Case Name: Walter Newman, Jr. v. Manor Care of Sunnyvale CA, LLC, et al.
Case No.: 18CV330047

This is an action primarily for negligence and elder abuse brought by Plaintiff Walter Newman Jr. (“Plaintiff”) against Defendants Manor Care of Sunnyvale CA LLC (“Manor Care”), HCP Properties, LP, and various Does. The Complaint filed June 14, 2018 states three causes of action: (1) Negligence; (2) Elder Abuse, and; (3) Violation of Patients’ Bill of Rights (misidentified as “Willful Misconduct” on the Complaint’s caption page). All of Plaintiff’s claims appear to arise from medical care he received beginning in June 2017 (See Complaint at ¶11.) A stipulation by Plaintiff and Manor Care to remove (without prejudice) paragraph 4 of the Complaint’s prayer (seeking “punitive damages as provided by law”) was filed on August 30, 2018. Currently before the Court is a demurrer to all three causes of action by Defendant Manor Care on the ground that they each fail to state sufficient facts. (See Notice of Demurrer and Demurrer at p. 2:4-13.)

The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

First Cause of Action (Negligence)
Defendant Manor Care’s demurrer to the first cause of action for negligence on the ground that it fails to state sufficient facts is SUSTAINED with 10 days’ leave to amend.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; see also CACI, No. 400.) The existence and scope of an alleged duty of care are questions of law to be determined by the Court on a case-by-case basis. (Liaco v. Chevron U.S.A., Inc. (2004) 123 Cal App 4th 649, 659.)

As noted above the Court in ruling on a demurrer does not accept as true “contentions, deductions or conclusions of act or law.” The allegations in the first cause of action that unidentified defendants, “did negligently care for [Plaintiff] in the manner herein alleged,” “failed to exercise that degree of skill and care commonly required of the providers of care services,” and “did not hire competent employees and did not provide adequate training to those employees,” (Complaint at ¶¶ 13-14) amount to legal conclusions that do not state sufficient facts to assert a claim for general negligence against Manor Care (or anyone else). Also, as Manor Care points out, the Complaint fails to allege that the only alleged injury, Plaintiff’s fall from a bed (Complaint at ¶12) was proximately caused by a breach of a duty of care owed by any identified defendant.

As this is a challenge to the original pleading in this matter 10 days’ leave to amend is GRANTED despite the opposition’s failure to address how the claim could be amended to state sufficient facts. (See Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112 fn. 8 [“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”] See also Drum v. San Fernando Valley Bar Ass’n. (2010) 182 Cal.App.4th 247, 253 [citing Medina].)

Second Cause of Action (Elder Abuse)
Defendant Manor Care’s demurrer to the second cause of action for elder abuse on the ground that it fails to state sufficient facts is SUSTAINED with 10 days’ leave to amend.

The second cause of action alleges in pertinent part (Complaint at ¶20) that “[t]he above-mentioned acts of defendants in failing to provide adequate care for [Plaintiff],” which can only be reasonably interpreted as referring to the first cause of action for negligence, “constituted ‘abuse,’ ‘neglect,’ and/or ‘abandonment’ within the meaning of California Welfare & Institutions Code § 15610 et seq., and caused physical pain and/or mental suffering and/or deprived [Plaintiff] of the services that were necessary to avoid physical harm or mental suffering.” Even if the first cause of action for negligence was adequately pled against identified defendants, incorporating it by reference could not support an elder abuse claim as general negligence, medical negligence and elder abuse based on neglect are clearly distinct under California law.

The Elder Abuse Act is codified in Welfare & Institutions (“W&I”) Code §15600 et seq. The purpose of the Act is “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) To encourage private enforcement of the law, the Act affords heightened remedies, including damages for a decedent’s pain and suffering, attorneys’ fees and costs, and punitive damages. (W&I Code §15657; Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 779-780.) To state a claim for elder abuse, a plaintiff must plead facts showing: l) the defendant has subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and 2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (W&I Code §15657.) As a statutory claim, the elements must be pled with particularity. (See Covenant Care, Inc. v. Superior Court, supra at 790; Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396.)

The second cause of action is apparently based on a theory of neglect as no intentional physical abuse or financial abuse is alleged. “Neglect” is specifically defined in W&I Code §15610.57(a) as either 1) the negligent failure of a person having the care of an elder adult to exercise that degree of care that a reasonable person in that position would exercise or 2) the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in that position would exercise. Section 15610.57(b) states that neglect under the statute includes “but is not limited to,” 1) failure to assist in personal hygiene or the provision of food, clothing or shelter; 2) failure to provide medical care for physical and mental health needs; 3) Failure to protect from health and safety hazards; 4) failure to prevent malnutrition or dehydration, and; 5) Failure of an elder or dependent adult to satisfy the needs specified in 1-4 for himself/herself because of poor cognitive functioning, etc.

The acts proscribed by the statute do not include acts of simple professional negligence, but rather refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. (Delaney, supra, 20 Cal.4th at p. 32.) As explained in Delaney, “neglect…appears to cover an area of misconduct distinct from `professional negligence’…’Neglect’…does not refer to the performance of medical services in a manner inferior to `“the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing”’, 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.” (Id. at p. 34, internal citations omitted.)

The Supreme Court in Delaney further explained that: “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence: he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or `conscious’ wrongdoing of a `despicable’ or ‘injurious’ nature. “Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than `inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a `conscious choice of a course of action…with knowledge of the serious danger to others involved in it.’” (Id. at pp. 31-32.)

Reckless neglect for purposes of the Elder Abuse Act is therefore not mere negligence in the undertaking of medical services, but rather, consists of the more fundamental failure to provide medical care. (Delaney, supra, 20 Cal.4th at p. 34.) Reckless neglect includes only “‘acts of egregious abuse’”, not the merely substandard performance of medical services. (Id. at p. 35; See also Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 785 [confirming that the high standard under the Act protects health care providers from liability under the statute “for acts of simple or even gross negligence.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 [“To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder.”]; Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336 [statutory definition of “neglect” refers to failure to provide medical care, not the negligent undertaking of medical services. Elder Abuse Act does not apply to simple or gross negligence.]) Allegations of inadequate staffing do not by themselves support an elder abuse claim. (See Worsham, supra at 338, quoting Delaney at 34 [allegations of failing to provide adequate staffing “if true, demonstrate [Defendant’s] negligence in the undertaking of medical services, not a ‘fundamental ‘failure to provide medical care for physical and mental health needs.’’] Emphasis in original.)

The strict separation between professional negligence and simple or gross negligence on the one hand, and claims for elder abuse based on neglect on the other has been reiterated by the Supreme Court fairly recently. “What seems beyond doubt is that the Legislature enacted a scheme distinguishing between—and decidedly not lumping together—claims of professional negligence and neglect. . . . Blurring the distinction between neglect under the Act and conduct actionable under ordinary tort remedies—even in the absence of a care or custody relationship—risks undermining the Act’s central premise. Accordingly, plaintiffs alleging professional negligence may seek certain tort remedies, though not the heightened remedies available under the Elder Abuse Act.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 159-160 [internal citations omitted].)

Finally, pursuant to W&I Code §15657(c), the standards set forth in Civil Code §3294(b) must be satisfied before any damages or attorney’s fees may be imposed against an employer for elder abuse. The boilerplate allegation in the Complaint at ¶8 that Plaintiff is informed and believes “and on the basis of that information alleges, that defendants’ conduct, and each of them, was carried out by a managing agent, or by an officer or director of defendants” does not satisfy this requirement.

Third Cause of Action (Violation of Patients’ Bill of Rights)
Manor Care’s demurrer to the third cause of action on the ground that it fails to state sufficient facts is SUSTAINED with 10 days’ leave to amend.

The third cause of action alleges that unidentified Defendants, “through their conduct, have violated the enumerated rights of 22 CCR §72527, including but not limited to,” five rights listed without any facts referencing Plaintiff or any identified Defendants. (Complaint at § 26.)

Health and Safety Code § 1430(b) authorizes “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 Patients’ Bill of Rights establishes rights to, among other things, informed participation in healthcare decisions and maintenance of complete and accurate healthcare records (Lemaire v. Covenant Care California, LLC (2015) 234 Cal.App.4th 860, 864-65) as well as freedom from mental and physical abuse (Cal. Code Regs., tit. 22, § 72527, subd. (a)(10)). A civil action brought under § 1430(b) is, like an elder abuse claim, a statutory cause of action and must be pled with particularity.

Here the Complaint at ¶ 27 simply alleges that the unidentified Defendants breaches of their duties of care “as alleged above were intentional and show reckless disregard for the possibility that severe injury would result . . .” As none of the prior causes of action currently state sufficient facts, incorporating them by reference does not support the third cause of action (and would not satisfy the pleading standard for statutory claims in any event). Nor does the listing of allegedly violated rights without any factual details in the Complaint at ¶ 26 state sufficient facts to support a cause of action.