 22, 2018. The parties are ordered to meet and confer in light of the Court’s ruling on the demurrer above. Defendant is to file a meet and confer declaration by March 9, 2018 indicating whether or not the parties were able to resolve the issues presented in the motion to strike.

Plaintiff give notice, unless waived.

IT IS SO ORDERED.

Dated: February 22, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court